B. Necessity of probate De Borja v De Borja, 46 SCRA 577 FIRST DIVISION [G.R. No. L-28040. August 18, 1972.

] TESTATE ESTATE OF JOSEFA TANGCO JOSE DE BORJA, administratorappellee, JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees, vs. TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja, appellant. [G.R. No. L-28568.] TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee, vs. JOSE DE BORJA, oppositor-appellant. [G.R. No. L-28611.] TASIANA O. VDA. DE DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja, plaintiff-appellee, vs. JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-appellant. Pelaez, Jalandoni & Jamir for administrator-appellee. Quiogue & Quiogue for appellee Matilde de Borja. Andres Matias for appellee Cayetano de Borja. Sevilla & Aquino for appellant. Sevilla & Aquino for special administratrix-appellee. Pelaez, Jalandoni & Jamir for oppositor-appellant. Sevilla & Aquino for plaintiff-appellee. Pelaez, Jalandoni & Jamir and David Guevara for defendant-appellant. SYLLABUS 1. CIVIL LAW; WILLS AND SUCCESSION; HEREDITARY SHARE IN ESTATE VESTS FROM THE MOMENT OF DEATH OF DECEDENT; SHARE IMMEDIATELY DISPOSABLE. The hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of the causante or predecessor in interest (Civil Code of the Philippines, Art. 777, [3], and there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. The effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir, but the aleatory character of the contract does not affect the validity of the transaction. 2. ID.; ID.: PRESENTATION OF WILL FOR PROBATE NOT NEEDED IN CONVEYANCE BY HEIR OF HER SHARE. The doctrine enunciated in

Guevara vs. Guevara (74 Phil. 749) which states that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will is against the law and public policy, is not applicable to the cases at bar where there was no attempt to settle or distribute the estate of Francisco De Borja among the heirs thereto before the probate of his will, the clear object of the compromise contract between Jose de Borja and Tasiana Ongsingco Vda. de Borja being merely the conveyance by the latter of any and all her individual share and interest, actual or eventual, in the estates of Francisco de Borja and Josefa Tangco. 3. ID.; ID.; ID.; COMPROMISE CONTRACT BINDING ON PARTIES EVEN IF WITHOUT PROBATE COURT APPROVAL. Since the compromise contract was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja," it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the court to enter into the same. 4. ID.; ID.; ID.; ID.; DIFFERENCE BETWEEN EXTRAJUDICIAL COMPROMISE AND ONE APPROVED BY THE COURT. The only difference between an extrajudicial compromise and one that is submitted and approved by the court, is that the latter can be enforced by execution proceedings. 5. ID.; ID.; ID.; ID., EFFECT OF CONTRACT ON PERSON NOT PARTY THERETO, INSTANT CASE. The resolutory period of 60 days, allegedly intended to limit the effectiveness of the compromise agreement between Tasiana Ongsingco and Jose de Borja, but which was embodied in another agreement between Ongsingco and the brothers and sisters of De Borja, does not have any validity as far as De Borja is concerned since De Borja was not a party to the second agreement. 6. ID.; ID.; SUCCESSIONAL INTEREST OF COMPULSORY HEIR EXISTS INDEPENDENT OF WILL OF TESTATOR, OR PROBATE THEREOF. The prerequisite of a previous probate of a will established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja who, as the surviving spouse of Francisco de Borja was his compulsory heir under articles 995 et. seq. of the present Civil Code and, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament and would exist even if such will were not probated at all. 7. ID.; ID.; HEREDITARY SHARE CAN BE SOLD TO A CO-HEIR. The owner of the undivided hereditary share could dispose of it in favor of whomsoever such owner chose. Such alienation is expressly recognized and provided for by

article 1088 of the present Civil Code: "Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor." If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden. 8. ID.: CONTRACTS; INABILITY TO REACH NOVATORY ACCORD DOES NOT INVALIDATE ORIGINALLY VALID CONTRACT. The inability to reach a novatory accord can not invalidate the original compromise agreement entered into by the parties and justifies the act of one of the parties in finally seeking a court order for its approval and enforcement. 9. ID., PERSONS AND FAMILY RELATIONS; CONJUGAL PARTNERSHIP PROPERTY; PRESUMPTION OF CONJUGAL CHARACTER OF PROPERTY CONFIRMED IN INSTANT CASE. The legal presumption in favor of the conjugal character of the Hacienda de Jalajala concededly acquired by Francisco de Borja during his marriage to his first wife, cannot be rebutted by testimony which is plain hearsay having a clearly discernible ring of artificiality and a statement which is plainly self-serving and which is not admissible in the absence of cross-examination. Such legal presumption has actually been confirmed by the clear admissions against the pecuniary interest of the declarants Francisco de Borja and his executor-widow Tasiana Ongsingco consisting of solemn admissions by the former in the Reamended Inventory and Reamended Accounting in Special Proceedings No. 7866 of the CFI of Rizal and the latter's inventory submitted in court listing the Jalajala property as "Conjugal properties of the Spouses Francisco de Borja and Josefa Tangco." 10. SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATES; FLUCTUATION IN VALUE OF CURRENCY DOES NOT WARRANT REVALUATION OF PROPERTIES OF ESTATE. The decision that "estates, would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate," is particularly apposite in the present case where Tasiana Ongsingco pleads that the time elapsed in the appeal has affected her unfavorably because, while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. The fact is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement she had formally entered into with the advice of her counsel. DECISION REYES, J.B.L., J p: Of these case, the first, numbered L-28040 is an appeal by Tasiana Ongsico Vda. de de Borja, special administratrix of the testate estate of Francisco de Borja, 1

from the approval of a compromise agreement by the Court of First Instance of Rizal, Branch I. In its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja, Administrator." Case No. L-28568 is an appeal by administrator Jose de Borja from the disapproval of the same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special Administratrix". And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate, which is under administration in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II. It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed coadministrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate estate of his mother, Jose Tangco While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The validity of Tasiana's marriage to Francisco was questioned in said proceeding. The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into on 12 October 1963, 2 by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr." The terms and conditions of the compromise agreement are as follows: "A G R E E M E N T THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco, AND The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr. WITNESSETH THAT it is the mutual desire of all the parties herein to terminate and settle, with finality, the various court litigations, controversies, claims, counterclaims, etc., between them in connection with the administration, settlement, partition, adjudication and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja. THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to enter into and execute this agreement under the following terms and conditions: 1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala, Rizal, presently under administration in the Testate Estate of Josefa Tangco (SP. Proc. No. 7866, Rizal), more specifically described as follows: 'Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con la Laguna de Bay; por el Sur con los herederos de Marcelo de Borja; y por el Este con los terrenos de la Familia Maronilla' with a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter. 2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000) Philippine Currency, in cash, which represent P200,000 as his share in the payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano, and Matilde, all surnamed de Borja and this shall be considered as full and complete payment and settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise. The funds for this payment shall be taken from and shall depend upon the receipt of full payment of the proceeds of the sale of Jalajala, 'Poblacion.' 3. That Tasiana Ongsinco Vda. de de Borja hereby assumes payment of that particular obligation incurred by the late Francisco de Borja in favor of the Rehabilitation Finance Corporation, now Development Bank of the Philippines, amounting to approximately P30,000.00 and also assumes payment of her 1/5

share of the Estate and Inheritance taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less, which shall be deducted by the buyer of Jalajala, 'Poblacion' from the payment to be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid directly to the Development Bank of the Philippines and the heirs-children of Francisco de Borja. 4. Thereafter, the buyer of Jalajala 'Poblacion' is hereby authorized to pay directly Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury warrant, who, in turn, will issue the corresponding receipt to Jose de Borja. 5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors, executors, administrators, and assigns, hereby forever mutually renounce, withdraw, waive, remise, release and discharge any and all manner of action or actions, cause or causes of action, suits, debts, sum or sums of money, accounts, damages, claims and demands whatsoever, in law or in equity, which they ever had, or now have or may have against each other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No 832-Nueva Ecija, Civil Case No. 3033, CFI-Nueva Ecija and Civil Case No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to completely, absolutely and finally release each other, their heirs, successors, and assigns, from any and all liability, arising wholly or partially, directly or indirectly, from the administration, settlement, and distribution of the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in the estate of Francisco de Borja. 6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and documents belonging to Francisco de Borja which are in her possession and said heir Jose de Borja shall issue in turn the corresponding receipt thereof. 7. That this agreement shall take effect only upon the fulfillment of the sale of the properties mentioned under paragraph 1 of this agreement and upon receipt of the total and full payment of the proceeds of the sale of the Jalajala property 'Poblacion', otherwise, the non-fulfillment of the said sale will render this instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands in the City of Manila, Philippines, this 12th of October, 1963."

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija. The genuineness and due execution of the compromise agreement of 12 October 1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect. In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives . . ." The will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement. Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have already divided the estate in accordance with a decedent's will, the probate of the will is a useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco "shall be considered as full complete payment settlement of her hereditary share in the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, . . . and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise." This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual, in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or legatee And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits. It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament, and would exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja. Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de

Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same The only difference between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point: Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall be no execution except in compliance with a judicial compromise. It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for its performance, the same was intended to have a resolutory period of 60 days for its effectiveness. In support of such contention, it is averred that such a limit was expressly stipulated in an agreement in similar terms entered into by said Ongsingco with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39-46) and which contained the following clause: "III. That this agreement shall take effect only upon the consummation of the sale of the property mentioned herein and upon receipt of the total and full payment of the proceeds of the sale by the herein owner heirs-children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided that if no sale of the said property mentioned herein is consummated, or the non-receipt of the purchase price thereof by the said owners within the period of sixty (60) days from the date hereof, this agreement will become null and void and of no further effect." Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract (Annex 1), and that the same appears not to have been finalized, since it bears no date, the day being left blank "this day of October 1963"; and while signed by the parties, it was not notarized, although plainly intended to be so done, since it carries a proposed notarial ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore transcribed that of the total consideration of P800,000 to be paid to Ongsingco, P600,000 represent the "pro rata share of the heirs Crisanto, Cayetano and Matilde, all surnamed de Borja" which corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is proof that the duly notarized contract entered into with Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede the separate unformalized agreement with the other three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is

moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made within sixty days from the date of the agreement with Jose de Borja's coheirs (Annex 1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold until authorized by the Probate Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a term of 120 days counted from the finality of the order now under appeal, for the carrying out by the parties of the terms of the contract. This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose Such alienation is expressly recognized and provided for by article 1088 of the present Civil Code: Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale of the vendor." If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden. Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights. It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that the compromise

agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable settlement had been arrived at by the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable settlement "had failed to materialize". It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. L-28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal. We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed. In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency, what We said in Dizon Rivera

vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the present case. Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa Tangco The Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the presumption in favor of its conjugal character established by Article 160 of the Civil Code. We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and academic, in view of the conclusion reached by this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims between the parties. But as the question may affect the rights of possible creditors and legatees, its resolution is still imperative. It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja, and their title thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja, 101 Phil. 911, 932). The lot allotted to Francisco was described as "Una Parcela de terreno en Poblacion, jalajala: N. Puang Rier; E. Hermogena Romero; S. Heirs of Marcelo de Borja, O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at P297,410." (Record on Appeal, pages 7 and 105) On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to the

presumption established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that: "Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife." Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for attorney's fees. After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient evidence to rebut the presumption, and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to this Court. The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco de Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No 7866 of the Court of First Instance of Rizal" (Exhibit "4"). Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal community, the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late Francisco de Borja. It did so on the strength of the following evidences: (a) the sworn statement by Francisco de Borja on 6 August 1951 (Exhibit "F") that

"He tomado posesion del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal)." and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000.00 by Marcelo de Borja; that upon receipt of a subsequent demand from the provincial treasurer for realty taxes in the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issued a check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's contribution in the purchase of the Hacienda. The witness further testified that "Marcelo de Borja said that money was entrusted to him by Francisco de Borja when he was still a bachelor and which he derived from his business transactions." (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis supplied) The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories relied upon by defendant-appellant Jose de Borja, since probate courts can not finally determine questions of ownership of inventoried property, but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the original Hacienda with his own private funds, for which reason that share can not be regarded as conjugal partnership property, but as exclusive property of the buyer, pursuant to Article L-1396 (4) of the Civil Code of 1889 and Article 148 (4) of the Civil Code of the Philippines. "The following shall be the exclusive property of each spouse: xxx xxx xxx "(4) That which is purchased with exclusive money of the wife or of the husband." We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to the source of the money paid by Francisco for his share was plain hearsay, hence inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is improbable, since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's testimony. As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal)" refers precisely to the Hacienda in question. The

inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly self-serving, and not admissible in the absence of cross examination. It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are not conclusive on the conjugal character of the property in question; but as already noted, they are clear admissions against the pecuniary interest of the declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such of much greater probative weight than the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco. No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the corresponding special proceedings for the settlement of the estates of the deceased, the same requires no pronouncement from this Court. IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases. Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur. Fernando, J., did not take part. C. Modes of probate Guevara v Guevara, December 29, 1943 FIRST DIVISION [G.R. No. 48840. December 29, 1943.] ERNESTO M. GUEVARA, petitioner-appellant, vs. ROSARIO GUEVARA and her husband PEDRO BUISON, respondents-appellees. Primicias, Abad, Mencias & Castillo for appellant. Pedro C. Quinto for appellees. SYLLABUS 1. WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF ESTATE ON BASIS OF INTESTACY WHEN DECEDENT

LEFT A WILL, AGAINST THE LAW. 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. 2. ID.; ID.; ID. 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 of 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 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 reivindicacion or partition. 3. TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION BETWEEN LEGATEES. It results that the interested parties consented to the registration of the land in question in the name of E. M. G. 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. DECISION OZAETA, J p: Ernesto M. Guevara and Rosario Guevara, legitimate 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 legitime 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. Guevara 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 Pio 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 usufructuary right. 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 defray his expenses and those of his family up to the time of his death. The remander of said parcel of land he 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

veinticinco (25) centiareas, 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. Guevara executed a deed of sale (exhibit 2) in favor of Ernesto M. Guevara 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, in consideration 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 dueo 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. Guevara 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 testator'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 Victorino 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 testator, or within thirty days after he knows that he is named executor, if he obtained such knowledge after knowing of the death of the testator, 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 preceding 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 a 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 prison 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, inconvenience, 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 ( Leao vs. Leao, 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 letters 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 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. 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 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, 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 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 reivindicacion 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 Leao vs. Leao (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 Leao, 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 Da. 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 Leao case, by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avancea, held: "1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who died 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 or 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 title 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 debts 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. Separate Opinions BOCOBO, J., concurring: I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by section 1 of Rule 74 only "if the decedent left no debts." In this case, according to the findings of the Court of Appeals, Ernesto M. Guevara "has been paying the debts left by his father." It is true that said Ernesto M. Guevara, in consideration of the conveyance to him of the southern half of the hacienda, assumed all the debts of the deceased, but this agreement is binding only upon the parties to the contract but not upon the creditors who did not consent thereto. (Art.

1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is not applicable. MORAN, J., concurring in part and dissenting in part: I would be agreeable to the majority decision but for a statement therein made which in my view repeals by an erroneous interpretation the provisions of Rule 74, section 1, of the Rules of Court, which reads as follows: "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." The majority holds that under this provision, the heirs and legatees, even if all of them are of age, and there are no debts to be paid, cannot make an extrajudicial settlement of the estate left by the decedent without first submitting in court for probate the will left by the testator. This erroneous interpretation clearly overlooks not only the letter and the spirit but more specially the whole background of the provision. It is admitted that the provision has been taken from section 596 of Act No. 190 but with a modification consisting in that it is made to apply in testate succession. Said section 596 reads: "SETTLEMENT OF CERTAIN INTESTATE ESTATES 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." It must be observed that the procedure contemplated in this legal provision is completely extrajudicial and the same procedure intended in section 1 of Rule 74 above quoted which is captioned "Extrajudicial Settlement by Agreement . . ." Justice Laurel, who was one of the members of this Court when the new Rules were promulgated, in commenting upon Rule 74, said: "RULE 74. SUMMARY SETTLEMENT OF ESTATES. The corresponding provisions in the Code of Civil Procedure are sections 596-598. There is substantial analogy between the provisions of the Code of Civil Procedure and those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be

extrajudicial settlement whether a person died testate or intestate, while under section 596 of the Code of Civil Procedure extrajudicial settlement can be had only when a person died intestate. (2) Under Rule 74, section 1, extrajudicial settlement may take place 'if the decedent left no debts,' while under section 596 of the Code of Civil Procedure it may take place 'when there are no debts due from the estate, or all the debts have been paid.' (3) Under section 596 of the Code of Civil Procedure, extrajudicial settlement may take place when all the heirs are of lawful age and legal capacity, while under section 1 of Rule 74 it may take place when 'the heirs and legatees are all of legal age, or the minors are represented by their judicial guardians'. (4) Unlike the Code of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial agreement to be filed in the office of the register of deeds; provides that should the heirs disagree, 'they may do so in an ordinary action of partition', and that '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', and that '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.' " [(Italics mine); Laurel, Procedural Reform in the Philippines, pp. 137-138]. The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of the estate without judicial proceeding. In other words, even in cases of testate succession, the heirs and legatees, when they are all of age or are represented by their judicial guardians, and there are no debts to be paid, are allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute among themselves the estate left by the decedent and need not go to court even for the probate of the will. Unless legal terms mean nothing, this is clearly what is meant in said provision by the words "extrajudicial settlement" and by the clause ". . . the parties may, without securing letters of administration, divide the estate among themselves as they see fit" . . . When judicial administration is made unnecessary by the provision, the inevitable implication is that the probate of the will is also unnecessary, the probate having no other object than administration for purposes of distribution according to the provisions of the will. That is why section 4 of Rule 78 provides: "ESTATE, HOW ADMINISTERED. When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country."

If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then, I repeat, the probate of the will being purposeless, becomes unnecessary. If the parties have already divided the estate in accordance with the will, the probate of the will is a useless ceremony. If they have divided the estate in a different manner, the probate of the will is worse than useless; it is ridiculous. The following words of this Court in a previous case may well be here reiterated: "These sections provide for the voluntary division of the whole property of the decedent without proceedings in court. The provisions which they contain are extremely important. The wisdom which underlies them is apparent. It is the undisputed policy of every people which maintains the principle of private ownership of property that he who owns a thing shall not be deprived of its possession or use except for the most urgent and imperative reasons and then only so long as is necessary to make the rights which underlie those reasons effective. It is a principle of universal acceptance which declares that one has the instant right to occupy and use that which he owns, and it is only in the presence of reasons of the strongest and most urgent nature that that principle is prevented from accomplishing the purpose which underlies it. The force which gave birth to this stern and imperious principle is the same force which destroyed the feudal despotism and created the democracy of private owners. "These provisions should, therefore, be given the most liberal construction so that the intent of the framers may be fully carried out. They should not be straitened or narrowed but should rather be given that wideness and fullness of application without which they cannot produce their most beneficial effects. ". . . The purpose which underlies them, as we have already intimated, is to put into one's hands the property which belongs to him not only at the earliest possible moment but also with the least possible expense. By permitting the partition and division without proceedings in court no time is lost and substantially all expense and waste are saved. This is as it should be. The State fails wretchedly in its duty to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such division." . . . (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220). Indeed, there can be no valid reason why the probate of a will may not be dispensed with by agreement of all the parties interested and the estate left by the decedent settled extrajudicially among all the heirs and legatees, as is now provided in section 1 of Rule 74. It is well recognized that the allowance of a will gives conclusiveness merely to its due execution, but not to the intrinsic validity of its provisions which are governed by the substantive law regarding descent and distribution. If so, why cannot all the parties interested agree, without going to court, that the will of the decedent is in form valid (this being the only point to be

litigated in a probate proceeding), and that they will divide the inheritance in the manner acceptable to them? The procedure would not be against public policy or the law placing in the hands of the courts the probate of wills, because what the courts are enjoined to do for the benefit of the parties, the latter have already done. As long as the extrajudicial partition of the estate does not affect the rights of third parties and is not rendered invalid by any provision of the substantive law, no possible objection can be raised thereto. On practical considerations, it would be useless to force the parties, at their expense, to go thru the formality of probating a will and dividing the estate in accordance therewith, because as soon as the routine is over, they are of course free to make such transfers to one another as will be necessary to effect a partition which they would have made if they were allowed to settle the estate extrajudicially. It is true that there are provisions in the Rules of Court compelling the delivery of a will to the competent court and punishing omissions to do so, but said provisions are calculated to protect the interests of the persons entitled to share in the inheritance. The latter may waive such benefit. This waiver cannot be said to be a withdrawal or diminution of the jurisdiction of the court, since it only implies a desire of the parties not to litigate. The fear that "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", is wisely provided against in the requirement of the Rule that all the parties interested and all the beneficiaries under the will should be parties to the extrajudicial settlement. The participation of all the interested parties excludes the probability of fraud or collusion and, even in that eventuality, the aggrieved beneficiaries are not without adequate remedy for the voidance of the partition under the Civil Code. And this is in accordance with the weight of authority in this and other jurisdictions. In Leao vs. Leao (25 Phil., 180), all the heirs and legatees have made an extrajudicial partition of the estate left by the decedent and then filed the will in court which was probated. Nine years of costly probate proceedings have followed after which the extrajudicial partition was made known to court. Such extrajudicial partition was objected to by one party upon the ground that it was not in conformity with the provisions of the will. But the trial Court held: "Naturally the partition made by the heirs voluntarily and spontaneously must produce and has produced a legal status, which cannot be annulled merely for the caprice of one person. And it cannot be said that, because the partition was not made in accordance with the will, if such be the case, the latter has to be annulled, for by voluntarily and spontaneously concurring therein they implicitly renounced the effects of said will, of which they were aware." (See p. 183). On appeal, this Court affirmed the ruling with the following pronouncement:

"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 his conclusion. If the heirs and legatees had voluntarily divided the estate among themselves, then their division is conclusive, unless and until it is shown that there were debts existing against the estate which had not been paid. No claim is made whatever by third parties nor objections of any character are made by others than the heirs against said partition. We see no reason why the heirs and legatees should not be bound by their voluntary acts." (Pages 183-184). This case furnishes precisely a valuable experience as to the practical wisdom underlying the procedure established in section 1 of Rule 74. After the will was probated and after nine years of costly administration proceedings, nothing absolutely nothing was accomplished by the court except to make the belated pronouncement that the extrajudicial partition made by the parties prior to the institution of the proceedings was proper and binding upon them. Thus, the whole proceedings for nine years have proved no more than a futile chronicle of wasted time and money for the parties and the court. This disgraceful experience could not and did not pass unnoticed to the members of this Court who drafted the new Rules of Court. The solemn admonition made by this Court in a previous case (McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in its duty to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such division", rang with re-echoing insistence and was heeded to when the new Rules of Court was drafted and promulgated. The fundamental policy pervading the whole system of procedure adopted in said Rules is speed, economy and justice. Thus, features of procedure were done away with when, without them, the same purpose may be achieved. The result is brevity and simplicity of procedure with such guarantees as are necessary to assure due process. And to remedy such evil as is disclosed in the Leao case, a completely extrajudicial settlement is allowed even in testate succession with the probate of the will dispensed with, when the heirs and legatees who are all of age or represented by their judicial guardians, so agree, and there are no debts to be paid. Thus, the scope of section 596 of Act No. 190 was amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil. 737). The procedure is in consonance with the almost unanimous weight of authority in other jurisdictions: "The complaint, to which a demurrer was sustained, shows that all the persons interested in a decedent's estate, as widow, heirs, distributees, legatees, or devisees, including the person appointed executrix by the will, and the husbands of femes covert, (all being adults), by agreement divided among themselves all the property

of the estate according to the direction of the will, paid off all debts against the estate, and delivered the note described to the plaintiff, as a part of her share; and all this was done without probate of the will, or administration of the estate. The effect of such a division was to invest the plaintiff with an equitable title to the note. In the absence of the will, the decisions of this court, heretofore made, would meet every argument in favor of an opposite conclusion. (Anderson vs. Anderson, 37 Ala., 683; Marshall vs. Crow, 29 Ala., 278; Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 Ala., 609). Does the presence of an unprobated will, as a feature of this case, take it out of the principle of those decisions? We can perceive no sufficient reason why it should. All the parties interested, or to be affected, may as well by agreement divide property, where there is a will, without employing the agency of courts, as in case of intestacy. Parties, competent to act, ought to do that, without the agency of courts, which the courts would ultimately accomplish. To deny them the privilege of so doing, would manifest a judicial abhorrence of harmony. By the probate of the will, the claims of heirs and distributees, and of the widow, would have been subordinated to the directions of the will. This has been accomplished by agreement. There being no debts, the executrix would have had no other duty to perform, than to divide the property according to the will. This, too, has been done by agreement of competent parties. All the ends and objects of judicial proceedings have been accomplished, by agreement of the parties; and that agreement must be effective." (Carter vs. Owens, 41 Ala., 215; 216-217). "The absence of sound objection on this ground to a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, may be freely conceded. As has often been substantially said, the public generally has no interest in the matter of the probate of a will; and only those interested in the estate under the will or otherwise are affected by such a contract. If they all agree upon some course to be followed, and their contract is otherwise free from contemplated fraud or violation of any law, no one else has any such interest as warrants complaint. Such was the character of contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac., 379, especially relied on by plaintiff here, where the contract purported to affect only such property of the deceased as should in fact be received by the parties thereto. In Estate of Garcelon, 104 Cal., 570; 38 Pac., 414; 32 L. R. A., 595; 43 Am. St. Rep., 134, another case much relied on by plaintiff, a contract by an heir to refrain from contesting a will was involved. It was said that the contract was one that concerned the parties alone, and one that did not appear to be against public policy." (Gugolz vs. Gehrkens, 130 Pac. Rep., 8, 10; 164 Cal., 596).

"The question of public policy is introduced. The disposition of one's property after death is controlled by statute. One of the next of kin has no vested interest in such property. In cases of intestacy, a next of kin has such interest as the statute declares. In case there is a will, he has an interest which gives him a standing and right to contest the will. This right is his alone; in it the public has no interest; he may refrain from exercising it, or he may dispose of it as he wishes, by release or assignment or settlement, and the law of public policy is not of offended." (In re Cook's Will, 217 N. Y. S., 176, 180-181). "Agreement. 'It has been definitely decided by the courts of this state, and of many other states, that the beneficiaries under a will have a right to agree among themselves upon any distribution they see proper of the property bequeathed to them . . . That holding is based upon the proposition that the property is theirs. No one else is interested in its disposition, and they may, with propriety, make any distribution of it that suits them, so long as they do not invade the rights of other parties or infringe some rule of public policy'." (Fore vs. McFadden, 276 N. W., 327; 329). "The first assignment of error presented by appellants complains of the action of the court in sustaining exceptions to averments asking the enforcement of the agreement that the will should not be probated, and that the estate should be divided among the parties as they would be entitled as heirs at law of the deceased, the proponent of the will surrendering thereby his rights as principal legatee. This assignment must be sustained. It cannot be seen that the agreement is contrary to public policy. Parties may make any contract with reference to their property rights that is not illegal, may adjust by compromise their differences and disputes concerning the same and, as they bind themselves, so shall they be bound. It is difficult to understand why this cannot be effected by an agreement not to probate a will, or how it interferes with public policy. The power to litigate and to establish a right by appeal to the courts is as much the subject of contract as any other right in property. Such adjustments by contract are favored by the law and the courts, and are not deemed to be an unwarranted interference with the jurisdiction of the courts, or against public policy. On the contrary, public policy favors them. "Appellants have cited a case in point, the case of Phillips v. Phillips, 8 Watts, 197, in which it is held competent for devisees and legatees to bind themselves by a written or parol agreement to destroy a will before probate, and that a party to the agreement would be estopped from claiming any interest under the will. The court says: 'It cannot admit of doubt that before probate the parties in interest under a will would have the right to set aside a will, and such an act would be favored, when the object was to avert a family controversy'. The agreement that the will should not be probated, and that the parties would take the property as heirs at law of the deceased, destroyed the legal effect of the will; and it could not thereafter

have legal existence in conferring rights upon the legatees." (Stringfellow vs. Early, 40 SW. 871, 873-874; 15 Tex. Civ. App., 597). "The contention that the complaint does not state a cause of action, because the contract sued on is against public policy, and therefore void, is made here for the first time. It is to the interest of the public generally that the right to make contract should not be unduly restricted, and no agreement will be pronounced void, as being against public policy, unless it clearly contravenes that which has been declared by statutory enactment or by judicial decisions to be public policy, or unless the agreement manifestly tends in some way to injure the public. Whether or not a contract in any given case is contrary to public policy is a question of law, to be determined from the circumstances of each particular case. Smith vs. Du Bose, 78 Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L. R. A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Printing Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465. "The contract in controversy is in effect but an agreement whereby the parties thereto, 'because of their love and affection for one another' and 'being desirous of avoiding litigation over the estate' of their father 'in case of his death,' agreed to ignore his will in the event that he made one, and then share his estate equally as if he had died intestate. In other words, the contract was but an agreement of heirs apparent not to contest the will of an ancestor. There is nothing to be found in our code or statutory law prohibiting the making and enforcement of such a contract, and it has been held in this state that a contract, made after the death of the deceased, not to contest his will, is purely personal to the parties making it, that it is not against public policy, and that, when fairly made, it will be enforced." (Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439). "Probate Dispensed With. Probate of a will may be dispened with by an agreement between the persons interested; or it may be dispensed with where the testator, before his death, conveyed to the devisees all the property which he had devised to them, or where the will makes no other disposition of the testator's property than the law would have done had he died intestate, and the rights sought to be established are admitted by all concerned. But where the language of the will expressly invokes the jurisdiction of the probate court the fact that no administration is necessary does not affect the power of the court to probate the will." (68 C. J., pp. 877-878). "Agreement between Persons Interested: a. Requisites and Validity. (1) In General. It has been held that, since the nature of a probate proceeding is one in rem, the parties cannot submit a controversy arising therein to arbitration. The law, however, favors the settlement, in good faith, of will contests, by a so-called 'family settlement', although it changes the mode of disposition of the estate; and,

therefore, subject to the limitation that a contestant cannot compromise anything beyond his own personal interest in the contest, persons, such as devisees, legatee, heirs, or next of kin, having interests in the will or estate, sufficient to entitle them to oppose probate or contest the will, may enter into an agreement which, in the absence of fraud or misrepresentation, is valid and binding on all the parties thereto, whereby they waive probate of the will and bind themselves to abide by its provisions, or whereby they agree that the will is not to be probated or is to be superseded or destroyed; or whereby any controversy relative to the probate or contest of the will is compromised or settled, and a contest is avoided, whether or not there were, in fact, valid grounds for the contest. Such an agreement, in order to be valid, must not exclude anyone entitled under the will, must be entered into by all the persons affected thereby, and all the parties thereto must be competent to make the agreement, and either they or their representative must fully execute it, and, under some statutes, it must be properly approved by the court." ([Italics supplied] 68 C. J., pp. 909-910). "As to Probate. The operation and effect of the agreement may be not to supersede the provisions of the will, but to carry out its provisions without a probate, and under such an agreement the parties are precluded from denying the probate, or insisting on the invalidating of the will for want of probate. So, also, a person who agrees not to contest the will is precluded from opposing probate; or the probate of a will may be dispensed with, and the persons interested in the estate under the will given at least an equitable interest in the property, where they, being under no disability, divide the estate, pursuant to an agreement among themselves. Where the effect of the agreement of all interested parties is to repudiate or renounce the will, it will not be probated, especially where the agreement expressly so provides; but it has been held that, where the executor, defending a torn will, agrees, for a consideration, not to probate it, the court should not refuse probate without notifying other beneficiaries and requiring testimony as to the tearing of the will by the testator. Probate, however, is not prevented by an agreement executed by a part only of the beneficiaries, and the parties to such agreement are not prevented thereby from taking under the will which is probated by another interested person." ([Italics supplied] 68 C. J., pp. 914-915). "Thus, where the parties, being in doubt as to the instrument being construed as a will, and for the purpose of saving a family controversy and for the purpose of dividing the estate, enter into a compromise and settlement agreement, under the terms of which the entire estate is to be, and has in part been, divided, and agree that the instrument shall not be offered for probate, it is sufficient to prevent a probate." (Brown vs. Burk, 26 NW [2d ed.], 415). "Validity of Agreements to Dispense with Probate or to Modify or Set Aside Will. Though in some jurisdictions an agreement to dispense with the probate of a

will has been declared to be against public policy and void, in a majority of the decisions on the point it has been held that all the persons interested in a decedent's estate may by agreement divide the estate among themselves, without probating such decedent's will or administering the estate, and the validity of a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, would seem to be freely conceded. Thus it has been held that all the parties in interest may agree to eliminate from a will a clause providing for survivorship among them. But an agreement to resist the probate of a will and procure it to be set aside so as to cut off the interest of one who is not a party to such agreement is against public policy. Nor does the right of all the parties in interest to set aside or disregard a will extend to the case of an active trust, for a definite term, created by a testator as he deems proper for the protection of his beneficiaries. A contract between the next of kin of a decedent, that they will each have a certain portion of the estate, does not amount to an agreement to divide the estate without probating the will." (28 R. C. L., pp. 357-358). The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28, pp. 357-358) is from the Supreme Court of only one State that of Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States held the contrary doctrine that is now embodied in section 1 of Rule 74. Commenting upon the Wisconsin rule, the Editor of the L. R. A. says the following: "No case has been found other than Re Dardis wherein any court passed upon the validity of a stipulation to secure the denial to probate of a will theretofore offered for probate, on the ground that the testator was mentally incompetent to make a will at the time of its execution. The decision of the court is based upon the doctrine therein enunciated, that proceedings to probate a will are proceedings in rem, which public interest demands should be pursued to a final adjudication, regardless of the wishes of the interested parties. In this connection and with reference to this broader question, it is of interest to note that courts of other jurisdictions, although generally recognizing that proceedings to probate a will are proceedings in rem, hold that the proceeding is inter partes to the extent that all the parties in interest may control the probate proceedings, even to the extent of doing away with the probate." (23 L. R. A. [N.S.], p. 783). For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has solemnly given a form of a rule section 1, Rule 74 to what was merely the consensus of judicial opinion. We cannot now repudiate the procedure outlined in said provision unless we amend it by another rule.

The majority, however, expresses fear that abuses may easily be committed under the Rules. Such fears have always been the bugbear set up against all task of procedural reforms. To be sure, there has never been any provision of law that is not liable to abuses. If by a mere possibility of abuse we are to disregard clear provisions of a procedural law, the result would be not only the abrogation of all laws but also the abolition of all courts. When a procedural law is calculated to remedy an evil under a specific situation therein contemplated, it must be deemed good even if other situations may be simulated or falsified and placed within its purview. And when that law is duly enacted, it is no concern of the courts to pass upon its wisdom, their duty being to apply its provisions in a manner which shall not defeat the intention underlying it. Laws are promulgated to be obeyed and when they are abused there are the courts to check up the abuse. Courts must deal with the specific circumstances of each case and construe the provisions in such a manner as to make it impregnable if possible to further abuses. This is constructive, not destructive, jurisprudence. This explains why laws are more often worded so broadly as to lay merely general principles a skeleton the flesh to be supplied with judicial decisions. Judicial statesmanship requires that courts in deciding judicial controversies should be careful not to advance opinions which are not necessary to a proper disposition of the case. Judicial experience has shown that such advanced opinions may not infrequently place the court in an embarrassing position when a proper case with the proper factual environment is properly presented with all its angles before the court. Jurisprudence must be carefully progressive and not impetuously aggressive. For instance, the majority, impressed by the awful circumstances of the present case, has found it dangerous to hold that the probate of the will may be dispensed with. While this conclusion is constructive under the peculiar facts of the case, to generalize it is to make destructive. If a proper case is presented to the court wherein all the heirs and legatees who are all of age have agreed to dispense with the probate of a will and have actually made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they have shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees and compel them to go into court and litigate. The majority, without the necessity of holding whether the probate of a will may or may not be dispensed with under Rule 74, section 1, could have decided this case by stating that said provision is not applicable, its requirements not being present. And I would be wholly agreeable to this conclusion because the beneficiaries under the will do not appear to have made an extrajudicial settlement of the estate left by the deceased Victorino L. Guevara, nor the action brought by the natural daughter, Rosario Guevara, is one for partition against all such beneficiaries

founded either on an extrajudicial settlement or on the provisions of the will as accepted by all parties to be valid and binding. Upon the contrary, Rosario Guevara appears to be wishing to take advantage of the will in so far as it is favorable to her, and repudiate it in so far as it is favorable to others. Apparently, Rosario Guevara was in possession of the will and the other heirs and legatees were not aware of its contents. The situation not being the one contemplated by section 1 of Rule 74, plaintiff may not invoke its provisions. D. Requirements for probate of a holographic will NCC 811 Gan v Yap, 104 Phil 509 EN BANC [G.R. No. L-12190. August 30, 1958.] TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositorappellee. Benedicto C. Balderrama, Crispn D. Baizas and Roberto H. Benitez for appellant. Arturo M. Tolentino for appellee. SYLLABUS 1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. 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. DECISION BENGZON, J p: 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 these 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 pagiisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang 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 pang lugar ay aking ipinamamana sa aking asawang si Ildefonso 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 pagalang Felicidad Esguerra-Alto. At kung ito ay may kakulagan 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 owned 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 permited 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. 810814. "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 and every 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 authenticity (Abangan vs. Abangan, 40 Phil., 476) and to avoid that 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. Ist Supp. No. 3 p. 194.). Authenticity and due execution is the dominant requirement 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 of 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 authenticity 3 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 stolen 4 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 whether in 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 privilege to 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 ao, 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 llenaron 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 su adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estar firmado 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 Vl 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 conocido, 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 lend 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 admissible 9 only one man could engineer the whole 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. Rodelas v Aranza, 119 SCRA 16 FIRST DIVISION [G.R. No. L-58509. December 7, 1982.] 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 C. Paralejo for oppositor-appellee. SYNOPSIS The probate court ordered the dismissal of appellant's petition for the allowance of the holographic will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which was presented for probate, cannot stand in lieu of the lost original, for the law regards the document itself as the material proof of the authenticity of the said will, citing the case of Gan vs. Yap, 104 Phil. 509, 522. On appeal, the only question is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. The Supreme Court, in setting aside the lower court's order of dismissal, held that a photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can he determined by

the probate court, as comparison can be made with the standard writings of the testator. Assailed order of dismissal, set aside. SYLLABUS 1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. 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. 2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills 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. 3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or destroyed and no other copy is available, the will cannot 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. 4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. 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 Gan 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. DECISION RELOVA, J p: 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 holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gan 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 Gan 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 can not 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 Gan 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. Azaola v Singson, 109 Phil 102 SECOND DIVISION [G.R. No. L-14003. August 5, 1960.] FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON, oppositorappellee. F. Lavides and L. B. Alcuaz for appellant. Vicente J. Cuna and P. S. Singson for appellee. SYLLABUS 1. WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF; REQUISITE AS TO NUMBER OF WITNESSES. Since the authenticity of the holographic will was not contested, proponent was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Article 811 of our present Civil Code cannot 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, it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. 2. ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE. Where the will is holographic, no witness need be present and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. 3. ID.; RESORT TO EXPERT EVIDENCE. Under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveals that what the law deems essential is that the Court should be convinced of the will's authenticity. DECISION REYES, J. B. L., J p: 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. Q2640, 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 the 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 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 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 witness 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 witnesses 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 acquainted with 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 will 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, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely remarks: "La manera como est concebida la redaccin del ltimo apartado de dicho precepto induce la conclusin 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 olgrafo, aunque ya estn insertas en los autos del expediente las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcendencia as lo exige, y la ndole delicada y peligrosa del testamento olgrafo lo hace necesario para mayor garanta de todos los intereses comprometidos en aquel. En efecto, el cotejo pericial de letras puede ser una comfirmacin 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 averiguar y declarar. Para eso se ha escrito la frase del citado ltimo 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 de formarse con independencia de los sucesos y de su significacin, para responder debidamente de las resoluciones que haya de dictar." And because the law leaves it to the trial court to decide 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. Codoy v Calugay, 312 SCRA 333 FIRST DIVISION [G.R. No. 123486. August 12, 1999.] EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents. Amadeo D. Seno for petitioners. Roderico C. Villaroya for private respondents. SYNOPSIS On April 6, 1990, respondents Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, being the devisees and legatees of the holographic will of the deceased Matilde Seo Vda. De Ramonal, filed with the Regional Trial Court, Branch 18, Misamis Oriental, a petition for probate of the said holographic will. On the other hand, petitioners Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition thereto, alleging that the holographic will was a forgery and that the same was even illegible which gives an impression that a "third hand" of an interested party other than the true hand of Matilde Seno Vda. De Ramonal executed the holographic will. At the hearing, respondents presented six ordinary witnesses and various documentary evidence. Petitioners, instead of presenting their evidence, filed a demurrer to evidence which the trial court granted. Respondents appealed, and in support thereof, they once again reiterated the testimony of their ordinary witnesses who testified as to the similarity, authenticity genuiness of the signature of the deceased in the holographic will. On October 9, 1995, the Court of Appeals rendered a decision which ruled that the appeal was meritorious. TIAEac Hence, this petition. The Court ruled that from a visual examination of the holographic will the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition was not readable. There were uneven strokes, retracing and erasures on the will. Comparing the signature in the

holographic will dated August 30, 1978, and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980, and a letter dated June 16, 1978, the strokes were different. In the letters, there were continuous flows of the strokes, evidencing that there was no hesitation in writing unlike that of the holographic will. The Court, therefore, ruled that it cannot be certain that the holographic will was in the handwriting of the deceased. The decision appealed from was SET ASIDE. The records were ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition. SYLLABUS 1. CIVIL LAW; SUCCESSION; PROBATE OF HOLOGRAPHIC WILL; THREE WITNESSES REQUIRED FOR A CONTESTED HOLOGRAPHIC WILL IS MANDATORY. In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator. We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory. cAaTED 2. ID.; ID.; ID.; ID.; PURPOSE; TO ELIMINATE POSSIBILITY OF FALSE DOCUMENT BEING ADJUDGED AS WILL OF TESTATOR. In the case of Ajero vs. Court of Appeals, we said 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. 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." However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased. 3. ID.; ID.; ID.; PURPOSE; TO GIVE EFFECT TO THE WISHES OF THE DECEASED. Laws are enacted to achieve a goal intended and to guide against an evil or mischief that they aim to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.

4. ID.; ID.; ID.; HANDWRITING OF DECEASED IN HOLOGRAPHIC WILL CANNOT BE ASCERTAINED; CASE AT BAR. A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will. Comparing the signatures in the holographic will dated August 30, 1978, and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980, and a letter dated June 16, 1978, the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that the holographic will was in the handwriting by the deceased. IHAcCS DECISION PARDO, J p: Before us is a petition for review on certiorari of the decision of the Court of Appeals 1 and its resolution denying reconsideration, ruling: "Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators holographic will has been established and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case. LLpr "Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator Matilde Seo Vda. de Ramonal." 2 The facts are as follows: On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of the holographic will of the deceased, who died on January 16, 1990. In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and the will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of her death. 4 On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seo Vda. de Ramonal executed the holographic will. Petitioners argued that the repeated dates incorporated or appearing on the will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery. LLphil Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer 6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal. On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads: "WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits." 7 On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay. To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies. Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available. Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of close association with the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and the deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors. LibLex Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased. Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with the intestate proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure. The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the deceased signed documents in her presence, when the latter was applying for pasture permit. Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal. LLphil The holographic will which was written in Visayan, is translated in English as follows: "Instruction "August 30, 1978 "1. My share at Cogon, Raminal Street, for Evangeline Calugay. "(Sgd) Matilde Vda de Ramonal

"August 30, 1978 "2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street. "(Sgd) Matilde Vda de Ramonal "August 30, 1978 "3. My jewelry's shall be divided among: "1. Eufemia Patigas "2. Josefina Salcedo "3. Evangeline Calugay "(Sgd) Matilde Vda de Ramonal "August 30, 1978 "4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay "(Sgd) Matilde Vda de Ramonal "August 30, 1978 "5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around. "(Sgd) Matilde Vda de Ramonal "August 30, 1978 "6. Bury me where my husband Justo is ever buried. "(Sgd) Matilde Vda de Ramonal "August 30, 1978 "Gene and Manuel: "Follow my instruction in order that I will rest peacefully. "Mama "Matilde Vda de Ramonal On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held: ". . . 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 the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses 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

express) "that the will and the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witness 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. Cdpr "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 v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered mandatory only in 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 Art. 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 will 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. "Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator be carried into effect. And because the law leaves

it to the trial court to decide if experts are still needed, no unfavorable 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. 10 According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself. Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate. LLjur Hence, this petition. The petitioners raise the following issues: (1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was applicable to the case. (2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to prove that the date, text, and signature on the holographic will were written entirely in the hand of the testatrix. (3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seo Vda. de Ramonal. In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator. We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory." 11 Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator. LLpr It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of the testator. In the case of

Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic was that of the deceased. Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voters' affidavit, which was not even produced as it was no longer available. Matilde Ramonal Binanay, on the other hand, testified that: Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that time? A. Collecting rentals. Q. From where? A. From the land rentals and commercial buildings at Pabayo-Gomez streets. 12 xxx xxx xxx Q. Who sometime accompany her? A. I sometimes accompany her. Q. In collecting rentals does she issue receipts? A. Yes, sir. 13 xxx xxx xxx Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to them? A. Yes, sir. Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay? A. Matilde vda. De Ramonal. Q. Why do you say that that is a signature of Matilde vda. De Ramonal? A. I am familiar with her signature. Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants? A. Yes, sir. Q. Why do you say so? A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal. Q. How is this record of accounts made? How is this reflected? A. In handwritten. 14 xxx xxx xxx Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal? prcd

A. Posting records. Q. Aside from that? A. Carrying letters. Q. Letters of whom? A. Matilde Q. To whom? A. To her creditors. 15 xxx xxx xxx Q. You testified that at the time of her death she left a will. I am showing to you a document with its title "tugon" is this the document you are referring to? A. Yes, sir. Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this? A. My aunt. Q. Why do you say this is the handwriting of your aunt? A. Because I am familiar with her signature. 16 What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note. Cdpr Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that: Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes? A. Yes, sir. Q. Who was in possession of that will? A. I. Q. Since when did you have the possession of the will? A. It was in my mother's possession. Q. So, it was not in your possession? A. Sorry, yes. Q. And when did you come into possession since as you said this was originally in the possession of your mother? A. 1985. 17 xxx xxx xxx Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that in your possession? A. It was not given to me by my mother, I took that in the aparador when she died. Q. After taking that document you kept it with you?

A. I presented it to the fiscal. Q. For what purpose? A. Just to seek advice. Q. Advice of what? A. About the will. 18 In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo Vda. de Ramonal. cdphil In the testimony of Ms. Binanay, the following were established: Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct? A. Yes, sir. Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that correct? A. Yes, sir. 19 xxx xxx xxx Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.? A. Yes, a little. The letter L is continuous. Q. And also in Matilde the letter L is continued to letter D? A. Yes, sir. Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D. A. Yes, sir. Q. And there is a retracing in the word Vda.? A. Yes, sir. 20 xxx xxx xxx Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible? A. Yes, sir the handwriting shows that she was very exhausted. Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she was exhausted? LexLib A. In writing. Q. How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the apparent inconsistencies? A. That was I think. (sic)

Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners? A. Yes, sir. Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the hesitancy and tremors, do you notice that? A. Yes, sir. 21 Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that: Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal? A. During my stay I used to go with her to the church, to the market and then to her transactions. Q. What else? What services that you rendered? A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer. Q. What was your purpose of going to her lawyer? A. I used to be her personal driver. Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal? A. Yes, sir. Q. How come that you acquired familiarity? A. Because I lived with her since birth. 22 xxx xxx xxx Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here below item No. 1, will you tell this court whose signature is this? cdtai A. Yes, sir, that is her signature. Q. Why do you say that is her signature? A. I am familiar with her signature. 23 So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document. The former lawyer of the deceased, Fiscal Waga, testified that: Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by consanguinity. Q. Can you tell the name of the husband? A. The late husband is Justo Ramonal. 24 xxx xxx xxx Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate children? A. As far as I know they have no legitimate children. 25 xxx xxx xxx Q. You said after becoming a lawyer you practice your profession? Where? A. Here in Cagayan de Oro City. Q. Do you have services rendered with the deceased Matilde vda de Ramonal? A. I assisted her in terminating the partition, of properties. Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal? A. It is about the project partition to terminate the property, which was under the court before. 26 xxx xxx xxx Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this? LLphil A. That is the signature of Matilde Vda de Ramonal. Q. Also in exhibit n-3, whose signature is this? A. This one here that is the signature of Mrs. Matilde vda de Ramonal. 27 xxx xxx xxx Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein you were rendering professional service to the deceased Matilde Vda de Ramonal? A. I can not remember if I have assisted her in other matters but if there are documents to show that I have assisted then I can recall. 28 xxx xxx xxx Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that document marked as exhibit "S"? A. I am not familiar with the handwriting. Q. This one, Matilde Vda de Ramonal, whose signature is this? A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.

Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this? A. Well, that is similar to that signature appearing in the project of partition. Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that? A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal. LLjur Q. Why do you say that? A. Because there is a similarity in the way it is being written. Q. How about this signature in item no. 4, can you tell the court whose signature is this? A. The same is true with the signature in item no. 4. It seems that they are similar. 29 xxx xxx xxx Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal? A. Yes, it is similar to the project of partition. Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be her signature because it is similar to the signature of the project of partition which you have made? A. That is true. 30 From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson, 31 ruling that the requirement is merely directory and not mandatory. LLpr In the case of Ajero vs. Court of Appeals, 32 we said 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. 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." However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased. The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the

testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased. LexLib There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will. Comparing the signature in the holographic will dated August 30, 1978, 33 and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980, 34 and a letter dated June 16, 1978, 35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that the holographic will was in the handwriting by the deceased. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal. cdtai No costs. SO ORDERED. ` Nepomuceno v CA, 139 SCRA 206 FIRST DIVISION [G.R. No. L-62952. October 9, 1985.] SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG CARMELITA JUGO, respondents. DECISION GUTIERREZ, JR., J p: This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now Intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leao, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses. In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part: LibLex "Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons and justifications known fully well by them; "Art IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to may love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage;" On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary. On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner

having admitted her living in concubinage with the testator, she is wanting in integrity and thus letters testamentary should not be issued to her. On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident. The petitioner appealed to the respondent-appellate court. On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the Will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads: "WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to costs." On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982. On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982. Cdpr The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner. The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents. The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void. The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is expressed thus: LLphil xxx xxx xxx ". . . It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last Will and testament, irrespective of whether its provisions are valid and enforceable or otherwise." (Fernandez v. Dimagiba, 21 SCRA 428). "The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testator's testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. xxx xxx xxx "True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution." (Sumilang v. Ramagosa 21 SCRA 1369). xxx xxx xxx "To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court has no power to

pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. . . ." (Castaeda v. Alemany, 3 Phil. 426) The rule, however, is not inflexible and absolute. Given 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. In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous. Even before establishing the formal validity of the will, the Court in Balanay, Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions. Invoking "practical considerations", we stated: "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 v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang v. Ramagosa, L23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan, L-19996, April 30, 1965, 13 SCRA 693). There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled: "This being so, the will is declared validly drawn." (Page 4, Decision, Annex A of Petition.) On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto. The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra): "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. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution. We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions. cdphil Article 739 of the Civil Code provides: "The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. "In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. Article 1028 of the Civil Code provides: "The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions." In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage."

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death. It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator. prcd The records do not sustain a finding of innocence or good faith. As argued by the private respondents: "First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the devisee. "Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence. "In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of the proceedings. "Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals. "Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 6264). "Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point. "Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of August 18, 1975). "Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case. "Confronted by the situation, the trial court had to make a ruling on the question. "When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be." xxx xxx xxx "3' If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis:

"FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. If there was nothing to hide from, why the concealment? Of course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30). "SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in-between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore after November, 1923 facts that should impel her to ask her groom before she married him in secrecy, especially so when she was already about 50 years old at the time of marriage. "THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she knew that the man she had openly lived for 22 years as man and wife was a married man with already two children. "FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino. "FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away? "Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years." Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because

the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. prcd WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs. SO ORDERED. E. Effect of allowance of wills Gallonosa v Arcangel, 83 SCRA 676 SECOND DIVISION [G.R. No. L-29300. June 21, 1978.] 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. HITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSISVILLANUEVA, 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 HITOSISFORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSISBANARES 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 GAMBOA, respondents. Haile Frivaldo for petitioners.

Joaquin R. Hitosis for private respondents. SYNOPSIS After the will of Florentino Hitosis was duly probated and the project of partition among his testamentary heirs was approved by the court, the legal heirs who appealed neither from the decree of probate nor from the order of partition and distribution instituted an action for the recovery of 61 parcels of land adjudicated under the probated will. The action was dismissed on ground of res judicata. Again, the legal heirs did not appeal, but in 1967, fifteen years after the said dismissal and twenty-eight years after the probate of the will, they filed another action in the same court for the "annulment" of the will and for the recovery of the 61 parcels of land. Respondent judge dismissed the action but thereafter granted plaintiffs' motion for reconsideration and set aside the dismissed order. On petition for certiorari, the Supreme Court held that the trial court committed grave abuse of discretion in reconsidering its order of dismissal and ignoring the decrees of probate and distribution as well as the order of dismissal of the civil case for recovery of the 61 parcels of land, which are the same as the instant case, and which therefore constitute bars by former judgment. Impugned order set aside and order of dismissal affirmed SYLLABUS 1. CERTIORARI; GRAVE ABUSE OF DISCRETION. It is grave abuse of discretion for a court not to dismiss an action for the "annulment" of a probated will and for recovery of parcels already adjudicated under said will, filed 28 years after the decrees of probate and distribution had become final, and 15 years after an order of the same court dismissing a civil action for the recovery of the same parcels of land now again being sought to be recovered. 2. SPECIAL PROCEEDINGS; PROBATE OF WILLS MANDATORY. 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. 3. ID.; ID.; TESTAMENTARY PROCEEDING DIFFERENT FROM ORDINARY ACTION; NO ACTION FOR "ANNULMENT" OF WILL. The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A special proceeding is distinct and different from an ordinary action. Our procedural law does not sanction an action for the "annulment" of a will. 4. JUDGMENTS; EFFECT THEREOF; PROBATE OF WILLS; RES JUDICATA. A final decree in respect to the probate of a will is conclusive as to the due execution or formal validity of the will, meaning that the testator was of sound and 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 and

is not a forgery. These facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. 5. SPECIAL PROCEEDINGS; TESTATE PROCEEDINGS ARE IN REM; DECREE OF ADJUDICATION. A decree of adjudication rendered by the trial court in the testate proceeding for the settlement of the estate of having been rendered in a proceeding in rem, is binding upon the whole world. 6. JUDGMENTS IN PERSONAM; EFFECT THEREOF; RES JUDICATA. An order of dismissal rendered by a court of competent jurisdiction after an adjudication on the merits is a judgment in personam which constitute res judicata. 7. JUDGMENTS; FINALITY IS FUNDAMENTAL. 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. 8. FINAL JUDGMENTS; GROUNDS FOR RELIEF. 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. 9. CONTRACTS; VOID CONTRACTS; DECLARATION OF NULLITY IMPRESCRIPTIBLE; ARTICLE 1410, NEW CIVIL CODE APPLICABLE TO WILLS. The rule in article 1410 of the Civil Code, that "the action of defense for the declaration of the inexistence of a contract does not prescribe", applies to wills. DECISION AQUINO, J p: 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 and 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, and 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) and 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, and his nephews and 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 and Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle and 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 and from the order of partition and distribution. 5. On February 20, 1952, Leon Hitosis and the heirs of Florentino's deceased brothers and 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 dueo and that Gallanosa entered those lands in 1951 and asserted ownership over the lands. They prayed that they be declared the owners of the lands and 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 and on the ground of bar by the prior judgment in the probate proceeding, Judge Anatolio C. Maalac dismissed 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; and had their opposition prospered and 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 Hitosis, 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 decision of the Court was adverse to them, when it dismissed their opposition and 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 and it now constitutes a bar to any action that the plaintiffs may institute for the purpose of seeking a redetermination of their right to inherit the properties of the late Florentino Hitosis. "In other words, the said decision of this Court in Civil Case (Special Proceeding) 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 and 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, and 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 and twenty-eight years after the probate of the will, another action in the same court against the Gallanosa spouses and Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis 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 and deceit, caused the execution and simulation of the document purporting to be the last will and testament of Florentino Hitosis. While in their 1952 complaint the same 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 and Civil Case No. 696 were decided and 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 and 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 and the 1952 order of dismissal in Civil Case No. 696 and that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint. LexLib The issue is whether, under the facts set forth above, the private respondents have a cause of action for the "annulment" of the will of Florentino Hitosis and 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 and in ignoring the 1939 testamentary case and the 1952 Civil Case No. 696 which is the same as the instant 1967 case. A rudimentary knowledge of substantive law and procedure is sufficient for an ordinary lawyer to conclude upon a casual perusal of the 1967 complaint that it is baseless and unwarranted. What the plaintiffs seek is the "annulment" of a last will and 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 and from defendants' motion to dismiss that plaintiffs' 1967 action is barred by res judicata a double-barrelled defense, and by prescription, acquisitive and extinctive, or by what are known in the jus civile and 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 and different from an ordinary action (Secs. 1 and 2, Rule 2 and 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 and 1943 decrees of probate and distribution in Special Proceeding No. 3171 and (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 and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating of the same thing and under the same title and 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 and 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 and 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 and 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). cdrep 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; Alleged 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 and 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 practiced 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 and 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 above quoted 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 Maalac 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, L29689, April 14, 1978). The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary proceeding and 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 and judgments in those two cases. cdll 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; Pealosa 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 of 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 and testaments. The trial court and plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 O.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 void contracts, 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 and June 17, 1968 are reversed and set aside and its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents. SO ORDERED. Roberts v Leonides, 129 SCRA 33 SECOND DIVISION [G.R. No. 55509. April 27, 1984.] ETHEL GRIMM ROBERTS, petitioner, vs. JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents. N . J . Quisumbing and Associates for petitioner. Angara, Abello, Concepcion, Regala, and Cruz for private respondents. SYLLABUS 1. CIVIL LAW; SUCCESSION; WILLS; PROBATE THEREOF, MANDATORY; INTESTATE PROCEEDINGS FILED PRIOR TO TESTATE PROCEEDINGS SHOULD BE CONSOLIDATED WITH LATTER. We hold that respondent Judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss the petition for probate of Grimm's two wills. A testate proceeding is proper in this case because Grimm died

with two wills and "no will shall pass either real or personal property unless it is proved add allowed" (Art. 838, Civil Code, Sec. 1, Rule 75, Rules of Court). The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Pao, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. DECISION AQUINO, J p: The question in this case is whether a petition for allowance of wills and to annul a partition, approved in an intestate proceeding by Branch 20 of the Manila Court of First Instance, can be entertained by its Branch 38 (after a probate in the Utah district court). Cdpr Antecedents. Edward M. Grimm, an American resident of Manila, died at 78 in the Makati Medical Center on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm, and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm, and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a first marriage which ended in divorce (SubAnnexes A and B, pp. 36-47, Rollo). He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine estate which he described as conjugal property of himself and his second wife. The second will disposed of his estate outside the Philippines. In both wills, the second wife and two children were favored. The two children of the first marriage were given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his property outside this country, the testator said: "I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided for each of them in a separate will disposing of my Philippine property." (First clause, pp. 43-47, Rollo). The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. La Var Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon City were notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo). Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial District Court admitted to probate the two wills and the codicil. It was issued upon consideration of the stipulation dated April 4, 1978 "by and between

the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. La Var Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo). Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm, as the second parties, with knowledge of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate. It was signed by David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda and the attorney-in-fact of Maxine and by the attorneyin-fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm. LLphil In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that Maxine's one-half conjugal share in the estate should be reserved for her and that would not be less than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the "net distributable estate". It recognized that the estate was liable to pay the fees of the Angara law firm (par. 5). It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net Distributable Estate" and that Ethel and Juanita Morris should each receive at least 12-1/2% of the total of the net distributable estate and marital share. A supplemental memorandum also dated April 25, 1978 was executed by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case). Intestate proceeding No. 113024. At this juncture, it should be stated that fortythree days after Grimm's death, or January 9, 1978, his daughter of the first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate proceeding No. 113024 for the settlement of his estate. She was named special administratrix. On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion to dismiss the intestate proceeding on the ground of the pendency of Utah of a proceeding for the probate of Grimm's will. She also moved that she be appointed special administratrix. She submitted to the court a copy of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of the record. The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case), withdrew that opposition and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint administrators. Apparently, this was done pursuant to the aforementioned Utah compromise agreement. The court ignored the will already found in the record.

The three administrators submitted an inventory. With the authority and approval of the court, they sold for P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a business owned by the deceased. Linda and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned out that the buyer, Makiling Management Co., Inc., was incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L, p. 90, testate case). prLL Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to Joseph Server and others 193,267 shares of RFM Corporation (p. 135, Record). Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8) each to his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in that order. prcd Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as their lawyer, who on August 9, moved to defer approval of the project of partition. The court considered the motion moot considering that it had already approved the declaration of heirs and project of partition (p. 149, Record). Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected with Makiling Management Co., Inc. when the Palawan Pearl Project was sold: that it was Maxine's son Pete who negotiated the sale with Rex Roberts and that he (Limqueco) was going to sue Maxine for the lies she imputed to him (Annex H, p. 78, testate case). Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated October 2, 1979. It was stated therein that Maxine paid P1,992,233.69 as estate tax and penalties and that he interposed no objection to the transfer of the estate to Grimm's heirs (p. 153, Record). The court noted the certification as in conformity with its order of July 27, 1979. After November, 1979 or for a period of more than five months, there was no movement or activity in the intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so that the Estate properties can be partitioned among the heirs and the present intestate estate be closed." Del Callar, Maxine's lawyer was notified of that motion. Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its appearance in collaboration with Del Callar as counsel for Maxine and her two children, Linda and Pete. It should be recalled that the firm had previously appeared in the case as Maxine's counsel on March 11, 1978, when it filed a motion to dismiss the intestate proceeding and furnished the court with a copy of

Grimm's will. As already noted, the firm was then superseded by lawyer Limqueco. Petition to annul partition and testate proceeding No. 134559. On September 8, 1980, Rogelio A. Vinluan of the Angara law firm, in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved by the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the properties received by them and to return the same to Maxine (pp. 25-35, Rollo). Grimm's second wife and two children alleged that they were defraud due to the machinations of the Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate proceeding is void because Grimm died testate and that the partition was contrary to the decedent's wills. Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the testate proceeding be dismissed, or, alternatively that the two proceedings be consolidated and heard in Branch 20 and that the matter of the annulment of the Utah compromise agreement be heard prior to the petition for probate (pp. 22-23, Rollo). LLphil Ruling. We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss. A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court). The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Pao, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other papers in the testate case. WHEREFORE, the petition is dismissed. The temporary restraining order is dissolved. No costs. SO ORDERED. Nepomuceno v CA, 139 SCRA 206

De la Cerna v Potot, December 23, 1964 EN BANC [G.R. No. L-20234. December 23, 1964.] PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents. Philip M. Alo and Crispin M. Menchavez for petitioners. Nicolas Jumapao for respondents. SYLLABUS 1. JUDGMENTS; PROBATE COURTS; ERROR OF LAW DOES NOT AFFECT JURISDICTION OF NOR CONCLUSIVE EFFECT OF DECISION. An error of law committed in admitting a joint will to probate does not affect the jurisdiction of the probate court nor the conclusive effect of its final decision. 2. ID.; ID.; PROBATE DECREE OF JOINT WILL AFFECTS ONLY SHARE OF DECEASED SPOUSE. A final probate decree of a joint will of husband and wife affects only the share of the deceased spouse and cannot include the disposition of the share of the surviving spouse. The validity of said joint will, in so far as the estate of the latter spouse is concerned, must be, on her death, reexamined and adjudicated de novo. 3. WILLS; EFFECT OF VALIDITY OF JOINT WILL AS TO SHARE OF WIFE WHO DIES LATER THAN THE HUSBAND. Where a husband and wife executed a join will and upon the death of the husband, said will was admitted to probate by a final decree of the court although erroneous, and the wife dies later, it is held that said first decree of probate affects only the estate of the husband but cannot affect the estate of the wife, considering that a joint will is a separate will of each testator, and a joint will being prohibited by law, the estate of the wife should pass upon her death to her intestate heirs and not to the testamentary heirs, unless some other valid will is shown to exist in favor of the latter or unless the testamentary heir is the only heir intestate of said wife. DECISION REYES, J.B.L., J p: Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition. The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp 2-4): "It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia Rebaca, executed a joint last will and testament in the local dialect whereby they willed that 'our two parcels of land acquired during our marriage together with all improvements thereon shall be given to Manuela Rebaca, our niece, whom we

have nurtured since childhood, because God did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot', and that 'while each of the testator is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned', the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu which, after due publication as required by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939, in Special Proceedings No. 499, 'declara legalizado el documento Exhibito A como el testamento y ultima voluntad del finado Bernabe de la Cerna con derecho por parte de su viuda superstite Gervasia Rebaca y otra testadora al proprio tiempo segun el Exhibito A de gozar de los frutos de los terrenos descritos en dicho documento; y habido consideracion de la cuantia de dichos bienes, se derecta la distribucion sumaria de los mismos en favor de la legataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la suma de P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la Cerna dentro de los aos desde esta fecha.' (Act. Esp. 499, Testamentaria Finado Bernabe de la Cerna). Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney, Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 (Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca)." The Court of First Instance ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals declared that: ". . . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the making of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used; and when, as in the present case, one such joint last will and testament has been admitted to probate by final order of a Court of competent jurisdiction, there seems to be no alternative except to give effect to the provisions thereof that are not contrary to

law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying 'assuming that the joint will in question is valid'." Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna. The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will and testament, despite the fact that even then the Civil Code already decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an error of law, that should have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional errors, judgment of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litium (Dy Cay vs. Crossfield, 38 Phil. 521, and other cases cited in 2 Moran, Comments on the Rules of Court 1963 Ed., p. 322). Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the ultimate decision on whether an act is valid or void rests with the courts, and here they have spoken with finality when the will was probated in 1939. On this count, the dismissal of their action for partition was correct. But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1939 could only affect the share of the deceased husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to the Civil Code, a will could not be probated during the testator's lifetime. It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Thus regarded, the holding of the Court of First Instance of Cebu that the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our decision in

Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil., 267. Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950). WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is affirmed. No costs. X. DISALLOWANCE OF WILLS NCC 839, 1335, 1337, 1338 Pascual v de la Cruz, 28 SCRA 421 N BANC [G.R. No. L-24819. May 30, 1969.] TESTATE ESTATE OF CATALINA DE LA CRUZ, deceased, ANDRES PASCUAL, petitioner-appellee, vs. PEDRO DE LA CRUZ, ET AL., oppositorsappellants. Avelino Pascual for petitioner-appellee. Raul Manglapus and Feria, Feria, Lugtu & La'O for oppositors-appellants. SYLLABUS 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE OF WILL; SUBSCRIBING WITNESSES BEST QUALIFIED TO TESTIFY ON DUE EXECUTION OF WILL. Where a will is contested, the subscribing witnesses are generally regarded as the best qualified to testify on its due execution. However, it is similarly recognized that for the testimony of such witnesses to be entitled to full credit, it must be reasonable and unbiased, and not overcome by competent evidence, direct or circumstantial. For it must be remembered that the law does not simply require the presence of three instrumental witnesses; it demands that the witnesses be credible. 2. ID.; ID.; ID.; ID.; CONTRADICTIONS AND INCONSISTENCIES IN WITNESSES' TESTIMONIES DO NOT ALTER PROBATIVE VALUE OF TESTIMONIES ON DUE EXECUTION IN INSTANT CASE. The contradictions and inconsistencies appearing in the testimonies of the witnesses and the notary, pointed out by the oppositors-appellants (such as the weather condition at the time the will was executed; the sequence of the signing by the

witnesses; and the length of time it took to complete the act), relate to unimportant details or to impressions of the witnesses about certain details which could have been affected by the lapse of time and the treachery of human memory, and which inconsistencies, by themselves would not alter the probative value of their testimonies on the due execution of the will. 3. ID.; ID.; ID.; ID.; FRIENDLY RELATIONS BETWEEN WITNESSES AND TESTATOR DO NOT AFFECT WITNESSES' CREDIBILITY. The authorities are to the effect that friendly relations of the witnesses with the testator or the beneficiaries do not affect the credibility of the former, so that the proven friendship between the proponent and the instrumental witnesses would have no bearing on the latter's qualification to testify on the circumstances surrounding the signing of the will. 4. ID.; ID.; ID.; ID.; APPELLANTS' EVIDENCE WEAK. Two circumstances that militate against giving credence to appellants' evidence of a tape recording of a conversation between instrumental witness Manuel Joingco and oppositor Pedro B. Cruz at the latter's house in 1960 (which recording was admittedly taken without Joingco's knowledge) wherein said witness is supposed to have stated that when he signed the will the other witnesses' signatures were already affixed, and were not then present, and that he signed the document in 1958 or 1959, are: 1) absence of adequate proof that the declarations tape recorded were in fact made by Joingco, the latter even denying the voice was his; and 2) the ratification of the testament appears among the entries for 1954 in the notarial register involved. 5. ID.; ID.; ID.; ID.; BASIC PRINCIPLES ON UNDUE INFLUENCE UPON TESTATRIX. The following are the basic principles on undue influence as laid down by the jurisprudence of the Court: To be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own; that the contention that a will was obtained by undue influence or improper pressure cannot be sustained on mere conjectures or suspicion, as it is not enough that there was opportunity to exercise undue influence or a possibility that it may have been exercised; that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised; that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution; that mere general or reasonable influence is not sufficient to invalidate a will; nor is moderate and reasonable solicitation and entreaty addressed in the testator or omission of relatives, not forced heirs, evidence of undue influence. 6. ID.; ID.; ID.; ID.; UNDUE INFLUENCE UPON TESTATRIX HAS NOT BEEN ESTABLISHED IN INSTANT CASE. The trial court committed no

error in finding that appellants' evidence established at most grounds for suspicion but fell far short of establishing actual exercise of improper pressure or influence. Considering that the testatrix considered proponent as her own son, to the extent that she expressed no objection to his being made the sole heir of her sister, Florentina Cruz, in derogation of her own lights, we find nothing abnormal in her instituting proponent also as her own beneficiary. 7. ID.; ID.; ID.; ID.; PRESUMPTION OF UNDUE INFLUENCE WHERE BENEFICIARY PARTICIPATES IN DRAFTING OF THE WILL DOES NOT APPLY IN INSTANT CASE. Appellants invoke a presumption of undue influence held to exist by American authorities where the beneficiary participates in the drafting or execution of the will favoring him; but since the will was prepared by Atty. Pascual, although a nephew of the proponent, we do not think the presumption applies; for in the normal course of events, said attorney would follow the instructions of the testatrix; and a member of the bar in good standing may not be convicted of unprofessional conduct, or of having conspired to falsify a testament, except upon clear proof. DECISION REYES, J.B.L., Acting C.J p: This is an appeal from the decision of the Court of First Instance of Rizal (in Sp. Proc. No. 3312) admitting to probate the purported will of Catalina de la Cruz. On 2 January 1960, Catalina de la Cruz, single and without an surviving descendant or ascendant, died at the age of 89 in her residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the said will as executor and sole heir of the decedent. 1 Opposing the petition, Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through fraud. After hearing, during which the parties presented their respective evidences, the probate court rendered judgment upholding the due execution of the will, and, as therein provided appointed petitioner Andres Pascual executor and administrator of the estate of the late Catalina de la Cruz without bond. The oppositors appealed directly to this Court, the properties involved being valued at more than P300,000.00, raising only the issue of the due execution of the will. In this instance, oppositors-appellees claim that the lower court erred in giving credence to the testimonies of the subscribing witnesses and the notary that the will was duly executed, notwithstanding the existence of inconsistencies and

contradictions in the said testimonies, and in disregarding their evidence that the will was not signed by all the witnesses in the presence of one another, in violation of the requirement of the law. On this point, the lower court said: "Regarding the alleged contradictions and inconsistencies in the testimony of the three attesting witnesses and of the Notary Public, some of which have been enumerated in the Memorandum of Oppositors' counsel, this Court has taken pains in noting said inconsistencies but found the same not substantial in nature sufficient to discredit their entire testimony on the due execution of Exhibit 'D'. It is to be noted that Exhibit 'D' was signed in 1954 and that the attesting witnesses testified in Court in 1962 or after a lapse of eight years from the date of the signing of the document. It is, therefore, understandable and reasonable to expect that said witnesses will not retain a vivid picture of the details surrounding the execution and signing of the will of Catalina de la Cruz. What is important and essential is that there be unanimity and certainty in their testimony regarding the identity of the signatures of the testatrix, the attesting witnesses, and the Notary Public, and the fact that they were all present at the time those signatures were affixed on the document Exhibit 'D'. . . " In this jurisdiction, it is the observed rule that, where a will is contested, the subscribing witnesses are generally regarded as the best qualified to testify on its due execution. However, it is similarly recognized that for the testimony of such witnesses to be entitled to full credit, it must be reasonable and unbiased, and not overcome by competent evidence, direct or circumstantial. 2 For it must be remembered that the law does not simply require the presence of three instrumental witnesses; it demands that the witnesses be credible. 3 In connection with the issue under consideration, we agree with the trial judge that the contradictions and inconsistencies appearing in the testimonies of the witnesses and the notary, pointed out by the oppositors-appellants (such as the weather condition at the time the will was executed; the sequence of the signing by the witnesses; and the length of time it took to complete the act), relate to unimportant details or to impressions of the witnesses about certain details which could have been affected by the lapse of time and the treachery of human memory, and which inconsistencies, by themselves, would not alter the probative value of their testimonies on the due execution of the will [cf, Peo. vs. Sigue, 86 Phil. 139-140 (3 years interval)]. In Estate of Javellana vs. Javellana, L-13781, 30 January 1960, 106 Phil. 1076, this Court ruled: "'For the purpose of determining the due execution of a will, it is not necessary that the instrumental witnesses should give an accurate and detailed account of the proceeding, such as recalling the order of the signing of the document by the said

witnesses. It is sufficient that they have seen or at least were so situated at the moment that they could have seen each other sign, had they wanted to do so. In fact, in the instant case, at least two witnesses, . . . both testified that the testator and the 3 witnesses signed in the presence of each and every one of them (Jaboneta vs. Gustilo, 5 Phil. 451; Neyra vs. Neyra, 42 Off. Gaz. 2817; Fernandez vs. Tantoco, 49 Phil. 380).' " Neither do we believe that the fact that the witnesses were better known to proponent Andres Pascual than to the testatrix suffices to render their testimony suspect. Under the circumstances, considering the admitted fact that when the will was executed (1954) the testatrix was already 83 years old, suffering from rheumatism to the extent that she had to wear thick socks and soft shoes, it is not unlikely that she should have entrusted the task of requesting them to act as witnesses to Andres Pascual himself, albeit the said witnesses, testifying eight years later, should have stated that they were asked by Catalina to witness her testament. The error of recall, considering the eight-year interval, is consonant with the well known vagaries of human memory and recollection, particularly since the main detail that must have stuck in their minds is that they did witness the signing of the will, upon which their attention must have principally concentrated. That they did so is attested by their signatures and those of the deceased testatrix, which are nowhere impugned; nor is there any claim by appellants that the latter was incapable of reading and understanding the will that she signed. In fact, the evidence is that she did read it before signing. The authorities are to the effect that friendly relations of the witnesses with the testator or the beneficiaries do not affect the credibility of the former, 4 so that the proven friendship between the proponent and the instrumental witnesses would have no bearing on the latter's qualification to testify on the circumstances surrounding the signing of the will. Appellants' main reliance is the alleged tape recording of a conversation between instrumental witness Manuel Jiongco and oppositor Pedro B. Cruz at the latter's house sometime in 1960 (which recording was admittedly taken without Jiongco's knowledge) wherein said witness is supposed to have stated that when he signed the will the other witnesses' signatures were already affixed, and were not then present, and that he (Jiongco) signed the document in 1958 or 1959 (Exhibit 22; transcription, Exhibit 23 et. seq.). There are two circumstances that militate against giving credence to this particular evidence. The first is that there is no adequate proof that the declarations tape recorded were in fact made by Jiongco. The latter denied that the voice was his, and in this respect the trial judge stated (Record on Appeal, pages 83-84): "We do not doubt the fact that Manuel Jiongco was in the house of Pedro Cruz on the occasion that Exhibit "23" was taken. But it is important to note that when said recording was replayed before Manuel Jiongco in Court he denied that the voice

which uttered the abovequoted portions in the conversation was his. So that with that denial of Manuel Jiongco, the Court was left with no other recourse than to make its own comparison between the natural voice of the witness, Manuel Jiongco, while testifying on the witness stand and his supposed recorded voice in Exhibit "23". It is to be admitted that we noted some similarity between the two voices but it was not enough to justify a categorical and definite conclusion that the recorded voice identified by Pedro Cruz to be that of Manuel Jiongco is in truth and in fact the voice of the latter. Between a testimony given in Court under oath which was subjected to and stood a rigorous cross- examination and loose statements made out of Court which even then are of doubtful source, this Court gives full faith and credence to the former. And this is true even if this particular witness admits having a poor memory, and his trustworthiness is assailed due to a previous record of an administrative case filed against him wherein he was fined for a charge of falsification of public document (see Exh. "25"). This is so, because the veracity of his testimony in Court regarding the due execution of Exhibit "D" is corroborated and confirmed by the testimony of two other attesting witnesses to the document and the Notary Public who notarized the same." Not having heard Jiongco testify, this Court is not in a position to contradict the appreciation of the trial court that the voice in the tape recording was not really that of Jiongco. And considering that he denied that fact under oath, that the tape recording was not supported by truly impartial evidence, and was done without the knowledge of the witness, we can not see our way clear to rule that Jiongco has been successfully impeached, and shown guilty of false testimony. It would be dangerous to rule otherwise. The second point that renders incredible the alleged assertion of Jiongco in the tape recording, that he signed the testament only in 1958 or 1959, is that in the Notarial Register of the notary, Gatdula, the ratification of the testament appears among the entries for 1954, as well as in the corresponding copies (Exhibit I) filed by him with Bonifacio Sumulong, the employee in charge of the Notarial Section of the Clerk of Court's office, who produced them at the trial upon subpoena, and who testified to his having searched for and found them in the vaults of the Clerk of Court's office. No evidence exists that these documents were not surrendered and filed at the Clerk of Court's office, as required by law, and in the regular course of official duty. Certainly, the notary could not have reported in 1954 what did not happen until 1958. In view of the evidence, we do not feel justified in concluding that the trial court erred in accepting the concordant testimony of the instrumental witnesses as warranting the probate of the will in question, taking into account the unexcelled opportunity of the court a quo to observe the demeanor, and judge the credibility, of the witnesses thereby. Furthermore, it would not be the first time in this

jurisdiction that a will has been admitted to probate even if one instrumental witness testified contrary to the other two, provided the court is satisfied, as in this case, that the will was executed and attested in the manner provided by law (Fernandez v. Tantoco, 49 Phil. 380; Tolentino vs. Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69 Phil. 639; Ramirez vs. Butte, 100 Phil. 635). There is greater reason to admit the will to probate where only the testimony of one witness is subjected to serious, if unsuccessful, attack. Contestants further assail the admission to probate on the ground that the execution of the will was tainted by fraud and undue influence exerted by proponent on the testatrix, and affirm that it was error for the lower court to have rejected their claim. Said the court in this regard (Record on Appeal, page 87): "It is a settled rule in this jurisdiction that the mere fact that a Will was made in favor of a stranger is not in itself proof that the same was obtained through fraud and undue pressure or influence, for we have numerous instances where strangers are preferred to blood relatives in the institution of heirs. But in the case at bar, Andres Pascual, although not related by blood to the deceased Catalina de la Cruz, was definitely not a stranger to the latter for she considered him as her own son. As a matter of fact it was not only Catalina de la Cruz who loved and cared for Andres Pascual but also her sisters held him with affection so much so that Catalina's sister, Florentina Cruz, made him also her sole heir to her property in her Will without any objection from Catalina and Valentina Cruz." Before considering the correctness of these findings, it is worthwhile to recall the basic principles on undue pressure and influence as laid down by the jurisprudence of this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own (Coso vs. Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico vs. Del Val, L-18753, 26 March 1965); that the contention that a will was obtained by undue influence or improper pressure can not 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 (Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised (Ozaeta vs. Cuartero, ante; Teotico vs. Del Val, L-18753, 26 March 1965); that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution (Teotico vs. Del Val, ante); that mere general or reasonable influence is not sufficient to invalidate a will (Coso vs. Fernandez Deza, ante); nor is moderate and reasonable solicitation and entreaty addressed to the testator (Barretto vs. Reyes, L-5830-31, 31 January 1956), or omission of

relatives, not forced heirs, evidence of undue influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416). Tested against these rulings, the circumstances marshalled by the contestants certainly fail to establish actual undue influence or improper pressure exercised on the testatrix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything unless I knew it" (t.s.n., page 7, 27 January 1962), which does not amount to proof that she would sign anything that proponent desired. On the contrary, the evidence of contestants-appellants, that proponent purchased a building in Manila for the testatrix, placed the title in his name, but caused the name "Catalina de la Cruz" to be painted thereon in bold letters to mislead the deceased even if true, demonstrates that proponent's influence was not such as to overpower and destroy the free will of the testatrix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse to the deception averred. Nor is the fact that it was proponent, and not the testatrix, who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the reason that the rheumatism of the testatrix made it difficult for her to look for all the witnesses. That she did not resort to relatives or friends is, likewise, explainable: it would have meant the disclosure of the terms of her will to those interested in her succession but who were not favored by her, thereby exposing her to unpleasant importunity and recriminations that an aged person would naturally seek to avoid. The natural desire to keep the making of a will secret can, likewise, account for the failure to probate the testament during her lifetime. We conclude that the trial court committed no error in finding that appellants' evidence established at most grounds for suspicion but fell far short of establishing actual exercise of improper pressure or influence. Considering that the testatrix considered proponent as her own son, to the extent that she expressed no objection to his being made the sole heir of her sister, Florentina Cruz, in derogation of her own rights, we find nothing abnormal in her instituting proponent also as her own beneficiary. As stated by the Court in the Knutson case "The truth of the matter is that bequests and devices to those in whom the testator has confidence and who have won his affection are more likely to be free from undue influence than bequests or devises to others." (In re Knutson's Will, 41 Pac. 2d. 793). Appellants invoke a presumption of undue influence held to exist by American authorities where the beneficiary participates in the drafting or execution of the will favoring him; but since the will was prepared by Atty. Pascual, although a nephew of the proponent, we do not think the presumption applies; for in the

normal course of events, said attorney would follow the instructions of the testatrix; and a member of the bar in good standing may not be convicted of unprofessional conduct, or of having conspired to falsify a testament, except upon clear proof. The charge of fraud, being premised on the existence of undue influence, needs no separate discussion. WHEREFORE, the decree of probate appealed from is affirmed, with costs against contestants-appellants. Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano and Barredo, JJ., concur. Teehankee, J., took no part. Concepcion, C.J. and Castro, J., are on official leave. XI. LEGITIME A. Concept - NCC 886 B. Who are entitled to legitimes: Compulsory heirs NCC 782, 887, 902 Nuguid v Nuguid, 17 SCRA 449 EN BANC [G.R. No. L-23445. June 23, 1966.] REMEDIOS NUGUID, petitioner-appellant, vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors-appellees. Custodio O. Partade for petitioner-appellant. Beltran, Beltran & Beltran for oppositors-appellees. SYLLABUS 1. PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF WILL; WHEN COURT MAY RULE ON INTRINSIC VALIDITY; CASE AT BAR. 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 the by law. In the case at bar, however, a peculiar situation exists. The parties shunted aside the question of whether or not the will should be allowed probate. They questioned the intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly authenticated. But if the case were to be remanded for probate of the will, nothing will be gained. In the event of probate or if the court rejects the will, probability exists that the case will

come up once again before this Court on the same issue of the intrinsic validity or nullity of the will. The result would be waste of time, effort, expense, plus added anxiety. These practical considerations induce this Court to meet head-on the issue of the nullity of the provisions of the will in question, there being a justiciable controversy awaiting solution. 2. SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. The deceased left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending time her parents. Her will does not explicitly disinherit them but simply omits their names altogether. Said will rather than he labelled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition. 3. ID.; ID.; PRETERITION DISTINGUISHED FROM 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." (Neri, et al. vs. Akutin, at al., 72 Phil., p. 325.) Disinheritance; in turn, "is a testamentary disposition depriving any compulsory heir of heir share in the legitime 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 20, p. 1131.) 4. ID.; ID.; ID.; EFFECTS FLOWING FROM PRETERITION AND DISINHERITANCE. The effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code "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," 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. 6. ID.; ID.; WHEN LEGACIES AND DEVISES MERIT CONSIDERATION. Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 of the Civil Code 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 he, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir.

7. ID.; ID.; ID.; INSTITUTION OF HEIRS CANNOT BE CONSIDERED LEGACY. 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. 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 articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817 of the same code. DECISION SANCHEZ, J p: 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 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. 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 represented, 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 he 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 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 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 nullity 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 is 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; 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 betterments 4 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 omitir al heredero en el testamento. O no se le nombra siquiera, o aun nombrandole como padre, hijo, etc., no se leinstituye 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 aquelloa 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. 5 It may now appear trite but 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 the 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:34-25). 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, 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 "anular siempre la institucin de heredero, dando carcter 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 aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto perjudique a la legitima del desheredado. 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 Snches Roman: "La consequencia 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, hubiere 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, Snchez Romn cites the "Memoria annual del Tribunal Supremo, 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 alguno favorable a lo 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 distribuido 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 seo 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 que no outoriza 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 convertir este juicio en regla de interpretacin, 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, annulment 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. Snchez Romn, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericin"; but added (in reference to legacies and bequests), "pero subsistiendo, . . . todas aquellas otras disposiciones que no se refieren a la institucin de heredero . . . " 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance including la porcin libre (que) no hubiese dispuesto en virtud de legado, mejora o donacin." 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." 15 From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar." This argument fails to appreciate the distinction between preterition 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 privacin expresa de la legitima constituye le desheredacin. La privacin tcita de la misma se denomina pretericin. 18 Snchez Romn 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 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," but 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, adquieren el derecho a todo; deshereda dos, solo les corresponde un tercio o dos tercios, 22 segn 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. 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]l never have application at all. And the remaining provisions contained in said articles 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 a thing separate and distinct from legacies or betterment. 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. Balanay v Martinez, 64 SCRA 452 SECOND DIVISION [G.R. No. L-39247. June 27, 1975.] In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents. Roberto M. Sarenas for petitioner. Jose B. Guyo for private respondents. SYNOPSIS Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal properties as if they were all owned by her, disposing of her husband's one-half share, and providing that the properties should not be divided during her husband's lifetime but should remain intact and that the legitimes should be paid in cash to be satisfied out of the fruits of the properties. Felix Balanay, Jr. filed a petition for the approval of his mother's will which was opposed by the husband and some of her children. During the pendency of the probate proceedings petitioner submitted to the court a document showing his father's conformity to the testamentary distribution, renouncing his hereditary rights in favor of his children in deference to the memory of his wife. The Court denied the opposition, set for hearing the probate of the will and gave effect to the affidavit and conformity of the surviving spouse. Meanwhile, a certain Atty. David Montaa, Sr. allegedly, in behalf of the petitioner, moved to dismiss the probate proceedings and requested authority to proceed by intestate proceedings on the ground that the will was void, which motion was granted by the probate court. The Court, however, did not abrogate its

prior orders to proceed with the probate proceedings. Subsequently, the court appointed the branch clerk as special administrator, and notice to creditors was issued and published in the Davao Star. Petitioner impugned the order of dismissal claiming that Atty. Montaa had no authority to ask for the dismissal of the petition for allowance of will and that the court erred in declaring the will void before resolving the question of its formal validity. The Supreme Court set aside the order dismissing the petition for probate of the will directed the lower court to proceed with the hearing of the case with costs against private respondents. SYLLABUS 1. WILLS; PROBATE; COURTS MAY PASS UPON THE INTRINSIC VALIDITY BEFORE ALLOWANCE OF WILL. Where the will contains unusual provisions which are of dubious legality and a motion to withdrew the petition for probate presumably with petitioner's authorization has been filed, the trial court can pass upon the will's intrinsic validity even before its formal validity had been established. When practical considerations demand that intrinsic validity be passed upon even before the will is probated, the court should do so, since the probate of a will probated, the court should do so, since the probate of a will might become an idle ceremony if on its face the will is intrinsically void. 2. ID.; ID.; PROBATE MANDATORY; EXCEPTION. Generally, the probate of a will is mandatory and it is the duty of the court to pass first upon its formal validity except in extreme cases where the will is on its face intrinsically void. 3. ID.; ID.; ID.; EFFECT OF ILLEGAL PROVISIONS IN A WILL. A will is not rendered null and void by reason of the existence of some illegal or void provisions since 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; and where some provisions are valid and others invalid, the valid provisions shall be upheld if they can be separated from the invalid provisions without defeating the intention of the testator or interfering with the general testamentary scheme or doing injustice to the beneficiaries. 4. ID.; ID.; ILLEGAL DECLARATION MAY BE DISREGARDED. The statement of the testatrix in her will that she owned the "southern half" of the conjugal lands is contrary to the law, because although she was a co-owner thereof, her share was inchoate and pro indiviso; but the illegal declaration does not nullify the entire will, and said statement may be disregarded.

5. ID.; ID.; ESTATE MAY REMAIN UNDIVIDED ONLY FOR A PERIOD OF 20 YEARS. Under Article '083 of the Civil Code, the estate may remain undivided only for a period of twenty years; so that the provision in the testatrix's will that the estate should not be divided during her husband's lifetime would at most be effective only for 20 years from the date of her death unless there are compelling reasons for terminating the co-ownership. 6. ID.; ID.; TESTATRIX MAY NOT REQUIRE PAYMENT OF LEGITIMATES TO BE PAID IN CASH IF WHOLE ESTATE IS NOT ASSIGNED TO ONE OR MORE CHILDREN. The testatrix has no right to require that the legitimes be paid in cash, contrary to Article '080 of the Civil Code if in her will she partitioned the entire conjugal estate among her children (her husband had renounced his hereditary rights and his one-half conjugal share, and did not assign the whole estate to one or more children as envisaged in said article. 7. ID.; ID.; RENUNCIATION; EFFECT OF RENUNCIATION OF HEREDITARY RIGHTS. The surviving spouse can validly renounce his heredity rights; but insofar as such renunciation partakes of a donation of the hereditary rights and his share in the conjugal properties, it should be subject to the limitations prescribed in Article 750 and 752 of the Civil Code on inofficious donations; and a portion of the estate should be adjudicated for his maintenance or at least his legitime respected. 8. ID.; ID.; ID.; INVALID DISPOSITION BY WILL OF ENTIRE CONJUGAL PARTNERSHIP CURED BY SURVIVING SPOUSE'S CONFORMITY THERETO. Although under Article '70 of the Civil Code the testatrix could dispose of by will only her half of the conjugal state, the conformity of the husband, made after the dissolution of the conjugal partnership by the death of the testatrix, has the effect of validating the testamentary partition of the conjugal estate, without prejudice, of course, to the rights of creditors and legitimes of the compulsory heirs. 9. ID.; FUTURE PROPERTIES; BEQUEST OF FUTURE PROPERTIES. Under Article 793 of the Civil Code, property acquired after the making of the will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention; while under Article 930 of said Code, the legacy or devise of a thing belonging to another is void, if he erroneously believed that the 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. 10. ID; PRETERITION; OMISSION OF THE LEGAL HEIRS INVALIDATES THE WILL.Under Article 854 of the Civil Code, the preterition of the compulsory heir 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. Thus, the preterition of the parents annuls the institution of the sister of the testatrix, and renders the will intrinsically void; and if there are no legacies and devices, total intestacy results. But the preterition of the surviving spouse does not produce intestacy nor render the will intrinsically void, especially if the preterited spouse signified his conformity to his wife's will and renounced his hereditary rights. 11. ID.; INTENTIONS; COURTS SHOULD STRIVE TO GIVE EFFECT TO THE WISHES OF THE TESTATOR. To give effect to the intention and wishes of the testatrix is the first and principal law on the matter of the testaments, and such desires should be given effect independently of the attitude of the parties affected thereby and an interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify it. 12. ID.; ID.; ID.; TESTACY; DOUBTS SHOULD BE RESOLVED IN FAVOR OF TESTACY. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically the 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, because whatever disposition therein made is better than what the law can make. 13. ID.; EXECUTORS; NOTICE TO CREDITORS CANNOT BE ISSUED BEFORE REGULAR EXECUTOR IS APPOINTED; REASONS. The issuance of notice to creditors after a special executor or administrator had been appointed but before the appointment of a regular executor or administrator is erroneous being contrary to the rules of court aside from the fact that it is the regular executor or administrator who is supposed to oppose the claims against the estate or pay such claims if allowed. 14. ID.; ID.; JUDICIAL OFFICERS SHOULD REFRAIN FROM BEING APPOINTED EXECUTORS. The appointment of the branch Clerk of Court as special administrator is not a salutary practice because it might engender the suspicion that the probate court and his clerk are in cahoots in milking the decedent's estate, and if he commits 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 duties and should not have as a sideline the administration of a decedent's estate. DECISION AQUINO, J p: Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, '974, 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. '808). The antecedents of the appeal are as follows: Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February '2, '973 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, '973 for the probate of his mother's notarial will dated September 5, '970 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 '973) 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 '8, '973 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 '8, '973 "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, '973 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 '8, '973 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 '5, '973. In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, '973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon. Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued. Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October '5, '973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being contrary to law and that an intestacy be declared. The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, '974 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 ' and 2, '974. The lower court did not abrogate its prior orders of June '8 and October '5, '973. The notice to creditors was issued on April ', '974 and published on May 2, 9 and '6 in the Davao Star in spite of petitioner's motion of April '7, '974 that its publication be held in abeyance. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April '5, '974, asked for the reconsideration of the lower court's order of February 28, '974 on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, '974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B.

Pabaonon, wherein they terminated Montana'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, '974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaa's arguments. The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. '527, '7 SCRA 449. Compare with Sumilang vs. Ramagosa, L23'35, December 26, '967, 2' SCRA '369; Cacho vs. Udan, L-'9996, April 30, '965, '3 SCRA 693). But the probate court erred in declaring in its order of February 28, '974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June '8, '973 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. '43, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 4'4). 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 '080 of the Civil Code which reads: "ART. '080. 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, desires 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. ('056a)" 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 '080. 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. '083, Civil Code). Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. '79['] and '04', 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. '050['] 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 be 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 possessed 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. '70, 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). 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 '8, '97'3. 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 '2, '967, 2' 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 '8, '972, 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-2456', June 30, '970, 33 SCRA 554, 56'). 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 79', 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, '970, 3' 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-'9573, June 30, '970, 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-259'3, February 28, '969, 27 SCRA 327, 34'). 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 ', 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 (Sec. '0, Rule 86 and sec. ', 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, '974 are set aside and its order of June '8, '973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No. '808 in consonance with this opinion. Costs, against the private respondents. SO ORDERED.

Solano v CA, 126 SCRA 122 FIRST DIVISION [G.R. No. L-41971. November 29, 1983.] ZONIA ANA T. SOLANO, petitioner, vs. THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA, respondents. Benjamin H. Aquino for petitioner. Alfredo Kallos for respondents. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT BY BOTH THE TRIAL COURT AND APPELLATE COURT; BINDING ON THE SUPREME COURT. At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned from the following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born (Exhibit "B" & "2"). Their birth certificates and baptismal certificates mention only the mother's name without the father's name. The facts establish, however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts of support and provisions for their education. 2. ID.; SPECIAL PROCEEDING; ACTION FOR RECOGNITION; ISSUE OF STATUS OF UNIVERSAL HEIR; INCLUDED IN THE RESOLUTION WHERE THE PARTIES IMPLEADED THE SAME IN THE PLEADINGS AND IN THE EVIDENCE DURING TRIAL. It is true that the action below was basically one for recognition. However, upon notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir . . .as of now" (Annex "D", - Petition, p.55, Rollo). In her "Appearance of Substitute Defendant Zonia Ana T. Solano. . . Sole and Universal Heir," ZONIA specifically prayed that she be "allowed to assume her duties as executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is already final and executory, with least interference from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be illegitimate children." In other words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted new right in her capacity as sole and universal heir, "executrix and administratrix," and challenged the right

of the GARCIAS to recognition. Thus, she was not defending the case as a mere representative of the deceased but asserted rights and defenses in her own personal capacity. As raised by the parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such. No error was committed by either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status. 3. ID.; ID.; PROBATE COURT; FILING OF ACTION FOR RECOGNITION WITH THE SAME COURT; IMPLEADING OF ESTATE OBJECT IN THE PROBATE OF WILL; BOTH CASES DEEMED CONSOLIDATED; CASE AT BAR. ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and distributing the shares of the parties in SOLANO's estate when said estate was under the jurisdiction and control of the Probate Court in Special Proceedings No. 842. Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It should be recalled that SOLANO himself instituted the petition for probate of the Will during his lifetime. That proceeding was not one to settle the estate of a deceased person that would be deemed terminated only upon the final distribution of the residue of the hereditary estate. With the Will allowed to probate, the case would have terminated except that it appears that the parties, after SOLANO's death, continued to file pleadings therein. Secondly, upon motion of the GARCIAS, and over the objection of ZONIA the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated. The records further disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the Court and before the same Presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due execution. A probate decree is not concerned with the intrinsic validity or legality of the provisions of the Will. 4. CIVIL LAW; SUCCESSION; PRETERITION OF COMPULSORY HEIRS; INSTITUTION OF UNIVERSAL HEIR ANNULLED IN SO FAR AS THE LEGITIME OF THE PRETERITED HEIRS IS IMPAIRED; LEGITIME OF ILLEGITIMATE CHILDREN. Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts. the GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did not have the legal capacity to contract marriage at the time of ZONIA's conception, (Article 277, Civil Code); that being

compulsory heirs, the GARCIAS were, in fact, preterited from SOLANO's Last Will and Testament; and that as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding that the entire Will is void and intestacy ensues, the preterition of the GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The Will, therefore, is valid subject to that limitation. (Escuin vs. Escuin, 11 Phil. 332 [1908]; Eleasar vs. Eleazar, 67 Phil. 497 [1939]). It is plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of. Since the legitime of illegitimate children consists of one-half (1/2) of the hereditary estate (Art. 895, Civil Code), the GARCIAS and ZONIA each have a right to participation therein in the proportion of one- third (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate. 5. ID.; ID.; USUFRUCT; GRANT TO BE RESPECTED IN SO FAR AS IT IS NOT INOFFICIOUS. As provided in the foregoing provision, the disposition in that Will giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, and should be respected in so far as it is not inofficious (Neri vs. Akutin, 74 Phil. 185 [1943]). 6. REMEDIAL LAW; COURTS; JURISDICTION; VOLUNTARY SUBMISSION; PARTY ESTOPPED FROM REPUDIATING IT FOR REASONS OF PUBLIC POLICY. It should be pointed out that the jurisdiction of the Trial Court and the Appellate Court was never questioned before either Court. ZONIA herself had gone, without objection. to trial on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held estopped to repudiate that jurisdiction to which she had voluntarily submitted. after she had received an unfavorable judgment. (Tijam vs. Sibonghanoy, 23 SCRA 29 [1968]). TEEHANKEE, J., concurring: 1. REMEDIAL LAW; SPECIAL PROCEEDING; PROBATE OF WILL; ACTION FOR RECOGNITION; CONTINUED FILING BY THE PARTIES OF PLEADINGS IN THE PROBATE COURT DESPITE ALLOWANCE OF THE WILL, THE TWO CASES DEEMED CONSOLIDATED. The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate

of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance is vitam of Dr. Solano's will) which were pending before the same judge and the same branch of the trial court could be correctly said to have been consolidated. 2. ID.; ID.; JURISDICTION; VOLUNTARY SUBMISSION TO THE COURT; PARTY ESTOPPED FROM REPUDIATING IT. Petitioner is now estopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate court to which she had submitted without question her cause. DECISION MELENCIO-HERRERA, J p: A Petition for Review on Certiorari of the Decision of the then Court of Appeals affirming the judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No. 3956, an action for Recognition. On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving heir mentioned in his Last Will and Testament probated on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA entered her formal appearance as a "substitute defendant" on March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO, and asking that she be allowed to assume her duties as executrix of the probated Will with the least interference from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO". On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT. ZONIA did not file any responsive

pleading and the case proceeded to trial. The GARCIAS further moved for the impleading of the SOLANO estate in addition to ZONIA, which was opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1 In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2 On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment the dispositive portion of which decrees: "WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the illegitimate children of the late Dr. Meliton Solano under the class of ADULTEROUS CHILDREN, with all the rights granted them by law. The institution of Sonia Ana Solano as sole and universal heir of the said deceased in the will is hereby declared null and void and the three (3) children shall share equally the estate or one-third (1/3) each, without prejudice to the legacy given to Trinidad Tuagnon and the right of any creditors of the estate. No pronouncement as to costs." Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CA-G.R. No. 49018). ZONIA seeks a reversal of that affirmance in this petition, which was given due course. At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned from the following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born (Exhibits "B" & "2"). Their birth certificates and baptismal certificates mention only the mother's name without the father's name. The facts establish, however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts of support and provisions for their education. llcd In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth Certificate, her status was listed as "illegitimate"; her

mother as Trinidad Tuagnon; her father as "P.N.C." (Exhibit "V"), or "padre no conocido". During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on November 29, 1943 (Exhibits "R-1" and "S-1"). on December 22, 1943, SOLANO and Trinidad Tuagnon executed an "Escritura de Reconocimiento de Una Hija Natural" (Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to use the name ZONIA Ana Solano y Tuagnon. The document was registered with the Local Civil Registrar on the same date. On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"), instituting ZONIA as his universal heir to all his personal and real properties in Camalig, Tabaco and Malinao, all in the province of Albay, except for five parcels of land in Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct. Upon SOLANO's petition (Exhibit "10"), the Will was duly probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S. Grageda (Exhibit "12"). As above stated, these facts are not in question. Petitioner maintains, however, that: I. "The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano, now petitioner, an illegitimate child of the late Dr. Meliton Solano in an action where private respondents, as plaintiffs in the Court below, sought recognition as natural children of Dr. Meliton Solano. II. "The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in ordering the division of the estate of Dr. Meliton Solano between the petitioner and private respondents, when said estate is under the jurisdiction and control of the probate Court in Special Proceedings No. 842. III. "The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring null and void the institution of heir in the last will and testament of Dr. Meliton Solano, which was duly probated in special proceedings No. 842 of the Court of First Instance of Albay, and in concluding that total intestacy resulted therefrom." 3 Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the same action despite the pendency of Special Proceedings No. 842; and 3) to declare null and void the institution of heir in the

Last Will and Testament of SOLANO, which was duly probated in the same Special Proceedings No. 842, and concluding that total intestacy resulted. It is true that the action below was basically one for recognition. However, upon notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir . . . as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano . . . Sole and Universal Heir", ZONIA specifically prayed that she be "allowed to assume her duties as executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is already final and executory, with least interference from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted new rights in her capacity as sole and universal heir, "executrix and administratrix, " and challenged the right of the GARCIAS to recognition. Thus, she was not defending the case as a mere representative of the deceased but asserted rights and defenses in her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA . . . and Supplemental Cause of Action . . . ." vigorously denying that ZONIA was SOLANO's sole and universal heir; that ZONIA could not legally be considered as SOLANO's acknowledged natural child because of a legal impediment; that the admission to probate of SOLANO's Will was merely conclusive as to its due execution; that the supposed recognition under a notarial instrument of ZONIA as an acknowledged natural child was fraudulent and a product of misrepresentation; that ZONIA's recognition in the Will as an acknowledged natural child is subject to nullification and that at most ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon. LibLex During the trial, the GARCIAS presented evidence to prove their allegations not only in their main complaint but also in their "Reply to Appearance and Supplemental Cause of Action". ZONIA presented no objection to the presentation by the GARCIAS of their oral and documentary evidence and even cross-examined their witnesses. ZONIA, for her part, presented her own testimonial and documentary evidence, denied the relationship of the GARCIAS' to SOLANO and presented the notarial recognition in her favor as an acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such. No error was committed by either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status. ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the institution of heir in SOLANO's will; in concluding that total intestacy

resulted therefrom; and distributing the shares of the parties in SOLANO's estate when said estate was under the jurisdiction and control of the Probate Court in Special Proceedings No. 842. Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It should be recalled that SOLANO himself instituted the petition for probate of the Will during his lifetime, That proceeding was not one to settle the estate of a deceased person that would be deemed terminated only upon the final distribution of the residue of the hereditary estate. With the Will allowed to probate, the case would have terminated except that it appears that the parties, after SOLANO's death, continued to file pleadings therein Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated. The records further disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the Court and before the same Presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not concerned with the intrinsic validity or legality of the provisions of the Will. 6 Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did not have the legal capacity to contract marriage at the time of ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact, preterited from SOLANO's Last Will and Testament; and that as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. "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. xxx xxx xxx" 8 As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, 9 and should be respected in so far as it is not inofficious. 10 So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the

Courts below, holding that the entire Will is void and intestacy ensues, the preterition of the GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The Will, therefore, is valid subject to that limitation. 11 It is a plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of. 12 Since the legitime of illegitimate children consists of one-half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate. As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in the Will is valid and should be respected. The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et al., 15 which held that where the institution of a universal heir is null and void due to preterition, the Will is a complete nullity and intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-sentence Will was involved with no other provision except the institution of the sole and universal heir; there was no specification of individual property; there were no specific legacies or bequests. It was upon that factual setting that this Court declared: "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." (at p. 459) In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the Civil Code, supra, applies merely annulling the "institution of heir". prcd Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court was never questioned before either Court. ZONIA herself had gone, without objection, to trial on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held estopped to repudiate that jurisdiction to which she had voluntarily submitted, after she had received an unfavorable judgment. The leading case of Tijam vs. Sibonghanoy, 16 on this point, declared: "A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate or question

the same jurisdiction. The question whether the court has jurisdiction either of the subject matter of the action or of the parties is not because the judgment or order of the court is valid and conclusive as an adjudication but for the reason that such practice cannot be tolerated obviously for reasons of public policy. After voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court." WHEREFORE, the judgment under review is hereby modified in that the hereditary share in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad Tuagnon shall be respected. The judgment is affirmed in all other respects. No costs. SO ORDERED. Plana, Relova and Gutierrez, Jr., JJ., concur. Separate Opinions TEEHANKEE, J., concurring: The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance in vitam of Dr. Solano's will) which were pending before the same judge and the same branch of the trial court could be correctly said to have been consolidated. Finally, petitioner is now estopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate courts to which she had submitted without question her cause. Rosales v Rosales, 148 SCRA 69 FIRST DIVISION [G.R. No. L-40789. February 27, 1987.]

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. SYLLABUS 1. CIVIL LAW; WILLS AND SUCCESSION; INTESTATE SUCCESSION; INTESTATE OR LEGAL HEIRS; CLASSIFICATION. 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. 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, or by the right of representation provided for in Article 981 of the same law. 2. ID.; ID.; ID.; DAUGHTER-IN-LAW, NOT AN INTESTATE HEIR OF HER SPOUSE'S PARENT. 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. 3. ID.; ID.; WIDOW OR WIDOWER MENTIONED IN ARTICLE 887 OF THE CIVIL CODE REFERS TO SURVIVING SPOUSE. Petitioner argues that she is a compulsory heir in accordance with the provisions of article 887 of the Civil Code. The aforesaid provision of law 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. 4. ID.; ID.; ID.; SURVIVING SPOUSE CONSIDERED A THIRD PARTY WITH RESPECT TO ESTATE OF 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, 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. . . . . ".

5. ID.; ID.; ID.; RIGHT OF REPRESENTATION; BLOOD RELATIONSHIP; BASIS THEREOF. 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. 6. ID.; ID.; ID.; INCHOATE RIGHT TO ESTATE EXTINGUISHED BY DEATH OF HEIR. Petitioner contends that at the time of the death of her husband Corterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heirs. 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. DECISION GANCAYCO, J p: 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. prLL 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 Fortunato 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 deceased 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 individuals the legal heirs of the deceased and prescribing their respective share of the estate Fortunato 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 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. 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 shall 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-inlaw, it would have so provided in the Code. LLjur 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. llcd 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 rot 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-inlaw. 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. LLjur SO ORDERED. Acain v CA, 155 SCRA 100 EN BANC [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. DECISION PARAS, J p: 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-A-CEB 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-A-CEB. 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 in 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-A-CEB (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) submitted 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 predeceases me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given by 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-A-CEB. LLphil 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 the deceased and the latter's widow Rosa Diongson Vda. de Acain) filed a motion to dismiss on the following grounds: (1) 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 preterited. (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-A-CEB. 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 ERIT 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 inviolable. (F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591-A-CEB 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 preterited. llcd 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 be 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 was 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. Preterition 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" (Manresa, 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 in 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. Cdpr As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of 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 (D.D. 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-CEB 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. Leonidas, 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 preterition. 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. LLpr In Cayetano v. Leonidas, 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-CEB 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. Leonidas, supra; Nuguid 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 v. Court of Appeals, supra). prcd 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. Seangio v Reyes, G.R. No. 140372-72, 27 November 2006 SECOND DIVISION [G.R. Nos. 140371-72. November 27, 2006.] DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, petitioners, vs. HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIOSANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, respondents. DECISION AZCUNA, J p: This is a petition for certiorari 1 with application for the issuance of a writ of preliminary injunction and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio." The facts of the cases are as follows: On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98-90870 of

the RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio. CDAHIT Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo executed a general power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the will. On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99-93396, was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take precedence over SP. Proc. No. 98-90870 because testate proceedings take precedence and enjoy priority over intestate proceedings. 2 The document that petitioners refer to as Segundo's holographic will is quoted, as follows: Kasulatan sa pag-aalis ng mana Tantunin ng sinuman Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. IaEScC Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking. At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana. Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3 (signed) Segundo Seangio Nilagdaan sa harap namin (signed) Dy Yieng Seangio (signed) Unang Saksi ikalawang saksi (signed) ikatlong saksi On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396 were consolidated. 4 On July 1, 1999, private respondents moved for the dismissal of the probate proceedings 5 primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being the case, private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent. CSEHIa Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition does not apply because Segundo's will does not constitute a universal heir or heirs to the exclusion of one or more compulsory heirs. 6 On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings: A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the

New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a compulsory heir in the direct line. As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for . . . respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be intrinsically void . . . would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied). WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit. Special Proceedings No. 99-93396 is hereby DISMISSED without pronouncement as to costs. aDHCEA SO ORDERED. 7 Petitioners' motion for reconsideration was denied by the RTC in its order dated October 14, 1999. Petitioners contend that: THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT: I THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR'S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR'S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW; II

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR'S WILL THAT NO PRETERITION EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND, III RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS. TcEAIH Petitioners argue, as follows: First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest the allowance thereof, and cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of the testator Segundo; Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the decedent's will and the holographic will on its face is not intrinsically void; Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will since there was no institution of an heir; Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate case; and, Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render nugatory the disinheritance of Alfredo. CDAHaE The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards the authenticity of the document. The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo's intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo. For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated by Segundo in his

document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code: Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; 8 (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction. CSaIAc Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will. A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Segundo's document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose mortis causa 9 can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter's property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo. 10 Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. 11

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present case, should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. 12 In this regard, the Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is probated, 13 the disinheritance cannot be given effect. 14 With regard to the issue on preterition, 15 the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Court's opinion, Segundo's last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir 16 to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo. HSEIAT Considering that the questioned document is Segundo's holographic will, and that the law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory. 17 In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose. 18 WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid testate proceedings. No costs. SO ORDERED. J.L.T. Agro v. Balansag, 453 SCRA 211 SECOND DIVISION [G.R. No. 141882. March 11, 2005.] J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.

Guingona & Sedigo for petitioner. Jose A. Arbas for respondents. SYLLABUS 1. CIVIL LAW; SUCCESSION; NO CONTRACT MAY BE ENTERED INTO WITH RESPECT TO FUTURE INHERITANCE. Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a contract. The exception is that no contract may be entered into with respect to future inheritance, and the exception to the exception is the partition inter vivos referred to in Article 1080. HTCESI 2. ID.; ID.; IF THE PARTITION IS MADE BY AN ACT INTER VIVOS, NO FORMALITIES ARE PRESCRIBED BY LAW. The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on future things, 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. . . . In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter vivos, no formalities are prescribed by the Article. The partition will of course be effective only after death. It does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the ownership here after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here is merely the physical determination of the part to be given to each heir. 3. ID.; ID.; CONTRACT UPON FUTURE INHERITANCE; REQUISITES. For the inheritance to be considered "future", the succession must not have been opened at the time of the contract. A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur: (1) That the succession has not yet been opened; (2) That the object of the contract forms part of the inheritance; and (3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature. DAHCaI 4. ID.; ID.; PARTITION INTER VIVOS; RIGHT OF HEIRS THEREUNDER IS A MERE EXPECTANCY. The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the properties adjudicated to him under the compromise agreement was but a mere expectancy. It was a bare hope of succession to the property of their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no attribute of property,

and the interest to which it related was at the time nonexistent and might never exist. Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained the owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated to them by virtue of the compromise agreement. 5. ID.; ID.; TESTAMENTARY SUCCESSION; PRETERITION SHALL ANNUL THE INSTITUTION OF HEIRS. Article 854 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. 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. It is the total omission of a compulsory heir in the direct line from inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. But there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of a forced heir. AEIHaS 6. ID.; ID.; ID.; PREMATURE TO SPEAK OF PRETERITION PRIOR TO THE DEATH OF THE TESTATOR. In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian upon his death. A couple of provisions in the Compromise Agreement are indicative of Don Julian's desire along this line. Hence, the total omission from inheritance of Don Julian's heirs from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded. 7. ID.; LAND TITLES AND DEEDS; CERTIFICATE OF TITLE; SERVES AS EVIDENCE OF AN INDEFEASIBLE TITLE TO THE PROPERTY IN FAVOR OF THE PERSON WHOSE NAME APPEARS THEREIN. Wellsettled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears

therein. A certificate of title accumulates in one document a precise and correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the real interest of its owner. CSEHcT 8. ID.; ID.; APPEARANCES OF A MERE THUMBMARK OF THE PROPERTY OWNER INSTEAD OF HIS SIGNATURE IN THE SUPPLEMENTAL DEED WOULD NOT AFFECT THE VALIDITY OF HIS TITLE. To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate court's ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed would not affect the validity of petitioner's title for this Court has ruled that a thumbmark is a recognized mode of signature. 9. REMEDIAL LAW; SPECIAL PROCEEDINGS; RECONSTITUTION OF THE OWNER'S COPY OF THE ORIGINAL CERTIFICATE OF TITLE; RECONSTITUTION COURT MAY ORDER THE RECONSTITUTION AND REPLACEMENT OF THE LOST TITLE ONLY, NOTHING ELSE. Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owner's copy of OCT No. 5203, only that owner's copy could be ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not just a reconstituted owner's copy of the original certificate of title but a new transfer certificate of title in place of the original certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of title even designating the very number of the new transfer certificate of title itself the order would be patently unlawful. A court cannot legally order the cancellation and replacement of the original of the O.C.T. which has not been lost, as the petition for reconstitution is premised on the loss merely of the owner's duplicate of the OCT. ADScCE 10. CIVIL LAW; OBLIGATIONS AND CONTRACTS; REQUISITES OF A VALID CONTRACT. Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established. 11. ID.; ID.; ID.; CONTRACTS THAT LACK AN ESSENTIAL ELEMENT ARE VOID OR INEXISTENT. Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2). The absence of the usual recital

of consideration in a transaction which normally should be supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of existence of consideration established by law. EcAHDT 12. ID.; DONATION; TITLE TO IMMOVABLE PROPERTY DOES NOT PASS FROM THE DONOR TO THE DONEE UNTIL AND UNLESS THE DONATION HAS BEEN ACCEPTED IN A PUBLIC INSTRUMENT AND THE DONOR DULY NOTIFIED THEREOF. In Sumipat, et al. v. Banga, et al., this Court declared that title to immovable property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. 13. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; APPELLATE COURTS HAVE AMPLE AUTHORITY TO RULE ON SPECIFIC MATTERS NOT ASSIGNED AS ERRORS IF THESE ARE INDISPENSABLE OR NECESSARY TO THE JUST RESOLUTION OF THE PLEADED ISSUES. One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times. Thus, this Court has ruled that appellate courts have ample authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if these are indispensable or necessary to the just resolution of the pleaded issues. Specifically, matters not assigned as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to avoid dispensing piecemeal justice. In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is unmistakably determinative of the underlying controversy. In other words, the issue of validity or nullity of the instrument which is at the core of the controversy is interwoven with the issues adopted by the parties and the rulings of the trial court and the appellate court. Thus, this Court is also resolute in striking down the alleged deed in this case, especially as it appears on its face to be a blatant nullity. ECDaTI DECISION TINGA, J p:

Once again, the Court is faced with the perennial conflict of property claims between two sets of heirs, a conflict ironically made grievous by the fact that the decedent in this case had resorted to great lengths to allocate which properties should go to which set of heirs. IEcDCa This is a Rule 45 petition assailing the Decision 1 dated 30 September 1999 of the Court of Appeals which reversed the Decision 2 dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros Oriental. The factual antecedents follow. Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa Teves Escao (Josefa) and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves (Pedro). 3 The present controversy involves a parcel of land covering nine hundred and fiftyfour (954) square meters, known as Lot No. 63 of the Bais Cadastre, which was originally registered in the name of the conjugal partnership of Don Julian and Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia died, the land was among the properties involved in an action for partition and damages docketed as Civil Case No. 3443 entitled "Josefa Teves Escao v. Julian Teves, Emilio B. Teves, et al." 4 Milagros Donio, the second wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case entered into a Compromise Agreement 5 which embodied the partition of all the properties of Don Julian. On the basis of the compromise agreement and approving the same, the Court of First Instance (CFI) of Negros Oriental, 12th Judicial District, rendered a Decision 6 dated 31 January 1964. The CFI decision declared a tract of land known as Hacienda Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the first marriage. The property was to remain undivided during the lifetime of Don Julian. 7 Josefa and Emilio likewise were given other properties at Bais, including the electric plant, the "movie property," the commercial areas, and the house where Don Julian was living. The remainder of the properties was retained by Don Julian, including Lot No. 63. acCITS Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual death of Don Julian vis--vis his heirs: 13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which

they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied) On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets with Assumption of Liabilities 8 in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of Assignment of Assets with the Assumption of Liabilities (Supplemental Deed) 9 dated 31 July 1973. This instrument which constitutes a supplement to the earlier deed of assignment transferred ownership over Lot No. 63, among other properties, in favor of petitioner. 10 On 14 April 1974, Don Julian died intestate. cTDaEH On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the subject lot in its name. A court, so it appeared, issued an order 11 cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No. T-375 was issued in the name of petitioner. 12 Since then, petitioner has been paying taxes assessed on the subject lot. 13 Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the execution of the Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria Cadayday, respondents herein. 14 On Lot No. 63, respondents temporarily established their home and constructed a lumber yard. Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial Partition of Real Estate 15 dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was already registered in the name of petitioner in 1979, respondents bought Lot No. 63 from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate 16 dated 9 November 1983. jur2005cda At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered that the lot was already titled in the name of petitioner. Thus, they failed to register the deed. 17 Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-

375 in the name of petitioner and the transfer of the title to Lot No. 63 in their names, plus damages. 18 After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision reads: WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of the defendant and against the plaintiff, and thus hereby orders: (1) That complaint be dismissed; ASHaTc (2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under Transfer Certificate of Title No. T-375; (3) That plaintiffs pay costs. Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed. 19 The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the Compromise Agreement. 20 It added that the direct adjudication of the properties listed in the Compromise Agreement was only in favor of Don Julian and his two children by the first marriage, Josefa and Emilio. 21 Paragraph 13 served only as an amplification of the terms of the adjudication in favor of Don Julian and his two children by the first marriage. According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latter's death. Thus, upon Don Julian's death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to allocate the subject lot, among his other properties, to Milagros Donio and her four (4) children. 22 The trial court further stressed that with the use of the words "shall be," the adjudication in favor of Milagros Donio and her four (4) children was not final and operative, as the lot was still subject to future disposition by Don Julian during his lifetime. 23 It cited paragraph 14 24 of the Compromise Agreement in support of his conclusion. 25 With Lot No. 63 being the conjugal property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her children had no hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only upon the death of the latter. 26 The trial court ruled that at the time of Don Julian's death on 14 April 1974, Lot No. 63 was no longer a part of his estate since he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of

extrajudicial partition by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised prudence before buying the subject lot by investigating the registration of the same with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial court added. 27 The Court of Appeals, however, reversed the trial court's decision. The decretal part of the appellate decision reads: WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T-375 registered in the name of J.L.T. Agro, Inc. as null and void. HScAEC With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves. SO ORDERED. 28 Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don Julian's two sets of heirs their future legitimes in his estate except as regards his (Don Julian's) share in Hacienda Medalla Milagrosa. 29 The two sets of heirs acquired full ownership and possession of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res judicata. 30 Don Julian could have disposed of only his conjugal share in the Hacienda Medalla Milagrosa. 31 The appellate court likewise emphasized that nobody in his right judgment would preterit his legal heirs by simply executing a document like the Supplemental Deed which practically covers all properties which Don Julian had reserved in favor of his heirs from the second marriage. It also found out that the blanks reserved for the Book No. and Page No. at the upper right corner of TCT No. T-375, "to identify the exact location where the said title was registered or transferred," were not filled up, thereby indicating that the TCT is "spurious and of dubious origin." 32 Aggrieved by the appellate court's decision, petitioner elevated it to this Court via a petition for review on certiorari, raising pure questions of law. DcaSIH Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian; (b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage pursuant to the Compromise Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs from the second

marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No. and Page No. 33 While most of petitioner's legal arguments have merit, the application of the appropriate provisions of law to the facts borne out by the evidence on record nonetheless warrants the affirmance of the result reached by the Court of Appeals in favor of respondents. Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted again: 13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves." (Emphasis supplied) SECcIH With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don Julian from the second marriage became automatically operative upon the approval of the Compromise Agreement, thereby vesting on them the right to validly dispose of Lot No. 63 in favor of respondents. Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in Blas v. Santos 34 is relevant, where we defined future inheritance as any property or right not in existence or capable of determination at the time of the contract, that a person may in the future acquire by succession. Article 1347 of the New Civil Code explicitly provides: ART. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a contract. The exception is that no

contract may be entered into with respect to future inheritance, and the exception to the exception is the partition inter vivos referred to in Article 1080. 35 For the inheritance to be considered "future," the succession must not have been opened at the time of the contract. 36 A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur: (1) That the succession has not yet been opened; HEcaIC (2) That the object of the contract forms part of the inheritance; and (3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature. 37 The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on future things, 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. xxx xxx xxx In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter vivos, no formalities are prescribed by the Article. 38 The partition will of course be effective only after death. It does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the ownership here after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here is merely the physical determination of the part to be given to each heir. 39 The historical antecedent of Article 1080 of the New Civil Code is Article 1056 40 of the old Civil Code. The only change in the provision is that Article 1080 now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a will with all the formalities provided by law. 41 Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and distribute them among his heirs, and this partition is neither a donation nor a testament, but an instrument of a special character, sui generis, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives its binding force on the heirs from the respect due to the will of the owner of the property, limited only by his creditors and the intangibility of the legitime of the forced heirs. 42

The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the properties adjudicated to him under the compromise agreement was but a mere expectancy. It was a bare hope of succession to the property of their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no attribute of property, and the interest to which it related was at the time nonexistent and might never exist. 43 Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained the owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated to them by virtue of the compromise agreement. TcDAHS Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The appellate court disagreed, holding that the Supplemental Deed is not valid, containing as it does a prohibited preterition of Don Julian's heirs from the second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The contention is well-founded. Article 854 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. 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. 44 It is the total omission of a compulsory heir in the direct line from inheritance. 45 It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. 46 But there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of a forced heir. 47 In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from

the second marriage could inherit from Don Julian upon his death. A couple of provisions in the Compromise Agreement are indicative of Don Julian's desire along this line. 48 Hence, the total omission from inheritance of Don Julian's heirs from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded. IcESaA Despite the debunking of respondents' argument on preterition, still the petition would ultimately rise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the president and director of petitioner, and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such a transfer to a family corporation. Yet close scrutiny is in order, especially considering that such transfer would remove Lot No. 63 from the estate from which Milagros and her children could inherit. Both the alleged transfer deed and the title which necessarily must have emanated from it have to be subjected to incisive and detailed examination. Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein. 49 A certificate of title accumulates in one document a precise and correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the real interest of its owner. 50 To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate court's ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed would not affect the validity of petitioner's title for this Court has ruled that a thumbmark is a recognized mode of signature. 51 The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal process established by law. And, worse still, the illegality is reflected on the face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to secure the issuance of a new title in his name such instrument has to be presented to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus: SEC. 53. Presentation of owner's duplicate upon entry of new certificate. No voluntary instrument shall be registered by the Register of Deeds unless the owner's duplicate certificate is presented with such instrument, except in cases expressly provided for in this Decree or upon order of the court, for cause shown. (Emphasis supplied) caCTHI

xxx xxx xxx SEC. 57. Procedure in registration of conveyances. An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in law. The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owner's duplicate certificate. The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a reference by number to the last preceding certificate. The original and the owner's duplicate of the grantor's certificate shall be stamped "cancelled." The deed of conveyance shall be filed and endorsed with the number and the place of registration of the certificate of title of the land conveyed. (Emphasis supplied) As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed. In fact, there is absolutely no mention of a reference to said document in the original and transfer certificates of title. It is in this regard that the finding of the Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No. T-375 in its place are not predicated on a valid transaction. What appears instead on OCT No. 5203 is the following pertinent entry: Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC. CONDITIONS: Lost owner's duplicate is hereby cancelled, and null and void and a new Certificate of Title No. 375 is issued per Order of the Court of First Instance on file in this office. CIaHDc Date of Instrument: November 12, 1979 Date of Inscription: Nov. 12, 1979 4:00 P.M. (SGD) MANUEL C. MONTESA Acting Deputy Register of Deeds II (Emphasis supplied) 52 What the entry indicates is that the owner's duplicate of OCT No. 5203 was lost, a petition for the reconstitution of the said owner's duplicate was filed in court, and the court issued an order for the reconstitution of the owner's duplicate and its replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the entry) issued an order for the issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of Deeds had not been lost.

Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owner's copy of OCT No. 5203, only that owner's copy could be ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not just a reconstituted owner's copy of the original certificate of title but a new transfer certificate of title in place of the original certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of title even designating the very number of the new transfer certificate of title itself the order would be patently unlawful. A court cannot legally order the cancellation and replacement of the original of the O.C.T. which has not been lost, 53 as the petition for reconstitution is premised on the loss merely of the owner's duplicate of the OCT. ECSaAc Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the subject lot in its name, instead of the Supplemental Deed which should be its proper course of action. It was so constrained to do because the Supplemental Deed does not constitute a deed of conveyance of the "registered land in fee simple" "in a form sufficient in law," as required by Section 57 of P.D. No. 1529. A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment is not supported by any consideration. The provision reads: xxx xxx xxx WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escao at Dumaguete City on 16th day of November 1972 and ratified in the City of Dumaguete before Notary Public Lenin Victoriano, and entered in the latter's notarial register as Doc. No. 367; Page No. 17; Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escao, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as reflected in the Balance Sheet of the former as of December 31, 1971. WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don Julian L. Teves. We quote. HCacDE From the properties at Bais Adjudicated to Don Julian L. Teves xxx xxx xxx Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value P2,720.00 xxx xxx xxx

WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of the transfer of the above corporation. NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a fair market value of EIGHTY-FOUR THOUSAND PESOS (P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall become absolute upon signing. 54 (Emphasis supplied) The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the consideration for the assignment made by Don Julian. Rather, it is a mere statement of the fair market value of all the nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is just one, that were transferred by Don Julian in favor of petitioner. Consequently, the testimony 55 of petitioner's accountant that the assignment is supported by consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed. The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back of the TCT No. T-375 as the consideration for the assignment. 56 However, the said annotation 57 shows that the mortgage was actually executed in favor of Rehabilitation Finance Corporation, not of petitioner. 58 Clearly, said mortgage, executed as it was in favor of the Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off the mortgage obligation, could not have been the consideration for the assignment to petitioner. CaDATc Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established. Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2). 59 The absence of the usual recital of consideration in a transaction which normally should be supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of existence of consideration established by law. 60 Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the point, thus: Art. 749. In order that the donation of the immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. AcHCED In Sumipat, et al v. Banga, et al., 61 this Court declared that title to immovable property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. In the case at bar, although the Supplemental Deed appears in a public document, 62 the absence of acceptance by the donee in the same deed or even in a separate document is a glaring violation of the requirement. One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times. 63 Thus, this Court has ruled that appellate courts have ample authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if these are indispensable or necessary to the just resolution of the pleaded issues. 64 Specifically, matters not assigned as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to avoid dispensing piecemeal justice. 65 In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is unmistakably determinative of the underlying controversy. In other words, the issue of validity or nullity of the instrument which is at the core of the controversy is interwoven with the issues adopted by the parties and the rulings of the trial court and the appellate court. 66 Thus, this Court is also resolute in striking down the alleged deed in this case, especially as it appears on its face to be a blatant nullity. WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc. AcICTS SO ORDERED. Rep. v Manotoc, G. R. No. 171701, February 8, 2012

SECOND DIVISION [G.R. No. 171701. February 8, 2012.] REPUBLIC OF THE PHILIPPINES, petitioner, vs. MA. IMELDA "IMEE" R. MARCOS-MANOTOC, FERDINAND "BONGBONG" R. MARCOS, JR., GREGORIO MA. ARANETA III, IRENE R. MARCOS-ARANETA, YEUNG CHUN FAN, YEUNG CHUN HO, YEUNG CHUN KAM, and PANTRANCO EMPLOYEES ASSOCIATION (PEA)-PTGWO, respondents. DECISION SERENO, J p: Before this Court is a Petition for Review filed by the Republic of the Philippines assailing the Resolutions 1 issued by the Sandiganbayan in connection with an alleged portion of the Marcoses' supposed ill-gotten wealth. HSaIDc This case involves P200 billion of the Marcoses' alleged accumulated ill-gotten wealth. It also includes the alleged use of the media networks IBC-13, BBC-2 and RPN-9 for the Marcos family's personal benefit; the alleged use of De Soleil Apparel for dollar salting; and the alleged illegal acquisition and operation of the bus company Pantranco North Express, Inc. (Pantranco). The Facts After the EDSA People Power Revolution in 1986, the first executive act of then President Corazon C. Aquino was to create the Presidential Commission on Good Government (PCGG). Pursuant to Executive Order No. 1, the PCGG was given the following mandate: Sec. 2. The Commission shall be charged with the task of assisting the President in regard to the following matters: (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship. TaCIDS (b) The investigation of such cases of graft and corruption as the President may assign to the Commission from time to time. (c) The adoption of safeguards to ensure that the above practices shall not be repeated in any manner under the new government, and the institution of adequate measures to prevent the occurrence of corruption. Sec . 3. The Commission shall have the power and authority: (a) To conduct investigation as may be necessary in order to accomplish and carry out the purposes of this order.

(b) To sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task. aCcHEI (c) To provisionally take over in the public interest or to prevent its disposal or dissipation, business enterprises and properties taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos, until the transactions leading to such acquisition by the latter can be disposed of by the appropriate authorities. (d) To enjoin or restrain any actual or threatened commission of facts by any person or entity that may render moot and academic, or frustrate, or otherwise make ineffectual the efforts of the Commission to carry out its tasks under this order. (e) To administer oaths, and issue subpoena requiring the attendance and testimony of witnesses and/or the production of such books, papers, contracts, records, statement of accounts and other documents as may be material to the investigation conducted by the Commission. (f) To hold any person in direct or indirect contempt and impose the appropriate penalties, following the same procedures and penalties provided in the Rules of Court. cSIHCA (g) To seek and secure the assistance of any office, agency or instrumentality of the government. (h) To promulgate such rules and regulations as may be necessary to carry out the purpose of this order. Thus, numerous civil and criminal cases were subsequently filed. One of the civil cases filed before the Sandiganbayan to recover the Marcoses' alleged ill-gotten wealth was Civil Case No. 0002, now subject of this Petition. On 16 July 1987, the PCGG, acting on behalf of the Republic and assisted by the Office of the Solicitor General (OSG), filed a Complaint for Reversion, Reconveyance, Restitution, Accounting and Damages against Ferdinand E. Marcos, who was later substituted by his estate upon his death; Imelda R. Marcos; and herein respondents Imee Marcos-Manotoc, Irene Marcos-Araneta, Bongbong Marcos, Tomas Manotoc, and Gregorio Araneta III. On 1 October 1987, the PCGG filed an amended Complaint to add Constante Rubio as defendant. aASDTE Again on 9 February 1988, it amended the Complaint, this time to include as defendants Nemesio G. Co and herein respondents Yeung Chun Kam, Yeung Chun Ho, and Yeung Chun Fan.

For the third time, on 23 April 1990, the PCGG amended its Complaint, adding to its growing list of defendants Imelda Cojuangco, the estate of Ramon Cojuangco, and Prime Holdings, Inc. 2 The PCGG filed a fourth amended Complaint, which was later denied by the Sandiganbayan in its Resolution dated 2 September 1998. The allegations contained in the Complaint specific to herein respondents are the following: 3 29. Defendants Imelda (IMEE) R. Marcos-Manotoc, Tomas Manotoc, Irene R. Manotoc (sic) Araneta, Gregorio Ma. Araneta III, and Ferdinand R. Marcos, Jr., actively collaborated, with Defendants Ferdinand E. Marcos and Imelda R. Marcos among others, in confiscating and/or unlawfully appropriating funds and other property, and in concealing the same as described above. In addition, each of the said Defendants, either by taking undue advantage of their relationship with Defendants Ferdinand E. Marcos and Imelda R. Marcos, or by reason of the abovedescribed active collaboration, unlawfully acquired or received property, shares of stocks in corporations, illegal payments such as commissions, bribes or kickbacks, and other forms of improper privileges, income, revenues and benefits. Defendant Araneta in particular made use of Asialand Development Corporation which is included in Annex "A" hereof as corporate vehicle to benefit in the manner stated above. DAEaTS 31. Defendants Nemesio G. Co, Yeung Chun Kam, Yeung Chun Ho and Yeung Chun Fan are the controlling stockholders of Glorious Sun Fashion Manufacturing Corporation (Phils.). Through Glorious Sun (Phils.), they acted as fronts or dummies, cronies or otherwise willing tools of spouses Ferdinand and Imelda Marcos and/or the family, particularly of Defendant Imelda (Imee) MarcosManotoc, in the illegal salting of foreign exchange 4 by importing denim fabrics from only one supplier a Hong Kong based corporation which was also owned and controlled by defendant Hong Kong investors, at prices much higher than those being paid by other users of similar materials to the grave and irreparable damage of Plaintiff. Thus, petitioner set forth the following causes of action in its Complaint: 5 32. First Cause of Action: BREACH OF PUBLIC TRUST A public office is a public trust. By committing all the acts described above, Defendants repeatedly breached public trust and the law, making them liable solidarily to Plaintiff. The funds and other property acquired by Defendants following, or as a result of, their breach of public trust, some of which are mentioned or described above, estimated to amount to P200 billion are deemed to have been acquired for the benefit of Plaintiff and are, therefore, impressed with constructive trust in favor of Plaintiff and the Filipino people. Consequently, Defendants are solidarily liable to restore or

reconvey to Plaintiff all such funds and property thus impressed with constructive trust for the benefit of Plaintiff and the Filipino people. ICHAaT 33. Second Cause of Action: ABUSE OF RIGHT AND POWER (a) Defendants, in perpetrating the unlawful acts described above, committed abuse of right and power which caused untold misery, sufferings and damages to Plaintiff. Defendants violated, among others Articles 19, 20, and 21 of the Civil Code of the Philippines; (b) As a result of the foregoing acts, Defendants acquired the title to the beneficial interest in funds and other property and concealed such title, funds and interest through the use of relatives, business associates, nominees, agents, or dummies. Defendants are, therefore, solidarily liable to Plaintiff to return and reconvey all such funds and other property unlawfully acquired by them estimated at TWO HUNDRED BILLION PESOS, or alternatively, to pay Plaintiff, solidarily, by way of indemnity, the damage caused to Plaintiff equivalent to the amount of such funds or the value of other property not returned or restored to Plaintiff, plus interest thereon from the date of unlawful acquisition until full payment thereof. ISaTCD 34. Third Cause of Action: UNJUST ENRICHMENT Defendants illegally accumulated funds and other property whose estimated value is P200 billion in violation of the laws of the Philippines and in breach of their official functions and fiduciary obligations. Defendants, therefore, have unjustly enriched themselves to the grave and irreparable damage and prejudice of Plaintiff. Defendants have an obligation at law, independently of breach of trust and abuse of right and power, and as an alternative, to solidarily return to Plaintiff such funds and other property with which Defendants, in gross evident bad faith, have unjustly enriched themselves or, in default thereof, restore to Plaintiff the amount of such funds and the value of the other property including those which may have been wasted, and/or lost estimated at P200 billion with interest thereon from the date of unlawful acquisition until full payment thereof. 35. Fourth Cause of Action: ACCOUNTING The Commission, acting pursuant to the provisions of the applicable law, believe that Defendants, acting singly or collectively, in unlawful concert with one another, and with the active collaboration of third persons, subject of separate suits, acquired funds, assets and property during the incumbency of Defendant public officers, manifestly out of proportion to their salaries, to their other lawful income and income from legitimately acquired property. Consequently, they are required to show to the satisfaction of this Honorable Court that they have lawfully acquired all such funds, assets and property which are in excess of their legal net income, and for this Honorable Court to decree that the Defendants are under obligation to account to Plaintiff with respect to all legal or beneficial interests in funds,

properties and assets of whatever kind and wherever located in excess of the lawful earnings or lawful income from legitimately acquired property. IDEHCa 36. Fifth Cause of Action LIABILITY FOR DAMAGES (a) By reason of the unlawful acts set forth above, Plaintiff and the Filipino people have suffered actual damages in an amount representing the pecuniary loss sustained by the latter as a result of the Defendants' unlawful acts, the approximate value and interest of which, from the time of their wrongful acquisition, are estimated at P200 billion plus expenses which Plaintiff has been compelled to incur and shall continue to incur in its effort to recover Defendants' ill-gotten wealth all over the world, which expenses are reasonably estimated at P250 million. Defendants are, therefore, jointly and severally liable to Plaintiff for actual damages in an amount reasonably estimated at P200 Billion Pesos and to reimburse expenses for recovery of Defendants' ill-gotten wealth estimated to cost P250 million or in such amount as are proven during the trial. (b) As a result of Defendants' acts described above, Plaintiff and the Filipino people had painfully endured and suffered moral damages for more than twenty long years, anguish, fright, sleepless nights, serious anxiety, wounded feelings and moral shock as well as besmirched reputation and social humiliation before the international community. (c) In addition, Plaintiff and the Filipino people are entitled to temperate damages for their sufferings which, by their very nature are incapable of pecuniary estimation, but which this Honorable Court may determine in the exercise of its sound discretion. ITcCSA (d) Defendants, by reason of the above described unlawful acts, have violated and invaded the inalienable right of Plaintiff and the Filipino people to a fair and decent way of life befitting a Nation with rich natural and human resources. This basic and fundamental right of Plaintiff and the Filipino people should be recognized and vindicated by awarding nominal damages in an amount to be determined by the Honorable Court in the exercise of its sound discretion. (e) By way of example and correction for the public good and in order to ensure that Defendants' unlawful, malicious, immoral and wanton acts are not repeated, said Defendants are solidarily liable to Plaintiff for exemplary damages. In the meantime, the Pantranco Employees Association-PTGWO (PEA-PTGWO), a union of Pantranco employees, moved to intervene before the Sandiganbayan. The former alleged that the trust funds in the account of Pantranco North Express, Inc. (Pantranco) amounting to P55 million rightfully belonged to the Pantranco employees, pursuant to the money judgment the National Labor Relations Commission (NLRC) awarded in favor of the employees and against Pantranco. Thus, PEA-PTGWO contested the allegation of petitioner that the assets of

Pantranco were ill-gotten because, otherwise, these assets would be returned to the government and not to the employees. DTIACH Thereafter, petitioner presented and formally offered its evidence against herein respondents. However, the latter objected to the offer primarily on the ground that the documents violated the best evidence rule of the Rules of Court, as these documents were unauthenticated; moreover, petitioner had not provided any reason for its failure to present the originals. On 11 March 2002, the Sandiganbayan issued a Resolution 6 admitting the pieces of evidence while expressing some reservation, to wit: WHEREFORE, taking note of the objections of accused Marcoses and the reply thereto by the plaintiff, all the documentary exhibits formally offered by the prosecution are hereby admitted in evidence; however, their evidentiary value shall be left to the determination of the Court. SO ORDERED. Imelda R. Marcos; Imee Marcos-Manotoc and Bongbong Marcos, Jr.; Irene Marcos-Araneta and Gregorio Ma. Araneta III; Yeung Chun Kam, Yeung Chun Ho and Yeung Chun Fan; and the PEA-PTGWO subsequently filed their respective Demurrers to Evidence. THEDCA On 6 December 2005, the Sandiganbayan issued the assailed Resolution, 7 which granted all the Demurrers to Evidence except the one filed by Imelda R. Marcos. The dispositive portion reads: WHEREFORE, premises considered, the Demurrer to Evidence filed by defendant Imelda R. Marcos is hereby DENIED. The Demurrer to Evidence filed by defendants Maria Imelda Marcos Manotoc, Ferdinand Marcos, Jr., Irene Marcos Araneta, Gregorio Maria Araneta III, Yeung Chun Kam, Yeung Chun Fan, Yeung Chun Ho, and intervenor PEA-PTGWO, are hereby GRANTED. The sequestration orders on the properties in the name of defendant Gregorio Maria Araneta III, are accordingly ordered lifted. SO ORDERED. The Sandiganbayan denied Imelda R. Marcos' Demurrer primarily because she had categorically admitted that she and her husband owned properties enumerated in the Complaint, while stating that these properties had been lawfully acquired. The court held that the evidence presented by petitioner constituted a prima facie case against her, considering that the value of the properties involved was grossly disproportionate to the Marcos spouses' lawful income. Thus, this admission and the fact that Imelda R. Marcos was the compulsory heir and administratrix of the Marcos estate were the primary reasons why the court held that she was responsible for accounting for the funds and properties alleged to be ill-gotten. aTcIEH

Secondly, the court pointed out that Rolando Gapud, whose deposition was taken in Hong Kong, referred to her as one directly involved in amassing ill-gotten wealth. The court also considered the compromise agreement between petitioner and Antonio O. Floirendo, who disclosed that he had performed several business transactions upon the instructions of the Marcos spouses. With regard to the siblings Imee Marcos-Manotoc and Bongbong Marcos, Jr., the court noted that their involvement in the alleged illegal activities was never established. In fact, they were never mentioned by any of the witnesses presented. Neither did the documentary evidence pinpoint any specific involvement of the Marcos children. Moreover, the court held that the evidence, in particular, exhibits "P," 8 "Q," 9 "R," 10 "S," 11 and "T," 12 were considered hearsay, because their originals were not presented in court, nor were they authenticated by the persons who executed them. Furthermore, the court pointed out that petitioner failed to provide any valid reason why it did not present the originals in court. These exhibits were supposed to show the interests of Imee Marcos-Manotok in the media networks IBC-13, BBC-2 and RPN-9, all three of which she had allegedly acquired illegally. These exhibits also sought to prove her alleged participation in dollar salting through De Soleil Apparel. IcHTCS Finally, the court held that the relationship of respondents to the Marcos spouses was not enough reason to hold the former liable. In the matter of the spouses Irene Marcos and Gregorio Araneta III, the court similarly held that there was no testimonial or documentary evidence that supported petitioner's allegations against the couple. Again, petitioner failed to present the original documents that supposedly supported the allegations against them. Instead, it merely presented photocopies of documents that sought to prove how the Marcoses used the Potencianos 13 as dummies in acquiring and operating the bus company Pantranco. Meanwhile, as far as the Yeungs were concerned, the court found the allegations against them baseless. Petitioner failed to demonstrate how their business, Glorious Sun Fashion Garments Manufacturing, Co. Phils. (Glorious Sun), was used as a vehicle for dollar salting; or to show that they themselves were dummies of the Marcoses. Again, the court held that the documentary evidence relevant to this allegation was inadmissible for being mere photocopies, and that the affiants had not been presented as witnesses. Finally, the court also granted the Demurrer filed by PEA-PTGWO. While the court held that there was no evidence to show that Pantranco was illegally acquired, the former nevertheless held that there was a need to first determine the ownership of the disputed funds before they could be ordered released to the rightful owner. aAIcEH

On 20 December 2005, petitioner filed its Motion for Partial Reconsideration, insisting that there was a preponderance of evidence to show that respondents Marcos siblings and Gregorio Araneta III had connived with their parents in acquiring ill-gotten wealth. It pointed out that respondents were compulsory heirs to the deposed President and were thus obliged to render an accounting and to return the ill-gotten wealth. Moreover, petitioner asserted that the evidence established that the Yeungs were dummies of the Marcoses, and that the Pantranco assets were part of the Marcoses' alleged ill-gotten wealth. Finally, petitioner questioned the court's ruling that the evidence previously admitted was later held to be inadmissible in evidence against respondents, thus, depriving the former of due process. Inadvertently, petitioner was not able to serve a copy of the motion on respondents Imee Marcos-Manotoc and Bongbong Marcos, Jr. But upon realizing the oversight, it immediately did so and filed the corresponding Manifestation and Motion before the court. Nonetheless, this inadvertence prompted Imee Marcos-Manotoc and Bongbong Marcos, Jr. to file their Motion for Entry of Judgment. CIAHaT On 2 March 2006, the court issued the second assailed Resolution, 14 denying petitioner's Motion. The court pointed out its reservation in its Resolution dated 12 March 2002, wherein it said that it would still assess and weigh the evidentiary value of the admitted evidence. Furthermore, it said that even if it included the testimonies of petitioner's witnesses, these were not substantial to hold respondents liable. Thus, the court said: WHEREFORE, there being no sufficient reason to set aside the resolution dated December 6, 2005, the plaintiff's Motion for Partial Reconsideration is hereby DENIED. The plaintiff's Motion and Manifestation dated January 18, 2006 is GRANTED in the interest of justice. The Motion for Entry of Judgment filed by defendants Imee Marcos and Bongbong Marcos is DENIED. SO ORDERED. Hence, this Petition. Petitioner raises the same issues it raised in its Motion for Reconsideration filed before the Sandiganbayan, to wit: 15 DCcHAa I. THE SANDIGANBAYAN ERRED IN GRANTING THE DEMURRER TO EVIDENCE FILED BY RESPONDENTS MA. IMELDA (IMEE) R. MARCOS AND FERDINAND (BONGBONG) R. MARCOS, JR., CONSIDERING THAT MORE THAN PREPONDERANT EVIDENCE ON RECORD CLEARLY DEMONSTRATES THEIR CONNIVANCE WITH FORMER PRESIDENT FERDINAND E. MARCOS AND OTHER MARCOS DUMMIES AND ABUSED THEIR POWER AND INFLUENCE IN UNLAWFULLY AMASSING FUNDS FROM THE NATIONAL TREASURY.

II. PETITION PROVED, BY MORE THAN PREPONDERANT EVIDENCE, THAT RESPONDENT-SPOUSES GREGORIO ARANETA III AND IRENE MARCOS ARANETA CONNIVED WITH FORMER PRESIDENT MARCOS IN UNLAWFULLY ACQUIRING BUSINESS INTERESTS WHICH ARE GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT, AND IN A MANNER PROHIBITED UNDER THE CONSTITUTION AND ANTI-GRAFT STATUTES. III. RESPONDENTS IMEE, BONGBONG, AND IRENE MARCOS ARE COMPULSORY HEIRS OF FORMER PRESIDENT MARCOS AND ARE EQUALLY OBLIGED TO RENDER AN ACCOUNTING AND RETURN THE ALLEGED ILL-GOTTEN WEALTH OF THE MARCOSES. HAaDcS IV. THERE EXISTS CONCRETE EVIDENCE PROVING THAT RESPONDENTS YEUNG CHUN KAM, YEUNG CHUN FAN, AND YEUNG CHUN HO ACTED AS DUMMIES FOR THE MARCOSES, AND USED THE CORPORATION, GLORIOUS SUN, AS A CONDUIT IN AMASSING THE ILL-GOTTEN WEALTH. ACCORDINGLY, THE SANDIGANBAYAN ERRED IN GRANTING THEIR DEMURRER TO EVIDENCE. V. THE DEMURRER TO EVIDENCE FILED BY INTERVENOR PEAPTGWO WITH RESPECT TO THE PANTRANCO ASSETS SHOULD NOT HAVE BEEN GRANTED SINCE AMPLE EVIDENCE PROVES THAT THE SAID ASSETS INDUBITABLY FORM PART OF THE MARCOS ILLGOTTEN WEALTH, AS BUTTRESSED BY THE FACT THAT NO JUDICIAL DETERMINATION HAS BEEN MADE AS TO WHOM THESE ASSETS RIGHTFULLY BELONG. VI. THE SANDIGANBAYAN'S RULING WHICH REJECTED PETITIONER'S DOCUMENTARY EXHIBITS ALLEGEDLY FOR BEING "INADMISSIBLE" DIRECTLY CONTRADICTS ITS EARLIER RULING ADMITTING ALL SAID DOCUMENTARY EVIDENCE AND WAS RENDERED IN A MANNER THAT DEPRIVED PETITIONER'S RIGHT TO DUE PROCESS OF LAW. HDIaET There is some merit in petitioner's contention. The Marcos Siblings and Gregorio Araneta III Closely analyzing petitioner's Complaint and the present Petition for Review, it is clear that the Marcos siblings are being sued in two capacities: first, as coconspirators in the alleged accumulation of ill-gotten wealth; and second, as the compulsory heirs of their father, Ferdinand E. Marcos. 16 With regard to the first allegation, as contained in paragraph 29 of its Third Amended Complaint quoted above, petitioner accused the Marcos siblings of having collaborated with, participated in, and/or benefitted from their parents'

alleged accumulation of ill-gotten wealth. In particular, as far as Imee MarcosManotoc was concerned, she was accused of dollar salting by using Glorious Sun to import denim fabrics from one supplier at prices much higher than those paid by other users of similar materials. It was also alleged that the Marcoses personally benefitted from the sequestered media networks IBC-13, BBC-2, and RPN-9, in which Imee Marcos had a substantial interest. Irene Marcos-Araneta, on the other hand, was accused of having conspired with her husband, respondent Gregorio Araneta III, in his being President Marcos' conduit to Pantranco, thereby paving the way for the President's ownership of the company in violation of Article VII, Section 4, paragraph 2 of the 1973 Constitution. 17 cEaCTS To prove the general allegations against the Marcos siblings, petitioner primarily relied on the Sworn Statement 18 and the Deposition 19 of one of the financial advisors of President Marcos, Rolando C. Gapud, taken in Hong Kong on various dates. Meanwhile, to prove the participation and interests of Imee Marcos-Manotoc in De Soleil Apparel and the media networks, petitioner relied on the Affidavits of Ramon S. Monzon, 20 Yeung Kwok Ying, 21 and Rodolfo V. Puno; 22 and the transcript of stenographic notes (TSN) taken during the PCGG hearing held on 8 June 1987. 23 As to spouses Irene Marcos-Araneta and Gregorio Araneta III, petitioner submitted the Articles of Incorporation of Northern Express Transport, Inc.; 24 the Memorandum of Agreement 25 and the Purchase Agreement 26 between Pantranco and Batangas Laguna Tayabas Bus Company, Inc. (BLTBCo.); the Confidential Memorandum regarding the sale of the Pantranco assets; 27 the Affidavit 28 and the letter to the PCGG 29 of Dolores A. Potenciano, owner of BLTBCo.; the Affidavit 30 and the Memorandum 31 of Eduardo Fajardo, who was then the Senior Vice-President of the Account Management Group of the Philippine National Bank (PNB), which was in turn the creditor for the Pantranco sale; and the Affidavit of Florencio P. Lucio, who was the Senior Account Specialist of the National Investment and Development Corporation. 32 DCESaI Petitioner contends that these documents fall under the Rule's third exception, that is, these documents are public records in the custody of a public officer or are recorded in a public office. It is its theory that since these documents were collected by the PCGG, then, necessarily, the conditions for the exception to apply had been met. Alternatively, it asserts that the "documents were offered to prove not only the truth of the recitals of the documents, but also of other external or collateral facts." 33 The Court's Ruling Petitioner failed to observe the

best evidence rule. It is petitioner's burden to prove the allegations in its Complaint. For relief to be granted, the operative act on how and in what manner the Marcos siblings participated in and/or benefitted from the acts of the Marcos couple must be clearly shown through a preponderance of evidence. Should petitioner fail to discharge this burden, the Court is constrained and is left with no choice but to uphold the Demurrer to Evidence filed by respondents. TAScID First, petitioner does not deny that what should be proved are the contents of the documents themselves. It is imperative, therefore, to submit the original documents that could prove petitioner's allegations. Thus, the photocopied documents are in violation Rule 130, Sec. 3 of the Rules of Court, otherwise known as the best evidence rule, which mandates that the evidence must be the original document itself. The origin of the best evidence rule can be found and traced to as early as the 18th century in Omychund v. Barker, 34 wherein the Court of Chancery said: The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit. The rule is, that if the writings have subscribing witnesses to them, they must be proved by those witnesses. The first ground judges have gone upon in departing from strict rules, is an absolute strict necessity. Secondly, a presumed necessity. In the case of writings, subscribed by witnesses, if all are dead, the proof of one of their hands is sufficient to establish the deed: where an original is lost, a copy may be admitted; if no copy, then a proof by witnesses who have heard the deed, and yet it is a thing the law abhors to admit the memory of man for evidence. ECTSDa Petitioner did not even attempt to provide a plausible reason why the originals were not presented, or any compelling ground why the court should admit these documents as secondary evidence absent the testimony of the witnesses who had executed them. In particular, it may not insist that the photocopies of the documents fall under Sec. 7 of Rule 130, which states: Evidence admissible when original document is a public record. When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved be a certified copy issued by the public officer in custody thereof. Secs. 19 and 20 of Rule 132 provide: SECTION 19. Classes of documents. For the purpose of their presentation in evidence, documents are either public or private. Public documents are: HETDAC

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. SECTION 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. DCcIaE Any other private document need only be identified as that which it is claimed to be. The fact that these documents were collected by the PCGG in the course of its investigations does not make them per se public records referred to in the quoted rule. Petitioner presented as witness its records officer, Maria Lourdes Magno, who testified that these public and private documents had been gathered by and taken into the custody of the PCGG in the course of the Commission's investigation of the alleged ill-gotten wealth of the Marcoses. However, given the purposes for which these documents were submitted, Magno was not a credible witness who could testify as to their contents. To reiterate, "[i]f the writings have subscribing witnesses to them, they must be proved by those witnesses." Witnesses can testify only to those facts which are of their personal knowledge; that is, those derived from their own perception. 35 Thus, Magno could only testify as to how she obtained custody of these documents, but not as to the contents of the documents themselves. TaDSHC Neither did petitioner present as witnesses the affiants of these Affidavits or Memoranda submitted to the court. Basic is the rule that, while affidavits may be considered as public documents if they are acknowledged before a notary public, these Affidavits are still classified as hearsay evidence. The reason for this rule is that they are not generally prepared by the affiant, but by another one who uses his or her own language in writing the affiant's statements, parts of which may thus be either omitted or misunderstood by the one writing them. Moreover, the adverse party is deprived of the opportunity to cross-examine the affiants. For this reason, affidavits are generally rejected for being hearsay, unless the affiants themselves are placed on the witness stand to testify thereon. 36

As to the copy of the TSN of the proceedings before the PCGG, while it may be considered as a public document since it was taken in the course of the PCGG's exercise of its mandate, it was not attested to by the legal custodian to be a correct copy of the original. This omission falls short of the requirement of Rule 132, Secs. 24 and 25 of the Rules of Court. 37 In summary, we adopt the ruling of the Sandiganbayan, to wit: cHDaEI Further, again contrary to the theory of the plaintiff, the presentation of the originals of the aforesaid exhibits is not validly excepted under Rule 130, Section 3 (a), (b), and (d) of the Rules of Court. Under paragraph (d), when 'the original document is a public record in the custody of a public officer or is recorded in a public office,' presentation of the original thereof is excepted. However, as earlier observed, all except one of the exhibits introduced by the plaintiff were not necessarily public documents. The transcript of stenographic notes (TSN) of the proceedings purportedly before the PCGG, the plaintiff's exhibit "Q", may be a public document, but what was presented by the plaintiff was a mere photocopy of the purported TSN. The Rules provide that when the original document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Exhibit "Q" was not a certified copy and it was not even signed by the stenographer who supposedly took down the proceedings. The rest of the above-mentioned exhibits cannot likewise be excepted under paragraphs (a) and (b) of Section 3. Section 5 of the same Rule provides that 'when the original documents has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.' Thus, in order that secondary evidence may be admissible, there must be proof by satisfactory evidence of (1) due execution of the original; (2) loss, destruction or unavailability of all such originals and (3) reasonable diligence and good faith in the search for or attempt to produce the original. None of these requirements were complied with by the plaintiff. Similar to exhibit 'Q', exhibits 'P', 'R', 'S', and 'T' were all photocopies. 'P', 'R', and 'T' were affidavits of persons who did not testify before the Court. Exhibit 'S' is a letter which is clearly a private document. Not only does it not fall within the exceptions of Section 3, it is also a mere photocopy. As We previously emphasized, even if originals of these affidavits were presented, they would still be considered hearsay evidence if the affiants do not testify and identify them. 38 TaHIDS Thus, absent any convincing evidence to hold otherwise, it follows that petitioner failed to prove that the Marcos siblings and Gregorio Araneta III collaborated with former President Marcos and Imelda R. Marcos and participated in the first

couple's alleged accumulation of ill-gotten wealth insofar as the specific allegations herein were concerned. The Marcos siblings are compulsory heirs. To reiterate, in its third Amended Complaint, petitioner prays that the Marcos respondents be made to (1) pay for the value of the alleged ill-gotten wealth with interest from the date of acquisition; (2) render a complete accounting and inventory of all funds and other pieces of property legally or beneficially held and/or controlled by them, as well as their legal and beneficial interest therein; (3) pay actual damages estimated at P200 billion and additional actual damages to reimburse expenses for the recovery of the alleged ill-gotten wealth estimated at P250 million or in such amount as may be proven during trial; (4) pay moral damages amounting to P50 billion; (5) pay temperate and nominal damages, as well as attorney's fees and litigation expenses in an amount to be proven during the trial; (6) pay exemplary damages in the amount of P1 billion; and (7) pay treble judicial costs. 39 cCAIES It must be stressed that we are faced with exceptional circumstances, given the nature and the extent of the properties involved in the case pending with the Sandiganbayan. It bears emphasis that the Complaint is one for the reversion, the reconveyance, the restitution and the accounting of alleged ill-gotten wealth and the payment of damages. Based on the allegations of the Complaint, the court is charged with the task of (1) determining the properties in the Marcos estate that constitute the alleged ill-gotten wealth; (2) tracing where these properties are; (3) issuing the appropriate orders for the accounting, the recovery, and the payment of these properties; and, finally, (4) determining if the award of damages is proper. Since the pending case before the Sandiganbayan survives the death of Ferdinand E. Marcos, it is imperative therefore that the estate be duly represented. The purpose behind this rule is the protection of the right to due process of every party to a litigation who may be affected by the intervening death. The deceased litigant is himself protected, as he continues to be properly represented in the suit through the duly appointed legal representative of his estate. 40 On that note, we take judicial notice of the probate proceedings regarding the will of Ferdinand E. Marcos. In Republic of the Philippines v. Marcos II, 41 we upheld the grant by the Regional Trial Court (RTC) of letters testamentary in solidum to Ferdinand R. Marcos, Jr. and Imelda Romualdez-Marcos as executors of the last will and testament of the late Ferdinand E. Marcos. Unless the executors of the Marcos estate or the heirs are ready to waive in favor of the state their right to defend or protect the estate or those properties found to be ill-gotten in their possession, control or ownership, then they may not be dropped as defendants in the civil case pending before the Sandiganbayan. cHaADC

Rule 3, Sec. 7 of the Rules of Court defines indispensable parties as those partiesin-interest without whom there can be no final determination of an action. They are those parties who possess such an interest in the controversy that a final decree would necessarily affect their rights, so that the courts cannot proceed without their presence. Parties are indispensable if their interest in the subject matter of the suit and in the relief sought is inextricably intertwined with that of the other parties. 42 In order to reach a final determination of the matters concerning the estate of Ferdinand E. Marcos that is, the accounting and the recovery of ill-gotten wealth the present case must be maintained against Imelda Marcos and herein respondent Ferdinand "Bongbong" R. Marcos, Jr., as executors of the Marcos estate pursuant to Sec. 1 of Rule 87 of the Rules of Court. According to this provision, actions may be commenced to recover from the estate, real or personal property, or an interest therein, or to enforce a lien thereon; and actions to recover damages for an injury to person or property, real or personal, may be commenced against the executors. We also hold that the action must likewise be maintained against Imee MarcosManotoc and Irene Marcos-Araneta on the basis of the non-exhaustive list attached as Annex "A" to the Third Amended Complaint, which states that the listed properties therein were owned by Ferdinand and Imelda Marcos and their immediate family. 43 It is only during the trial of Civil Case No. 0002 before the Sandiganbayan that there could be a determination of whether these properties are indeed ill-gotten or were legitimately acquired by respondents and their predecessors. Thus, while it was not proven that respondents conspired in accumulating ill-gotten wealth, they may be in possession, ownership or control of such ill-gotten properties or the proceeds thereof as heirs of the Marcos couple. Thus, their lack of participation in any illegal act does not remove the character of the property as ill-gotten and, therefore, as rightfully belonging to the State. EAcTDH Secondly, under the rules of succession, the heirs instantaneously became coowners of the Marcos properties upon the death of the President. The property rights and obligations to the extent of the value of the inheritance of a person are transmitted to another through the decedent's death. 44 In this concept, nothing prevents the heirs from exercising their right to transfer or dispose of the properties that constitute their legitimes, even absent their declaration or absent the partition or the distribution of the estate. In Jakosalem v. Rafols, 45 we said: Article 440 of the Civil Code provides that "the possession of hereditary property is deemed to be transmitted to the heir without interruption from the instant of the death of the decedent, in case the inheritance be accepted." And Manresa with reason states that upon the death of a person, each of his heirs "becomes the undivided owner of the whole estate left with respect to the part or portion which

might be adjudicated to him, a community of ownership being thus formed among the coowners of the estate while it remains undivided." (3 Manresa, 357; Alcala vs. Alcala, 35 Phil. 679.) And according to article 399 of the Civil Code, every part owner may assign or mortgage his part in the common property, and the effect of such assignment or mortgage shall be limited to the portion which may be allotted him in the partition upon the dissolution of the community. Hence, in the case of Ramirez vs. Bautista, 14 Phil. 528, where some of the heirs, without the concurrence of the others, sold a property left by their deceased father, this Court, speaking thru its then Chief Justice Cayetano Arellano, said that the sale was valid, but that the effect thereof was limited to the share which may be allotted to the vendors upon the partition of the estate. (Emphasis supplied) EASCDH Lastly, petitioner's prayer in its Third Amended Complaint directly refers to herein respondents, to wit: 1. AS TO THE FIRST SECOND AND THIRD CAUSES OF ACTION To return and reconvey to Plaintiff all funds and other property acquired by Defendants during their incumbency as public officers, which funds and other property are manifestly out of proportion to their salaries, other lawful income and income from legitimately acquired property which Defendants have failed to establish as having been, in fact, lawfully acquired by them, alternatively, to solidarily pay Plaintiff the value thereof with interest thereon from the date of acquisition until full payment. 2. AS TO THE FOURTH CAUSE OF ACTION to individually render to this Honorable Court a complete accounting and inventory, subject to evaluation of Court-appointed assessors, of all funds and other property legally or beneficially held and/or controlled by them, as well as their legal and beneficial interest in such funds and other property. (Emphasis supplied) In sum, the Marcos siblings are maintained as respondents, because (1) the action pending before the Sandiganbayan is one that survives death, and, therefore, the rights to the estate must be duly protected; (2) they allegedly control, possess or own ill-gotten wealth, though their direct involvement in accumulating or acquiring such wealth may not have been proven. caIETS Yeung Chun Kam, Yeung Chun Ho and Yeung Chun Fan It is worthy to note that respondents draw our attention to American Inter-Fashion Corporation v. Office of the President 46 in which they contend that this Court considered the allegation of dollar salting as baseless. The cited case, however, finds no application herein as the former merely ruled that Glorious Sun was denied due process when it was not furnished by the Garments and Textile Export Board (GTEB) any basis for the cancellation of the export quota because of allegations of dollar salting. That Decision did not prevent petitioner from

adducing evidence to support its allegation in Civil Case No. 0002 before the Sandiganbayan under a different cause of action. Nevertheless, the allegations against Yeung Chun Kam, Yeung Chun Ho and Yeung Chun Fan in the case at bar were also proved to be baseless. Again, petitioner failed to illustrate how respondents herein acted as dummies of the Marcoses in acquiring ill-gotten wealth. This Court notes that the Complaint against the Yeungs alleges that the Marcoses used Glorious Sun the garment company in which the Yeungs are controlling stockholders for illegal dollar salting through the company's importation of denim fabrics from only one supplier at prices much higher than those being paid by other users of similar materials. Notably, no mention of De Soleil Apparel was made. aDcHIC To prove its allegations, petitioner submitted the controverted Exhibits "P," "Q," "R," "S," and "T." As earlier discussed in detail, these pieces of evidence were mere photocopies of the originals and were unauthenticated by the persons who executed them; thus, they have no probative value. Even the allegations of petitioner itself in its Petition for Review are bereft of any factual basis for holding that these documents undoubtedly show respondents' participation in the alleged dollar salting. The pertinent portion of the Petition reads: To illustrate, the Affidavit dated May 29, 1987 executed by Mr. Ramon Monzon which was submitted as Exhibit P, showed that respondent Imee Marcos-Manotoc owns and controls IBC-13, BBC-2 and (R)PN-9, and has interest in the De Soleil Apparel. The testimony of Mr. Ramon Monzon during the hearing on June 8, 1987 before the Presidential Commission on Good Government as shown in the Transcript of Stenographic Notes also affirmed his declarations in the Affidavit dated May 29, 1987. The Transcript of Stenographic Notes dated June 8, 1987 was presented as Exhibit Q. Moreover, the Affidavit dated March 21, 1986 of Yeung Kwok Ying which was presented as Exhibit R disclosed that Imee MarcosManotoc is the owner of 67% equity of De Soleil Apparel. The letter dated July 17, 1984 signed by seven (7) incorporators of De Soleil Apparel, addressed to Hongkong investors which was presented as Exhibit S confirmed that the signatories hold or own 67% equity of the corporation in behalf of the beneficial owners previously disclosed to the addressees. In addition to the foregoing documents, petitioner presented the Affidavit of Rodolfo V. Puno, Chairman of the Garments and Textile Export Group (GTEB) as Exhibit T wherein he categorically declared that the majority of De Soleil Apparel was actually owned by respondent Imee Marcos-Manotoc. 47 CaDSHE The foregoing quotation from the Petition is bereft of any factual matter that warrants a consideration by the Court. Straight from the horse's mouth, these documents are only meant to show the ownership and interest of Imee Marcos

Manotoc in De Soleil and not how respondent supposedly participated in dollar salting or in the accumulation of ill-gotten wealth. PEA-PTGWO The PEA-PTGWO Demurrer to Evidence was granted primarily as a consequence of the prosecution's failure to establish that the assets of Pantranco were ill-gotten, as discussed earlier. Thus, we find no error in the assailed Order of the Sandiganbayan. A Final Note As earlier adverted to, the best evidence rule has been recognized as an evidentiary standard since the 18th century. For three centuries, it has been practiced as one of the most basic rules in law. It is difficult to conceive that one could have finished law school and passed the bar examinations without knowing such elementary rule. Thus, it is deeply disturbing that the PCGG and the Office of the Solicitor General (OSG) the very agencies sworn to protect the interest of the state and its people could conduct their prosecution in the manner that they did. To emphasize, the PCGG is a highly specialized office focused on the recovery of ill-gotten wealth, while the OSG is the principal legal defender of the government. The lawyers of these government agencies are expected to be the best in the legal profession. ITEcAD However, despite having the expansive resources of government, the members of the prosecution did not even bother to provide any reason whatsoever for their failure to present the original documents or the witnesses to support the government's claims. Even worse was presenting in evidence a photocopy of the TSN of the PCGG proceedings instead of the original, or a certified true copy of the original, which the prosecutors themselves should have had in their custody. Such manner of legal practice deserves the reproof of this Court. We are constrained to call attention to this apparently serious failure to follow a most basic rule in law, given the special circumstances surrounding this case. The public prosecutors should employ and use all government resources and powers efficiently, effectively, honestly and economically, particularly to avoid wastage of public funds and revenues. They should perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. 48 The basic ideal of the legal profession is to render service and secure justice for those seeking its aid. 49 In order to do this, lawyers are required to observe and adhere to the highest ethical and professional standards. The legal profession is so imbued with public interest that its practitioners are accountable not only to their clients, but to the public as well. aCTHDA The public prosecutors, aside from being representatives of the government and the state, are, first and foremost, officers of the court. They took the oath to exert every

effort and to consider it their duty to assist in the speedy and efficient administration of justice. 50 Lawyers owe fidelity to the cause of the client and should be mindful of the trust and confidence reposed in them. 51 Hence, should serve with competence and diligence. 52 We note that there are instances when this Court may overturn the dismissal of the lower courts in instances when it is shown that the prosecution has deprived the parties their due process of law. In Merciales v. Court of Appeals, 53 we reversed the Decision of the RTC in dismissing the criminal case for rape with homicide. In that case, it was very apparent that the public prosecutor violated the due process rights of the private complainant owing to its blatant disregard of procedural rules and the failure to present available crucial evidence, which would tend to prove the guilt or innocence of the accused therein. Moreover, we likewise found that the trial court was gravely remiss in its duty to ferret out the truth and, instead, just "passively watched as the public prosecutor bungled the case." However, it must be emphasized that Merciales was filed exactly to determine whether the prosecution and the trial court gravely abused their discretion in the proceedings of the case, thus resulting in the denial of the offended party's due process. Meanwhile, the present case merely alleges that there was an error in the Sandiganbayan's consideration of the probative value of evidence. We also note that in Merciales, both the prosecution and the trial court were found to be equally guilty of serious nonfeasance, which prompted us to remand the case to the trial court for further proceedings and reception of evidence. Merciales is thus inapplicable to the case at bar. cdrep Nevertheless, given the particular context of this case, the failure of the prosecution to adhere to something as basic as the best evidence rule raises serious doubts on the level and quality of effort given to the government's cause. Thus, we highly encourage the Office of the President, the OSG, and the PCGG to conduct the appropriate investigation and consequent action on this matter. WHEREFORE, in view of the foregoing, the Petition is PARTIALLY GRANTED. The assailed Sandiganbayan Resolution dated 6 December 2005 is AFFIRMED with MODIFICATION. For the reasons stated herein, respondents Imelda MarcosManotoc, Irene Marcos-Araneta, and Ferdinand R. Marcos, Jr. shall be maintained as defendants in Civil Case No. 0002 pending before the Sandiganbayan. Let a copy of this Decision be furnished to the Office of the President so that it may look into the circumstances of this case and determine the liability, if any, of the lawyers of the Office of the Solicitor General and the Presidential Commission on Good Government in the manner by which this case was handled in the Sandiganbayan. aSTcCE SO ORDERED. Neri v Heirs of Uy, G.R. No. 194366, Oct. 10, 2012

SECOND DIVISION [G.R. No. 194366. October 10, 2012.] NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR, VISMINDA D. NERICHAMBERS, ROSA D. NERI-MILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUT-COCKINOS AND VICTORIA D. ILLUT-PIALA, petitioners, vs. HEIRS OF HADJI YUSOP UY AND JULPHA * IBRAHIM UY, respondents. DECISION PERLAS-BERNABE, J p: In this Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court, petitioners Napoleon D. Neri (Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers (Visminda), Rosa D. Neri-Millan (Rosa), Douglas D. Neri (Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria D. Illut-Piala (Victoria) seek to reverse and set aside the April 27, 2010 Decision 2 and October 18, 2010 Resolution 3 of the Court of Appeals (CA) in CA-G.R. CV No. 01031MIN which annulled the October 25, 2004 Decision 4 of the Regional Trial Court (RTC) of Panabo City, Davao del Norte and instead, entered a new one dismissing petitioners' complaint for annulment of sale, damages and attorney's fees against herein respondents heirs of spouses Hadji Yusop Uy and Julpha Ibrahim Uy (heirs of Uy). IEHSDA The Facts During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from her first marriage with Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five (5) from her second marriage with Enrique Neri (Enrique), namely: Napoleon, Alicia, Visminda, Douglas and Rosa. Throughout the marriage of spouses Enrique and Anunciacion, they acquired several homestead properties with a total area of 296,555 square meters located in Samal, Davao del Norte, embraced by Original Certificate of Title (OCT) Nos. (P-7998) P-2128, 5 (P14608) P-5153 6 and P-20551 (P-8348) 7 issued on February 15, 1957, August 27, 1962 and July 7, 1967, respectively. On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his personal capacity and as natural guardian of his minor children Rosa and Douglas, together with Napoleon, Alicia, and Visminda executed an Extra-Judicial Settlement of the Estate with Absolute Deed of Sale 8 on July 7, 1979, adjudicating among themselves the said homestead properties, and thereafter, conveying them to the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy (spouses Uy) for a consideration of P80,000.00. On June 11, 1996, the children of Enrique filed a complaint for annulment of sale of the said homestead properties against spouses Uy (later substituted by their heirs) before the RTC, docketed as Civil Case No. 96-28, assailing the validity of

the sale for having been sold within the prohibited period. The complaint was later amended to include Eutropia and Victoria as additional plaintiffs for having been excluded and deprived of their legitimes as children of Anunciacion from her first marriage. In their amended answer with counterclaim, the heirs of Uy countered that the sale took place beyond the 5-year prohibitory period from the issuance of the homestead patents. They also denied knowledge of Eutropia and Victoria's exclusion from the extrajudicial settlement and sale of the subject properties, and interposed further the defenses of prescription and laches. The RTC Ruling On October 25, 2004, the RTC rendered a decision ordering, among others, the annulment of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale. It ruled that while the sale occurred beyond the 5-year prohibitory period, the sale is still void because Eutropia and Victoria were deprived of their hereditary rights and that Enrique had no judicial authority to sell the shares of his minor children, Rosa and Douglas. Consequently, it rejected the defenses of laches and prescription raised by spouses Uy, who claimed possession of the subject properties for 17 years, holding that coownership rights are imprescriptible. HcISTE The CA Ruling On appeal, the CA reversed and set aside the ruling of the RTC in its April 27, 2010 Decision and dismissed the complaint of the petitioners. It held that, while Eutropia and Victoria had no knowledge of the extrajudicial settlement and sale of the subject properties and as such, were not bound by it, the CA found it unconscionable to permit the annulment of the sale considering spouses Uy's possession thereof for 17 years, and that Eutropia and Victoria belatedly filed their action in 1997, or more than two years from knowledge of their exclusion as heirs in 1994 when their stepfather died. It, however, did not preclude the excluded heirs from recovering their legitimes from their co-heirs. Similarly, the CA declared the extrajudicial settlement and the subsequent sale as valid and binding with respect to Enrique and his children, holding that as coowners, they have the right to dispose of their respective shares as they consider necessary or fit. While recognizing Rosa and Douglas to be minors at that time, they were deemed to have ratified the sale when they failed to question it upon reaching the age of majority. It also found laches to have set in because of their inaction for a long period of time. The Issues In this petition, petitioners impute to the CA the following errors: I. WHEN IT UPHELD THE VALIDITY OF THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" AS

FAR AS THE SHARES OF EUTROPIA AND VICTORIA WERE CONCERNED, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" WITH RESPECT TO THE SHARES OF ROSA AND DOUGLAS, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; and III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION HAS SET IN. The Ruling of the Court The petition is meritorious. It bears to stress that all the petitioners herein are indisputably legitimate children of Anunciacion from her first and second marriages with Gonzalo and Enrique, respectively, and consequently, are entitled to inherit from her in equal shares, pursuant to Articles 979 and 980 of the Civil Code which read: CcAITa ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. xxx xxx xxx ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique acquired their respective inheritances, 9 entitling them to their pro indiviso shares in her whole estate, as follows: Enrique 9/16 (1/2 of the conjugal assets + 1/16) Eutropia 1/16 Victoria 1/16 Napoleon 1/16 Alicia 1/16 Visminda 1/16 Rosa 1/16 Douglas 1/16 Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses Uy, all the heirs of Anunciacion should have participated. Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid and binding upon them and consequently, a total nullity. Section 1, Rule 74 of the Rules of Court provides: SECTION 1. Extrajudicial settlement by agreement between heirs. . . . The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding

section; but no extra judicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (Underscoring added) The effect of excluding the heirs in the settlement of estate was further elucidated in Segura v. Segura, 10 thus: EcATDH It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule "no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years from its execution . . . However, while the settlement of the estate is null and void, the subsequent sale of the subject properties made by Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents is valid but only with respect to their proportionate shares therein. It cannot be denied that these heirs have acquired their respective shares in the properties of Anunciacion from the moment of her death 11 and that, as owners thereof, they can very well sell their undivided share in the estate. 12 With respect to Rosa and Douglas who were minors at the time of the execution of the settlement and sale, their natural guardian and father, Enrique, represented them in the transaction. However, on the basis of the laws prevailing at that time, Enrique was merely clothed with powers of administration and bereft of any authority to dispose of their 2/16 shares in the estate of their mother, Anunciacion. Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of the settlement and sale, provide: ART. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance. ART. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the child's property, subject to the duties and obligations of guardians under the Rules of Court. Corollarily, Section 7, Rule 93 of the Rules of Court also provides: SEC. 7. Parents as Guardians. When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and

obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable persons. ESTaHC Administration includes all acts for the preservation of the property and the receipt of fruits according to the natural purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of the patrimony of child, exceeds the limits of administration. 13 Thus, a father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the ward's property and even then only with courts' prior approval secured in accordance with the proceedings set forth by the Rules of Court. 14 Consequently, the disputed sale entered into by Enrique in behalf of his minor children without the proper judicial authority, unless ratified by them upon reaching the age of majority, 15 is unenforceable in accordance with Articles 1317 and 1403 (1) of the Civil Code which provide: ART. 1317. No one may contract in the name of another without being authorized by the latter or unless he has by law a right to represent him. A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party. ART. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; xxx xxx xxx Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice, knowingly made, which amounts to a ratification of what was theretofore unauthorized, and becomes the authorized act of the party so making the ratification. 16 Once ratified, expressly or impliedly such as when the person knowingly received benefits from it, the contract is cleansed from all its defects from the moment it was constituted, 17 as it has a retroactive effect. Records, however, show that Rosa had ratified the extrajudicial settlement of the estate with absolute deed of sale. In Napoleon and Rosa's Manifestation 18 before the RTC dated July 11, 1997, they stated: "Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred in and conformed to by us and our other two sisters and brother (the other plaintiffs), in favor of Hadji Yusop Uy and his spouse Hadja Julpa Uy on July 7, 1979, we both confirmed that the same was voluntary and freely made by

all of us and therefore the sale was absolutely valid and enforceable as far as we all plaintiffs in this case are concerned;" (Underscoring supplied) DHSACT In their June 30, 1997 Joint-Affidavit, 19 Napoleon and Rosa also alleged: "That we are surprised that our names are included in this case since we do not have any intention to file a case against Hadji Yusop Uy and Julpha Ibrahim Uy and their family and we respect and acknowledge the validity of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale dated July 7, 1979;" (Underscoring supplied) Clearly, the foregoing statements constituted ratification of the settlement of the estate and the subsequent sale, thus, purging all the defects existing at the time of its execution and legitimizing the conveyance of Rosa's 1/16 share in the estate of Anunciacion to spouses Uy. The same, however, is not true with respect to Douglas for lack of evidence showing ratification. Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not binding on Eutropia, Victoria and Douglas, only the shares of Enrique, Napoleon, Alicia, Visminda and Rosa in the homestead properties have effectively been disposed in favor of spouses Uy. "A person can only sell what he owns, or is authorized to sell and the buyer can as a consequence acquire no more than what the seller can legally transfer." 20 On this score, Article 493 of the Civil Code is relevant, which provides: Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. Consequently, spouses Uy or their substituted heirs became pro indiviso co-owners of the homestead properties with Eutropia, Victoria and Douglas, who retained title to their respective 1/16 shares. They were deemed to be holding the 3/16 shares of Eutropia, Victoria and Douglas under an implied constructive trust for the latter's benefit, conformably with Article 1456 of the Civil Code which states: "if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes." As such, it is only fair, just and equitable that the amount paid for their shares equivalent to P5,000.00 21 each or a total of P15,000.00 be returned to spouses Uy with legal interest. On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed in so far as it seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of Court reckoned from the execution

of the extrajudicial settlement finds no application to petitioners Eutropia, Victoria and Douglas, who were deprived of their lawful participation in the subject estate. Besides, an "action or defense for the declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil Code. TDCcAE However, the action to recover property held in trust prescribes after 10 years from the time the cause of action accrues, 22 which is from the time of actual notice in case of unregistered deed. 23 In this case, Eutropia, Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of 10 years. WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and October 18, 2010 Resolution of the Court of Appeals are REVERSED and SET ASIDE and a new judgment is entered: 1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and VOID; 2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy as regards the 13/16 total shares of the late Enrique Neri, Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. NeriChambers and Rosa D. Neri-Millan VALID; 3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as the LAWFUL OWNERS of the 3/16 portions of the subject homestead properties, covered by Original Certificate of Title Nos. (P-7998) P-2128, (P14608) P-5153 and P-20551 (P-8348); and 4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the respondents jointly and solidarily the amount paid corresponding to the 3/16 shares of Eutropia, Victoria and Douglas in the total amount of P15,000.00, with legal interest at 6% per annum computed from the time of payment until finality of this decision and 12% per annum thereafter until fully paid. No pronouncement as to costs. SO ORDERED.

C. Concurrence of compulsory heirs and their corresponding legitimes. NCC 888-890, 892-901, 903, Article 39, P.D. 603, Sec. 18, Rep. Act 8552, FC 189-190 Baritua v CA, 82233, March 22, 1990

SECOND DIVISION [G.R. No. 82233. March 22, 1990.] JOSE BARITUA and EDGAR BITANCOR, petitioners, vs. HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO, respondents. Ernesto A. Atienza for private respondents. SYLLABUS 1. CIVIL LAW; OBLIGATION; MODES OF EXTINGUISHMENT. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231. Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. 2. ID.; ID.; ID.; SUCCESSORS IN INTEREST AUTHORIZED TO RECEIVE PAYMENT IN FAVOR OF DECEASED PERSON. Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made. Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. 3. ID.; WILLS AND SUCCESSION; COMPULSORY HEIRS; PARENTS OF THE DECEASED SUCCEED ONLY WHEN THE LATTER DIES WITHOUT A LEGITIMATE DESCENDANT. The Civil Code states: Article 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. Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. 4. ID.; ID.; ID.; ESTRANGEMENT OF SURVIVING SPOUSE WITH THE DECEASED SPOUSE, NOT A GROUND FOR DISQUALIFICATION. The

petitioners acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. 5. REMEDIAL LAW; SPECIAL PROCEEDINGS; CLAIMS AGAINST THE ESTATE; LOAN FOR THE PURCHASE OF PERSONAL PROPERTY AND FUNERAL EXPENSES CONSIDERED MONEY CLAIMS AGAINST THE ESTATE OF THE DECEASED. Private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. DECISION SARMIENTO, J p: This petition for review on certiorari assails as erroneous and contrary to existing relevant laws and applicable jurisprudence the decision 1 of the Court of Appeals dated December 11, 1987 which reversed and set aside that of the Regional Trial Court, Branch XXXII, at Pili, Camarines Sur. 2 The challenged decision adjudged the petitioners liable to the private respondents in the total amount of P20,505.00 and for costs. LexLib The facts are as follows: In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned and operated by petitioner Jose Baritua. 3 As a result of that accident Bienvenido and his passenger died, 4 and the tricycle was damaged. 5 No criminal case arising from the incident was ever instituted. 6 Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus' insurer Philippine First Insurance Company, Incorporated (PFICI for brevity) Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI, releasing and forever discharging them from all actions, claims, and demands arising from the accident which resulted in her husband's death and the damage to the tricycle which the deceased was then driving. Alicia likewise executed an affidavit of desistance in which she formally manifested her lack of interest in instituting any case, either civil or criminal, against the petitioners. 7 On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of

Bienvenido Nacario, filed a complaint for damages against the petitioners with the then Court of First Instance of Camarines Sur. 8 In their complaint, the private respondents alleged that during the vigil for their deceased son, the petitioners through their representatives promised them (the private respondents) that as extrajudicial settlement, they shall be indemnified for the death of their son, for the funeral expenses incurred by reason thereof, and for the damage to the tricycle the purchase price of which they (the private respondents) only loaned to the victim. The petitioners, however, reneged on their promise and instead negotiated and settled their obligations with the long-estranged wife of their late son. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages. 9 After trial, the court a quo dismissed the complaint, holding that the payment by the defendants (herein petitioners) to the widow and her child, who are the preferred heirs and successors-in-interest of the deceased Bienvenido to the exclusion of his parents, the plaintiffs (herein private respondents), extinguished any claim against the defendants (petitioners). 10 The parents appealed to the Court of Appeals which reversed the judgment of the trial court. The appellate court ruled that the release executed by Alicia Baracena Vda. de Nacario did not discharge the liability of the petitioners because the case was instituted by the private respondents in their own capacity and not as "heirs, representatives, successors, and assigns" of Alicia; and Alicia could not have validly waived the damages being prayed for (by the private respondents) since she was not the one who suffered these damages arising from the death of their son. Furthermore, the appellate court said that the petitioners "failed to rebut the testimony of the appellants (private respondents) that they were the ones who bought the tricycle that was damaged in the incident. Appellants had the burden of proof of such fact, and they did establish such fact in their testimony . . . ." 11 Anent the funeral expenses," (T)he expenses for the funeral were likewise shouldered by the appellants (the private respondents). This was never contradicted by the appellees (petitioners). . . . Payment (for these) were made by the appellants, therefore, the reimbursement must accrue in their favor." 12 Consequently, the respondent appellate court ordered the petitioners to pay the private respondents P10,000.00 for the damage of the tricycle, P5,000.00 for "complete" funeral services, P450.00 for cemetery lot, P55.00 for oracion adulto, and P5,000.00 for attorney's fees. 13 The petitioners moved for a reconsideration of the appellate court's decision 14 but their motion was denied. 15 Hence, this petition. cdll

The issue here is whether or not the respondent appellate court erred in holding that the petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00 despite the agreement of extrajudicial settlement between the petitioners and the victim's compulsory heirs. The petition is meritorious. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231. Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. (Emphasis ours.) There is no denying that the petitioners had paid their obligation arising from the accident that occurred on November 7, 1979. The only question now is whether or not Alicia, the surviving spouse and the one who received the petitioners' payment, is entitled to it. LLpr Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made. Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. The Civil Code states: Article 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. (Emphasis ours.) Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.(Emphasis ours.) Cdpr

It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. 16 These money claims are not the liabilities of the petitioners who, as we have said, had been released by the agreement of the extra-judicial settlement they concluded with Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as the natural guardian of their child, her co-heir. As a matter of fact, she executed a "Release Of Claim" in favor of the petitioners. WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. Costs against the private respondents. prLL SO ORDERED. In re Petition for Adoption of Michelle Lim, 1689921, May 21, 2009 FIRST DIVISION [G.R. Nos. 168992-93. May 21, 2009.] IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM, petitioner. IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P. LIM, petitioner. DECISION CARPIO, J p: The Case This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision 1 dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos.

1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim. cHCIDE The Facts The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they were the children's parents. The children 2 were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977. 3 Michael was 11 days old when Ayuban brought him to petitioner's clinic. His date of birth is 1 August 1983. 4 The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname "Lim" in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen. TcICEA Thereafter, petitioner decided to adopt the children by availing of the amnesty 5 given under Republic Act No. 8552 6 (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months old. Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent. 7 Michael also gave his consent to his adoption as shown in his Affidavit of Consent. 8 Petitioner's husband Olario likewise executed an Affidavit of Consent 9 for the adoption of Michelle and Michael. TCcSDE In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown. 10 The DSWD issued a similar Certification for Michael. 11 The Ruling of the Trial Court On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7 (c), Article III of RA 8552 and Article 185 of the Family Code. Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled

that petitioner did not fall under any of the exceptions under Section 7 (c), Article III of RA 8552. Petitioner's argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply. As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities. Hence, the present petition. DEAaIS Issue Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt. The Court's Ruling Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority. We deny the petition. Joint Adoption by Husband and Wife It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial court's decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads: IECAaD SEC. 7. Who May Adopt. The following may adopt: (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the alien's qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. IcHTED Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied) The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses. 12 prcd The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other. The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopter's country as the latter's adopted child. None of these qualifications were shown and proved during the trial. AEcTCD These requirements on residency and certification of the alien's qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner. Effects of Adoption Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This is untenable. Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. 13 The father and the mother shall jointly exercise parental authority over the persons of their common children. 14 Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. 15 It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of age 16 emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life. 17 However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus: AcSEHT ARTICLE V EFFECTS OF ADOPTION

SEC. 16. Parental Authority. Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17. Legitimacy. The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. SEC. 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other. 18 Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights 19 of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled 20 such as support 21 and successional rights. 22 DSETac We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. 23 But, as we have ruled in Republic v. Vergara: 24 We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less

fortunate children. Regrettably, the Court is not in a position to affirm the trial court's decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses' petition for adoption. (Emphasis supplied) SEIaHT Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner. Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court. We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory. WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner. SO ORDERED. HcTSDa In the Matter of the Adoption of Stephanie Garcia, 148311, March 31, 2005 THIRD DIVISION [G.R. No. 148311. March 31, 2005.] IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner, Catindig, Tiongco & Nibungco for petitioner. SYLLABUS 1. CIVIL LAW; USE OF SURNAMES; SUBSTANTIVE RULES PROVIDED FOR; RATIONALE. For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him. It is both of personal as well as public interest that every person must have a name. The name of an individual

has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law. Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow. 2. ID.; ID.; MIDDLE NAME OR MOTHER'S SURNAME; WHEN CONSIDERED. The middle name or the mother's surname is only considered in Article 375 (1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mother's surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter". Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; . . . In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters". Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption. TECIaH 3. ID.; ADOPTION; DEFINED. Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status. This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child. Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998", secures these rights and privileges for the adopted.

4. ID.; ID.; EFFECTS THEREOF. One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189 of the Family Code and Section 17 Article V of RA 8552. Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanie's continued use of her mother's surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189 (3) of the Family Code and Section 18, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future. 5. ID.; ID.; LIBERAL CONSTRUCTION OF THE STATUTE; JUSTIFIED. It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption. The interests and welfare of the adopted child are of primary and paramount consideration, hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. Lastly, Art. 10 of the New Civil Code provides that: "In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law". AIDTHC DECISION SANDOVAL-GUTIERREZ, J p: May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. cIADTC The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition 1 to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994; 2 that her mother is Gemma Astorga Garcia; that Stephanie has been using her mother's middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie's middle name Astorga be changed to "Garcia," her

mother's surname, and that her surname Garcia be changed to "Catindig," his surname. On March 23, 2001, 3 the trial court rendered the assailed Decision granting the adoption, thus: "After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioner's care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603. WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioner's legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. TacESD Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED." 4 On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration 5 praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. On May 28, 2001, 6 the trial court denied petitioner's motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the

middle name "Garcia" (her mother's surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by either the Catindig or Garcia families. ACHEaI The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanie's filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained. Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that "the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother." 7 We find merit in the petition. Use Of Surname Is Fixed By Law For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him. 8 It is both of personal as well as public interest that every person must have a name. DCATHS The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law. 9 Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname 10 of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus:

"Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. xxx xxx xxx Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as 'Mrs.' Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or cEaTHD (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior' can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, or (2) Add the Roman numerals II, III, and so on. xxx xxx xxx" Law Is Silent As To The Use Of Middle Name As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176 11 of the Family Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing Illegitimate Children To Use The Surname Of Their Father," is silent as to what middle name a child may use. EAHDac The middle name or the mother's surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mother's surname shall be added.

Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; xxx xxx xxx" However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the child's mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus: "Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the father's surname indicates the family to which he belongs, for which reason he would insist on the use of the father's surname by the child but that, if he wants to, the child may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. aIcDCH Prof. Baviera remarked that Justice Caguioa's point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enrile's correct surname is Ponce since the mother's surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez David's family name is Gutierrez and his mother's surname is David but they all call him Justice David. Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. xxx xxx xxx

Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. xxx xxx xxx Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion." 12 (Emphasis supplied) ETDSAc In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters." 13 Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption. 14 The Underlying Intent of Adoption Is In Favor of the Adopted Child Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child. 15 It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. 16 The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status. 17 This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child. 18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998," 19 secures these rights and privileges for the adopted. 20 One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189 21 of the Family Code and Section 17 22 Article V of RA 8552. 23 Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In

fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. aDSHIC Additionally, as aptly stated by both parties, Stephanie's continued use of her mother's surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 18, 24 Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future. Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mother's surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption. 25 The interests and welfare of the adopted child are of primary and paramount consideration, 26 hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. 27 Lastly, Art. 10 of the New Civil Code provides that: "In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law." 28 Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother's surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mother's surname "GARCIA" as her middle name. cTSHaE Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED. In the Matter of the Intestate Estate of Suntay, 183053, June 16, 2010

SECOND DIVISION [G.R. No. 183053. June 16, 2010.] IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-SUNTAY; EMILIO A.M. SUNTAY III, petitioner, vs. ISABEL COJUANGCO-SUNTAY, respondent. DECISION NACHURA, J p: Unlike Pope Alexander VI 1 who, faced with the impasse between Spain and Portugal, deftly and literally divided the exploration, or more appropriately, the riches of the New World by issuing the Inter Caetera, 2 we are confronted with the difficult, albeit, all too familiar tale of another family imbroglio over the estate of a decedent. 3 IcTCHD This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 74949, 4 reversing the decision of the Regional Trial Court (RTC), Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. 5 Before anything else, we disentangle the facts. On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death, Cristina was survived by her husband, Federico, and several grandchildren, including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio I's marriage to Isabel Cojuangco was subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Taedo (Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively. Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old, by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged natural child of Emilio I and was likewise brought up by the spouses Federico and Cristina. EIDaAH As previously adverted to, the marriage between Emilio I and Isabel was annulled. 6 Consequently, respondent and her siblings Margarita and Emilio II, lived with their mother on Balete Drive, Quezon City, separately from their father and paternal grandparents.

Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights over his grandchildren: respondent Isabel, Margarita, and Emilio II. Although the Juvenile and Domestic Relations Court in Quezon City granted the petition and allowed Federico one hour of visitation monthly, initially reduced to thirty minutes, it was altogether stopped because of a manifestation filed by respondent Isabel, articulating her sentiments on the unwanted visits of her grandparents. Significantly, Federico, after the death of his spouse, Cristina, or on September 27, 1993, adopted their illegitimate grandchildren, Emilio III and Nenita. 7 On October 26, 1995, respondent filed a petition for the issuance of letters of administration in her favor, containing the following allegations: [A]t the time of [the decedent's] death, [she] was a resident of the Municipality of Hagonoy, Province of Bulacan; that the [decedent] left an estate of real and personal properties, with a probable gross value of P29,000,000.00; that the names, ages and residences of the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89 years old, surviving spouse and a resident of . . .; (2) Isabel CojuangcoSuntay, 36 years old, legitimate granddaughter and a resident of . . .; (3) Margarita Cojuangco-Suntay, 39 years old, legitimate granddaughter and a resident of . . .; and (4) Emilio Cojuangco-Suntay, 35 years old, legitimate grandson and a resident of . . .; and that as far as [respondent] knew, the decedent left no debts or obligation at the time of her death. 8 AaDSEC Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico filed his opposition on December 21, 1995, alleging, among others, that: [B]eing the surviving spouse of Cristina, he is capable of administering her estate and he should be the one appointed as its administrator; that as part owner of the mass of conjugal properties left by Cristina, he must be accorded legal preference in the administration thereof; that Isabel and her family had been alienated from their grandparents for more than thirty (30) years; that the enumeration of heirs in the petition was incomplete as it did not mention the other children of his son[,] namely: Emilio III and Nenita S. Taedo; that he is better situated to protect the integrity of the estate of Cristina as even before the death of his wife[,] he was already the one who managed their conjugal properties; that the probable value of the estate as stated in the petition was grossly overstated (sic); and that Isabel's allegation that some of the properties are in the hands of usurpers is untrue. 9 Meanwhile, after a failed attempt by the parties to settle the proceedings amicably, Federico filed a Manifestation dated March 13, 1999, nominating his adopted son, Emilio III, as administrator of the decedent's estate on his behalf, in the event he would be adjudged as the one with a better right to the letters of administration. HcDaAI

Subsequently, the trial court granted Emilio III's Motion for Leave to Intervene considering his interest in the outcome of the case. Emilio III filed his OppositionIn-Intervention, which essentially echoed 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. Additionally, Emilio III averred his own qualifications that: "[he] is presently engaged in aquaculture and banking; he was trained by the decedent to work in his early age by involving him in the activities of the Emilio Aguinaldo Foundation which was established in 1979 in memory of her grandmother's father; the significant work experiences outside the family group are included in his curriculum vitae; he was employed by the oppositor [Federico] after his graduation in college with management degree at F.C.E. Corporations and Hagonoy Rural Bank; . . . ." 10 In the course of the proceedings, on November 13, 2000, Federico died. After the testimonies of both parties' witnesses were heard and evidence on their respective allegations were adduced, the trial court rendered a decision on November 9, 2001, appointing herein petitioner, Emilio III, as administrator of decedent Cristina's intestate estate, to wit: WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the Opposition[-]in[-]Intervention is GRANTED. Accordingly, the Intervenor, Emilio A.M. Suntay, III 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 P200,000.00, conditioned as follows: TSIEAD (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. SO ORDERED. 11 Aggrieved, respondent filed an appeal before the CA, which 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 intestate estate of the decedent, Cristina, to wit: 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. 117M-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 (P200,000.00) Pesos. cDAISC No pronouncement as to costs. SO ORDERED. 12 The motion for reconsideration of Emilio III having been denied, he appeals by certiorari to this Court, raising the following issues: A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF RULE 78 OF THE RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE DECEDENT AND HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF THE DECEDENT'S ESTATE. 13 In ruling against the petition of herein respondent, the RTC ratiocinated, thus: Evidence objectively assessed and carefully evaluated, both testimonial and documentary, the court opines that it is to the best interest of the estate of the decedent and all claimants thereto, that the Intervenor, Emilio A.M. Suntay III, be appointed administrator of the estate in the above-entitled special proceedings. HEacDA Based on the evidence and demeanor of the parties in court, [respondent's immediate] family and that of the decedent are apparently estranged. The root cause of which, is not for this court to ascertain nor is this the right time and the proper forum to dwell upon. What matters most at this time is the welfare of the estate of the decedent in the light of such unfortunate and bitter estrangement. The Court honestly believes that to appoint the petitioner would go against the wishes of the decedent who raised [Emilio III] from infancy in her home in Baguio City as her own child. Certainly, it would go against the wishes of the surviving spouse . . . who nominated [Emilio III] for appointment as administrator. As between [respondent] and the oppositor [Federico], the latter is accorded preference as the surviving spouse under Sec 6(a), Rule 78, Rules of Court. On the basis of such preference, he vigorously opposed the appointment of the petitioner and instead nominated [Emilio III], his grandchild and adopted child. Such nomination, absent any valid and justifiable reason, should not be imperiously set aside and insouciantly ignored, even after the oppositor [Federico] has passed away, in order to give effect to the order of preference mandated by law. Moreover, from the viewpoint of the estate, the nomination of [Emilio III]

appear[s] intrinsically meritorious. For the benefit of the estate and its claimants, creditors, as well as heirs, the administrator should be one who is prepared, academically and by experience, for the demands and responsibilities of the position. While [respondent], a practicing physician, is not unqualified, it is clear to the court that when it comes to management of real estate and the processing and payment of debts, [Emilio III], a businessman with an established track record as a manager has a decided edge and therefore, is in a position to better handle the preservation of the estate. 14 AEIcSa In marked contrast, the CA zeroed in on Emilio III's status as an illegitimate child of Emilio I and, thus, barred from representing his deceased father in the estate of the latter's legitimate mother, the decedent. On the whole, the CA pronounced that Emilio III, who was merely nominated by Federico, and which nomination hinged upon the latter's appointment as administrator of the decedent's estate, cannot be appointed as the administrator of the decedent's estate for the following reasons: 15 1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federico's appointment as administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico before his appointment as administrator of Cristina's estate rendered his nomination of Emilio III inoperative; 2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedent's son, Emilio I, respondent is preferred, being the "next of kin" referred to by Section 6, Rule 78 of the Rules of Court, and entitled to share in the distribution of Cristina's estate as an heir; 3. Jurisprudence has consistently held that Article 992 16 of the Civil Code bars the illegitimate child from inheriting ab intestato from the legitimate children and relatives of his father or mother. Thus, Emilio III, who is barred from inheriting from his grandmother, cannot be preferred over respondent in the administration of the estate of their grandmother, the decedent; and THIcCA 4. Contrary to the RTC's finding, respondent is as much competent as Emilio III to administer and manage the subject estate for she possesses none of the disqualifications specified in Section 1, 17 Rule 78 of the Rules of Court. The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to act as administrator of the decedent's estate. We cannot subscribe to the appellate court's ruling excluding Emilio III in the administration of the decedent's undivided estate. Mistakenly, the CA glosses over several undisputed facts and circumstances: 1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and presumed will of the decedent, absent a valid and effective will; 2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule, 18 is quite the opposite scenario in the facts obtaining herein for the actual

relationship between Federico and Cristina, on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate relatives; 3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both acknowledged him as their grandchild; aTEAHc 4. 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; 5. Cristina's properties forming part of her estate are still commingled with that of her husband, Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains undetermined and unliquidated; and 6. 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, not simply representing his deceased illegitimate father, Emilio I. From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration of the decedent's estate. As Federico's adopted son, Emilio III's interest in the estate of Cristina is as much apparent to this Court as the interest therein of respondent, considering that the CA even declared that "under the law, [Federico], being the surviving spouse, would have the right of succession over a portion of the exclusive property of the decedent, aside from his share in the conjugal partnership." Thus, we are puzzled why the CA resorted to a strained legal reasoning Emilio III's nomination was subject to a suspensive condition and rendered inoperative by reason of Federico's death wholly inapplicable to the case at bar. HIAEcT Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an estate: 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 no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each case. 19 Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial court. 20 In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration by both respondent and Emilio III of their grandmother's, Cristina's, estate. DHITcS In the case of Uy v. Court of Appeals, 21 we upheld the appointment by the trial court of a co-administration between the decedent's son and the decedent's brother, who was likewise a creditor of the decedent's estate. In the same vein, we declared in Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian 22 that: [i]n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. Similarly, the subject estate in this case calls to the succession other putative heirs, including another illegitimate grandchild of Cristina and Federico, Nenita Taedo, but who was likewise adopted by Federico, and the two (2) siblings of respondent Isabel, Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs, and the unliquidated conjugal partnership of Cristina and Federico which forms part of their respective estates, we are impelled to move in only one direction, i.e., joint administration of the subject estate. One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the successional bar between the legitimate and illegitimate relatives of a decedent, does not apply in this instance where facts indubitably demonstrate the contrary Emilio III, an illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by decedent's husband, the original oppositor to respondent's petition for letters of administration. ESTDcC We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the bone of contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes: 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 not 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--vis illegitimate children. 23 Manresa explains the basis for the rules on intestate succession: TcADCI The law [of intestacy] is founded . . . on the presumed will of the deceased . . . Love, it is said, first descends, then ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased would have done so had he manifested his last will . . . Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or educational institutions, and thus contribute to the welfare of humanity. 24 Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e., love first descends, for the decedent, Cristina, did not distinguish between her legitimate and illegitimate grandchildren. Neither did her husband, Federico, who, in fact, legally raised the status of Emilio III from an illegitimate grandchild to that of a legitimate child. The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between legitimate and illegitimate descendants of a deceased. 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. aTEADI Our holding in Capistrano v. Nadurata 25 on the same issue remains good law: [T]he 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. . . . . 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. 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. cDCSTA SO ORDERED. Suntay vs. Suntay, GR 183053, October 10, 2012 SPECIAL SECOND DIVISION [G.R. No. 183053. October 10, 2012.] EMILIO A.M. SUNTAY III, petitioner, vs. ISABEL COJUANGCO-SUNTAY, respondent. RESOLUTION PEREZ, J p: 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. cEaCTS Before us is a Motion for Reconsideration filed by respondent Isabel CojuangcoSuntay (respondent Isabel) of our Decision 2 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. TAcCDI 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: cEaSHC 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: ICHDca

Art. 95. (sic) A marriage may be annulled for any of the following causes after (sic) existing at the time of the marriage: xxx xxx xxx (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. CHcTIA 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. aITDAE 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. AScHCD 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 P200,000.00, conditioned as follows: (1) To make and return within three (3) months, a true and complete inventory; ISTDAH (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. 117M-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 (P200,000.00) 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: TaHIDS 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. caTIDE 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. HSIaAT 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; THaDAE (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. aTSEcA 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 decedent 12 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 coadministrators 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 ". . . [w]hen an executor or administrator dies, resigns, or is

removed, the remaining executor or administrator may administer the trust alone, . . . ." 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. Ventura 21 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: IADCES 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. Garcia 24 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. EHSADc 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 estate in 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. DHSACT 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." caHASI 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: IcDHaT 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 pass[ed] 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 coadministration thereof. We are led to a review of such position by the foregoing survey of cases. cDIaAS 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 Court 32 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. cECaHA 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: AHDaET 1. Emilio III, despite several orders from the probate court for a complete inventory, omitted in the partial inventories 34 he filed therewith properties of the estate 35 including several parcels of land, cash, bank deposits, jewelry, shares of stock, motor vehicles, and other personal properties, contrary to Section 1, 36 paragraph 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; DTISaH 2. [T]he inventory [Emilio III] submitted did not include several properties of the decedent; 3. [T]hat properties belonging to the decedent have found their way to different individuals or persons; several properties to Federico Suntay himself; and 4. [W]hile 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 "[t]he 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 STIHaE 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 . . . 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. HESCcA

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. 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: ECDAcS xxx xxx xxx 4. Section 6 40 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 10 41 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. AEIDTc 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: [T]he 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. aSTcCE 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. . . . . 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 Comment 46 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: DEIHSa 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. AaEcHC 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. SDHacT SO ORDERED. D. Restrictions regarding the legitime NCC 904, 872, 905-907, 1347 Ureta v Ureta, 165748, Sept. 14, 2011 THIRD DIVISION [G.R. No. 165748. September 14, 2011.] HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES, ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and BERNADETTE T. URETA, petitioners, vs. HEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F. URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA, ZALDY F. URETA, and MILA JEAN URETA CIPRIANO; HEIRS OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U. PARADERO, CARMENCITA P. PERLAS, CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA; VICENTE M. URETA; HEIRS OF FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-GONZALES;

HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA, and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT URETA, respondents. [G.R. No. 165930. September 14, 2011.] HEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F. URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA, ZALDY F. URETA, and MILA JEAN URETA CIPRIANO; HEIRS OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U. PARADERO, CARMENCITA P. PERLAS, CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA; VICENTE M. URETA; HEIRS OF FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-GONZALES; HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA, and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT URETA, petitioners, vs. HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES, ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and BERNADETTE T. URETA, respondents. DECISION MENDOZA, J p: These consolidated petitions for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure assail the April 20, 2004 Decision 1 of the Court of Appeals (CA), and its October 14, 2004 Resolution 2 in C.A.-G.R. CV No. 71399, which affirmed with modification the April 26, 2001 Decision 3 of the Regional Trial Court, Branch 9, Kalibo, Aklan (RTC) in Civil Case No. 5026. CHcESa The Facts In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely, Policronio, Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio, Roque, Adela, Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The children of Policronio (Heirs of Policronio), are opposed to the rest of Alfonso's children and their descendants (Heirs of Alfonso). Alfonso was financially well-off during his lifetime. He owned several fishpens, a fishpond, a sari-sari store, a passenger jeep, and was engaged in the buying and

selling of copra. Policronio, the eldest, was the only child of Alfonso who failed to finish schooling and instead worked on his father's lands. Sometime in October 1969, Alfonso and four of his children, namely, Policronio, Liberato, Prudencia, and Francisco, met at the house of Liberato. Francisco, who was then a municipal judge, suggested that in order to reduce the inheritance taxes, their father should make it appear that he had sold some of his lands to his children. Accordingly, Alfonso executed four (4) Deeds of Sale covering several parcels of land in favor of Policronio, 4 Liberato, 5 Prudencia, 6 and his commonlaw wife, Valeriana Dela Cruz. 7 The Deed of Sale executed on October 25, 1969, in favor of Policronio, covered six parcels of land, which are the properties in dispute in this case. Since the sales were only made for taxation purposes and no monetary consideration was given, Alfonso continued to own, possess and enjoy the lands and their produce. When Alfonso died on October 11, 1972, Liberato acted as the administrator of his father's estate. He was later succeeded by his sister Prudencia, and then by her daughter, Carmencita Perlas. Except for a portion of parcel 5, the rest of the parcels transferred to Policronio were tenanted by the Fernandez Family. These tenants never turned over the produce of the lands to Policronio or any of his heirs, but to Alfonso and, later, to the administrators of his estate. Policronio died on November 22, 1974. Except for the said portion of parcel 5, neither Policronio nor his heirs ever took possession of the subject lands. On April 19, 1989, Alfonso's heirs executed a Deed of Extra-Judicial Partition, 8 which included all the lands that were covered by the four (4) deeds of sale that were previously executed by Alfonso for taxation purposes. Conrado, Policronio's eldest son, representing the Heirs of Policronio, signed the Deed of Extra-Judicial Partition in behalf of his co-heirs. CAHTIS After their father's death, the Heirs of Policronio found tax declarations in his name covering the six parcels of land. On June 15, 1995, they obtained a copy of the Deed of Sale executed on October 25, 1969 by Alfonso in favor of Policronio. Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned about the Deed of Extra-Judicial Partition involving Alfonso's estate when it was published in the July 19, 1995 issue of the Aklan Reporter. Believing that the six parcels of land belonged to their late father, and as such, excluded from the Deed of Extra-Judicial Partition, the Heirs of Policronio sought to amicably settle the matter with the Heirs of Alfonso. Earnest efforts proving futile, the Heirs of Policronio filed a Complaint for Declaration of Ownership, Recovery of Possession, Annulment of Documents, Partition, and Damages 9 against the Heirs of Alfonso before the RTC on November 17, 1995 where the following issues were submitted: (1) whether or not the Deed of Sale was valid; (2)

whether or not the Deed of Extra-Judicial Partition was valid; and (3) who between the parties was entitled to damages. The Ruling of the RTC On April 26, 2001, the RTC dismissed the Complaint of the Heirs of Policronio and ruled in favor of the Heirs of Alfonso in a decision, the dispositive portion of which reads: WHEREFORE, the Court finds that the preponderance of evidence tilts in favor of the defendants, hence the instant case is hereby DISMISSED. The counterclaims are likewise DISMISSED. With costs against plaintiffs. SO ORDERED. The RTC found that the Heirs of Alfonso clearly established that the Deed of Sale was null and void. It held that the Heirs of Policronio failed to rebut the evidence of the Heirs of Alfonso, which proved that the Deed of Sale in the possession of the former was one of the four (4) Deeds of Sale executed by Alfonso in favor of his 3 children and second wife for taxation purposes; that although tax declarations were issued in the name of Policronio, he or his heirs never took possession of the subject lands except a portion of parcel 5; and that all the produce were turned over by the tenants to Alfonso and the administrators of his estate and never to Policronio or his heirs. CHIEDS The RTC further found that there was no money involved in the sale. Even granting that there was, as claimed by the Heirs of Policronio, P2,000.00 for six parcels of land, the amount was grossly inadequate. It was also noted that the aggregate area of the subject lands was more than double the average share adjudicated to each of the other children in the Deed of Extra-Judicial Partition; that the siblings of Policronio were the ones who shared in the produce of the land; and that the Heirs of Policronio only paid real estate taxes in 1996 and 1997. The RTC opined that Policronio must have been aware that the transfer was merely for taxation purposes because he did not subsequently take possession of the properties even after the death of his father. The Deed of Extra-Judicial Partition, on the other hand, was declared valid by the RTC as all the heirs of Alfonso were represented and received equal shares and all the requirements of a valid extra-judicial partition were met. The RTC considered Conrado's claim that he did not understand the full significance of his signature when he signed in behalf of his co-heirs, as a gratuitous assertion. The RTC was of the view that when he admitted to have signed all the pages and personally appeared before the notary public, he was presumed to have understood their contents. Lastly, neither party was entitled to damages. The Heirs of Alfonso failed to present testimony to serve as factual basis for moral damages, no document was

presented to prove actual damages, and the Heirs of Policronio were found to have filed the case in good faith. The Ruling of the CA Aggrieved, the Heirs of Policronio appealed before the CA, which rendered a decision on April 20, 2004, the dispositive portion of which reads as follows: WHEREFORE, the appeal is PARTIALLY GRANTED. The appealed Decision, dated 26 April 2001, rendered by Hon. Judge Dean R. Telan of the Regional Trial Court of Kalibo, Aklan, Branch 9, is hereby AFFIRMED with MODIFICATION: ATEHDc 1.) The Deed of Sale in favor of Policronio Ureta, Sr., dated 25 October 1969, covering six (6) parcels of land is hereby declared VOID for being ABSOLUTELY SIMULATED; 2.) The Deed of Extra-Judicial Partition, dated 19 April 1989, is ANNULLED; 3.) The claim for actual and exemplary damages are DISMISSED for lack of factual and legal basis. The case is hereby REMANDED to the court of origin for the proper partition of ALFONSO URETA'S Estate in accordance with Rule 69 of the 1997 Rules of Civil Procedure. No costs at this instance. SO ORDERED. The CA affirmed the finding of the RTC that the Deed of Sale was void. It found the Deed of Sale to be absolutely simulated as the parties did not intend to be legally bound by it. As such, it produced no legal effects and did not alter the juridical situation of the parties. The CA also noted that Alfonso continued to exercise all the rights of an owner even after the execution of the Deed of Sale, as it was undisputed that he remained in possession of the subject parcels of land and enjoyed their produce until his death. Policronio, on the other hand, never exercised any rights pertaining to an owner over the subject lands from the time they were sold to him up until his death. He never took or attempted to take possession of the land even after his father's death, never demanded delivery of the produce from the tenants, and never paid realty taxes on the properties. It was also noted that Policronio never disclosed the existence of the Deed of Sale to his children, as they were, in fact, surprised to discover its existence. The CA, thus, concluded that Policronio must have been aware that the transfer was only made for taxation purposes. The testimony of Amparo Castillo, as to the circumstances surrounding the actual arrangement and agreement between the parties prior to the execution of the four (4) Deeds of Sale, was found by the CA to be unrebutted. The RTC's assessment of the credibility of her testimony was accorded respect, and the intention of the parties was given the primary consideration in determining the true nature of the contract. ISHCcT

Contrary to the finding of the RTC though, the CA annulled the Deed of ExtraJudicial Partition due to the incapacity of one of the parties to give his consent to the contract. It held that before Conrado could validly bind his co-heirs to the Deed of Extra-Judicial Partition, it was necessary that he be clothed with the proper authority. The CA ruled that a special power of attorney was required under Article 1878 (5) and (15) of the Civil Code. Without a special power of attorney, it was held that Conrado lacked the legal capacity to give the consent of his co-heirs, thus, rendering the Deed of Extra-Judicial Partition voidable under Article 1390 (1) of the Civil Code. As a consequence, the CA ordered the remand of the case to the RTC for the proper partition of the estate, with the option that the parties may still voluntarily effect the partition by executing another agreement or by adopting the assailed Deed of Partition with the RTC's approval in either case. Otherwise, the RTC may proceed with the compulsory partition of the estate in accordance with the Rules. With regard to the claim for damages, the CA agreed with the RTC and dismissed the claim for actual and compensatory damages for lack of factual and legal basis. Both parties filed their respective Motions for Reconsideration, which were denied by the CA for lack of merit in a Resolution dated October 14, 2004. In their Motion for Reconsideration, the Heirs of Policronio argued that the RTC violated the best evidence rule in giving credence to the testimony of Amparo Castillo with regard to the simulation of the Deed of Sale, and that prescription had set in precluding any question on the validity of the contract. The CA held that the oral testimony was admissible under Rule 130, Section 9 (b) and (c), which provides that evidence aliunde may be allowed to explain the terms of the written agreement if the same failed to express the true intent and agreement of the parties thereto, or when the validity of the written agreement was put in issue. Furthermore, the CA found that the Heirs of Policronio waived their right to object to evidence aliunde having failed to do so during trial and for raising such only for the first time on appeal. With regard to prescription, the CA ruled that the action or defense for the declaration of the inexistence of a contract did not prescribe under Article 1410 of the Civil Code. On the other hand, the Heirs of Alfonso argued that the Deed of Extra-Judicial Partition should not have been annulled, and instead the preterited heirs should be given their share. The CA reiterated that Conrado's lack of capacity to give his coheirs' consent to the extra-judicial settlement rendered the same voidable. Hence, the present Petitions for Review on Certiorari. THIASE The Issues The issues presented for resolution by the Heirs of Policronio in G.R. No. 165748 are as follows: I.

Whether the Court of Appeals is correct in ruling that the Deed of Absolute Sale of 25 October 1969 is void for being absolutely fictitious and in relation therewith, may parol evidence be entertained to thwart its binding effect after the parties have both died? Assuming that indeed the said document is simulated, whether or not the parties thereto including their successors in interest are estopped to question its validity, they being bound by Articles 1412 and 1421 of the Civil Code? II. Whether prescription applies to bar any question respecting the validity of the Deed of Absolute Sale dated 25 October 1969? Whether prescription applies to bar any collateral attack on the validity of the deed of absolute sale executed 21 years earlier? III. Whether the Court of Appeals correctly ruled in nullifying the Deed of Extrajudicial Partition because Conrado Ureta signed the same without the written authority from his siblings in contravention of Article 1878 in relation to Article 1390 of the Civil Code and in relation therewith, whether the defense of ratification and/or preterition raised for the first time on appeal may be entertained? DTIaHE The issues presented for resolution by the Heirs of Alfonso in G.R. No. 165930 are as follows: I. Whether or not grave error was committed by the Trial Court and Court of Appeals in declaring the Deed of Sale of subject properties as absolutely simulated and null and void thru parol evidence based on their factual findings as to its fictitious nature, and there being waiver of any objection based on violation of the parol evidence rule. II. Whether or not the Court of Appeals was correct in holding that Conrado Ureta's lack of capacity to give his co-heirs' consent to the Extra-Judicial Partition rendered the same voidable. III. Granting arguendo that Conrado Ureta was not authorized to represent his co-heirs and there was no ratification, whether or not the Court of Appeals was correct in ordering the remand of the case to the Regional Trial Court for partition of the estate of Alfonso Ureta. IV. Since the sale in favor of Policronio Ureta Sr. was null and void ab initio, the properties covered therein formed part of the estate of the late Alfonso Ureta and

was correctly included in the Deed of Extrajudicial Partition even if no prior action for nullification of the sale was filed by the heirs of Liberato Ureta. EIDATc V. Whether or not the heirs of Policronio Ureta Sr. can claim that estoppel based on Article 1412 of the Civil Code as well as the issue of prescription can still be raised on appeal. These various contentions revolve around two major issues, to wit: (1) whether the Deed of Sale is valid, and (2) whether the Deed of Extra-Judicial Partition is valid. Thus, the assigned errors shall be discussed jointly and in seriatim. The Ruling of the Court Validity of the Deed of Sale Two veritable legal presumptions bear on the validity of the Deed of Sale: (1) that there was sufficient consideration for the contract; and (2) that it was the result of a fair and regular private transaction. If shown to hold, these presumptions infer prima facie the transaction's validity, except that it must yield to the evidence adduced. 10 As will be discussed below, the evidence overcomes these two presumptions. Absolute Simulation First, the Deed of Sale was not the result of a fair and regular private transaction because it was absolutely simulated. CTacSE The Heirs of Policronio argued that the land had been validly sold to Policronio as the Deed of Sale contained all the essential elements of a valid contract of sale, by virtue of which, the subject properties were transferred in his name as evidenced by the tax declaration. There being no invalidation prior to the execution of the Deed of Extra-Judicial Partition, the probity and integrity of the Deed of Sale should remain undiminished and accorded respect as it was a duly notarized public instrument. The Heirs of Policronio posited that his loyal services to his father and his being the eldest among Alfonso's children, might have prompted the old man to sell the subject lands to him at a very low price as an advance inheritance. They explained that Policronio's failure to take possession of the subject lands and to claim their produce manifests a Filipino family practice wherein a child would take possession and enjoy the fruits of the land sold by a parent only after the latter's death. Policronio simply treated the lands the same way his father Alfonso treated them where his children enjoyed usufructuary rights over the properties, as opposed to appropriating them exclusively to himself. They contended that Policronio's failure to take actual possession of the lands did not prove that he was not the owner as he was merely exercising his right to dispose of them. They argue that it was an error on the part of the CA to conclude that ownership by Policronio was not established by his failure to possess the properties sold. Instead, emphasis

should be made on the fact that the tax declarations, being indicia of possession, were in Policronio's name. They further argued that the Heirs of Alfonso failed to appreciate that the Deed of Sale was clear enough to convey the subject parcels of land. Citing jurisprudence, they contend that there is a presumption that an instrument sets out the true agreement of the parties thereto and that it was executed for valuable consideration, 11 and where there is no doubt as to the intention of the parties to a contract, the literal meaning of the stipulation shall control. 12 Nowhere in the Deed of Sale is it indicated that the transfer was only for taxation purposes. On the contrary, the document clearly indicates that the lands were sold. Therefore, they averred that the literal meaning of the stipulation should control. The Court disagrees. The Court finds no cogent reason to deviate from the finding of the CA that the Deed of Sale is null and void for being absolutely simulated. The Civil Code provides: EcICSA Art. 1345. Simulation of a contract may be absolute or relative. The former takes place when the parties do not intend to be bound at all; the latter, when the parties conceal their true agreement. Art. 1346. An absolutely simulated or fictitious contract is void. A relative simulation, when it does not prejudice a third person and is not intended for any purpose contrary to law, morals, good customs, public order or public policy binds the parties to their real agreement. Valerio v. Refresca 13 is instructive on the matter of simulation of contracts: In absolute simulation, there is a colorable contract but it has no substance as the parties have no intention to be bound by it. The main characteristic of an absolute simulation is that the apparent contract is not really desired or intended to produce legal effect or in any way alter the juridical situation of the parties. As a result, an absolutely simulated or fictitious contract is void, and the parties may recover from each other what they may have given under the contract. However, if the parties state a false cause in the contract to conceal their real agreement, the contract is relatively simulated and the parties are still bound by their real agreement. Hence, where the essential requisites of a contract are present and the simulation refers only to the content or terms of the contract, the agreement is absolutely binding and enforceable between the parties and their successors in interest. Lacking, therefore, in an absolutely simulated contract is consent which is essential to a valid and enforceable contract. 14 Thus, where a person, in order to place his property beyond the reach of his creditors, simulates a transfer of it to another, he does not really intend to divest himself of his title and control of the property; hence, the deed of transfer is but a sham. 15 Similarly, in this case, Alfonso

simulated a transfer to Policronio purely for taxation purposes, without intending to transfer ownership over the subject lands. The primary consideration in determining the true nature of a contract is the intention of the parties. If the words of a contract appear to contravene the evident intention of the parties, the latter shall prevail. Such intention is determined not only from the express terms of their agreement, but also from the contemporaneous and subsequent acts of the parties. 16 The true intention of the parties in this case was sufficiently proven by the Heirs of Alfonso. ITESAc The Heirs of Alfonso established by a preponderance of evidence 17 that the Deed of Sale was one of the four (4) absolutely simulated Deeds of Sale which involved no actual monetary consideration, executed by Alfonso in favor of his children, Policronio, Liberato, and Prudencia, and his second wife, Valeriana, for taxation purposes. Amparo Castillo, the daughter of Liberato, testified, to wit: Q: Now sometime in the year 1969 can you recall if your grandfather and his children [met] in your house? A: Yes sir, that was sometime in October 1969 when they [met] in our house, my grandfather, my late uncle Policronio Ureta, my late uncle Liberato Ureta, my uncle Francisco Ureta, and then my auntie Prudencia Ureta they talk[ed] about, that idea came from my uncle Francisco Ureta to [sell] some parcels of land to his children to lessen the inheritance tax whatever happened to my grandfather, actually no money involved in this sale. Q: Now you said there was that agreement, verbal agreement. [W]here were you when this Alfonso Ureta and his children gather[ed] in your house? A: I was near them in fact I heard everything they were talking [about] xxx xxx xxx Q: Were there documents of sale executed by Alfonso Ureta in furtherance of their verbal agreement? A: Yes sir. Q: To whom in particular did your grandfather Alfonso Ureta execute this deed of sale without money consideration according to you? A: To my uncle Policronio Ureta and to Prudencia Ureta Panadero. Q: And who else? aTADCE A: To Valeriana dela Cruz. Q: How about your father? A: He has. 18 The other Deeds of Sale executed by Alfonso in favor of his children Prudencia and Liberato, and second wife Valeriana, all bearing the same date of execution, were duly presented in evidence by the Heirs of Alfonso, and were uncontested by the Heirs of Policronio. The lands which were the subject of these Deeds of Sale

were in fact included in the Deed of Extra-Judicial Partition executed by all the heirs of Alfonso, where it was expressly stipulated: That the above-named Amparo U. Castillo, Prudencia U. Paradero, Conrado B. Ureta and Merlinda U. Rivera do hereby recognize and acknowledge as a fact that the properties presently declared in their respective names or in the names of their respective parents and are included in the foregoing instrument are actually the properties of the deceased Alfonso Ureta and were transferred only for the purpose of effective administration and development and convenience in the payment of taxes and, therefore, all instruments conveying or affecting the transfer of said properties are null and void from the beginning. 19 As found by the CA, Alfonso continued to exercise all the rights of an owner even after the execution of the Deeds of Sale. It was undisputed that Alfonso remained in possession of the subject lands and enjoyed their produce until his death. No credence can be given to the contention of the Heirs of Policrionio that their father did not take possession of the subject lands or enjoyed the fruits thereof in deference to a Filipino family practice. Had this been true, Policronio should have taken possession of the subject lands after his father died. On the contrary, it was admitted that neither Policronio nor his heirs ever took possession of the subject lands from the time they were sold to him, and even after the death of both Alfonso and Policronio. It was also admitted by the Heirs of Policronio that the tenants of the subject lands never turned over the produce of the properties to Policronio or his heirs but only to Alfonso and the administrators of his estate. Neither was there a demand for their delivery to Policronio or his heirs. Neither did Policronio ever pay real estate taxes on the properties, the only payment on record being those made by his heirs in 1996 and 1997 ten years after his death. In sum, Policronio never exercised any rights pertaining to an owner over the subject lands. cEDIAa The most protuberant index of simulation of contract is the complete absence of an attempt in any manner on the part of the ostensible buyer to assert rights of ownership over the subject properties. Policronio's failure to take exclusive possession of the subject properties or, in the alternative, to collect rentals, is contrary to the principle of ownership. Such failure is a clear badge of simulation that renders the whole transaction void. 20 It is further telling that Policronio never disclosed the existence of the Deed of Sale to his children. This, coupled with Policronio's failure to exercise any rights pertaining to an owner of the subject lands, leads to the conclusion that he was aware that the transfer was only made for taxation purposes and never intended to bind the parties thereto.

As the above factual circumstances remain unrebutted by the Heirs of Policronio, the factual findings of the RTC, which were affirmed by the CA, remain binding and conclusive upon this Court. 21 It is clear that the parties did not intend to be bound at all, and as such, the Deed of Sale produced no legal effects and did not alter the juridical situation of the parties. The Deed of Sale is, therefore, void for being absolutely simulated pursuant to Article 1409 (2) of the Civil Code which provides: Art. 1409. The following contracts are inexistent and void from the beginning: xxx xxx xxx (2) Those which are absolutely simulated or fictitious; xxx xxx xxx For guidance, the following are the most fundamental characteristics of void or inexistent contracts: 1) As a general rule, they produce no legal effects whatsoever in accordance with the principle "quod nullum est nullum producit effectum." 2) They are not susceptible of ratification. 3) The right to set up the defense of inexistence or absolute nullity cannot be waived or renounced. 4) The action or defense for the declaration of their inexistence or absolute nullity is imprescriptible. AaITCH 5) The inexistence or absolute nullity of a contract cannot be invoked by a person whose interests are not directly affected. 22 Since the Deed of Sale is void, the subject properties were properly included in the Deed of Extra-Judicial Partition of the estate of Alfonso. Absence and Inadequacy of Consideration The second presumption is rebutted by the lack of consideration for the Deed of Sale. In their Answer, 23 the Heirs of Alfonso initially argued that the Deed of Sale was void for lack of consideration, and even granting that there was consideration, such was inadequate. The Heirs of Policronio counter that the defenses of absence or inadequacy of consideration are not grounds to render a contract void. The Heirs of Policronio contended that under Article 1470 of the Civil Code, gross inadequacy of the price does not affect a contract of sale, except as it may indicate a defect in the consent, or that the parties really intended a donation or some other act or contract. Citing jurisprudence, they argued that inadequacy of monetary consideration does not render a conveyance inexistent as liberality may be sufficient cause for a valid contract, whereas fraud or bad faith may render it either rescissible or voidable, although valid until annulled. 24 Thus, they argued that if the contract suffers from inadequate consideration, it remains valid until annulled,

and the remedy of rescission calls for judicial intervention, which remedy the Heirs of Alfonso failed to take. It is further argued that even granting that the sale of the subject lands for a consideration of P2,000.00 was inadequate, absent any evidence of the fair market value of the land at the time of its sale, it cannot be concluded that the price at which it was sold was inadequate. 25 As there is nothing in the records to show that the Heirs of Alfonso supplied the true value of the land in 1969, the amount of P2,000.00 must thus stand as its saleable value. On this issue, the Court finds for the Heirs of Alfonso. For lack of consideration, the Deed of Sale is once again found to be void. It states that Policronio paid, and Alfonso received, the P2,000.00 purchase price on the date of the signing of the contract: cISAHT That I, ALFONSO F. URETA, . . . for and in consideration of the sum of TWO THOUSAND (P2,000.00) PESOS, Philippine Currency, to me in hand paid by POLICRONIO M. URETA, . . . , do hereby CEDE, TRANSFER, and CONVEY, by way of absolute sale, . . . six (6) parcels of land . . . . 26 [Emphasis ours] Although, on its face, the Deed of Sale appears to be supported by valuable consideration, the RTC found that there was no money involved in the sale. 27 This finding was affirmed by the CA in ruling that the sale is void for being absolutely simulated. Considering that there is no cogent reason to deviate from such factual findings, they are binding on this Court. It is well-settled in a long line of cases that where a deed of sale states that the purchase price has been paid but in fact has never been paid, the deed of sale is null and void for lack of consideration. 28 Thus, although the contract states that the purchase price of P2,000.00 was paid by Policronio to Alfonso for the subject properties, it has been proven that such was never in fact paid as there was no money involved. It must, therefore, follow that the Deed of Sale is void for lack of consideration. Given that the Deed of Sale is void, it is unnecessary to discuss the issue on the inadequacy of consideration. Parol Evidence and Hearsay The Heirs of Policronio aver that the rules on parol evidence and hearsay were violated by the CA in ruling that the Deed of Sale was void. They argued that based on the parol evidence rule, the Heirs of Alfonso and, specifically, Amparo Castillo, were not in a position to prove the terms outside of the contract because they were not parties nor successors-in-interest in the Deed of Sale in question. Thus, it is argued that the testimony of Amparo Castillo violates the parol evidence rule. Stemming from the presumption that the Heirs of Alfonso were not parties to the contract, it is also argued that the parol evidence rule may not be properly invoked

by either party in the litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. 29 Their arguments are untenable. HCaDIS The objection against the admission of any evidence must be made at the proper time, as soon as the grounds therefor become reasonably apparent, and if not so made, it will be understood to have been waived. In the case of testimonial evidence, the objection must be made when the objectionable question is asked or after the answer is given if the objectionable features become apparent only by reason of such answer. 30 In this case, the Heirs of Policronio failed to timely object to the testimony of Amparo Castillo and they are, thus, deemed to have waived the benefit of the parol evidence rule. Granting that the Heirs of Policronio timely objected to the testimony of Amparo Castillo, their argument would still fail. Section 9 of Rule 130 of the Rules of Court provides: Section 9. Evidence of written agreements. When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. [Emphasis ours] Paragraphs (b) and (c) are applicable in the case at bench. The failure of the Deed of Sale to express the true intent and agreement of the parties was clearly put in issue in the Answer 31 of the Heirs of Alfonso to the Complaint. It was alleged that the Deed of Sale was only made to lessen the payment of estate and inheritance taxes and not meant to transfer ownership. The exception in paragraph (b) is allowed to enable the court to ascertain the true intent of the parties, and once the intent is clear, it shall prevail over what the document appears to be on its face. 32 As the true intent of the parties was duly proven in the present case, it now prevails over what appears on the Deed of Sale. CASIEa

The validity of the Deed of Sale was also put in issue in the Answer, and was precisely one of the issues submitted to the RTC for resolution. 33 The operation of the parol evidence rule requires the existence of a valid written agreement. It is, thus, not applicable in a proceeding where the validity of such agreement is the fact in dispute, such as when a contract may be void for lack of consideration. 34 Considering that the Deed of Sale has been shown to be void for being absolutely simulated and for lack of consideration, the Heirs of Alfonso are not precluded from presenting evidence to modify, explain or add to the terms of the written agreement. The Heirs of Policronio must be in a state of confusion in arguing that the Heirs of Alfonso may not question the Deed of Sale for not being parties or successors-ininterest therein on the basis that the parol evidence rule may not be properly invoked in a proceeding or litigation where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. If their argument was to be accepted, then the Heirs of Policronio would themselves be precluded from invoking the parol evidence rule to exclude the evidence of the Heirs of Alfonso. Indeed, the applicability of the parol evidence rule requires that the case be between parties and their successors-in-interest. 35 In this case, both the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of the parties to the Deed of Sale as they claim rights under Alfonso and Policronio, respectively. The parol evidence rule excluding evidence aliunde, however, still cannot apply because the present case falls under two exceptions to the rule, as discussed above. With respect to hearsay, the Heirs of Policronio contended that the rule on hearsay was violated when the testimony of Amparo Castillo was given weight in proving that the subject lands were only sold for taxation purposes as she was a person alien to the contract. Even granting that they did not object to her testimony during trial, they argued that it should not have been appreciated by the CA because it had no probative value whatsoever. 36 The Court disagrees. It has indeed been held that hearsay evidence whether objected to or not cannot be given credence for having no probative value. 37 This principle, however, has been relaxed in cases where, in addition to the failure to object to the admissibility of the subject evidence, there were other pieces of evidence presented or there were other circumstances prevailing to support the fact in issue. In Top-Weld Manufacturing, Inc. v. ECED S.A., 38 this Court held: cTEICD Hearsay evidence alone may be insufficient to establish a fact in an injunction suit (Parker v. Furlong, 62 P. 490) but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves. (Smith

v. Delaware & Atlantic Telegraph & Telephone Co., 51 A 464). Although we should warn of the undesirability of issuing judgments solely on the basis of the affidavits submitted, where as here, said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable, we are constrained to uphold the allegations of the respondents regarding the multifarious violations of the contracts made by the petitioner. In the case at bench, there were other prevailing circumstances which corroborate the testimony of Amparo Castillo. First, the other Deeds of Sale which were executed in favor of Liberato, Prudencia, and Valeriana on the same day as that of Policronio's were all presented in evidence. Second, all the properties subject therein were included in the Deed of Extra-Judicial Partition of the estate of Alfonso. Third, Policronio, during his lifetime, never exercised acts of ownership over the subject properties (as he never demanded or took possession of them, never demanded or received the produce thereof, and never paid real estate taxes thereon). Fourth, Policronio never informed his children of the sale. As the Heirs of Policronio failed to controvert the evidence presented, and to timely object to the testimony of Amparo Castillo, both the RTC and the CA correctly accorded probative weight to her testimony. Prior Action Unnecessary The Heirs of Policronio averred that the Heirs of Alfonso should have filed an action to declare the sale void prior to executing the Deed of Extra-Judicial Partition. They argued that the sale should enjoy the presumption of regularity, and until overturned by a court, the Heirs of Alfonso had no authority to include the land in the inventory of properties of Alfonso's estate. By doing so, they arrogated upon themselves the power of invalidating the Deed of Sale which is exclusively vested in a court of law which, in turn, can rule only upon the observance of due process. Thus, they contended that prescription, laches, or estoppel have set in to militate against assailing the validity of the sale. TADaCH The Heirs of Policronio are mistaken. A simulated contract of sale is without any cause or consideration, and is, therefore, null and void; in such case, no independent action to rescind or annul the contract is necessary, and it may be treated as non-existent for all purposes. 39 A void or inexistent contract is one which has no force and effect from the beginning, as if it has never been entered into, and which cannot be validated either by time or ratification. A void contract produces no effect whatsoever either against or in favor of anyone; it does not create, modify or extinguish the juridical relation to which it refers. 40 Therefore, it was not necessary for the Heirs of Alfonso to first file an action to declare the nullity of the Deed of Sale prior to executing the Deed of Extra-Judicial Partition. Personality to Question Sale

The Heirs of Policronio contended that the Heirs of Alfonso are not parties, heirs, or successors-in-interest under the contemplation of law to clothe them with the personality to question the Deed of Sale. They argued that under Article 1311 of the Civil Code, contracts take effect only between the parties, their assigns and heirs. Thus, the genuine character of a contract which personally binds the parties cannot be put in issue by a person who is not a party thereto. They posited that the Heirs of Alfonso were not parties to the contract; neither did they appear to be beneficiaries by way of assignment or inheritance. Unlike themselves who are direct heirs of Policronio, the Heirs of Alfonso are not Alfonso's direct heirs. For the Heirs of Alfonso to qualify as parties, under Article 1311 of the Civil Code, they must first prove that they are either heirs or assignees. Being neither, they have no legal standing to question the Deed of Sale. They further argued that the sale cannot be assailed for being barred under Article 1421 of the Civil Code which provides that the defense of illegality of a contract is not available to third persons whose interests are not directly affected. Again, the Court disagrees. Article 1311 and Article 1421 of the Civil Code provide: Art. 1311. Contracts take effect only between the parties, their assigns and heirs, ... Art. 1421. The defense of illegality of contracts is not available to third persons whose interests are not directly affected. The right to set up the nullity of a void or non-existent contract is not limited to the parties, as in the case of annullable or voidable contracts; it is extended to third persons who are directly affected by the contract. Thus, where a contract is absolutely simulated, even third persons who may be prejudiced thereby may set up its inexistence. 41 The Heirs of Alfonso are the children of Alfonso, with his deceased children represented by their children (Alfonso's grandchildren). The Heirs of Alfonso are clearly his heirs and successors-in-interest and, as such, their interests are directly affected, thereby giving them the right to question the legality of the Deed of Sale. CHTcSE Inapplicability of Article 842 The Heirs of Policronio further argued that even assuming that the Heirs of Alfonso have an interest in the Deed of Sale, they would still be precluded from questioning its validity. They posited that the Heirs of Alfonso must first prove that the sale of Alfonso's properties to Policronio substantially diminished their successional rights or that their legitimes would be unduly prejudiced, considering that under Article 842 of the Civil Code, one who has compulsory heirs may dispose of his estate provided that he does not contravene the provisions of the Civil Code with regard to the legitime of said heirs. Having failed to do so, they

argued that the Heirs of Alfonso should be precluded from questioning the validity of the Deed of Sale. Still, the Court disagrees. Article 842 of the Civil Code provides: Art. 842. 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. 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. This article refers to the principle of freedom of disposition by will. What is involved in the case at bench is not a disposition by will but by Deed of Sale. Hence, the Heirs of Alfonso need not first prove that the disposition substantially diminished their successional rights or unduly prejudiced their legitimes. Inapplicability of Article 1412 The Heirs of Policronio contended that even assuming that the contract was simulated, the Heirs of Alfonso would still be barred from recovering the properties by reason of Article 1412 of the Civil Code, which provides that if the act in which the unlawful or forbidden cause does not constitute a criminal offense, and the fault is both on the contracting parties, neither may recover what he has given by virtue of the contract or demand the performance of the other's undertaking. As the Heirs of Alfonso alleged that the purpose of the sale was to avoid the payment of inheritance taxes, they cannot take from the Heirs of Policronio what had been given to their father. On this point, the Court again disagrees. EHSIcT Article 1412 of the Civil Code is as follows: Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the following rules shall be observed: (1) When the fault is on the part of both contracting parties, neither may recover what he has given by virtue of the contract, or demand the performance of the other's undertaking; (2) When only one of the contracting parties is at fault, he cannot recover what he has given by reason of the contract, or ask for the fulfillment of what has been promised him. The other, who is not at fault, may demand the return of what he has given without any obligation to comply with his promise. Article 1412 is not applicable to fictitious or simulated contracts, because they refer to contracts with an illegal cause or subject-matter. 42 This article presupposes the existence of a cause, it cannot refer to fictitious or simulated contracts which are in reality non-existent. 43 As it has been determined that the Deed of Sale is a simulated contract, the provision cannot apply to it. Granting that the Deed of Sale was not simulated, the provision would still not apply. Since the subject properties were included as properties of Alfonso in the

Deed of Extra-Judicial Partition, they are covered by corresponding inheritance and estate taxes. Therefore, tax evasion, if at all present, would not arise, and Article 1412 would again be inapplicable. Prescription From the position that the Deed of Sale is valid and not void, the Heirs of Policronio argued that any question regarding its validity should have been initiated through judicial process within 10 years from its notarization in accordance with Article 1144 of the Civil Code. Since 21 years had already elapsed when the Heirs of Alfonso assailed the validity of the Deed of Sale in 1996, prescription had set in. Furthermore, since the Heirs of Alfonso did not seek to nullify the tax declarations of Policronio, they had impliedly acquiesced and given due recognition to the Heirs of Policronio as the rightful inheritors and should, thus, be barred from laying claim on the land. The Heirs of Policronio are mistaken. Article 1410 of the Civil Code provides: Art. 1410. The action for the declaration of the inexistence of a contract does not prescribe. This is one of the most fundamental characteristics of void or inexistent contracts. 44 aATEDS As the Deed of Sale is a void contract, the action for the declaration of its nullity, even if filed 21 years after its execution, cannot be barred by prescription for it is imprescriptible. Furthermore, the right to set up the defense of inexistence or absolute nullity cannot be waived or renounced. 45 Therefore, the Heirs of Alfonso cannot be precluded from setting up the defense of its inexistence. Validity of the Deed of Extra-Judicial Partition The Court now resolves the issue of the validity of the Deed of Extra-Judicial Partition. Unenforceability The Heirs of Alfonso argued that the CA was mistaken in annulling the Deed of Extra-Judicial Partition due to the incapacity of Conrado to give the consent of his co-heirs for lack of a special power of attorney. They contended that what was involved was not the capacity to give consent in behalf of the co-heirs but the authority to represent them. They argue that the Deed of Extra-Judicial Partition is not a voidable or an annullable contract under Article 1390 of the Civil Code, but rather, it is an unenforceable or, more specifically, an unauthorized contract under Articles 1403 (1) and 1317 of the Civil Code. As such, the Deed of Extra-Judicial Partition should not be annulled but only be rendered unenforceable against the siblings of Conrado. They further argued that under Article 1317 of the Civil Code, when the persons represented without authority have ratified the unauthorized acts, the contract

becomes enforceable and binding. They contended that the Heirs of Policronio ratified the Deed of Extra-Judicial Partition when Conrado took possession of one of the parcels of land adjudicated to him and his siblings, and when another parcel was used as collateral for a loan entered into by some of the Heirs of Policronio. The Deed of Extra-Judicial Partition having been ratified and its benefits accepted, the same thus became enforceable and binding upon them. The Heirs of Alfonso averred that granting arguendo that Conrado was not authorized to represent his co-heirs and there was no ratification, the CA should not have remanded the case to the RTC for partition of Alfonso's estate. They argued that the CA should not have applied the Civil Code general provision on contracts, but the special provisions dealing with succession and partition. They contended that contrary to the ruling of the CA, the extra-judicial partition was not an act of strict dominion, as it has been ruled that partition of inherited land is not a conveyance but a confirmation or ratification of title or right to the land. 46 Therefore, the law requiring a special power of attorney should not be applied to partitions. DHEaTS On the other hand, the Heirs of Policronio insisted that the CA pronouncement on the invalidity of the Deed of Extra-Judicial Partition should not be disturbed because the subject properties should not have been included in the estate of Alfonso, and because Conrado lacked the written authority to represent his siblings. They argued with the CA in ruling that a special power of attorney was required before Conrado could sign in behalf of his co-heirs. The Heirs of Policronio denied that they ratified the Deed of Extra-Judicial Partition. They claimed that there is nothing on record that establishes that they ratified the partition. Far from doing so, they precisely questioned its execution by filing a complaint. They further argued that under Article 1409 (3) of the Civil Code, ratification cannot be invoked to validate the illegal act of including in the partition those properties which do not belong to the estate as it provides another mode of acquiring ownership not sanctioned by law. Furthermore, the Heirs of Policronio contended that the defenses of unenforceability, ratification, and preterition are being raised for the first time on appeal by the Heirs of Alfonso. For having failed to raise them during the trial, the Heirs of Alfonso should be deemed to have waived their right to do so. The Court agrees in part with the Heirs of Alfonso. To begin, although the defenses of unenforceability, ratification and preterition were raised by the Heirs of Alfonso for the first time on appeal, they are concomitant matters which may be taken up. As long as the questioned items bear relevance and close relation to those specifically raised, the interest of justice would dictate that they, too, must be considered and resolved. The rule that only theories raised in the initial proceedings may be taken up by a party thereto on

appeal should refer to independent, not concomitant matters, to support or oppose the cause of action. 47 In the RTC, the Heirs of Policronio alleged that Conrado's consent was vitiated by mistake and undue influence, and that he signed the Deed of Extra-Judicial Partition without the authority or consent of his co-heirs. The RTC found that Conrado's credibility had faltered, and his claims were rejected by the RTC as gratuitous assertions. On the basis of such, the RTC ruled that Conrado duly represented his siblings in the Deed of Extra-Judicial Partition. On the other hand, the CA annulled the Deed of Extra-Judicial Partition under Article 1390 (1) of the Civil Code, holding that a special power of attorney was lacking as required under Article 1878 (5) and (15) of the Civil Code. These articles are as follows: Art. 1878. Special powers of attorney are necessary in the following cases: xxx xxx xxx (5) To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration; xxx xxx xxx (15) Any other act of strict dominion. Art. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; HICEca (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. This Court finds that Article 1878 (5) and (15) is inapplicable to the case at bench. It has been held in several cases 48 that partition among heirs is not legally deemed a conveyance of real property resulting in change of ownership. It is not a transfer of property from one to the other, but rather, it is a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. It is merely a designation and segregation of that part which belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore, be considered as an act of strict dominion. Hence, a special power of attorney is not necessary. In fact, as between the parties, even an oral partition by the heirs is valid if no creditors are affected. The requirement of a written memorandum under the statute of frauds does not apply to partitions effected by the heirs where no creditors are involved considering that such transaction is not a conveyance of property

resulting in change of ownership but merely a designation and segregation of that part which belongs to each heir. 49 Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates the incapacity of a party to give consent to a contract. What is involved in the case at bench though is not Conrado's incapacity to give consent to the contract, but rather his lack of authority to do so. Instead, Articles 1403 (1), 1404, and 1317 of the Civil Code find application to the circumstances prevailing in this case. They are as follows: Art. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; Art. 1404. Unauthorized contracts are governed by Article 1317 and the principles of agency in Title X of this Book. Art. 1317. No one may contract in the name of another without being authorized by the latter, or unless he has by law a right to represent him. AIHECa A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party. Such was similarly held in the case of Badillo v. Ferrer: The Deed of Extrajudicial Partition and Sale is not a voidable or an annullable contract under Article 1390 of the New Civil Code. Article 1390 renders a contract voidable if one of the parties is incapable of giving consent to the contract or if the contracting party's consent is vitiated by mistake, violence, intimidation, undue influence or fraud. . . . The deed of extrajudicial partition and sale is an unenforceable or, more specifically, an unauthorized contract under Articles 1403(1) and 1317 of the New Civil Code. 50 Therefore, Conrado's failure to obtain authority from his co-heirs to sign the Deed of Extra-Judicial Partition in their behalf did not result in his incapacity to give consent so as to render the contract voidable, but rather, it rendered the contract valid but unenforceable against Conrado's co-heirs for having been entered into without their authority. A closer review of the evidence on record, however, will show that the Deed of Extra-Judicial Partition is not unenforceable but, in fact, valid, binding and enforceable against all the Heirs of Policronio for having given their consent to the contract. Their consent to the Deed of Extra-Judicial Partition has been proven by a preponderance of evidence. Regarding his alleged vitiated consent due to mistake and undue influence to the Deed of Extra-Judicial Partition, Conrado testified, to wit:

Q: Mr. Ureta you remember having signed a document entitled deed of extra judicial partition consisting of 11 pages and which have previously [been] marked as Exhibit I for the plaintiffs? TEHDIA A: Yes sir. Q: Can you recall where did you sign this document? A: The way I remember I signed that in our house. Q: And who requested or required you to sign this document? A: My aunties. Q: Who in particular if you can recall? A: Nay Pruding Panadero. Q: You mean that this document that you signed was brought to your house by your Auntie Pruding Pa[r]adero [who] requested you to sign that document? A: When she first brought that document I did not sign that said document because I [did] no[t] know the contents of that document. Q: How many times did she bring this document to you [until] you finally signed the document? A: Perhaps 3 times. Q: Can you tell the court why you finally signed it? A: Because the way she explained it to me that the land of my grandfather will be partitioned. IEAHca Q: When you signed this document were your brothers and sisters who are your co-plaintiffs in this case aware of your act to sign this document? A: They do not know. xxx xxx xxx Q: After you have signed this document did you inform your brothers and sisters that you have signed this document? A: No I did not. 51 xxx xxx xxx Q: Now you read the document when it was allegedly brought to your house by your aunt Pruding Pa[r]adero? A: I did not read it because as I told her I still want to ask the advise of my brothers and sisters. Q: So do I get from you that you have never read the document itself or any part thereof? A: I have read the heading. xxx xxx xxx Q: And why is it that you did not read all the pages of this document because I understand that you know also how to read in English? A: Because the way Nay Pruding explained to me is that the property of my grandfather will be partitioned that is why I am so happy. IADaSE

xxx xxx xxx Q: You mean to say that after you signed this deed of extra judicial partition up to the present you never informed them? A: Perhaps they know already that I have signed and they read already the document and they have read the document. Q: My question is different, did you inform them? A: The document sir? I did not tell them. Q: Even until now? A: Until now I did not inform them. 52 This Court finds no cogent reason to reverse the finding of the RTC that Conrado's explanations were mere gratuitous assertions not entitled to any probative weight. The RTC found Conrado's credibility to have faltered when he testified that perhaps his siblings were already aware of the Deed of Extra-Judicial Partition. The RTC was in the best position to judge the credibility of the witness' testimony. The CA also recognized that Conrado's consent was not vitiated by mistake and undue influence as it required a special power of attorney in order to bind his coheirs and, as such, the CA thereby recognized that his signature was binding to him but not with respect to his co-heirs. Findings of fact of the trial court, particularly when affirmed by the CA, are binding to this Court. 53 Furthermore, this Court notes other peculiarities in Conrado's testimony. Despite claims of undue influence, there is no indication that Conrado was forced to sign by his aunt, Prudencia Paradero. In fact, he testified that he was happy to sign because his grandfather's estate would be partitioned. Conrado, thus, clearly understood the document he signed. It is also worth noting that despite the document being brought to him on three separate occasions and indicating his intention to inform his siblings about it, Conrado failed to do so, and still neglected to inform them even after he had signed the partition. All these circumstances negate his claim of vitiated consent. Having duly signed the Deed of Extra-Judicial Partition, Conrado is bound to it. Thus, it is enforceable against him. Although Conrado's co-heirs claimed that they did not authorize Conrado to sign the Deed of Extra-Judicial Partition in their behalf, several circumstances militate against their contention. 2005jurcd First, the Deed of Extra-Judicial Partition was executed on April 19, 1989, and the Heirs of Policronio claim that they only came to know of its existence on July 30, 1995 through an issue of the Aklan Reporter. It is difficult to believe that Conrado did not inform his siblings about the Deed of Extra-Judicial Partition or at least broach its subject with them for more than five years from the time he signed it, especially after indicating in his testimony that he had intended to do so. Second, Conrado retained possession of one of the parcels of land adjudicated to him and his co-heirs in the Deed of Extra-Judicial Partition.

Third, after the execution of the partition on April 19, 1989 and more than a year before they claimed to have discovered the existence of the Deed of Extra-Judicial Partition on July 30, 1995, some of the Heirs of Policronio, namely, Rita Solano, Macario Ureta, Lilia Tayco, and Venancio Ureta executed on June 1, 1994, a Special Power of Attorney 54 in favor of their sister Gloria Gonzales, authorizing her to obtain a loan from a bank and to mortgage one of the parcels of land adjudicated to them in the Deed of Extra-Judicial Partition to secure payment of the loan. They were able to obtain the loan using the land as collateral, over which a Real Estate Mortgage 55 was constituted. Both the Special Power of Attorney and the Real Estate Mortgage were presented in evidence in the RTC, and were not controverted or denied by the Heirs of Policronio. Fourth, in the letter dated August 15, 1995, sent by the counsel of the Heirs of Policronio to the Heirs of Alfonso requesting for amicable settlement, there was no mention that Conrado's consent to the Deed of Extra-Judicial Partition was vitiated by mistake and undue influence or that they had never authorized Conrado to represent them or sign the document on their behalf. It is questionable for such a pertinent detail to have been omitted. The body of said letter is reproduced hereunder as follows: Greetings: Your nephews and nieces, children of your deceased brother Policronio Ureta, has referred to me for appropriate legal action the property they inherited from their father consisting of six (6) parcels of land which is covered by a Deed of Absolute Sale dated October 25, 1969. These properties ha[ve] already been transferred to the name of their deceased father immediately after the sale, machine copy of the said Deed of Sale is hereto attached for your ready reference. Lately, however, there was published an Extra-judicial Partition of the estate of Alfonso Ureta, which to the surprise of my clients included the properties already sold to their father before the death of said Alfonso Ureta. This inclusion of their property is erroneous and illegal because these properties were covered by the Deed of Absolute Sale in favor of their father Policronio Ureta no longer form part of the estate of Alfonso Ureta. Since Policronio Ureta has [sic] died in 1974 yet, these properties have passed by hereditary succession to his children who are now the true and lawful owners of the said properties. My clients are still entitled to a share in the estate of Alfonso Ureta who is also their grandfather as they have stepped into the shoes of their deceased father Policronio Ureta. But this estate of Alfonso Ureta should already exclude the six (6) parcels of land covered by the Deed of Absolute Sale in favor of Policronio Ureta. My clients cannot understand why the properties of their late father [should] be included in the estate of their grandfather and be divided among his brothers and

sisters when said properties should only be divided among themselves as children of Policronio Ureta. Since this matter involves very close members of the same family, I have counseled my clients that an earnest effort towards a compromise or amicable settlement be first explored before resort to judicial remedy is pursued. And a compromise or amicable settlement can only be reached if all the parties meet and discuss the problem with an open mind. To this end, I am suggesting a meeting of the parties on September 16, 1995 at 2:00 P.M. at B Place Restaurant at C. Laserna St., Kalibo, Aklan. It would be best if the parties can come or be represented by their duly designated attorney-in-fact together with their lawyers if they so desire so that the problem can be discussed unemotionally and intelligently. SACTIH I would, however, interpret the failure to come to the said meeting as an indication that the parties are not willing to or interested in amicable settlement of this matter and as a go signal for me to resort to legal and/or judicial remedies to protest the rights of my clients. Thank you very much. 56 Based on the foregoing, this Court concludes that the allegation of Conrado's vitiated consent and lack of authority to sign in behalf of his co-heirs was a mere afterthought on the part of the Heirs of Policronio. It appears that the Heirs of Policronio were not only aware of the existence of the Deed of Extra-Judicial Partition prior to June 30, 1995 but had, in fact, given Conrado authority to sign in their behalf. They are now estopped from questioning its legality, and the Deed of Extra-Judicial Partition is valid, binding, and enforceable against them. In view of the foregoing, there is no longer a need to discuss the issue of ratification. Preterition The Heirs of Alfonso were of the position that the absence of the Heirs of Policronio in the partition or the lack of authority of their representative results, at the very least, in their preterition and not in the invalidity of the entire deed of partition. Assuming there was actual preterition, it did not render the Deed of Extra-Judicial Partition voidable. Citing Article 1104 of the Civil Code, they aver that a partition made with preterition of any of the compulsory heirs shall not be rescinded, but the heirs shall be proportionately obliged to pay the share of the person omitted. Thus, the Deed of Extra-Judicial Partition should not have been annulled by the CA. Instead, it should have ordered the share of the heirs omitted to be given to them. The Heirs of Alfonso also argued that all that remains to be adjudged is the right of the preterited heirs to represent their father, Policronio, and be declared entitled to his share. They contend that remand to the RTC is no longer necessary as the issue is purely legal and can be resolved by the provisions of the Civil Code for there is

no dispute that each of Alfonso's heirs received their rightful share. Conrado, who received Policronio's share, should then fully account for what he had received to his other co-heirs and be directed to deliver their share in the inheritance. These arguments cannot be given credence. Their posited theory on preterition is no longer viable. It has already been determined that the Heirs of Policronio gave their consent to the Deed of ExtraJudicial Partition and they have not been excluded from it. Nonetheless, even granting that the Heirs of Policronio were denied their lawful participation in the partition, the argument of the Heirs of Alfonso would still fail. Preterition under Article 854 of the Civil Code is as follows: 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. cHDAIS If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. Preterition has been defined as the total omission of a compulsory heir from the inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. 57 Preterition is thus a concept of testamentary succession and requires a will. In the case at bench, there is no will involved. Therefore, preterition cannot apply. Remand Unnecessary The Deed of Extra-Judicial Partition is in itself valid for complying with all the legal requisites, as found by the RTC, to wit: A perusal of the Deed of Extra-judicial Partition would reveal that all the heirs and children of Alfonso Ureta were represented therein; that nobody was left out; that all of them received as much as the others as their shares; that it distributed all the properties of Alfonso Ureta except a portion of parcel 29 containing an area of 14,000 square meters, more or less, which was expressly reserved; that Alfonso Ureta, at the time of his death, left no debts; that the heirs of Policronio Ureta, Sr. were represented by Conrado B. Ureta; all the parties signed the document, was witnessed and duly acknowledged before Notary Public Adolfo M. Iligan of Kalibo, Aklan; that the document expressly stipulated that the heirs to whom some of the properties were transferred before for taxation purposes or their children, expressly recognize and acknowledge as a fact that the properties were transferred only for the purpose of effective administration and development convenience in the payment of taxes and, therefore, all instruments conveying or effecting the transfer of said properties are null and void from the beginning (Exhs. 1-4, 7-d). 58

Considering that the Deed of Sale has been found void and the Deed of ExtraJudicial Partition valid, with the consent of all the Heirs of Policronio duly given, there is no need to remand the case to the court of origin for partition. WHEREFORE, the petition in G.R. No. 165748 is DENIED. The petition in G.R. No. 165930 is GRANTED. The assailed April 20, 2004 Decision and October 14, 2004 Resolution of the Court of Appeals in CA-G.R. CV No. 71399, are hereby MODIFIED in this wise: AEIcSa (1) The Deed of Extra-Judicial Partition, dated April 19, 1989, is VALID, and (2) The order to remand the case to the court of origin is hereby DELETED. SO ORDERED. E. Determination or computation NCC 908-913 COLLATION NCC 1061-1077 Dizon-Rivera v Dizon, 33 SCRA 554 EN BANC [G.R. No. L-24561. June 30, 1970.] MARINA DIZON-RIVERA, executrix-appellee, vs. ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA DIZON and LILIA DIZON, oppositors-appellants. Punzalan, Yabut & Eusebio for executrix-appellee. Leonardo Abola for oppositors-appellants. SYLLABUS 1. WILLS AND SUCCESSION INTERPRETATION. The intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise. 2. ID; ID; TESTATOR'S WISHES MUST BE OBEYED. The testator's wishes and intention constitute the first and principal law in the matter of testaments, and when expressed clearly and precisely in his last will amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors heirs and devisees and legatees, and neither those interested parties nor the courts may substitute their own criterion for the testator's will. 3. ID; PARTITION OF PROPERTY. Where the testator in her will expressed the wish and commanded that her property be divided in accordance with the dispositions immediately thereafter following, whereby she specified each real property in her estate and designated the particular heir among her compulsory

heirs and seen other grandchildren to whom she bequeathed said testator made a valid partition of her estate as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code. This right of a testator is subject to the right of compulsory heirs to their legitime. 4. ID.; ID.; EFFECT OF PARTITION. The distribution made in the will of the deceased in favor of a compulsory heir should be respected insofar as it does not prejudice the legitime of the compulsory heirs in accordance with Article 1080 of the Civil Code. And the sale made by the heir, to a stranger or the property thus partitioned in the will is valid since a "partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him" from the death of his ancestors subject to the rights and obligations of the latter, and, he cannot be deprived of his rights thereto except by the methods provided for by law. 5. ID.; ID.; USE OF THE WORDS "I BEQUEATH.'' The repeated use of the words "I bequeath'' in the testamentary dispositions acquire no legal significance, such as to convert the same into devises to be taken solely from the free one-half disposable portion of the estate, where it clearly appears from the whole context of the will and the disposition by the testatrix of her whole estate that her clear intention was to partition her whole estate through her will. The testatrix intent that her testamentary dispositions were by way of adjudications to her beneficiaries as heirs and not as devisees, and that said dispositions are on account of the respective legitime of the compulsory heirs is expressly borne out in the testamentary adjudications which state that "in case any of those I name as my heirs in this testament any of them shall die before I do, his forced heirs under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased.'' 6. ID.; ID.; FREE PORTION. The testamentary dispositions of the testatrix in favor of compulsory heirs do not have to be taken only from the free portion of the estate, for the second paragraph of Article 812 of the Civil Code precisely provides that "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.'' Moreover, the second paragraph of Article 912 of the Civil Code covers precisely a situation where an heir is admittedly favored by the testatrix with the large bulk of her estate in providing that "the devisee who is entitled to a legitime may retain the entire property provided that its value does not exceed that of the disposable portion of the share pertaining to him as legitime.'' For diversity of apportionment is the usual reason for making a testament otherwise the decedent might as well die intestate.'' 7. ID.; ID.; PAYMENT OF CASH. Cash may be paid to make the proper adjustments in order to meet the requirements of the law on non-impairment of legitime as well as to give effect to the last will of the testator.

DECISION TEEHANKEE, J p: Appeal from orders of the Court of First Instance of Pampanga approving the Executrix-appellee's project of partition instead of Oppositors-Appellants' proposed counter-project of partition. 1 On January 28, 1961, the testatrix, Agripina J. Valdez. a widow, died in Angeles, Pampanga, and was survived by seven compulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and Josefina Dizon, and a legitimate grand-daughter named Lilia Dizon, who is the only legitimate child and heir of Ramon Dizon, a pre-deceased legitimate son of the said decedent. Six of these seven compulsory heirs (except Marina Dizon, the executrix-appellee) are the oppositors-appellants. The deceased testatrix left a last will executed on February 2, 1960 and written in the Pampango dialect. Named beneficiaries in her will were the above-named compulsory heirs, together with seven other legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and Laureano Tiambon. In her will, the testatrix divided, distributed and disposed of all her properties appraised at P1,801,960.00 (except, two small parcels of land appraised at P5,849.60, household furniture valued at P2,500.00, a bank deposit in the sum of P409.95 and ten shares of Pampanga Sugar Development Company valued at P350.00) among her abovenamed heirs. Testate proceedings were in due course commenced 2 and by order dated March 13, 1961, the last will and testament of the decedent was duly allowed and admitted to probate, and the appellee Marina Dizon-Rivera was appointed executrix of the testatrix' estate, and upon her filing her bond and oath of office, letters testamentary were duly issued to her. After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of Angeles, Pampanga was appointed commissioner to appraise the properties of the estate. He filed in due course his report of appraisal, and the same was approved in toto by the lower court on December 12, 1963 upon joint petition of the parties. The real and personal properties of the testatrix at the time of her death thus had a total appraised value of P1,811,695.60, and the legitime of each of the seven compulsory heirs amounted to P129,362.11. 3 (1/7 of the half of the estate reserved for the legitime of legitimate children and descendants). 4 In her will, the testatrix "commanded that her property be divided" in accordance with her testamentary disposition, whereby she devised and bequeathed specific real properties comprising practically the entire bulk of her estate among her six children and

eight grandchildren. The appraised values of the real properties thus respectively devised by the testatrix to the beneficiaries named in her will, are as follows: "1. Estela DizonP 98,474.80 2. Angelina Dizon 106,307.06 3. Bernardita Dizon 51,968.17 4. Josefina Dizon 52,056.39 5. Tomas Dizon 131,987.41 6. Lilia Dizon 72,182.47 7. Marina Dizon 1,148,063.71 8. Pablo Rivera, Jr. 69,280.00 9. Lilia Dizon, Gilbert Garcia, Cayetano Dizon, Francisco Rivera, Agripina Ayson, Dioli or Jolly Jimenez, Laureano Tiamzon 72,540.00 Total Value 1,801,960.01" The executrix filed her project of partition dated February 5, 1964, in substance adjudicating the estate as follows: "(1) with the figure of P129,254.96 as legitime for a basis Marina (executrixappellee) and Tomas (appellant) are admittedly considered to have received in the will more than their respective legitime, while the rest of the appellants, namely, Estela, Bernardita, Angelina, Josefina and Lilia received less than their respective legitime: (2) thus, to each of the latter are adjudicated the properties respectively given them in the will, plus cash and/or properties, to complete their respective legitimes to P129,254.96; (3) on the other hand, Marina and Tomas are adjudicated the properties that they received in the will less the cash and/or properties necessary to complete the prejudiced legitime mentioned in number 2 above; (4) the adjudications made in the will in favor of the grandchildren remain untouched." On the other hand oppositors submitted their own counter-project of partition dated February 14, 1964, wherein they proposed the distribution of the estate on the following basis: "(a) all the testamentary dispositions were proportionally reduced to the value of one-half (1/2) of the entire estate, the value of the said one-half (1/2) amounting to P905,534.78; (b) the shares of the Oppositors-Appellants should consist of their legitime, plus the devises in their favor proportionally reduced; (c) in payment of the total shares of the appellants in the entire estate, the properties devised to them plus other properties left by the Testatrix and/or cash are adjudicated to them; and

(d) to the grandchildren who are not compulsory heirs are adjudicated the properties respectively devised to them subject to reimbursement by Gilbert D. Garcia et al., of the sums by which the devise in their favor should be proportionally reduced." Under the oppositors' counter-project of partition, the testamentary disposition made by the testatrix of practically her whole estate of P1,801,960.01, as above stated, were proposed to be reduced to the amounts set forth after the names of the respective heirs and devisees totalling one-half thereof as follows: "1. Estela DizonP 49,485.56 2. Angelina Dizon 53,421.42 3. Bernardita Dizon 26,115.04 4. Josefina Dizon 26,159.38 5. Tomas V. Dizon 65,874.04 6. Lilia Dizon 36,273.13 7. Marina Dizon 576,938.82 8. Pablo Rivera, Jr. 34,814.50 9. Grandchildren Gilbert Garcia et al 36,452.80 Total P905,534.78" ========== while the other half of the estate (P905,534.78) would be deemed as constituting the legitime of the executrix-appellee and oppositors-appellants, to be divided among them in seven equal parts of P129,362.11 as their respective legitimes. The lower court, after hearing, sustained and approved the executrix' project of partition, ruling that "(A)rticles 906 and 907 of the New Civil Code specifically provide that when the legitime is impaired or prejudiced, the same shall be completed and satisfied. While it is true that this process has been followed and adhered to in the two projects of partition, it is observed that the executrix and the oppositors differ in respect to the source from which the portion or portions shall be taken in order to fully restore the impaired legitime. The proposition of the oppositors, if upheld, will substantially result in a distribution of intestacy, which is in controversion of Article 791 of the New Civil Code" adding that "the testatrix has chosen to favor certain heirs in her will for reasons of her own, cannot be doubted. This is legally permissible within the limitation of the law, as aforecited." With reference to the payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary of the will to be paid to her five co-heirs, the oppositors (excluding Tomas Dizon), to complete their-impaired legitimes, the lower court ruled that "(T)he payment in cash so as to make the proper adjustment to meet with the requirements of the law in respect to legitimes which have been

impaired is, in our opinion, a practical and valid solution in order to give effect to the last wishes of the testatrix." From the lower court's orders of approval, oppositors-appellants have filed this appeal, and raise anew the following issues: 1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of devises imputable to the free portion of her estate, and therefore subject to reduction; 2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely to demand completion of their legitime under Article 906 of the Civil Code; and 3. Whether the appellants may be compelled to accept payment in cash on account of their legitime, instead of some of the real properties left by the Testatrix; which were adversely decided against them in the proceedings below. The issues raised present a matter of determining the avowed intention of the testatrix which is "the life and soul of a will." 5 In consonance therewith, our Civil Code included the new provisions found in Articles 788 and 791 thereof that "(I)f a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred" and "(T)he words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of .the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." In Villanueva vs. Juico 6 for violation of these rules of interpretation as well as of Rule 123, section 59 of the old Rules of Court, 7 the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's decision and stressed that "the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise." 8 The testator's wishes and intention constitute the first and principal law in the matter of testaments, and to paraphrase an early decision of the Supreme Court of Spain. 9 when expressed clearly and precisely in his last will amount to the only law whose mandate must imperatively be faithfully obeyed and complied with by his executors, heirs and devisees and legatees, and neither these interested parties nor the courts may substitute their own criterion for the testator's will. Guided and restricted by these fundamental premises, the Court finds for the appellee. 1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in the nature of a partition of her estate by will. Thus, in the third paragraph of her will after commanding that upon her death all her obligations as

well as the expenses of her last illness and funeral and the expenses for probate of her last will and for the administration of her property in accordance with law, be paid, she expressly provided that "it is my wish and I command that my property be divided" in accordance with the dispositions immediately thereafter following, whereby she specified each real property in her estate and designated the particular heir among her seven compulsory heirs and seven other grandchildren to whom she bequeathed the same. This was a valid partition 10 of her estate, as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code, providing that "(S)hould a person make a partition of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs." This right of a testator to partition his estate is subject only to the right of compulsory heirs to their legitime. The Civil Code thus provides the safeguard for the right of such compulsory heirs: "ART. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. "ART. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. This was properly complied with in the executrix-appellee's project of partition, wherein the five oppositors-appellants namely Estela. Bernardita, Angelina, Josefina and Lilia, were adjudicated the properties respectively distributed and assigned to them by the testatrix in her will, and the differential to complete their respective legitimes of P129,362.11 each were taken from the cash and/or properties of the executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were favored by the testatrix and received in the partition by will more than their respective legitimes. 2. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old Civil Code which has been reproduced now as Article 1080 of the present Civil Code. The only amendment in the provision was that Article 1080 "now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos." 11 This was intended to repeal the then prevailing doctrine 12 that for a testator to partition his estate by an act inter vivos, he must first make a will with all the formalities provided by law. Authoritative commentators doubt the efficacy of the amendment 13 but the question does not here concern us, for this is a clear case of partition by will, duly admitted to probate, which perforce must be given full validity and effect. Aside from the provisions of Articles 906 and 907 above quoted, other codal provisions support the executrix-appellee's project of partition as approved by the lower court rather than the counter-project of partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition or partition made by the testatrix to

one-half and limit the same, which they would consider as mere devises or legacies, to one-half of the estate as the disposable free portion, and apply the other half of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. "3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of the deceased testator Pedro Teves of two large coconut plantations in favor of his daughter, Concepcion, as against adverse claims of other compulsory heirs, as being a partition by will, which should be respected insofar as it does not prejudice the legitime of the compulsory heirs, in accordance with Article 1080 of the Civil Code. In upholding the sale made by Concepcion to a stranger of the plantations thus partitioned in her favor in the deceased's will which was being questioned by the other compulsory heirs, the Court ruled that "Concepcion Teves by operation of law, became the absolute owner of said lots because 'A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him' (Article 1091, New Civil Code), from the death of her ancestors, subject to rights and obligations of the latter, and, she can not be deprived of her rights thereto except by the methods provided for by law (Arts. 657, 659, and 661, Civil Code). 15 Concepcion Teves could, as she did, sell the lots in question as part of her share of the proposed partition of the properties, especially when, as in the present case, the sale has been expressly recognized by herself and her co-heirs . . . 4. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her assignment or distribution of her real properties to the respective heirs. From this erroneous premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs passes to them by operation of law and that the testator can only dispose of the free portion, that is, the remainder of the estate after deducting the legitime of the compulsory heirs . . . and all testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to be taken from the remainder of the testator's estate constituting the free portion." 16 Oppositors err in their premises, for the adjudications and assignments in the testatrix' will of specific properties to specific heirs cannot be considered all devises, for it clearly appear from the whole context of the will and the disposition by the testatrix of her whole estate (save for some small properties of little value already noted at the beginning of this opinion) that her clear intention was to partition her whole estate through her will. The repeated use of the words "I

bequeath" in her testamentary dispositions acquire no legal significance, such as to convert the same into devises to be taken solely from the free one-half disposable portion of the estate. Furthermore, the testatrix' intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs and not as mere devisees, and that said dispositions were therefore on account of the respective legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I likewise command that in case any of those I named as my heirs in this testament any of them shall die before I do, his forced heirs under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased." 17 Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the estate, as contended, for the second paragraph of Article 842 of the Civil Code precisely provides that "(O)ne who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs." And even going by oppositors' own theory of bequests, the second paragraph of Article 912 of the Civil Code covers precisely the case of the executrix-appellee, who admittedly was favored by the testatrix with the large bulk of her estate in providing that "(T)he devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate." 18 Fundamentally, of course, the dispositions by the testatrix constituted a partition by will, which by mandate of Article 1080 of the Civil Code and of the other cited codal provisions upholding the primacy of the testator's last will and testament, have to be respected insofar as they do not prejudice the legitime of the other compulsory heirs. Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired" and invoking of the construction thereof given by some authorities that "'not deemed subject to collation' in this article really means not imputable to or chargeable against the legitime", while it may have some plausibility 19 in an appropriate case, has no application in the present ease. Here, we have a case of a distribution and partition of the entire estate by the testatrix, without her having made any previous donations during her lifetime which would require collation to determine the legitime of each heir nor having left merely some properties by will which would call for the application of Articles 1061 to 1063 of the Civil Code on collation. The amount of the legitime of the heirs is here determined and undisputed.

5. With this resolution of the decisive issue raised by oppositors-appellants, the secondary issues are likewise necessarily resolved. Their right was merely to demand completion of their legitime under Article 906 of the Civil Code and this has been complied with in the approved project of partition, and they can no longer demand a further share from the remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to the executrix-appellee. Neither may the appellants legally insist on their legitime being completed with real properties of the estate instead of being paid in cash, per the approved project of partition. The properties are not available for the purpose, as the testatrix had specifically partitioned and distributed them to her heirs, and the heirs are called upon, as far as feasible to comply with and give effect to the intention of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report of the properties of the estate as filed by the commissioner appointed by the lower court was approved in toto upon joint petition of the parties, and hence, there cannot be said to be any question and none is presented as to fairness of the valuation thereof or that the legitime of the heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of the Philippine peso has greatly declined since the testatrix' death in January, 1961 provides no legal basis or justification for overturning the wishes and intent of the testatrix. The transmission of rights to the succession are transmitted from the moment of death of the decedent (Article 777, Civil Code) and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never be settled if there were to be a revaluation with every subsequent fluctuation in the values of the currency and properties of the estate. There is evidence in the record that prior to November 25, 1964, one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account of her inheritance, which, per the parties' manifestation, 20 "does not in any way affect the adjudication made to her in the projects of partition of either party as the same is a mere advance of the cash that she should receive in both projects of partition." The payment in cash by way of making the proper adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as to give effect to the last will of the testatrix has invariably been availed of and sanctioned. 21 That her co-oppositors would receive their cash differentials only now when the value of the currency has declined further, whereas they could have received them earlier, like Bernardita, at the time of approval of the project of partition and when the peso's purchasing value was higher, is due to their own decision of pursuing the present appeal. ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost. De Roma v CA, 152 SCRA 205

FIRST DIVISION [G.R. No. L-46903. July 23, 1987.] BUHAY DE ROMA, petitioner, vs. THE HONORABLE COURT OF APPEALS and FELICIDAD CARINGAL, as Guardian of Rosalinda de Roma, respondents. SYLLABUS 1. CIVIL LAW; CONTRACTS; DONATION; THE FACT OF ITS IRREVOCABLE CHARACTER DOES NOT EXEMPT PROPERTY FROM COLLATION. We agree with the respondent court that there is nothing in the above provisions expressly prohibiting the collation of the donated properties. As the said court correctly observed, the phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as "irrevocable" and should not be construed as an express prohibition against collation. The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061. 2. ID.; SUCCESSION; COLLATION; INTENTION TO EXEMPT PROPERTY FROM COLLATION SHOULD BE EXPRESSED PLAINLY AND UNEQUIVOCABLY. Anything less than such express prohibition will not suffice under the clear language of Article 1062. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedent's estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donation is officious. The sole issue is whether or not there was an express prohibition to collate, and we see none. The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Article 1062. Absent such a clear indication of that intention, we apply not the exception but the rule, which is categorical enough. 3. CONSTITUTIONAL LAW; JUDICIARY; MAXIMUM PERIOD WITHIN WHICH TO DECIDE A CASE, MERELY DIRECTORY. There is no need to dwell long on the other error assigned by the petitioner regarding the decision of the appealed case by the respondent court beyond the 12-month period prescribed by Article X, Section 11 (1) of the 1973 Constitution. As we held in Marcelino v. Cruz, the said provision was merely directory and failure to decide on time would not deprive the corresponding courts of jurisdiction or render their decisions invalid. It is worth stressing that the aforementioned provision has now been reworded in Article VIII, Section 15, of the 1987 Constitution, which also impresses upon the courts of justice, indeed with greater urgency, the need for the speedy disposition of the cases that have been clogging their dockets these many years. Serious studies and efforts are now being taken by the Court to meet that need.

DECISION CRUZ, J p: Candelaria de Roma had two legally adopted daughters, Buhay de Roma and Rosalinda de Roma. She died intestate on April 30, 1971, and administration proceedings were instituted in the Court of First Instance of Laguna by the private respondent as guardian of Rosalinda. Buhay was appointed administratrix and in due time filed an inventory of the estate. This was opposed by Rosalinda on the ground that certain properties earlier donated by Candelaria to Buhay, and the fruits thereof, had not been included. 1 The properties in question consisted of seven parcels of coconut land worth P10,297.50. 2 There is no dispute regarding their valuation; what the parties cannot agree upon is whether these lands are subject to collation. The private respondent vigorously argues that it is, conformably to Article 1061 of the Civil Code. Buhay, for her part, citing Article 1062, claims she has no obligation to collate because the decedent prohibited such collation and the donation was not officious. The two articles provide as follows: "Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition." "Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious." The issue was resolved in favor of the petitioner by the trial court, * which held that the decedent, when she made the donation in favor of Buhay, expressly prohibited collation. Moreover, the donation did not impair the legitimes of the two adopted daughters as it could be accommodated in, and in fact was imputed to, the free portion of Candelaria's estate. 3 On appeal, the order of the trial court was reversed, the respondent court ** holding that the deed of donation contained no express prohibition to collate as an exception to Article 1062. Accordingly, it ordered collation and equally divided the net estate of the decedent, including the fruits of the donated property, between Buhay and Rosalinda. 4 The pertinent portions of the deed of donation are as follows: llcd "IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at pagsisilbi sa akin ng aking anak na si BUHAY DE ROMA, kasal kay Arabella Castaneda, may karampatang gulang, mamamayang Pilipino at naninirahan at may pahatirang-sulat din dito sa Lunsod ng San Pablo sa pamamagitan ng kasulatang ito ay kusangloob

kong ibinibigay, ipinagkakaloob at inililipat sa nabanggit na BUHAY DE ROMA, sa kanyang mga kahalili at tagapagmana, sa pamamagitan ng pagbibigay na di na mababawing muli, ang lahat ng mga lagay ng lupa na sinasabi sa itaas, sa ilalim ng kasunduan na ngayon pa ay siya na ang nagmamay-aring tunay ng mga lupang ito at kanya nang maaring ipalipat ang mga hoja declaratoria ng mga lupang ito sa kanyang pangalan, datapwa't samantalang ako ay nabubuhay, ay ako rin ang makikinabang sa mga mapuputi at mamomosesion sa mga nasabing lupa; "IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari sa sapat pang aking ikabuhay at sa pagbibigay kong ito ay hindi masisira ang legitima ng mga tao na dapat magmana sa akin, sapagkat ang mga lupang sinasabi sa itaas ay bahagi ng aking kabuhayan na ako ay may layang ipamigay kahit na kaninong tao na kung tawagin ay Libre Disposicion." 5 We agree with the respondent court that there is nothing in the above provisions expressly prohibiting the collation of the donated properties. As the said court correctly observed, the phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as "irrevocable" and should not be construed as an express prohibition against collation. 6 The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061. We surmise from the use of such terms as "legitime" and "free portion" in the deed of donation that it was prepared by a lawyer, and we may also presume he understood the legal consequences of the donation being made. It is reasonable to suppose, given the precise language of the document, that he would have included therein an express prohibition to collate if that had been the donor's intention. Anything less than such express prohibition will not suffice under the clear language of Article 1062. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedent's estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donation is officious. The sole issue is whether or not there was an express prohibition to collate, and we see none. The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Article 1062. Absent such a clear indication of that intention, we apply not the exception but the rule, which is categorical enough. There is no need to dwell long on the other error assigned by the petitioner regarding the decision of the appealed case by the respondent court beyond the 12month period prescribed by Article X, Section 11 (1) of the 1973 Constitution. As we held in Marcelino v. Cruz, 7 the said provision was merely directory and failure to decide on time would not deprive the corresponding courts of jurisdiction or render their decisions invalid.

It is worth stressing that the aforementioned provision has now been reworded in Article VIII, Section 15, of the 1987 Constitution, which also impresses upon the courts of justice, indeed with greater urgency, the need for the speedy disposition of the cases that have been clogging their dockets these many years. Serious studies and efforts are now being taken by the Court to meet that need. WHEREFORE, the appealed decision is AFFIRMED in toto, with costs against the petitioner. It is so ordered. Locsin v CA, 206 SCRA 383 FIRST DIVISION [G.R. No. 89783. February 19, 1992.] MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B. LOCSIN, AUREA B. LOCSIN, MATILDE L. CORDERO, SALVADOR B. LOCSIN and MANUEL V. DEL ROSARIO, petitioners, vs. THE HON. COURT OF APPEALS, JOSE JAUCIAN, FLORENTINO JAUCIAN, MERCEDES JAUCIAN ARBOLEDA, HEIRS OF JOSEFINA J. BORJA, HEIRS OF EDUARDO JAUCIAN and HEIRS OF VICENTE JAUCIAN, respondents. Aytona Law Office and Syquia Law Offices for petitioners. Mabella, Sangil & Associates for private respondents. SYLLABUS 1. REMEDIAL LAW; ACTIONS; ESTOPPEL; A CO-OWNER IS ESTOPPED FROM ASSAILING THE GENUINENESS AND DUE EXECUTION OF SALE OF A PORTION OF A LOT IN HIS FAVOR. On March 27, 1967, Lot 2020 was partitioned by and among Doa Catalina, Julian Locsin, Vicente Jaucian and Agapito Lorete. At least Vicente Jaucian, among the other respondents in this case, is estopped from assailing the genuineness and due execution of the sale of portions of Lot 2020 to himself, Julian Locsin, and Agapito Lorete, and the partition agreement that he (Vicente) concluded with the other coowners of Lot 2020. 2. CIVIL LAW; OBLIGATIONS AND CONTRACTS; SALE AND DONATION; CIRCUMSTANCES MANIFESTING MENTAL CAPACITY OF SELLER/DONEE IN MAKING DISPOSITIONS IN CASE AT BAR. Among Doa Catalina's last transactions before she died in 1977 were the sales of property which she made in favor of Aurea Locsin and Mariano Locsin in 1975. There is not the slightest suggestion in the record that Doa Catalina was mentally incompetent when she made those dispositions. From 1972 to 1973 she made several other transfers of her properties to her relatives and other persons. In 1975, or two years before her death, Doa Catalina sold some lots not only to Don Mariano's niece, Aurea Locsin, and his nephew, Mariano Locsin II, but also to her niece, Mercedes Jaucian Arboleda. The trial court's belief that Don Mariano Locsin

bequeathed his entire estate to his wife, from a "consciousness of its real origin" which carries the implication that said estate consisted of properties which his wife had inherited from her parents, flies in the teeth of Doa Catalina's admission in her inventory of that estate, that "items 1 to 33 are the private properties of the deceased (Don Mariano) and forms (sic) part of his capital at the time of the marriage with the surviving spouse, while items 34 to 42 are conjugal properties, acquired during the marriage." The inventory was signed by her under oath, and was approved by the probate court in Special Proceedings No. 138 of the Court of First Instance of Albay. It was prepared with the assistance of her own nephew and counsel, Atty. Salvador Lorayes, who surely would not have prepared a false inventory that would have been prejudicial to his aunt's interest and to his own, since he stood to inherit from her eventually. Little significance, it seems, has been attached to the fact that among Doa Catalina's nephews and nieces, those closest to her, did not join the suit to annul and undo the dispositions of property which she made in favor of the Locsins, although it would have been to their advantage to do so. Their desistance persuasively demonstrates that Doa Catalina acted as a completely free agent when she made the conveyances in favor of the petitioners. The sales and donations which she signed in favor of the petitioners were prepared by her trusted legal adviser and nephew, Attorney Salvador Lorayes. Given those circumstances, said transactions could not have been anything but free and voluntary acts on her part. 3. REMEDIAL LAW; ACTIONS; PRESCRIPTION; ACTION BASED ON FRAUD PRESCRIBES IN FOUR YEARS; CASE AT BAR. Apart from the foregoing considerations, the trial court and the Court of Appeals erred in not dismissing this action for annulment and reconveyance on the ground of prescription. Commenced decades after the transactions had been consummated, and six (6) years after Doa Catalina's death, it prescribed four (4) years after the subject transactions were recorded in the Registry of Property, whether considered an action based on fraud, or one to redress an injury to the rights of the plaintiffs. The private respondents may not feign ignorance of said transactions because the registration of the deeds was constructive notice thereof to them and the whole world. DECISION NARVASA, C .J p: Reversal of the decision of the Court of Appeals in CA-G.R. No. CV-11186 affirming with modification the judgment of the Regional Trial Court of Albay in favor of the plaintiffs in Civil Case NO. 7152 entitled "Jose Jaucian, et al. v. Mariano B. Locsin, et al.," an action for recovery of real property with damages is sought in these proceedings initiated by petition for review on certiorari in accordance with Rule 45 of the Rules of Court. prcd

The petition was initially denied due course and dismissed by this Court. It was however reinstated upon a second motion for reconsideration filed by the petitioners, and the respondents were required to comment thereon. The petition was thereafter given due course and the parties were directed to submit their memorandums. These, together with the evidence, having been carefully considered, the Court now decides the case. First, the facts as the Court sees them in light of the evidence on record: The late Getulio Locsin had three children named Mariano, Julian and Magdalena, all surnamed Locsin. He owned extensive residential and agricultural properties in the provinces of Albay and Sorsogon. After his death, his estate was divided among his three (3) children as follows: (a) the coconut lands of some 700 hectares in Bual, Pilar, Sorsogon, were adjudicated to his daughter, Magdalena Locsin; (b) 106 hectares of coconut lands were given to Julian Locsin, father of the petitioners Julian, Mariano, Jose, Salvador, Matilde, and Aurea, all surnamed Locsin; (c) more than forty (40) hectares of coconut lands in Bogtong, eighteen (18) hectares of riceland in Daraga, and the residential lots in Daraga, Albay and in Legazpi City went to his son Mariano, which Mariano brought into his marriage to Catalina Jaucian in 1908. Catalina, for her part, brought into the marriage untitled properties which she had inherited from her parents, Balbino Jaucian and Simona Anson. These were augmented by other properties acquired by the spouses in the course of their union, 1 which however was not blessed with children. Eventually, the properties of Mariano and Catalina were brought under the Torrens System. Those that Mariano inherited from his father, Getulio Locsin, were surveyed cadastrally and registered in the name of "Mariano Locsin married to Catalina Jaucian." 2 Mariano Locsin executed a Last Will and Testament instituting his wife, Catalina, as the sole and universal heir of all his properties. 3 The will was drawn up by his wife's nephew and trusted legal adviser, Attorney Salvador Lorayes. Attorney Lorayes disclosed that the spouses being childless, they had agreed that their properties, after both of them shall have died should revert to their respective sides of the family, i.e., Mariano's properties would go to his "Locsin relatives" (i.e., brothers and sisters or nephews and nieces), and those of Catalina to her "Jaucian relatives." 4 Don Mariano Locsin died of cancer on September 14, 1948 after a lingering illness. In due time, his will was probated in Special Proceedings No. 138, CFI of Albay without any opposition from both sides of the family. As directed in his will, Doa Catalina was appointed executrix of his estate. Her lawyer in the probate proceedings was Attorney Lorayes. In the inventory of her husband's estate 5

which she submitted to the probate court for approval, 6 Catalina declared that "all items mentioned from Nos. 1 to 33 are the private properties of the deceased and form part of his capital at the time of the marriage with the surviving spouse, while items Nos. 34 to 42 are conjugal." 7 Among her own and Don Mariano's relatives, Doa Catalina was closest to her nephew, Attorney Salvador Lorayes, her nieces, Elena Jaucian, Maria LorayesCornelio and Maria Olbes-Velasco, and the husbands of the last two: Hostilio Cornelio and Fernando Velasco. 8 Her trust in Hostilio Cornelio was such that she made him custodian of all the titles of her properties; and before she disposed of any of them, she unfailingly consulted her lawyer-nephew, Attorney Salvador Lorayes. It was Atty. Lorayes who prepared the legal documents and, more often than not, the witnesses to the transactions were her nieces Elena Jaucian, Maria Lorayes-Cornelio, Maria Olbes-Velasco, or their husbands. Her niece, Elena Jaucian, was her life-long companion in her house. llcd Don Mariano relied on Doa Catalina to carry out the terms of their compact, hence, nine (9) years after his death, as if in obedience to his voice from the grave, and fully cognizant that she was also advancing in years, Doa Catalina began transferring, by sale, donation or assignment, Don Mariano's, as well as her own, properties to their respective nephews and nieces. She made the following sales and donations of properties which she had received from her husband's estate, to his Locsin nephews and nieces: EXHIBIT DATE PARTICULARS AREA/ PRICE WITNESSES SQ.M. 23 Jan. 26, 1957 Deed of Absolute Sale 962 P481 in favor of Mariano Locsin 1-JRL Apr. 7, 1966 Deed of Sale 430,203 P20,000 in favor of Jose R. Locsin 1-JJL Mar. 22, 1967 Deed of Sale 5,000 P1,000 Hostilio Cornelio in favor of (Lot 2020) Helen M. Jaucian Julian Locsin 1 Nov. 29, 1974 Deed of Donation 26,509 in favor of Aurea Locsin, Matilde L. Cordero and Salvador Locsin 2 Feb. 4, 1975 Deed of Donation 34,045

in favor of Aurea Locsin, Matilde L. Cordero and Salvador Locsin 3 Sept. 9, 1975 Deed of Donation (Lot 2059) Hostilio Cordero in favor of Aurea Fernando Velasco Locsin, Matilde L. Cordero and Salvador Locsin 4 July 15, 1974 Deed of Absolute 1,424 P5,750 Hostilio Cornelio Sale in favor of Elena Jaucian Aurea B. Locsin 5 July 15, 1974 Deed of Absolute 1,456 P5,720 -dittoSale in favor of Aurea B. Locsin. 6 July 15, 1974 Deed of Absolute 1,237 P4,050 -dittoSale in favor of Aurea B. Locsin. 7 July 15, 1974 Deed of Absolute 1,104 P4,930 -dittoSale in favor of Aurea B. Locsin. 15 Nov. 26, 1974 Deed of Sale in 261 P2,000 Delfina Anson favor of Aurea M. Acabado Locsin. 16 Oct. 17, 1975 Deed of Sale in 533 P1,000 Leonor Satuito favor of Aurea Locsin Mariano B. Locsin 17 Nov. 26, 1975 Deed of Sale in 373 P3,000 -dittofavor of Aurea Locsin. 19 Sept. 1, 1975 Conditional 1,130 Donation in favor of Mariano Locsin. 1-MVRJ Dec. 29, 1972 Deed of 1,510.66 P1,000 Delfina Anson Reconveyance (Lot 2155) Antonio Illegible in favor of Manuel

2-MVRJ Illegible

V. del Rosario whose maternal grandfather was Getulio Locsin. June 30, 1973

Deed of

319.34

P500 Antonio

Reconveyance (Lot 2155) Salvador Nical in favor of Manuel V. del Rosario but the rentals from bigger portion of Lot 2155 leased to Filoil Refinery were assigned to Maria Jaucian Lorayes Cornelio Of her own properties, Doa Catalina conveyed the following to her own nephews and nieces and others: EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE 2-JJL July 16, 1964 Deed of Sale in 5,000 P1,000 favor Vicente (lot 2020) Jaucian (6,825 sqm. when resurveyed) 24 Feb. 12, 1973 Deed of Absolute 100 P1,000 Sale in favor of Francisco Maquiniana 26 July 15, 1973 Deed of Absolute 130 P1,300 Sale in favor of Francisco Maquiniana 27 May 3, 1973 Deed of Absolute 100 P1,000 Sale in favor of Ireneo Mamia 28 May 3, 1973 Deed of Absolute 75 P750 Sale in favor of Zenaida Buiza. 29 May 3, 1973 Deed of Absolute 150 P1,500 Sale in favor of Felisa Morjella. 30 Apr. 3, 1973 Deed of Absolute 31 P1,000 Sale in favor of

Inocentes Moticinos. 31 Feb. 12, 1973 Deed of Absolute 150 P1,500 Sale in favor of Casimiro Mondevil 32 Mar. 1, 1973 Deed of Absolute 112 P1,000 Sale in favor of Juan Saballa. 25 Dec. 28, 1973 Deed of Absolute 250 P2,500 Sale in favor of Rogelio Marticio Doa Catalina died on July 6, 1977. Four years before her death, she had made a will on October 22, 1973 affirming and ratifying the transfers she had made during her lifetime in favor of her husband's, and her own, relatives. After the reading of her will, all the relatives agreed that there was no need to submit it to the court for probate because the properties devised to them under the will had already been conveyed to them by the deceased when she was still alive, except some legacies which the executor of her will or estate, Attorney Salvador Lorayes, proceeded to distribute. In 1989, or six (6) years after Doa Catalina's demise, some of her Jaucian nephews and nieces who had already received their legacies and hereditary shares from her estate, filed action in the Regional Trial Court of Legaspi City (Branch VIII, Civil Case No. 7152) to recover the properties which she had conveyed to the Locsins during her lifetime, alleging that the conveyances were in officious, without consideration, and intended solely to circumvent the laws on succession. Those who were closest to Doa Catalina did not join the action. After the trial, judgment was rendered on July 8, 1985 in favor of the plaintiffs (Jaucian), and against the Locsin defendants, the dispositive part of which reads: cdll "WHEREFORE, this Court renders judgment for the plaintiffs and against the defendants: "(1) declaring the plaintiffs, except the heirs of Josefina J. Borja and Eduardo Jaucian, who withdrew, the rightful heirs and entitled to the entire estate, in equal portions, of Catalina Jaucian Vda. de Locsin, being the nearest collateral heirs by right of representation of Juan and Gregorio, both surnamed Jaucian, and fullblood brothers of Catalina; "(2) declaring the deeds of sale, donations, reconveyance and exchange and all other instruments conveying any part of the estate of Catalina J. Vda. de Locsin including, but not limited to those in the inventory of known properties (Annex B of the complaint) as null and void ab-initio;

"(3). ordering the Register of Deeds of Albay and/or Legaspi City to cancel all certificates of title and other transfers of the real properties, subject of this case, in the name of defendants, and derivatives therefrom, and issue new ones to the plaintiffs; "(4) ordering the defendant's, jointly and severally, to reconvey ownership and possession of all such properties to the plaintiffs, together with all muniments of title properly endorsed and delivered, and all the fruits and incomes received by the defendants from the estate of Catalina, with legal interest from the filing of this action; and where reconveyance and delivery cannot be effected for reasons that might have intervened and prevent the same, defendants shall pay for the value of such properties, fruits and incomes received by them, also with legal interest from the filing of this case; "(5) ordering each of the defendants to pay the plaintiffs the amount of P30,000.00 as exemplary damages; and the further sum of P20,000.00 each as moral damages; and "(6) ordering the defendants to pay the plaintiffs attorney's fees and litigation expenses, in the amount of P30,000.00 without prejudice to any contract between plaintiffs and counsel. "Costs against the defendants." 9 The Locsins appealed to the Court of Appeals (CA-G.R. No. CV-11186) which rendered its now appealed judgment on March 14, 1989, affirming the trial court's decision. The petition has merit and should be granted. The trial court and the Court of Appeals erred in declaring the private respondents, nephews and nieces of Doa Catalina J. Vda. de Locsin, entitled to inherit the properties which she had already disposed of more than ten (10) years before her death. For those properties did not form part of her hereditary estate, i.e., "the property and transmissible rights and obligations existing at the time of (the decedent's) death and those which have accrued thereto since the opening of the succession." 10 The rights to a person's succession are transmitted from the moment of his death, and do not vest in his heirs until such time. 11 Property which Doa Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death to which her heirs may lay claim. Had she died intestate, only the property that remained in her estate at the time of her death devolved to her legal heirs; and even if those transfers were, one and all, treated as donations, the right arising under certain circumstances to impugn and compel the reduction or revocation of a decedent's gifts inter vivos does not inure to the respondents since neither they nor the donees are compulsory (or forced) heirs. 12

There is thus no basis for assuming an intention on the part of Doa Catalina, in transferring the properties she had received from her late husband to his nephews and nieces, an intent to circumvent the law in violation of the private respondents' rights to her succession. Said respondents are not her compulsory heirs, and it is not pretended that she had any such, hence there were no legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All that the respondents had was an expectancy that in nowise restricted her freedom to dispose of even her entire estate subject only to the limitation set forth in Art. 750, Civil Code which, even if it were breached, the respondents may not invoke: cdrep "Art 750. The donation may comprehend all the present property of the donor, or part thereof, provided he reserves, in, full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected. (634a). The lower court capitalized on the fact that Doa Catalina was already 90 years old when she died on July 6, 1977. It insinuated that because of her advanced years she may have been imposed upon, or unduly influenced and morally pressured by her husband's nephews and nieces (the petitioners) to transfer to them the properties which she had inherited from Don Mariano's estate. The records do not support that conjecture. For as early as 1957, or twenty-eight (28) years before her death, Doa Catalina had already begun transferring to her Locsin nephews and nieces the properties which she received from Don Mariano. She sold a 962-sq.m. lot on January 26, 1957 to his nephew and namesake Mariano Locsin II. 13 On April 7, 1966, or 19 years before she passed away, she also sold a 43-hectare land to another Locsin nephew, Jose R. Locsin. 14 The next year, or on March 22, 1967, she sold a 5,000sq.m. portion of Lot 2020 to Julian Locsin. 15 On March 27, 1967, Lot 2020 16 was partitioned by and among Doa Catalina, Julian Locsin, Vicente Jaucian and Agapito Lorete. 17 At least Vicente Jaucian, among the other respondents in this case, is estopped from assailing the genuineness and due execution of the sale of portions of Lot 2020 to himself, Julian Locsin, and Agapito Lorete, and the partition agreement that he (Vicente) concluded with the other co-owners of Lot 2020. Among Doa Catalina's last transactions before she died in 1977 were the sales of property which she made in favor of Aurea Locsin and Mariano Locsin in 1975. 18 There is not the slightest suggestion in the record that Doa Catalina was mentally incompetent when she made those dispositions. Indeed, how can any such suggestion be made in light of the fact that even as she was transferring properties to the Locsins, she was also contemporaneously disposing of her other properties

in favor of the Jaucians? She sold to her nephew, Vicente Jaucian, on July 16, 1964 (21 years before her death) one-half (or 5,000 sq.m.) of Lot 2020. Three years later, or on March 22, 1967, she sold another 5,000 sq.m. of the same lot to Jualian Locsin. 19 From 1972 to 1973 she made several other transfers of her properties to her relatives and other persons, namely: Francisco Maquiniana, Ireneo Mamia, Zenaida Buiza, Feliza Morjella, Inocentes Motocinos, Casimiro Mondevil, Juan Saballa and Rogelio Marticio. 20 None of those transactions was impugned by the private respondents. In 1975, or two years before her death, Doa Catalina sold some lots not only to Don Mariano's niece, Aurea Locsin, and his nephew, Mariano Locsin II, 21 but also to her niece, Mercedes Jaucian Arboleda. 22 If she was competent to make that conveyance to Mercedes, how can there be any doubt that she was equally competent to transfer her other pieces of property to Aurea and Mariano II? The trial court's belief that Don Mariano Locsin bequeathed his entire estate to his wife, from a "consciousness of its real origin" which carries the implication that said estate consisted of properties which his wife had inherited from her parents, flies in the teeth of Doa Catalina's admission in her inventory of that estate, that "items 1 to 33 are the private properties of the deceased (Don Mariano) and forms (sic) part of his capital at the time of the marriage with the surviving spouse, while items 34 to 42 are conjugal properties, acquired during the marriage." She would have known better than anyone else whether the listing included any of her paraphernal property so it is safe to assume that none was in fact included. The inventory was signed by her under oath, and was approved by the probate court in Special Proceedings No. 138 of the Court of First Instance of Albay. It was prepared with the assistance of her own nephew and counsel, Atty. Salvador Lorayes, who surely would not have prepared a false inventory that would have been prejudicial to his aunt's interest and to his own, since he stood to inherit from her eventually. LibLex This Court finds no reason to disbelieve Attorney Lorayes' testimony that before Don Mariano died, he and his wife (Doa Catalina), being childless, had agreed that their respective properties should eventually revert to their respective lineal relatives. As the trusted legal adviser of the spouses and a full-blood nephew of Doa Catalina, he would not have spun a tale out of thin air that would also prejudice his own interest. Little significance, it seems, has been attached to the fact that among Doa Catalina's nephews and nieces, those closest to her: (a) her lawyer-nephew Attorney Salvador Lorayes; (b) her niece and companion Elena Jaucian; (c) her nieces Maria Olbes-Velasco and Maria Lorayes-Cornelio and their respective husbands, Fernando Velasco and Hostilio Cornelio, did not join the suit to annul

and undo the dispositions of property which she made in favor of the Locsins, although it would have been to their advantage to do so. Their desistance persuasively demonstrates that Doa Catalina acted as a completely free agent when she made the conveyances in favor of the petitioners. In fact, considering their closeness to Doa Catalina it would have been well-nigh impossible for the petitioners to employ "fraud, undue pressure, and subtle manipulations" on her to make her sell or donate her properties to them. Doa Catalina's niece, Elena Jaucian, daughter of her brother, Eduardo Jaucian, lived with her in her house. Her nephew-in-law, Hostilio Cornelio, was the custodian of the titles of her properties. The sales and donations which she signed in favor of the petitioners were prepared by her trusted legal adviser and nephew, Attorney Salvador Lorayes. The (1) deed of donation dated November 29, 1974 23 in favor of Aurea Locsin, (2) another deed of donation dated February 4, 1975 24 in favor of Matilde Cordero, and (3) still another deed dated September 9, 1975 25 in favor of Salvador Lorayes, were all witnessed by Hostillo Cornelio (who is married to Doa Catalina's niece, Maria Lorayes) and Fernando Velasco who is married to another niece, Maria Olbes. 26 The sales which she made in favor of Aurea Locsin on July 15, 1974 27 were witnessed by Hostillo Cornelio and Elena Jaucian. Given those circumstances, said transactions could not have been anything but free and voluntary acts on her part. Apart from the foregoing considerations, the trial court and the Court of Appeals erred in not dismissing this action for annulment and reconveyance on the ground of prescription. Commenced decades after the transactions had been consummated, and six (6) years after Doa Catalina's death, it prescribed four (4) years after the subject transactions were recorded in the Registry of Property, 28 whether considered an action based on fraud, or one to redress an injury to the rights of the plaintiffs. The private respondents may not feign ignorance of said transactions because the registration of the deeds was constructive notice thereof to them and the whole world. 29 WHEREFORE, the petition for review is granted. The decision dated March 14, 1989 of the Court of Appeals in CA-G.R. CV No. 11186 is REVERSED and SET ASIDE. The private respondents' complaint for annulment of contracts and reconveyance of properties in Civil Case No. 7152 of the Regional Trial Court, Branch VIII of Legazpi City, is DISMISSED, with costs against the private respondents, plaintiffs therein. SO ORDERED. Vizconde v CA, 118449, Feb. 11, 1998 THIRD DIVISION [G.R. No. 118449. February 11, 1998.]

LAURO G. VIZCONDE, petitioner, vs. COURT OF APPEALS, REGIONAL TRIAL COURT, Branch 120, Caloocan City, and RAMON G. NICOLAS, respondents. Acosta, Rueda-Acosta & Associates for petitioner. Abbas and Associates for private respondent. SYLLABUS 1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; SUCCESSION; COLLATION; CONCEPT. Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator. Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent. The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessor's will is to treat all his heirs equally, in the absence of any expression to the contrary. Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase on value or any deterioration or loss thereof is for the account of the heir or donee. 2. ID.; ID.; ID.; LEGITIME; A SON IN LAW IS NOT A COMPULSORY HEIR. The probate court erred in ordering the inclusion of petitioner in the intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of Rafael's compulsory heirs. Article 887 of the Civil Code is clear on this point. With respect to Rafael's estate, therefore, petitioner who was not even shown to be a creditor of Rafael is considered a third person or a stranger. As such, petitioner may not be dragged into the intestate estate proceeding. Neither may he be permitted or allowed to intervene as he has no personality or interest in the said proceeding, which petitioner correctly argued in his manifestation. 3. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF THE ESTATE OF DECEASED PERSONS; CASE AT BAR; THE INTERPRETATION OF THE DEED OF SALE AND TRUE INTENT OF THE CONTRACTING PARTIES, AS WELL AS THE PRESENCE OR ABSENCE OF CONSIDERATION ARE MATTERS OUTSIDE THE PROBATE COURT'S JURISDICTION. As a rule, the probate court may pass upon and determine the title or ownership of a property which may or may not be included in the estate

proceedings. Such determination is provisional in character and is subject to final decision in a separate action to resolve title. In the case at bench, however, we note that the probate court went beyond the scope of its jurisdiction when it proceeded to determine the validity of the sale of the Valenzuela property between Rafael and Estrellita and ruled that the transfer of the subject property between the concerned parties was gratuitous. The interpretation of the deed and the true intent of the contracting parties, as well as the presence or absence of consideration, are matters outside the probate court's jurisdiction. 4. ID.; ID.; ID.; COLLATION IS NOT WARRANTED IN CASE AT BAR. The order of the probate court subjecting the Paraaque property to collation is premature. Records indicate that the intestate proceedings is still in its initiatory stage. We find nothing herein to indicate that the legitime of any of Rafael's heirs has been impaired to warrant collation. We thus advert to our ruling in Udarbe vs. Jurado, 59 Phil. 11, 13-14, to wit: "We are of the opinion that this contention is untenable. In accordance with the provisions of article 1035 of the Civil Code, it was the duty of the plaintiffs to allege and prove that the donations received by the defendants were inofficious in whole or in part and prejudiced the legitime or hereditary portion to which they are entitled. In the absence of evidence to that effect, the collation sought is untenable for lack of ground or basis therefor." 5. ID.; ID.; ID.; COLLATION OF THE SUBJECT PROPERTY IN CASE AT BAR HAS NO STATUTORY BASIS. Even on the assumption that collation is appropriate in this case the probate court, nonetheless, made a reversible error in ordering collation of the Paraaque property. We note that what was transferred to Estrellita, by way of deed of sale, is the Valenzuela property. The Paraaque property which Estrellita required by using the proceeds of the sale of Valenzuela property does not become collationable simply by reason thereof. Indeed, collation of the Paraaque property has no statutory basis. The order of the probate court presupposes that the Paraaque property was gratuitously conveyed by Rafael to Estrellita. Records indicate, however, that the Paraaque property was conveyed for and in consideration of P900,000.00, by Premier Homes, Inc., to Estrellita. Rafael, the decedent, has no participation therein, and petitioner who inherited and is now the present owner of the Paraaque property is not one of Rafael's heirs. Thus, the probate court's order of collation against petitioner is unwarranted for the obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who does not have any interest in Rafael's estate. As it stands, collation of the Paraaque property is improper for, to repeat, collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory heirs which fact does not obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public instrument, voluntarily and willfully waived any "claims, rights ownership and participation as heir" in the Paraaque property.

DECISION FRANCISCO, J p: Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two children, viz., Carmela and Jennifer. Petitioner's wife, Estrellita, is one of the five siblings of spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and Ricardo Nicolas, an incompetent. Antonio predeceased his parents and is now survived by his widow, Zenaida, and their four children. dctai On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of 10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property) covered by TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos (P135,000.00), evidenced by a "Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan ng Titulo TCT No. T-36734." 1 In view thereof, TCT No. V-554 covering the Valenzuela property was issued to Estrellita. 2 On March 30, 1990, Estrellita sold the Valenzuela property to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00). 3 In June of the same year, Estrellita bought from Premier Homes, Inc., a parcel of land with improvements situated at Vinzon St., BF Homes, Paraaque (hereafter Paraaque property) using a portion of the proceeds of sale of the Valenzuela property. The remaining amount of the proceeds was used in buying a car while the balance was deposited in a bank. The following year an unfortunate event in petitioners life occurred. Estrellita and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an incident popularly known as the "Vizconde Massacre". The findings of the investigation conducted by the NBI reveal that Estrellita died ahead of her daughters. 4 Accordingly, Carmela, Jennifer and herein petitioner succeeded Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was left as the sole heir of his daughters. Nevertheless, petitioner entered into an "Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde With Waiver of Shares", 5 with Rafael and Salud, Estrellita's parents. The extra-judicial settlement provided for the division of the properties of Estrellita and her two daughters between petitioner and spouses Rafael and Salud. The properties include bank deposits, a car and the Paraaque property. The total value of the deposits deducting the funeral and other related expenses in the burial of Estrellita, Carmela and Jennifer, amounts to Three Million Pesos (P3,000,000.00) 6 . The settlement gave fifty percent (50%) of the total amount of the bank deposits of Estrellita and her daughters to Rafael, except Savings Account No. 104-111211-0 under the name of Jennifer which involves a token amount. The other fifty percent (50%) was allotted to petitioner. The Paraaque property and the car were also given to petitioner with Rafael and Salud

waiving all their "claims, rights, ownership and participation as heirs" 7 in the said properties. On November 18, 1992, Rafael died. To settle Rafael's estate, Teresita instituted an intestate estate proceeding 8 docketed as Sp. Proc. No. C-1679, with Branch 120 of the Regional Trial Court (RTC) of Caloocan City listing as heirs Salud, Ramon, Ricardo, and the wife (Zenaida) and children of Antonio. Teresita prayed to be appointed Special Administratrix of Rafael's estate. Additionally, she sought to be appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent brother. Herein private respondent Ramon filed an opposition 9 dated March 24, 1993, praying to be appointed instead as Salud and Ricardo's guardian. Barely three weeks passed, Ramon filed another opposition 10 alleging, among others, that Estrellita was given the Valenzuela property by Rafael which she sold for not less than Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded for the court's intervention "to determine the legality and validity of the inter vivos distribution made by deceased Rafael to his children," 11 Estrellita included. On May 12, 1993, Ramon filed his own petition, docketed as Sp. Proc. No. C-1699, entitled "In The Matter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas" and averred that their legitime should come from the collation of all the properties distributed to his children by Rafael during his lifetime. 12 Ramon stated that herein petitioner is one of Rafael's children "by right of representation as the widower of deceased legitimate daughter of Estrellita." 13 In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as the guardian of Salud and Ricardo while Teresita, in turn, was appointed as the Special Administratrix of Rafael's estate. The court's Order did not include petitioner in the slate of Rafael's heirs. 14 Neither was the Paraaque property listed in its list of properties to be included in the estate. 15 Subsequently, the RTC in an Order dated January 5, 1994, removed Ramon as Salud and Ricardo's guardian for selling his ward's property without the court's knowledge and permission. 16 Sometime on January 13, 1994, the RTC released an Order giving petitioner "ten (10) days . . . within which to file any appropriate petition or motion related to the pending petition insofar as the case is concerned and to file any opposition to any pending motion that has been filed by both the counsels for Ramon Nicolas and Teresita de Leon." In response, petitioner filed a Manifestation, dated January 19, 1994, stressing that he was neither a compulsory heir nor an intestate heir of Rafael and he has no interest to participate in the proceedings. The RTC noted said Manifestation in its Order dated February 2, 1994. 17 Despite the Manifestation, Ramon, through a motion dated February 14, 1994, moved to include petitioner in the intestate estate proceeding and asked that the Paraaque property, as well as the car and the balance of the proceeds of the sale of the Valenzuela property, be

collated. 18 Acting on Ramon's motion, the trial court on March 10, 1994 granted the same in an Order which pertinently reads as follows: xxx xxx xxx "On the Motion To Include Lauro G. Vizconde In Intestate proceedings in instant case and considering the comment on his Manifestation, the same is hereby granted." 19 xxx xxx xxx Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon opposed. 20 On August 12, 1994, the RTC rendered an Order denying petitioner's motion for reconsideration. It provides: xxx xxx xxx "The centerpoint of oppositor-applicant's argument is that spouses Vizconde were then financially incapable of having purchased or acquired for a valuable consideration the property at Valenzuela from the deceased Rafael Nicolas. Admittedly, the spouses Vizconde were then living with the deceased Rafael Nicolas in the latter's ancestral home. In fact, as the argument further goes, said spouses were dependent for support on the deceased Rafael Nicolas. And, Lauro Vizconde left for the United States in, de-facto separation, from the family for sometime and returned to the Philippines only after the occurrence of violent deaths of Estrellita and her two daughters. "To dispute the contention that the spouses Vizconde were financially incapable to buy the property from the late Rafael Nicolas, Lauro Vizconde claims that they have been engaged in business venture such as taxi business, canteen concessions and garment manufacturing. However, no competent evidence has been submitted to indubitably support the business undertakings adverted to. "In fine, there is no sufficient evidence to show that the acquisition of the property from Rafael Nicolas was for a valuable consideration. "Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her father was gratuitous and the subject property in Paraaque which was purchased out of the proceeds of the said transfer of the property by the deceased Rafael Nicolas in favor of Estrellita, is subject to collation." "WHEREFORE, the motion for reconsideration is hereby DENIED." 21 (Emphasis added) Petitioner filed a petition for certiorari and prohibition with respondent Court of Appeals. In its decision of December 14, 1994, respondent Court of Appeals 22 denied the petition stressing that the RTC correctly adjudicated the question on the title of the Valenzuela property as "the jurisdiction of the probate court extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate of the deceased (Cf.: Sec. 1, Rule 90, Revised Rules of Court)." 23 Dissatisfied, petitioner filed the instant petition for review on

certiorari. Finding prima facie merit, the Court on December 4, 1995, gave due course to the petition and required the parties to submit their respective memoranda. cdphil The core issue hinges on the validity of the probate courts Order, which respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela property from Rafael to Estrellita and declaring the Paraaque property as subject to collation. The appeal is well taken. Basic principles of collation need to be emphasized at the outset. Article 1061 of the Civil Code speaks of collation. It states: Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition." Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, so that the division may be made according to law and the will of the testator. 24 Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent. 25 The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessor's will is to treat all his heirs equally, in the absence of any expression to the contrary. 26 Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, 27 the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee. 28 The attendant facts herein do not make a case of collation. We find that the probate court, as well as respondent Court of Appeals, committed reversible errors. First: The probate court erred in ordering the inclusion of petitioner in the intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of Rafael's compulsory heirs. Article 887 of the Civil Code is clear on this point: "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 following, legitimate parents and ascendants, with respect to their legitimate children and ascendants; (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." With respect to Rafael's estate, therefore, petitioner who was not even shown to be a creditor of Rafael is considered a third person or a stranger. 29 As such, petitioner may not be dragged into the intestate estate proceeding. Neither may he be permitted or allowed to intervene as he has no personality or interest in the said proceeding, 30 which petitioner correctly argued in his manifestation. 31 Second: As a rule, the probate court may pass upon and determine the title or ownership of a property which may or may not be included in the estate proceedings. 32 Such determination is provisional in character and is subject to final decision in a separate action to resolve title. 33 In the case at bench, however, we note that the probate court went beyond the scope of its jurisdiction when it proceeded to determine the validity of the sale of the Valenzuela property between Rafael and Estrellita and ruled that the transfer of the subject property between the concerned parties was gratuitous. The interpretation of the deed and the true intent of the contracting parties, as well as the presence or absence of consideration, are matters outside the probate court's jurisdiction. These issues should be ventilated in an appropriate action. We reiterate: ". . . we are of the opinion and so hold, that a court which takes cognizance of testate or intestate proceedings has power and jurisdiction to determine whether or not the properties included therein or excluded therefrom belong prima facie to the deceased, although such a determination is not final or ultimate in nature, and without prejudice to the right of the interested parties, in a proper action, to raise the question bearing on the ownership or existence of the right or credit." 34 Third: The order of the probate court subjecting the Paraaque property to collation is premature. Records indicate that the intestate estate proceedings is still in its initiatory stage. We find nothing herein to indicate that the legitime of any of Rafael's heirs has been impaired to warrant collation. We thus advert to our ruling in Udarbe v. Jurado, 59 Phil. 11, 13-14, to wit: LLjur "We are of the opinion that this contention is untenable. In accordance with the provisions of article 1035 35 of the Civil Code, it was the duty of the plaintiffs to allege and prove that the donations received by the defendants were inofficious in

whole or in part and prejudiced the legitime or hereditary portion to which they are entitled. In the absence of evidence to that effect, the collation sought is untenable for lack of ground or basis therefor." Fourth: Even on the assumption that collation is appropriate in this case the probate court, nonetheless, made a reversible error in ordering collation of the Paraaque property. We note that what was transferred to Estrellita, by way of deed of sale, is the Valenzuela property. The Paraaque property which Estrellita acquired by using the proceeds of the sale of the Valenzuela property does not become collationable simply by reason thereof. Indeed, collation of the Paraaque property has no statutory basis. 36 The order of the probate court presupposes that the Paraaque property was gratuitously conveyed by Rafael to Estrellita. Records indicate, however, that the Paraaque property was conveyed for and in consideration of P900,000.00, 37 by Premier Homes, Inc., to Estrellita. Rafael, the decedent, has no participation therein, and petitioner who inherited and is now the present owner of the Paraaque property is not one of Rafael's heirs. Thus, the probate court's order of collation against petitioner is unwarranted for the obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who does not have any interest in Rafael's estate. As it stands, collation of the Paraaque property is improper for, to repeat, collation covers only properties gratuitously given by the decedent during his lifetime to his compulsory heirs which fact does not obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public instrument, voluntarily and willfully waived any "claims, rights, ownership and participation as heir" 38 in the Paraaque property. Fifth: Finally, it is futile for the probate court to ascertain whether or not the Valenzuela property may be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount more than the value of the Valenzuela property. 39 Hence, even assuming that the Valenzuela property may be collated, collation may not be allowed as the value of the Valenzuela property has long been returned to the estate of Rafael. Therefore, any determination by the probate court on the matter serves no valid and binding purpose. WHEREFORE, the decision of the Court of Appeals appealed from is hereby REVERSED AND SET ASIDE. SO ORDERED. Arellano v Pascual, 189776, Dec. 15, 2010 THIRD DIVISION [G.R. No. 189776. December 15, 2010.]

AMELIA P. ARELLANO, represented by her duly appointed guardians, AGNES P. ARELLANO and NONA P. ARELLANO, petitioner, vs. FRANCISCO PASCUAL and MIGUEL PASCUAL, respondents. DECISION CARPIO MORALES, J p: Angel N. Pascual, Jr. died intestate on January 2, 1999 leaving as heirs his siblings, namely: petitioner Amelia P. Arellano who is represented by her daughters 1 Agnes P. Arellano (Agnes) and Nona P. Arellano, and respondents Francisco Pascual and Miguel N. Pascual. 2 SDHacT In a petition for "Judicial Settlement of Intestate Estate and Issuance of Letters of Administration," docketed as Special Proceeding Case No. M-5034, filed by respondents on April 28, 2000 before the Regional Trial Court (RTC) of Makati, respondents alleged, inter alia, that a parcel of land (the donated property) located in Teresa Village, Makati, which was, by Deed of Donation, transferred by the decedent to petitioner the validity of which donation respondents assailed, "may be considered as an advance legitime" of petitioner. Respondent's nephew Victor was, as they prayed for, appointed as Administrator of the estate by Branch 135 of the Makati RTC. 3 Respecting the donated property, now covered in the name of petitioner by Transfer Certificate of Title No. 181889 of the Register of Deeds of Makati, which respondents assailed but which they, in any event, posited that it "may be considered as an advance legitime" to petitioner, the trial court, acting as probate court, held that it was precluded from determining the validity of the donation. Provisionally passing, however, upon the question of title to the donated property only for the purpose of determining whether it formed part of the decedent's estate, 4 the probate court found the Deed of Donation valid in light of the presumption of validity of notarized documents. It thus went on to hold that it is subject to collation following Article 1061 of the New Civil Code which reads: 5 THEDCA Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. The probate court thereafter partitioned the properties of the intestate estate. Thus it disposed: WHEREFORE, premises considered, judgment is hereby rendered declaring that: 1. The property covered by TCT No. 181889 of the Register of Deeds of Makati as part of the estate of Angel N. Pascual; 2. The property covered by TCT No. 181889 to be subject to collation;

3. 1/3 of the rental receivables due on the property at the mezzanine and the 3rd floor of Unit 1110 Tanay St., Makati City form part of the estate of Angel N. Pascual; 4. The following properties form part of the estate of Angel N. Pascual: a. 1/3 share in the House and Lot at 1110 Tanay St., Rizal Village Makati TCT No. 348341 and 1/3 share in the rental income thereon; aSIDCT b. 1/3 share in the Vacant Lot with an area of 271 square meters located at Tanay St., Rizal Village, Makati City, TCT No. 119063; c. Agricultural land with an area of 3.8 hectares located at Puerto Galera Mindoro covered by OCT No. P-2159; d. Shares of stocks in San Miguel Corporation covered by the following Certificate Numbers: A0011036, A006144, A082906, A006087, A065796, A11979, A049521, C86950, C63096, C55316, C54824, C120328, A011026, C12865, A10439, A021401, A007218, A0371, S29239, S40128, S58308, S69309; e. Shares of stocks in Paper Industries Corp. covered by the following Certificate Numbers: S29239, S40128, S58308, S69309, A006708, 07680, A020786, S18539, S14649; f. 1/4 share in Eduardo Pascual's shares in Baguio Gold Mining Co.; g. Cash in Banco De Oro Savings Account No. 2 014 12292 4 in the name of Nona Arellano; i. Property previously covered by TCT No. 119053 now covered by TCT No. 181889, Register of Deeds of Makati City; AHDaET j. Rental receivables from Raul Arellano per Order issued by Branch 64 of the Court on November 17, 1995. 5. AND the properties are partitioned as follows: a. To heir Amelia P. Arellano the property covered by TCT No. 181889; b. To heirs Francisco N. Pascual and Miguel N. Pascual the real properties covered by TCT Nos. 348341 and 119063 of the Register of Deeds of Makati City and the property covered by OCT No. 2159, to be divided equally between them up to the extent that each of their share have been equalized with the actual value of the property in 5(a) at the time of donation, the value of which shall be determined by an independent appraiser to be designated by Amelia P. Arellano, Miguel N. Pascual and Francisco N. Pascual. If the real properties are not sufficient to equalize the shares, then Francisco's and Miguel's shares may be satisfied from either in cash property or shares of stocks, at the rate of quotation. The remaining properties shall be divided equally among Francisco, Miguel and Amelia. (emphasis and underscoring supplied) Before the Court of Appeals, petitioner faulted the trial court in holding that: I

. . . THE PROPERTY DONATED TO APPELLANT AMELIA PASCUAL ARELLANO IS PART OF THE ESTATE OF ANGEL PASCUAL, JR. TaCEHA II . . . THE PROPERTY DONATED TO APPELLANT IS SUBJECT TO COLLATION UNDER ARTICLE 1061 OF THE NEW CIVIL CODE. III . . . APPELLEES WHO ARE MERELY COLLATERAL RELATIVES OF DECEASED ANGEL N. PASCUAL, JR. AS HIS COMPULSORY HEIRS ENTITLED TO LEGITIMES. xxx xxx xxx and V . . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL, JR. EQUALLY AMONG HIS LEGAL OR INTESTATE HEIRS. 6 (underscoring supplied) By Decision 7 of July 20, 2009, the Court of Appeals found petitioner's appeal "partly meritorious." It sustained the probate court's ruling that the property donated to petitioner is subject to collation in this wise: Bearing in mind that in intestate succession, what governs is the rule on equality of division, We hold that the property subject of donation inter vivos in favor of Amelia is subject to collation. Amelia cannot be considered a creditor of the decedent and we believe that under the circumstances, the value of such immovable though not strictly in the concept of advance legitime, should be deducted from her share in the net hereditary estate. The trial court therefore committed no reversible error when it included the said property as forming part of the estate of Angel N. Pascual. 8 (citation omitted; emphasis and underscoring supplied) ACETSa The appellate court, however, held that, contrary to the ruling of the probate court, herein petitioner "was able to submit prima facie evidence of shares of stocks owned by the [decedent] which have not been included in the inventory submitted by the administrator." Thus, the appellate court disposed, quoted verbatim: WHEREFORE, premises considered, the present appeal is hereby PARTLY GRANTED. The Decision dated January 29, 2008 of the Regional Trial Court of Makati City, Branch 135 in Special Proceeding Case No. M-5034 is hereby REVERSED and SET ASIDE insofar as the order of inclusion of properties of the Intestate Estate of Angel N. Pascual, Jr. as well as the partition and distribution of the same to the co-heirs are concerned.

The case is hereby REMANDED to the said court for further proceedings in accordance with the disquisitions herein. 9 (underscoring supplied) Petitioner's Partial Motion for Reconsideration 10 having been denied by the appellate court by Resolution 11 of October 7, 2009, the present petition for review on certiorari was filed, ascribing as errors of the appellate court its ruling: I . . . THAT THE PROPERTY DONATED BY ANGEL N. PASCUAL, JR. TO PETITIONER AMELIA PASCUAL ARELLANO IS PART OF HIS ESTATE AT THE TIME OF HIS DEATH. II . . . THAT THE PROPERTY DONATED TO PETITIONER IS SUBJECT TO COLLATION UNDER ARTICLE 1061 OF THE NEW CIVIL CODE. EaCSHI III . . . THAT RESPONDENTS ARE COMPULSORY HEIRS OF THEIR DECEASED BROTHER ANGEL N. PASCUAL, JR. AND ARE ENTITLED TO LEGITIMES. IV . . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL, JR. EQUALLY AMONG PETITIONER AND RESPONDENTS, AS HIS LEGAL OR INTESTATE HEIRS. 12 (underscoring supplied) Petitioners thus raise the issues of whether the property donated to petitioner is subject to collation; and whether the property of the estate should have been ordered equally distributed among the parties. On the first issue: The term collation has two distinct concepts: first, it is a mere mathematical operation by the addition of the value of donations made by the testator to the value of the hereditary estate; and second, it is the return to the hereditary estate of property disposed of by lucrative title by the testator during his lifetime. 13 The purposes of collation are to secure equality among the compulsory heirs in so far as is possible, and to determine the free portion, after finding the legitime, so that inofficious donations may be reduced. 14 Collation takes place when there are compulsory heirs, one of its purposes being to determine the legitime and the free portion. If there is no compulsory heir, there is no legitime to be safeguarded. 15 The records do not show that the decedent left any primary, secondary, or concurring compulsory heirs. He was only survived by his siblings, who are his collateral relatives and, therefore, are not entitled to any legitime that part of the testator's property which he cannot dispose of because the law has reserved it for compulsory heirs. 16 TcDIaA

The compulsory heirs may be classified into (1) primary, (2) secondary, and (3) concurring. The primary compulsory heirs are those who have precedence over and exclude other compulsory heirs; legitimate children and descendants are primary compulsory heirs. The secondary compulsory heirs are those who succeed only in the absence of the primary heirs; the legitimate parents and ascendants are secondary compulsory heirs. The concurring compulsory heirs are those who succeed together with the primary or the secondary compulsory heirs; the illegitimate children, and the surviving spouse are concurring compulsory heirs. 17 The decedent not having left any compulsory heir who is entitled to any legitime, he was at liberty to donate all his properties, even if nothing was left for his siblings-collateral relatives to inherit. His donation to petitioner, assuming that it was valid, 18 is deemed as donation made to a "stranger," chargeable against the free portion of the estate. 19 There being no compulsory heir, however, the donated property is not subject to collation. On the second issue: The decedent's remaining estate should thus be partitioned equally among his heirs-siblings-collateral relatives, herein petitioner and respondents, pursuant to the provisions of the Civil Code, viz.: Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (underscoring supplied) Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (emphasis and underscoring supplied) AaHDSI WHEREFORE, the petition is GRANTED. The Court of Appeals Decision ordering the collation of the property donated to petitioner, Amelia N. Arellano, to the estate of the deceased Angel N. Pascual, Jr. is SET ASIDE. Let the records of the case be REMANDED to the court of origin, Branch 135 of the Makati Regional Trial Court, which is ordered to conduct further proceedings in the case for the purpose of determining what finally forms part of the estate, and thereafter to divide whatever remains of it equally among the parties. SO ORDERED. F. Freedom to dispose free portion NCC 914

Principles Affecting Legitime XII. PRETERITION NCC 854, 906, 855, 918 Escuin v Escuin, 11 Phil 332

EN BANC [G.R. No. 4359. September 24, 1908.] EMILIO ESCUIN Y BATAC, plaintiff-appellee, vs. FRANCISCO ESCUIN, ET AL., defendants. JULIA BATAC, appellant. Rosado, Sanz & Opiso for appellant. Kincaid & Hurd for appellee. SYLLABUS 1. ESTATES; APPEAL FROM COMMISSIONERS' REPORT; PARTITION. While the appeal interposed against the report and opinion of the commissioners for the appraisal of an estate is still pending in the lower court, the partition of the hereditary funds can not be ordered, notwithstanding the fact that the same consist of ready money, because the amount of the estate to be divided, in order to comply with the law and the will of the testator, is not yet determined. Only after payment of all the obligations of the estate can the net amount divisible among the heirs be known. 2. ID.; ID.; TRIAL IN FIRST INSTANCE COURT; APPEAL. The claim presented by an appeal interposed against the opinion of the commissioners for the appraisal of an estate, must be tried in the same manner as any other action in the Court of First Instance, from whose judgment appeal may be taken to this court by means of the corresponding bill of exceptions. (Secs. 776, 777, Code of Civil Procedure.) 3. ID.; RIGHTS OF NATURAL CHILD DULY ACKNOWLEDGED. If a natural father dies under a duly executed will, his recognized natural son who survives him, being his general heir, is only entitled to one-third of his estate, which amount constitutes his legal portion, but, if the natural father dies intestate, his natural recognized son is entitled to the entire estate. (Arts. 807, 842, 939, Civil Code.) 4. ID.; TESTATE AND INTESTATE SUCCESSION. A person may die partly testate and partly intestate. 5. ID.; NATURAL FATHER'S RIGHTS; RIGHTS OF NATURAL CHILD. The natural father has the right to freely dispose by will of two-thirds of his estate, and in case he exceeds this right by disposing of the legal portion pertaining to his natural recognized son, or by overlooking the right of the latter under the will, the designation of heirs or the testamentary provision relative to the legal portion of the general heir, shall be held void; nevertheless, the other testamentary provisions referring to legacies and gifts shall be considered valid, in so far as they are not illegal and do not impair the legal portion of the recognized natural son, who is the general heir of the testator. DECISION TORRES, J p:

On the 19th of January, 1899, Emilio Antonio Escuin de los Santos executed a will before a notary public of Sevilla, Spain, stating therein that he was a native of Cavite, the son of Francisco Escuin and Eugenia de los Santos, the latter being deceased; that he was married about six months previously to Maria Teresa Ponce de Leon, and that he had no lawful descendants; the testator, however, stated in clause three of his will, that in case he had a duly registered successor, his child would be his sole and universal heir; but that if, as would probably be the case, there should be no such heir, then in clause four he named his said father Francisco Escuin, and his wife Maria Teresa Ponce de Leon his universal heirs, they to divide the estate in equal shares between them. The testator died on the 20th of January, 1899, as certified to by the municipal court of Magdalena, Sevilla, on the 20th of March, 1900. Upon the will having been admitted to probate, commissioners were appointed to consider claims against the estate, and, according to a report presented to the Court of First Instance on the 20th of June, 1907, one claim was allowed amounting to 3,696.50 pesetas. On the 10th and 12th of July, 1907, the attorney for the widow, Ponce de Leon, and the attorneys who represented the guardian of the minor, Emilio Escuin y Batac appealed to the Court of First Instance from the findings of the aforesaid commissioners. Matters stood thus, and without there appearing any decision of the court as to the appeals, the attorney for the administrator, by a writing dated the 3d of September, following, moved for the approval of the proposed partition of the estate provided for by the court; by the first additional request (otrosi) he asked that the remuneration for the services of the administrator of the estate be fixed, and that he be authorized to draw such amount from the funds of the estate; and by a second additional request he asked that the accounts made up on the 31st of August, previous, be approved. It appears in the proposed partition of the 3d of September, 1906, that, according to the opinion of the administrator by whom it was signed and the result of the proceedings, the property left by the testator, in accordance with the accounts passed upon by the court, amounted to P8,268.02 From said sum the following must be deducted: The credit above alluded to admitted by the commissioners P1,321.40 10 per cent remuneration due to the administrator P826.80 All legal expenses paid and approved P1,105.01 ________

P3,253.21 _________ Deducting this amount from the funds of the estate, there remains a balance of 5,014.81 That the said credit of P1,321.40, equivalent to 3,696.50 pesetas, allowed by the commissioners, is the only claim presented within the legal term against the estate; that Francisco Escuin, the father of the testator, his wife or widow, Teresa Ponce de Leon, and his natural child, the minor Emilio Escuin y Batac, represented by his mother and guardian Julia Batac, are entitled to the succession; that, by setting aside one-third of the estate in favor of the natural son recognized in accordance with article 842 of the Civil Code, there only remains the question as to how the remaining two-thirds of the inheritance shall be bestowed, taking into account the directions of the testator in his will; that the same does not disclose that he had left any child by his wife; that the latter, as the widow of the testator, besides being a designated heir entitled to one-half of the hereditary funds, is entitled to the usufruct of the portion fixed by the law, and that the funds to be apportioned are composed wholly of cash or ready money. On these grounds the partition and adjudication was proceeded with of the sum of P5,014.81 into three shares of P1,671.60 to each one of the parties in interest, that is, the natural son, Emilio Escuin y Batac, in full control as general heir; the widow, Teresa Ponce de Leon, as legatee of one-half of the two-thirds of the funds of free disposition; and the said widow the usufruct of the other half of the aforesaid two-thirds of free disposition, the bare ownership of the last third held in usufruct by the widow being adjudicated to Francisco Escuin, as legatee taking into account the provisions of article 817 of the Civil Code upon making the division. On the 12th of September, 1906, the representative of the minor natural child of the testator objected in writing to the partition proposed by the administrator, and for the reasons he set forth asked that the same be disapproved, and that in lieu thereof the entire estate be adjudicated to Emilio Escuin y Batac, the said minor. Upon a hearing for the approval of the said proposed partition, the representative of the minor presented as evidence a certified copy of the complaint, the answer, and the final judgment rendered in civil case No. 3210 of the Court of First Instance. It appears from the said certified proceedings that the representative of the minor, as plaintiff therein, asked on the 12th of January, 1905, that an allowance be granted to him for subsistence for account of the estate of the late testator, Emilio Escuin de los Santos, and that the same be paid him monthly in advance; that judgment be entered declaring that the minor, Emilio Escuin y Batac, is a natural child of the testator; that the said minor, as the only natural son of the same is his

general heir; that it be held that the said testator had died without either lawful ascendants or descendants; that the designation of heirs made under his abovementioned will be declared null and void; and that the defendants be sentenced to pay the costs in case they did not conform to the complaint, with any further remedy that the court might consider just and equitable. The administrator, Ricardo Summers, in answer to the complaint denied all and every one of the facts alleged in all and every one of its paragraphs. On the 30th of September, 1905, the court below found that Emilio Escuin y Batac was the recognized natural child of the late Emilio Escuin de los Santos, had by Julia Batac; that the testator was also the natural son of the defendant Francisco Escuin and Eugenia de los Santos, and was recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac, is one of the heirs of the late testator. By an order of the lower court dated the 30th of October, 1906, in view of the accounts and proposal of partition presented by the administrator of the estate, the judge below expressed an opinion that a natural child is only entitled to one-fourth of the hereditary property, the clause in the will being annulled only in so far as the amount to be divided should be reduced, taking into account the share due to the natural son and the right of the father and the widow of the testator, each to onehalf of the remainder of the property of the estate. The court approved the account presented, but disapproved the project of partition of the hereditary property that was objected to by one of the parties in interest. Counsel for the minor Emilio Escuin y Batac excepted to the above resolution; a copy of the proceedings was submitted to this court together with the appeal that was interposed. On the 10th of July, 1907, the representatives of the administrator, and of the minor, Emilio Escuin y Batac, respectively, stated in writing to the lower court that, in view of the fact that the order of October 30, 1906, did not constitute a final judgment of partition (since the said proposal having been rejected, another partition should be effected by commissioners) the court was requested to appoint commissioners to present a new project of partition in substitution for the one presented by the administrator, the new proposal to be submitted to the court for approval. On the 22d of August, the attorney for the administrator filed a written request for the appointment of said commissioners as stated above, and further requested that the remuneration of the petitioner for his services as administrator be fixed by the court, and that he be authorized to draw from the funds of the estate such sum as might thus be assigned to him. On the 24th day of the said month of August, the court below issued an order with respect to the foregoing requests and held that, for the reasons stated in the order, the appointment of commissioners for the mere propose of determining what each one of the heirs should receive in accordance with the order of the 30th of October,

1906, was not necessary, inasmuch as the property of the estate consisted of ready money, and the administrator was thereby authorized to distribute the funds among the heirs in the amount stated in the said order. From this decision the representative of the minor Emilio Escuin y Batac took exception, and to this effect presented a bill of errors together with a copy of the proceedings for review on appeal. While the appeal s interposed against the report and resolution of the commissioners were still pending in the lower court, the partition of the hereditary funds could not be ordered, notwithstanding the fact that the same consisted of ready money, because the amount of the estate subject to division had not yet been determined in order to comply with the law and the will of the testator. Until all the known creditors and the legatees have been paid, it shall be understood that the estate is under administration, says article 1026 of the Civil Code, and in conformity with this legal provision the supreme tribunal has established the doctrine that "only after payment of all the obligations of the estate can the net amount divisible among the heirs be known." (Decision of March 2, 1896.) Section 753 of the Code of Civil Procedure confirms the provision of the Civil Code and the legal doctrine mentioned above, inasmuch as it provides that, after payment of the debts, funeral charges, and expenses of administration, and the allowances for the expense of maintenance of the family of the deceased, the court shall assign the residue of the estate to the persons entitled to the same, naming the persons and proportions or parts to which each is entitled, etc. As to the aforesaid appeals from the resolution of the commissioners, section 776 of the Code of Civil Procedure provides that: "Upon the lodging of such appeal with the clerk, the disputed claim shall stand for trial in the same manner as any other action in the Court of First Instance, the creditor being deemed to be the plaintiff, and the estate the defendant, and pleadings as in other actions shall be filed." So that by reason of the claims made by the creditor of the estate of Emilio Escuin de los Santos and by her natural son, duly recognized by his father, an ordinary action should have been brought before the Court of First Instance, from whose judgment appeal may be taken to this court by means of the corresponding bill of exceptions under the provisions of section 777 of the Code of Civil Procedure; and while the ultimate decision in the matter of the said claims against the resolution of the commissioners has not become final, and until all the obligations of the estate have been paid, there can really be no inheritance, nor can it be distributed among the persons interested therein according to the will of the testator, or under the provisions of the law.

The foregoing refers to the first error assigned in the certified copy of the proceedings and in the brief of the representative of the minor Escuin y Batac, and also to the questions of the form of procedure. With respect to the questions which form the basis of this litigation and refer to the second assignment of errors, it should be noted that the late testator did not leave any legitimate descendants or ascendants, but did leave a recognized natural child, the appellant minor, and a widow; that the said minor, Emilio Escuin y Batac, is the general heir of his natural father, the said testator, who recognized him while living (art. 807, Civil Code), and in the present case is entitled to one-third of his estate, which amount constitutes the legal portion of a natural child (art. 842 of the said code); and for the reason that the minor was ignored by his natural father in his will, the designation of heirs made therein was, as a matter of fact annulled by force of law, in so far as the legal portion of the said minor was thereby impaired. Legacies and betterments shall be valid, in so far as they are not illegal, for the reason that a testator can not deprive the heirs of their legal portions, except in the cases expressly indicated by law. (Arts. 763, 813, 814, Civil Code.) As has been seen, the testator wished to dispose of his property in his will, designating as heirs his natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon, altogether ignoring his recognized natural child who is his general heir. In view thereof, and for the reason that he exceeded his rights, the said designation of heirs became void in so far as it impaired the right of his general heir and deprived him of his legal portion; the will, however, is valid with respect to the two-thirds of the property which the testator could freely dispose of. (Arts. 763, 764, 806, 813, 842, Civil Code.) Notwithstanding the fact that the designation of heirs is annulled and that the law recognizes the title of the minor, Escuin y Batac, to one-third of the property of his natural father, as his lawful and general heir, it is not proper to assert that the late Emilio Escuin de los Santos died intestate in order to establish the conclusion that his said natural recognized child is entitled to succeed to the entire estate under the provisions of article 939 of the Civil Code, inasmuch as in accordance with the law a citizen may die partly testate and partly intestate (art. 764, Civil Code). It is clear and unquestionable that it was the wish of the testator to favor his natural father and his wife with certain portions of his property which, under the law, he had a right to dispose of by will, as he has done, provided the legal portion of his general heir was not thereby impaired, the two former persons being considered as legatees under the will. The above-mentioned will is neither null, void, nor illegal in so far as the testator leaves two-thirds of his property to his father and wife; testamentary provisions impairing the legal portion of a general heir shall be reduced in so far as they are

illegal or excessive. (Art. 817, Civil Code.) The partition of the property of the said testator shall be proceeded with in accordance with the foregoing legal bases. The record does not show that the decision of the commissioners became final or was consented to by the parties in interest, or that this point was alleged and discussed in the first instance; therefore, such circumstance as alleged by the appellee can not now be considered. By virtue of the foregoing considerations it is our opinion that the orders of the court below, of October 30, 1906, and August 24, 1907, should be reversed, and upon receipt of a certified copy of this decision the court below shall take action in accordance with the law and the terms herein contained with respect to the claims and appeals from the resolutions of the commissioners pending judicial decision. So ordered. Aznar v Duncan, 17 SCRA 590 EN BANC [G.R. No. L-24365. June 30, 1966.] IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor-appellee, vs. MARIA LUCY CHRISTENSEN DUNCAN, oppositor-appellant. MARIA HELEN CHRISTENSEN, oppositor-appellee. J. Salonga and L.M. Abellera for oppositor-appellee. Carlos Dominguez, Jr. for executor-appellee. M.R. Sotelo for appellant. DECISION MAKALINTAL, J p: 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. L16749) 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 legitimate 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. xxx xxx xxx "7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.' xxx xxx xxx

"12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; 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 Trevio, of Mexico City, Mexico; Barbara Borton Philips, 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 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 devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime." Thus, according to appellant, under both Articles 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 privado totalmente de su legitima: ha recibido por cualquier 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 sealada para el caso de pretericion." "El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un claculo equivocado, ha repartido en favor de extraos 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 pubna 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 origina 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. xxx xxx xxx "B. Que la omision sea completa Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar esta 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." "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 OMISION 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 distinion 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 favorecido como donatorio, por otro titulo que 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 legitimate be completed. (6 Manresa, pp. 438, 441.) The foregoing solution is indeed more in consonance with the expressed wished 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 h is first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositorappellee 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. Onefourth (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 as submitted by the executorappellee, 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 the 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 deduction 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. RESOLUTION July 30, 1967 MAKALINTAL, J p: 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 oppositorappellant, 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., J.B.L. Reyes, Barrera, Dizon, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur. Regala and Castro, JJ., took no part. Nuguid v Nuguid, 17 SCRA 449 Reyes v Barreto-Datu, 19 SCRA 85 EN BANC [G.R. No. L-17818. January 20, 1967.] TIRSO T. REYES, as guardian of the minors, Azucena, Flordelis and Tirso, Jr. all surnamed Reyes y Barretto, plaintiff-appellant, vs. LUCILA MILAGROS BARRETTO DATU, defendant-appellant. Recto Law Offices for plaintiff-appellant. Deogracias T. Reyes and Associates for defendant-appellee. SYLLABUS 1. CIVIL LAW; ARTICLE 1081 OF THE CIVIL CODE OF 1889 (then in force) CONSTRUED. Article 1081 of the Civil Code of 1889 (then in force) provided that "a partition in which a person was believed to be an heir without being so, has been included, shall be null and void." Based on this Article, the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of B.B. to be null and void ab initio because the distributee, S.B., was not a daughter of the decedent. HELD: Article 1081 of the old Civil Code has been misapplied to the present case by the lower court. S.B. had been instituted heir in the late decedent's last will and testament together with M. B., decedent's daughter; 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 of heirs (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 B.B. was at a liberty to assign the free portion of his estate to whomsoever he chose. 2. ID.; LEGITIME; ALLOTMENT OF SMALLER SHARE THAN LEGITIME DOES NOT INVALIDATE INSTITUTION OF HEIR. While the share (1/2) assigned to S.B. impinged on the legitime of M. B., S. B. did not for that reason cease to be a testamentary heir of B.B. Nor does the fact that M. B. was allotted in her father's will a share smaller than her legitime invalidate the institution of S.B. as heir, since there was here no preterition, or total omission of a forced heir. 3. ID.; COMPROMISE ON CIVIL STATUS PRESUPPOSES SETTLEMENT OF CONTROVERSY THROUGH MUTUAL CONCESSION OF PARTIES. Appellee contends that the partition in question was void as a compromise on the civil status of S.B. This view is erroneous, since a compromise presupposes the settlement of a controversy through mutual concessions of the parties, and the condition of S.B. as daughter of the testator, 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. 4. ID.; PARTITION; JUDICIAL DECREE OF DISTRIBUTION; ITS EFFECT. Independently of a project of partition which 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; 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. 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. 5. ID.; ID. Even without the (questioned) project of partition the distribution could stand since it was in conformity with the probated will of the deceased, against the provisions whereof no objection had been made. 6. ID.; JUDICIAL DECREE OF DISTRIBUTION; MINORITY OF HEIR DOES NOT IMPLY THAT COURT WAS WITHOUT JURISDICTION TO ENTER DECREE OF DISTRIBUTION. That M. B. 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.

7. ID.; ID.; PROBATE PROCEEDING; NATURE OF. The proceeding for probate is one in rem and the court acquires jurisdiction over all persons interested, through the publication of the notice and any order that may be entered therein is binding against all of them. A final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. 8. ID.; ID.; ID.; GROUNDS FOR SETTING ASIDE. The only instance 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 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. 9. ID.; STATUTE OF LIMITATIONS; SUIT BASED ON FRAUD SHOULD BE BROUGHT WITHIN 4 YEARS FROM ITS DISCOVERY. Granting that there was fraud, relief therefrom can only be obtained within 4 years from its discovery, and the record shows that this period had elapsed long ago. 10. ID.; GUARDIAN; WAIVER OF RIGHTS BY GUARDIAN DOES NOT BIND HIS WARDS. An abdicative waiver of rights by a guardian, being an act of disposition and not of administration, cannot bind his wards, being null and void as to them unless duly authorized by the proper court. DECISION REYES, J.B.L., J p: 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 received by his deceased 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. T13734 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 to 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 and nieces. The usufruct of the fishpond situated in barrio San Roque, Hagonoy, Bulacan, abovementioned, however, was reserved for his widow, Maria Gerardo. In the meantime, Maria Gerardo was appointed 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 of heirs (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 (1/2) 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 omission, 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 (Comia 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." (Italics 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 may 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 proceedings 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 partition 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 appellee's 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, 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 place, granting 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 articles 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 enumerated 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. Balanay v Martinez, 64 SCRA 452 SECOND DIVISION [G.R. No. L-39247. June 27, 1975.] In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents. Roberto M. Sarenas for petitioner. Jose B. Guyo for private respondents. SYNOPSIS

Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal properties as if they were all owned by her, disposing of her husband's one-half share, and providing that the properties should not be divided during her husband's lifetime but should remain intact and that the legitimes should be paid in cash to be satisfied out of the fruits of the properties. Felix Balanay, Jr. filed a petition for the approval of his mother's will which was opposed by the husband and some of her children. During the pendency of the probate proceedings petitioner submitted to the court a document showing his father's conformity to the testamentary distribution, renouncing his hereditary rights in favor of his children in deference to the memory of his wife. The Court denied the opposition, set for hearing the probate of the will and gave effect to the affidavit and conformity of the surviving spouse. Meanwhile, a certain Atty. David Montaa, Sr. allegedly, in behalf of the petitioner, moved to dismiss the probate proceedings and requested authority to proceed by intestate proceedings on the ground that the will was void, which motion was granted by the probate court. The Court, however, did not abrogate its prior orders to proceed with the probate proceedings. Subsequently, the court appointed the branch clerk as special administrator, and notice to creditors was issued and published in the Davao Star. Petitioner impugned the order of dismissal claiming that Atty. Montaa had no authority to ask for the dismissal of the petition for allowance of will and that the court erred in declaring the will void before resolving the question of its formal validity. The Supreme Court set aside the order dismissing the petition for probate of the will directed the lower court to proceed with the hearing of the case with costs against private respondents. SYLLABUS 1. WILLS; PROBATE; COURTS MAY PASS UPON THE INTRINSIC VALIDITY BEFORE ALLOWANCE OF WILL. Where the will contains unusual provisions which are of dubious legality and a motion to withdrew the petition for probate presumably with petitioner's authorization has been filed, the trial court can pass upon the will's intrinsic validity even before its formal validity had been established. When practical considerations demand that intrinsic validity be passed upon even before the will is probated, the court should do so, since the probate of a will probated, the court should do so, since the probate of a will might become an idle ceremony if on its face the will is intrinsically void. 2. ID.; ID.; PROBATE MANDATORY; EXCEPTION. Generally, the probate of a will is mandatory and it is the duty of the court to pass first upon its

formal validity except in extreme cases where the will is on its face intrinsically void. 3. ID.; ID.; ID.; EFFECT OF ILLEGAL PROVISIONS IN A WILL. A will is not rendered null and void by reason of the existence of some illegal or void provisions since 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; and where some provisions are valid and others invalid, the valid provisions shall be upheld if they can be separated from the invalid provisions without defeating the intention of the testator or interfering with the general testamentary scheme or doing injustice to the beneficiaries. 4. ID.; ID.; ILLEGAL DECLARATION MAY BE DISREGARDED. The statement of the testatrix in her will that she owned the "southern half" of the conjugal lands is contrary to the law, because although she was a co-owner thereof, her share was inchoate and pro indiviso; but the illegal declaration does not nullify the entire will, and said statement may be disregarded. 5. ID.; ID.; ESTATE MAY REMAIN UNDIVIDED ONLY FOR A PERIOD OF 20 YEARS. Under Article '083 of the Civil Code, the estate may remain undivided only for a period of twenty years; so that the provision in the testatrix's will that the estate should not be divided during her husband's lifetime would at most be effective only for 20 years from the date of her death unless there are compelling reasons for terminating the co-ownership. 6. ID.; ID.; TESTATRIX MAY NOT REQUIRE PAYMENT OF LEGITIMATES TO BE PAID IN CASH IF WHOLE ESTATE IS NOT ASSIGNED TO ONE OR MORE CHILDREN. The testatrix has no right to require that the legitimes be paid in cash, contrary to Article '080 of the Civil Code if in her will she partitioned the entire conjugal estate among her children (her husband had renounced his hereditary rights and his one-half conjugal share, and did not assign the whole estate to one or more children as envisaged in said article. 7. ID.; ID.; RENUNCIATION; EFFECT OF RENUNCIATION OF HEREDITARY RIGHTS. The surviving spouse can validly renounce his heredity rights; but insofar as such renunciation partakes of a donation of the hereditary rights and his share in the conjugal properties, it should be subject to the limitations prescribed in Article 750 and 752 of the Civil Code on inofficious donations; and a portion of the estate should be adjudicated for his maintenance or at least his legitime respected. 8. ID.; ID.; ID.; INVALID DISPOSITION BY WILL OF ENTIRE CONJUGAL PARTNERSHIP CURED BY SURVIVING SPOUSE'S CONFORMITY THERETO. Although under Article '70 of the Civil Code the testatrix could dispose of by will only her half of the conjugal state, the conformity

of the husband, made after the dissolution of the conjugal partnership by the death of the testatrix, has the effect of validating the testamentary partition of the conjugal estate, without prejudice, of course, to the rights of creditors and legitimes of the compulsory heirs. 9. ID.; FUTURE PROPERTIES; BEQUEST OF FUTURE PROPERTIES. Under Article 793 of the Civil Code, property acquired after the making of the will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention; while under Article 930 of said Code, the legacy or devise of a thing belonging to another is void, if he erroneously believed that the 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. 10. ID; PRETERITION; OMISSION OF THE LEGAL HEIRS INVALIDATES THE WILL.Under Article 854 of the Civil Code, the preterition of the compulsory heir 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. Thus, the preterition of the parents annuls the institution of the sister of the testatrix, and renders the will intrinsically void; and if there are no legacies and devices, total intestacy results. But the preterition of the surviving spouse does not produce intestacy nor render the will intrinsically void, especially if the preterited spouse signified his conformity to his wife's will and renounced his hereditary rights. 11. ID.; INTENTIONS; COURTS SHOULD STRIVE TO GIVE EFFECT TO THE WISHES OF THE TESTATOR. To give effect to the intention and wishes of the testatrix is the first and principal law on the matter of the testaments, and such desires should be given effect independently of the attitude of the parties affected thereby and an interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify it. 12. ID.; ID.; ID.; TESTACY; DOUBTS SHOULD BE RESOLVED IN FAVOR OF TESTACY. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically the 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, because whatever disposition therein made is better than what the law can make. 13. ID.; EXECUTORS; NOTICE TO CREDITORS CANNOT BE ISSUED BEFORE REGULAR EXECUTOR IS APPOINTED; REASONS. The issuance of notice to creditors after a special executor or administrator had been appointed but before the appointment of a regular executor or administrator is erroneous being contrary to the rules of court aside from the fact that it is the regular executor

or administrator who is supposed to oppose the claims against the estate or pay such claims if allowed. 14. ID.; ID.; JUDICIAL OFFICERS SHOULD REFRAIN FROM BEING APPOINTED EXECUTORS. The appointment of the branch Clerk of Court as special administrator is not a salutary practice because it might engender the suspicion that the probate court and his clerk are in cahoots in milking the decedent's estate, and if he commits 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 duties and should not have as a sideline the administration of a decedent's estate. DECISION AQUINO, J p: Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, '974, 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. '808). The antecedents of the appeal are as follows: Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February '2, '973 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, '973 for the probate of his mother's notarial will dated September 5, '970 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 '973) 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 '8, '973 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 '8, '973 "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, '973 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 '8, '973 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 '5, '973. In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, '973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon. Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued. Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October '5, '973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being contrary to law and that an intestacy be declared.

The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, '974 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 ' and 2, '974. The lower court did not abrogate its prior orders of June '8 and October '5, '973. The notice to creditors was issued on April ', '974 and published on May 2, 9 and '6 in the Davao Star in spite of petitioner's motion of April '7, '974 that its publication be held in abeyance. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April '5, '974, asked for the reconsideration of the lower court's order of February 28, '974 on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, '974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montana'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, '974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaa's arguments. The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. '527, '7 SCRA 449. Compare with Sumilang vs. Ramagosa, L23'35, December 26, '967, 2' SCRA '369; Cacho vs. Udan, L-'9996, April 30, '965, '3 SCRA 693). But the probate court erred in declaring in its order of February 28, '974 that the will was void and in converting the testate proceeding into an intestate proceeding

notwithstanding the fact that in its order of June '8, '973 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. '43, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 4'4). 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 '080 of the Civil Code which reads: "ART. '080. 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, desires 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. ('056a)" 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 '080. 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. '083, Civil Code). Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. '79['] and '04', 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. '050['] 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 be 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 possessed 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. '70, 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).

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 '8, '97'3. 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 '2, '967, 2' 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 '8, '972, 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-2456', June 30, '970, 33 SCRA 554, 56'). 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 79', 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, '970, 3' 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-'9573, June 30, '970, 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-259'3, February 28, '969, 27 SCRA 327, 34'). 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 ', 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 (Sec. '0, Rule 86 and sec. ', 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, '974 are set aside and its order of June '8, '973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No. '808 in consonance with this opinion. Costs, against the private respondents. SO ORDERED. Solano v CA, 126 SCRA 122 FIRST DIVISION [G.R. No. L-41971. November 29, 1983.] ZONIA ANA T. SOLANO, petitioner, vs. THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA, respondents. Benjamin H. Aquino for petitioner. Alfredo Kallos for respondents. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT BY BOTH THE TRIAL COURT AND APPELLATE COURT; BINDING ON THE SUPREME COURT. At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned from the following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3,

1935, Emeteria Garcia was born (Exhibit "B" & "2"). Their birth certificates and baptismal certificates mention only the mother's name without the father's name. The facts establish, however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts of support and provisions for their education. 2. ID.; SPECIAL PROCEEDING; ACTION FOR RECOGNITION; ISSUE OF STATUS OF UNIVERSAL HEIR; INCLUDED IN THE RESOLUTION WHERE THE PARTIES IMPLEADED THE SAME IN THE PLEADINGS AND IN THE EVIDENCE DURING TRIAL. It is true that the action below was basically one for recognition. However, upon notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir . . .as of now" (Annex "D", - Petition, p.55, Rollo). In her "Appearance of Substitute Defendant Zonia Ana T. Solano. . . Sole and Universal Heir," ZONIA specifically prayed that she be "allowed to assume her duties as executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is already final and executory, with least interference from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be illegitimate children." In other words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted new right in her capacity as sole and universal heir, "executrix and administratrix," and challenged the right of the GARCIAS to recognition. Thus, she was not defending the case as a mere representative of the deceased but asserted rights and defenses in her own personal capacity. As raised by the parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such. No error was committed by either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status. 3. ID.; ID.; PROBATE COURT; FILING OF ACTION FOR RECOGNITION WITH THE SAME COURT; IMPLEADING OF ESTATE OBJECT IN THE PROBATE OF WILL; BOTH CASES DEEMED CONSOLIDATED; CASE AT BAR. ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and distributing the shares of the parties in SOLANO's estate when said estate was under the jurisdiction and control of the Probate Court in Special Proceedings No. 842. Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It should be recalled that SOLANO himself instituted the petition for probate of the Will during his lifetime. That proceeding was not one to settle the estate of a deceased person that would be deemed terminated only upon the final distribution of the residue of the hereditary estate. With the Will allowed to probate, the case would have terminated except that it appears that the parties, after SOLANO's death, continued to file pleadings

therein. Secondly, upon motion of the GARCIAS, and over the objection of ZONIA the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated. The records further disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the Court and before the same Presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due execution. A probate decree is not concerned with the intrinsic validity or legality of the provisions of the Will. 4. CIVIL LAW; SUCCESSION; PRETERITION OF COMPULSORY HEIRS; INSTITUTION OF UNIVERSAL HEIR ANNULLED IN SO FAR AS THE LEGITIME OF THE PRETERITED HEIRS IS IMPAIRED; LEGITIME OF ILLEGITIMATE CHILDREN. Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts. the GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did not have the legal capacity to contract marriage at the time of ZONIA's conception, (Article 277, Civil Code); that being compulsory heirs, the GARCIAS were, in fact, preterited from SOLANO's Last Will and Testament; and that as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding that the entire Will is void and intestacy ensues, the preterition of the GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The Will, therefore, is valid subject to that limitation. (Escuin vs. Escuin, 11 Phil. 332 [1908]; Eleasar vs. Eleazar, 67 Phil. 497 [1939]). It is plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of. Since the legitime of illegitimate children consists of one-half (1/2) of the hereditary estate (Art. 895, Civil Code), the GARCIAS and ZONIA each have a right to participation therein in the proportion of one- third (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate. 5. ID.; ID.; USUFRUCT; GRANT TO BE RESPECTED IN SO FAR AS IT IS NOT INOFFICIOUS. As provided in the foregoing provision, the disposition in

that Will giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, and should be respected in so far as it is not inofficious (Neri vs. Akutin, 74 Phil. 185 [1943]). 6. REMEDIAL LAW; COURTS; JURISDICTION; VOLUNTARY SUBMISSION; PARTY ESTOPPED FROM REPUDIATING IT FOR REASONS OF PUBLIC POLICY. It should be pointed out that the jurisdiction of the Trial Court and the Appellate Court was never questioned before either Court. ZONIA herself had gone, without objection. to trial on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held estopped to repudiate that jurisdiction to which she had voluntarily submitted. after she had received an unfavorable judgment. (Tijam vs. Sibonghanoy, 23 SCRA 29 [1968]). TEEHANKEE, J., concurring: 1. REMEDIAL LAW; SPECIAL PROCEEDING; PROBATE OF WILL; ACTION FOR RECOGNITION; CONTINUED FILING BY THE PARTIES OF PLEADINGS IN THE PROBATE COURT DESPITE ALLOWANCE OF THE WILL, THE TWO CASES DEEMED CONSOLIDATED. The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance is vitam of Dr. Solano's will) which were pending before the same judge and the same branch of the trial court could be correctly said to have been consolidated. 2. ID.; ID.; JURISDICTION; VOLUNTARY SUBMISSION TO THE COURT; PARTY ESTOPPED FROM REPUDIATING IT. Petitioner is now estopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate court to which she had submitted without question her cause. DECISION MELENCIO-HERRERA, J p:

A Petition for Review on Certiorari of the Decision of the then Court of Appeals affirming the judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No. 3956, an action for Recognition. On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving heir mentioned in his Last Will and Testament probated on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA entered her formal appearance as a "substitute defendant" on March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO, and asking that she be allowed to assume her duties as executrix of the probated Will with the least interference from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO". On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT. ZONIA did not file any responsive pleading and the case proceeded to trial. The GARCIAS further moved for the impleading of the SOLANO estate in addition to ZONIA, which was opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1 In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2 On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment the dispositive portion of which decrees: "WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the illegitimate children of the late Dr. Meliton Solano under the class of ADULTEROUS CHILDREN, with all the rights granted them by law. The institution of Sonia Ana Solano as sole and universal heir of the said deceased in the will is hereby declared null and void and the three (3) children shall share equally the estate or one-third (1/3) each, without prejudice to the legacy given to Trinidad Tuagnon and the right of any creditors of the estate. No pronouncement as to costs." Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CA-G.R. No. 49018).

ZONIA seeks a reversal of that affirmance in this petition, which was given due course. At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned from the following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born (Exhibits "B" & "2"). Their birth certificates and baptismal certificates mention only the mother's name without the father's name. The facts establish, however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts of support and provisions for their education. llcd In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father as "P.N.C." (Exhibit "V"), or "padre no conocido". During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on November 29, 1943 (Exhibits "R-1" and "S-1"). on December 22, 1943, SOLANO and Trinidad Tuagnon executed an "Escritura de Reconocimiento de Una Hija Natural" (Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to use the name ZONIA Ana Solano y Tuagnon. The document was registered with the Local Civil Registrar on the same date. On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"), instituting ZONIA as his universal heir to all his personal and real properties in Camalig, Tabaco and Malinao, all in the province of Albay, except for five parcels of land in Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct. Upon SOLANO's petition (Exhibit "10"), the Will was duly probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S. Grageda (Exhibit "12"). As above stated, these facts are not in question. Petitioner maintains, however, that: I.

"The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano, now petitioner, an illegitimate child of the late Dr. Meliton Solano in an action where private respondents, as plaintiffs in the Court below, sought recognition as natural children of Dr. Meliton Solano. II. "The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in ordering the division of the estate of Dr. Meliton Solano between the petitioner and private respondents, when said estate is under the jurisdiction and control of the probate Court in Special Proceedings No. 842. III. "The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring null and void the institution of heir in the last will and testament of Dr. Meliton Solano, which was duly probated in special proceedings No. 842 of the Court of First Instance of Albay, and in concluding that total intestacy resulted therefrom." 3 Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the same action despite the pendency of Special Proceedings No. 842; and 3) to declare null and void the institution of heir in the Last Will and Testament of SOLANO, which was duly probated in the same Special Proceedings No. 842, and concluding that total intestacy resulted. It is true that the action below was basically one for recognition. However, upon notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir . . . as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano . . . Sole and Universal Heir", ZONIA specifically prayed that she be "allowed to assume her duties as executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is already final and executory, with least interference from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted new rights in her capacity as sole and universal heir, "executrix and administratrix, " and challenged the right of the GARCIAS to recognition. Thus, she was not defending the case as a mere representative of the deceased but asserted rights and defenses in her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA . . . and Supplemental Cause of Action . . . ." vigorously denying that ZONIA was SOLANO's sole and universal heir; that ZONIA could not legally be considered as SOLANO's acknowledged natural child because of a legal impediment; that the admission to probate of SOLANO's Will was merely conclusive as to its due

execution; that the supposed recognition under a notarial instrument of ZONIA as an acknowledged natural child was fraudulent and a product of misrepresentation; that ZONIA's recognition in the Will as an acknowledged natural child is subject to nullification and that at most ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon. LibLex During the trial, the GARCIAS presented evidence to prove their allegations not only in their main complaint but also in their "Reply to Appearance and Supplemental Cause of Action". ZONIA presented no objection to the presentation by the GARCIAS of their oral and documentary evidence and even cross-examined their witnesses. ZONIA, for her part, presented her own testimonial and documentary evidence, denied the relationship of the GARCIAS' to SOLANO and presented the notarial recognition in her favor as an acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such. No error was committed by either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status. ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and distributing the shares of the parties in SOLANO's estate when said estate was under the jurisdiction and control of the Probate Court in Special Proceedings No. 842. Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It should be recalled that SOLANO himself instituted the petition for probate of the Will during his lifetime, That proceeding was not one to settle the estate of a deceased person that would be deemed terminated only upon the final distribution of the residue of the hereditary estate. With the Will allowed to probate, the case would have terminated except that it appears that the parties, after SOLANO's death, continued to file pleadings therein Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated. The records further disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the Court and before the same Presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not concerned with the intrinsic validity or legality of the provisions of the Will. 6 Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts, the GARCIAS and ZONIA were in the same category as

illegitimate children; that ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did not have the legal capacity to contract marriage at the time of ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact, preterited from SOLANO's Last Will and Testament; and that as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. "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. xxx xxx xxx" 8 As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, 9 and should be respected in so far as it is not inofficious. 10 So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding that the entire Will is void and intestacy ensues, the preterition of the GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The Will, therefore, is valid subject to that limitation. 11 It is a plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of. 12 Since the legitime of illegitimate children consists of one-half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate. As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in the Will is valid and should be respected. The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et al., 15 which held that where the institution of a universal heir is null and void due to preterition, the Will is a complete nullity and intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-sentence Will was involved with no other provision except the institution of the sole and universal heir; there was no specification of individual property; there were no

specific legacies or bequests. It was upon that factual setting that this Court declared: "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." (at p. 459) In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the Civil Code, supra, applies merely annulling the "institution of heir". prcd Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court was never questioned before either Court. ZONIA herself had gone, without objection, to trial on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held estopped to repudiate that jurisdiction to which she had voluntarily submitted, after she had received an unfavorable judgment. The leading case of Tijam vs. Sibonghanoy, 16 on this point, declared: "A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate or question the same jurisdiction. The question whether the court has jurisdiction either of the subject matter of the action or of the parties is not because the judgment or order of the court is valid and conclusive as an adjudication but for the reason that such practice cannot be tolerated obviously for reasons of public policy. After voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court." WHEREFORE, the judgment under review is hereby modified in that the hereditary share in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad Tuagnon shall be respected. The judgment is affirmed in all other respects. No costs. SO ORDERED. Plana, Relova and Gutierrez, Jr., JJ., concur. Separate Opinions TEEHANKEE, J., concurring: The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838

of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance in vitam of Dr. Solano's will) which were pending before the same judge and the same branch of the trial court could be correctly said to have been consolidated. Finally, petitioner is now estopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate courts to which she had submitted without question her cause Acain v CA, 155 SCRA 100 Ureta v Ureta, Sept. 14, 2011 THIRD DIVISION [G.R. No. 165748. September 14, 2011.] HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES, ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and BERNADETTE T. URETA, petitioners, vs. HEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F. URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA, ZALDY F. URETA, and MILA JEAN URETA CIPRIANO; HEIRS OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U. PARADERO, CARMENCITA P. PERLAS, CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA; VICENTE M. URETA; HEIRS OF FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-GONZALES; HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA, and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT URETA, respondents. [G.R. No. 165930. September 14, 2011.]

HEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F. URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA, ZALDY F. URETA, and MILA JEAN URETA CIPRIANO; HEIRS OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U. PARADERO, CARMENCITA P. PERLAS, CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA; VICENTE M. URETA; HEIRS OF FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-GONZALES; HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA, and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT URETA, petitioners, vs. HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES, ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and BERNADETTE T. URETA, respondents. DECISION MENDOZA, J p: These consolidated petitions for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure assail the April 20, 2004 Decision 1 of the Court of Appeals (CA), and its October 14, 2004 Resolution 2 in C.A.-G.R. CV No. 71399, which affirmed with modification the April 26, 2001 Decision 3 of the Regional Trial Court, Branch 9, Kalibo, Aklan (RTC) in Civil Case No. 5026. CHcESa The Facts In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely, Policronio, Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio, Roque, Adela, Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The children of Policronio (Heirs of Policronio), are opposed to the rest of Alfonso's children and their descendants (Heirs of Alfonso). Alfonso was financially well-off during his lifetime. He owned several fishpens, a fishpond, a sari-sari store, a passenger jeep, and was engaged in the buying and selling of copra. Policronio, the eldest, was the only child of Alfonso who failed to finish schooling and instead worked on his father's lands. Sometime in October 1969, Alfonso and four of his children, namely, Policronio, Liberato, Prudencia, and Francisco, met at the house of Liberato. Francisco, who was then a municipal judge, suggested that in order to reduce the inheritance taxes,

their father should make it appear that he had sold some of his lands to his children. Accordingly, Alfonso executed four (4) Deeds of Sale covering several parcels of land in favor of Policronio, 4 Liberato, 5 Prudencia, 6 and his commonlaw wife, Valeriana Dela Cruz. 7 The Deed of Sale executed on October 25, 1969, in favor of Policronio, covered six parcels of land, which are the properties in dispute in this case. Since the sales were only made for taxation purposes and no monetary consideration was given, Alfonso continued to own, possess and enjoy the lands and their produce. When Alfonso died on October 11, 1972, Liberato acted as the administrator of his father's estate. He was later succeeded by his sister Prudencia, and then by her daughter, Carmencita Perlas. Except for a portion of parcel 5, the rest of the parcels transferred to Policronio were tenanted by the Fernandez Family. These tenants never turned over the produce of the lands to Policronio or any of his heirs, but to Alfonso and, later, to the administrators of his estate. Policronio died on November 22, 1974. Except for the said portion of parcel 5, neither Policronio nor his heirs ever took possession of the subject lands. On April 19, 1989, Alfonso's heirs executed a Deed of Extra-Judicial Partition, 8 which included all the lands that were covered by the four (4) deeds of sale that were previously executed by Alfonso for taxation purposes. Conrado, Policronio's eldest son, representing the Heirs of Policronio, signed the Deed of Extra-Judicial Partition in behalf of his co-heirs. CAHTIS After their father's death, the Heirs of Policronio found tax declarations in his name covering the six parcels of land. On June 15, 1995, they obtained a copy of the Deed of Sale executed on October 25, 1969 by Alfonso in favor of Policronio. Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned about the Deed of Extra-Judicial Partition involving Alfonso's estate when it was published in the July 19, 1995 issue of the Aklan Reporter. Believing that the six parcels of land belonged to their late father, and as such, excluded from the Deed of Extra-Judicial Partition, the Heirs of Policronio sought to amicably settle the matter with the Heirs of Alfonso. Earnest efforts proving futile, the Heirs of Policronio filed a Complaint for Declaration of Ownership, Recovery of Possession, Annulment of Documents, Partition, and Damages 9 against the Heirs of Alfonso before the RTC on November 17, 1995 where the following issues were submitted: (1) whether or not the Deed of Sale was valid; (2) whether or not the Deed of Extra-Judicial Partition was valid; and (3) who between the parties was entitled to damages. The Ruling of the RTC

On April 26, 2001, the RTC dismissed the Complaint of the Heirs of Policronio and ruled in favor of the Heirs of Alfonso in a decision, the dispositive portion of which reads: WHEREFORE, the Court finds that the preponderance of evidence tilts in favor of the defendants, hence the instant case is hereby DISMISSED. The counterclaims are likewise DISMISSED. With costs against plaintiffs. SO ORDERED. The RTC found that the Heirs of Alfonso clearly established that the Deed of Sale was null and void. It held that the Heirs of Policronio failed to rebut the evidence of the Heirs of Alfonso, which proved that the Deed of Sale in the possession of the former was one of the four (4) Deeds of Sale executed by Alfonso in favor of his 3 children and second wife for taxation purposes; that although tax declarations were issued in the name of Policronio, he or his heirs never took possession of the subject lands except a portion of parcel 5; and that all the produce were turned over by the tenants to Alfonso and the administrators of his estate and never to Policronio or his heirs. CHIEDS The RTC further found that there was no money involved in the sale. Even granting that there was, as claimed by the Heirs of Policronio, P2,000.00 for six parcels of land, the amount was grossly inadequate. It was also noted that the aggregate area of the subject lands was more than double the average share adjudicated to each of the other children in the Deed of Extra-Judicial Partition; that the siblings of Policronio were the ones who shared in the produce of the land; and that the Heirs of Policronio only paid real estate taxes in 1996 and 1997. The RTC opined that Policronio must have been aware that the transfer was merely for taxation purposes because he did not subsequently take possession of the properties even after the death of his father. The Deed of Extra-Judicial Partition, on the other hand, was declared valid by the RTC as all the heirs of Alfonso were represented and received equal shares and all the requirements of a valid extra-judicial partition were met. The RTC considered Conrado's claim that he did not understand the full significance of his signature when he signed in behalf of his co-heirs, as a gratuitous assertion. The RTC was of the view that when he admitted to have signed all the pages and personally appeared before the notary public, he was presumed to have understood their contents. Lastly, neither party was entitled to damages. The Heirs of Alfonso failed to present testimony to serve as factual basis for moral damages, no document was presented to prove actual damages, and the Heirs of Policronio were found to have filed the case in good faith. The Ruling of the CA

Aggrieved, the Heirs of Policronio appealed before the CA, which rendered a decision on April 20, 2004, the dispositive portion of which reads as follows: WHEREFORE, the appeal is PARTIALLY GRANTED. The appealed Decision, dated 26 April 2001, rendered by Hon. Judge Dean R. Telan of the Regional Trial Court of Kalibo, Aklan, Branch 9, is hereby AFFIRMED with MODIFICATION: ATEHDc 1.) The Deed of Sale in favor of Policronio Ureta, Sr., dated 25 October 1969, covering six (6) parcels of land is hereby declared VOID for being ABSOLUTELY SIMULATED; 2.) The Deed of Extra-Judicial Partition, dated 19 April 1989, is ANNULLED; 3.) The claim for actual and exemplary damages are DISMISSED for lack of factual and legal basis. The case is hereby REMANDED to the court of origin for the proper partition of ALFONSO URETA'S Estate in accordance with Rule 69 of the 1997 Rules of Civil Procedure. No costs at this instance. SO ORDERED. The CA affirmed the finding of the RTC that the Deed of Sale was void. It found the Deed of Sale to be absolutely simulated as the parties did not intend to be legally bound by it. As such, it produced no legal effects and did not alter the juridical situation of the parties. The CA also noted that Alfonso continued to exercise all the rights of an owner even after the execution of the Deed of Sale, as it was undisputed that he remained in possession of the subject parcels of land and enjoyed their produce until his death. Policronio, on the other hand, never exercised any rights pertaining to an owner over the subject lands from the time they were sold to him up until his death. He never took or attempted to take possession of the land even after his father's death, never demanded delivery of the produce from the tenants, and never paid realty taxes on the properties. It was also noted that Policronio never disclosed the existence of the Deed of Sale to his children, as they were, in fact, surprised to discover its existence. The CA, thus, concluded that Policronio must have been aware that the transfer was only made for taxation purposes. The testimony of Amparo Castillo, as to the circumstances surrounding the actual arrangement and agreement between the parties prior to the execution of the four (4) Deeds of Sale, was found by the CA to be unrebutted. The RTC's assessment of the credibility of her testimony was accorded respect, and the intention of the parties was given the primary consideration in determining the true nature of the contract. ISHCcT Contrary to the finding of the RTC though, the CA annulled the Deed of ExtraJudicial Partition due to the incapacity of one of the parties to give his consent to the contract. It held that before Conrado could validly bind his co-heirs to the Deed

of Extra-Judicial Partition, it was necessary that he be clothed with the proper authority. The CA ruled that a special power of attorney was required under Article 1878 (5) and (15) of the Civil Code. Without a special power of attorney, it was held that Conrado lacked the legal capacity to give the consent of his co-heirs, thus, rendering the Deed of Extra-Judicial Partition voidable under Article 1390 (1) of the Civil Code. As a consequence, the CA ordered the remand of the case to the RTC for the proper partition of the estate, with the option that the parties may still voluntarily effect the partition by executing another agreement or by adopting the assailed Deed of Partition with the RTC's approval in either case. Otherwise, the RTC may proceed with the compulsory partition of the estate in accordance with the Rules. With regard to the claim for damages, the CA agreed with the RTC and dismissed the claim for actual and compensatory damages for lack of factual and legal basis. Both parties filed their respective Motions for Reconsideration, which were denied by the CA for lack of merit in a Resolution dated October 14, 2004. In their Motion for Reconsideration, the Heirs of Policronio argued that the RTC violated the best evidence rule in giving credence to the testimony of Amparo Castillo with regard to the simulation of the Deed of Sale, and that prescription had set in precluding any question on the validity of the contract. The CA held that the oral testimony was admissible under Rule 130, Section 9 (b) and (c), which provides that evidence aliunde may be allowed to explain the terms of the written agreement if the same failed to express the true intent and agreement of the parties thereto, or when the validity of the written agreement was put in issue. Furthermore, the CA found that the Heirs of Policronio waived their right to object to evidence aliunde having failed to do so during trial and for raising such only for the first time on appeal. With regard to prescription, the CA ruled that the action or defense for the declaration of the inexistence of a contract did not prescribe under Article 1410 of the Civil Code. On the other hand, the Heirs of Alfonso argued that the Deed of Extra-Judicial Partition should not have been annulled, and instead the preterited heirs should be given their share. The CA reiterated that Conrado's lack of capacity to give his coheirs' consent to the extra-judicial settlement rendered the same voidable. Hence, the present Petitions for Review on Certiorari. THIASE The Issues The issues presented for resolution by the Heirs of Policronio in G.R. No. 165748 are as follows: I. Whether the Court of Appeals is correct in ruling that the Deed of Absolute Sale of 25 October 1969 is void for being absolutely fictitious and in relation therewith,

may parol evidence be entertained to thwart its binding effect after the parties have both died? Assuming that indeed the said document is simulated, whether or not the parties thereto including their successors in interest are estopped to question its validity, they being bound by Articles 1412 and 1421 of the Civil Code? II. Whether prescription applies to bar any question respecting the validity of the Deed of Absolute Sale dated 25 October 1969? Whether prescription applies to bar any collateral attack on the validity of the deed of absolute sale executed 21 years earlier? III. Whether the Court of Appeals correctly ruled in nullifying the Deed of Extrajudicial Partition because Conrado Ureta signed the same without the written authority from his siblings in contravention of Article 1878 in relation to Article 1390 of the Civil Code and in relation therewith, whether the defense of ratification and/or preterition raised for the first time on appeal may be entertained? DTIaHE The issues presented for resolution by the Heirs of Alfonso in G.R. No. 165930 are as follows: I. Whether or not grave error was committed by the Trial Court and Court of Appeals in declaring the Deed of Sale of subject properties as absolutely simulated and null and void thru parol evidence based on their factual findings as to its fictitious nature, and there being waiver of any objection based on violation of the parol evidence rule. II. Whether or not the Court of Appeals was correct in holding that Conrado Ureta's lack of capacity to give his co-heirs' consent to the Extra-Judicial Partition rendered the same voidable. III. Granting arguendo that Conrado Ureta was not authorized to represent his co-heirs and there was no ratification, whether or not the Court of Appeals was correct in ordering the remand of the case to the Regional Trial Court for partition of the estate of Alfonso Ureta. IV. Since the sale in favor of Policronio Ureta Sr. was null and void ab initio, the properties covered therein formed part of the estate of the late Alfonso Ureta and was correctly included in the Deed of Extrajudicial Partition even if no prior action for nullification of the sale was filed by the heirs of Liberato Ureta. EIDATc V.

Whether or not the heirs of Policronio Ureta Sr. can claim that estoppel based on Article 1412 of the Civil Code as well as the issue of prescription can still be raised on appeal. These various contentions revolve around two major issues, to wit: (1) whether the Deed of Sale is valid, and (2) whether the Deed of Extra-Judicial Partition is valid. Thus, the assigned errors shall be discussed jointly and in seriatim. The Ruling of the Court Validity of the Deed of Sale Two veritable legal presumptions bear on the validity of the Deed of Sale: (1) that there was sufficient consideration for the contract; and (2) that it was the result of a fair and regular private transaction. If shown to hold, these presumptions infer prima facie the transaction's validity, except that it must yield to the evidence adduced. 10 As will be discussed below, the evidence overcomes these two presumptions. Absolute Simulation First, the Deed of Sale was not the result of a fair and regular private transaction because it was absolutely simulated. CTacSE The Heirs of Policronio argued that the land had been validly sold to Policronio as the Deed of Sale contained all the essential elements of a valid contract of sale, by virtue of which, the subject properties were transferred in his name as evidenced by the tax declaration. There being no invalidation prior to the execution of the Deed of Extra-Judicial Partition, the probity and integrity of the Deed of Sale should remain undiminished and accorded respect as it was a duly notarized public instrument. The Heirs of Policronio posited that his loyal services to his father and his being the eldest among Alfonso's children, might have prompted the old man to sell the subject lands to him at a very low price as an advance inheritance. They explained that Policronio's failure to take possession of the subject lands and to claim their produce manifests a Filipino family practice wherein a child would take possession and enjoy the fruits of the land sold by a parent only after the latter's death. Policronio simply treated the lands the same way his father Alfonso treated them where his children enjoyed usufructuary rights over the properties, as opposed to appropriating them exclusively to himself. They contended that Policronio's failure to take actual possession of the lands did not prove that he was not the owner as he was merely exercising his right to dispose of them. They argue that it was an error on the part of the CA to conclude that ownership by Policronio was not established by his failure to possess the properties sold. Instead, emphasis should be made on the fact that the tax declarations, being indicia of possession, were in Policronio's name.

They further argued that the Heirs of Alfonso failed to appreciate that the Deed of Sale was clear enough to convey the subject parcels of land. Citing jurisprudence, they contend that there is a presumption that an instrument sets out the true agreement of the parties thereto and that it was executed for valuable consideration, 11 and where there is no doubt as to the intention of the parties to a contract, the literal meaning of the stipulation shall control. 12 Nowhere in the Deed of Sale is it indicated that the transfer was only for taxation purposes. On the contrary, the document clearly indicates that the lands were sold. Therefore, they averred that the literal meaning of the stipulation should control. The Court disagrees. The Court finds no cogent reason to deviate from the finding of the CA that the Deed of Sale is null and void for being absolutely simulated. The Civil Code provides: EcICSA Art. 1345. Simulation of a contract may be absolute or relative. The former takes place when the parties do not intend to be bound at all; the latter, when the parties conceal their true agreement. Art. 1346. An absolutely simulated or fictitious contract is void. A relative simulation, when it does not prejudice a third person and is not intended for any purpose contrary to law, morals, good customs, public order or public policy binds the parties to their real agreement. Valerio v. Refresca 13 is instructive on the matter of simulation of contracts: In absolute simulation, there is a colorable contract but it has no substance as the parties have no intention to be bound by it. The main characteristic of an absolute simulation is that the apparent contract is not really desired or intended to produce legal effect or in any way alter the juridical situation of the parties. As a result, an absolutely simulated or fictitious contract is void, and the parties may recover from each other what they may have given under the contract. However, if the parties state a false cause in the contract to conceal their real agreement, the contract is relatively simulated and the parties are still bound by their real agreement. Hence, where the essential requisites of a contract are present and the simulation refers only to the content or terms of the contract, the agreement is absolutely binding and enforceable between the parties and their successors in interest. Lacking, therefore, in an absolutely simulated contract is consent which is essential to a valid and enforceable contract. 14 Thus, where a person, in order to place his property beyond the reach of his creditors, simulates a transfer of it to another, he does not really intend to divest himself of his title and control of the property; hence, the deed of transfer is but a sham. 15 Similarly, in this case, Alfonso simulated a transfer to Policronio purely for taxation purposes, without intending to transfer ownership over the subject lands.

The primary consideration in determining the true nature of a contract is the intention of the parties. If the words of a contract appear to contravene the evident intention of the parties, the latter shall prevail. Such intention is determined not only from the express terms of their agreement, but also from the contemporaneous and subsequent acts of the parties. 16 The true intention of the parties in this case was sufficiently proven by the Heirs of Alfonso. ITESAc The Heirs of Alfonso established by a preponderance of evidence 17 that the Deed of Sale was one of the four (4) absolutely simulated Deeds of Sale which involved no actual monetary consideration, executed by Alfonso in favor of his children, Policronio, Liberato, and Prudencia, and his second wife, Valeriana, for taxation purposes. Amparo Castillo, the daughter of Liberato, testified, to wit: Q: Now sometime in the year 1969 can you recall if your grandfather and his children [met] in your house? A: Yes sir, that was sometime in October 1969 when they [met] in our house, my grandfather, my late uncle Policronio Ureta, my late uncle Liberato Ureta, my uncle Francisco Ureta, and then my auntie Prudencia Ureta they talk[ed] about, that idea came from my uncle Francisco Ureta to [sell] some parcels of land to his children to lessen the inheritance tax whatever happened to my grandfather, actually no money involved in this sale. Q: Now you said there was that agreement, verbal agreement. [W]here were you when this Alfonso Ureta and his children gather[ed] in your house? A: I was near them in fact I heard everything they were talking [about] xxx xxx xxx Q: Were there documents of sale executed by Alfonso Ureta in furtherance of their verbal agreement? A: Yes sir. Q: To whom in particular did your grandfather Alfonso Ureta execute this deed of sale without money consideration according to you? A: To my uncle Policronio Ureta and to Prudencia Ureta Panadero. Q: And who else? aTADCE A: To Valeriana dela Cruz. Q: How about your father? A: He has. 18 The other Deeds of Sale executed by Alfonso in favor of his children Prudencia and Liberato, and second wife Valeriana, all bearing the same date of execution, were duly presented in evidence by the Heirs of Alfonso, and were uncontested by the Heirs of Policronio. The lands which were the subject of these Deeds of Sale were in fact included in the Deed of Extra-Judicial Partition executed by all the heirs of Alfonso, where it was expressly stipulated:

That the above-named Amparo U. Castillo, Prudencia U. Paradero, Conrado B. Ureta and Merlinda U. Rivera do hereby recognize and acknowledge as a fact that the properties presently declared in their respective names or in the names of their respective parents and are included in the foregoing instrument are actually the properties of the deceased Alfonso Ureta and were transferred only for the purpose of effective administration and development and convenience in the payment of taxes and, therefore, all instruments conveying or affecting the transfer of said properties are null and void from the beginning. 19 As found by the CA, Alfonso continued to exercise all the rights of an owner even after the execution of the Deeds of Sale. It was undisputed that Alfonso remained in possession of the subject lands and enjoyed their produce until his death. No credence can be given to the contention of the Heirs of Policrionio that their father did not take possession of the subject lands or enjoyed the fruits thereof in deference to a Filipino family practice. Had this been true, Policronio should have taken possession of the subject lands after his father died. On the contrary, it was admitted that neither Policronio nor his heirs ever took possession of the subject lands from the time they were sold to him, and even after the death of both Alfonso and Policronio. It was also admitted by the Heirs of Policronio that the tenants of the subject lands never turned over the produce of the properties to Policronio or his heirs but only to Alfonso and the administrators of his estate. Neither was there a demand for their delivery to Policronio or his heirs. Neither did Policronio ever pay real estate taxes on the properties, the only payment on record being those made by his heirs in 1996 and 1997 ten years after his death. In sum, Policronio never exercised any rights pertaining to an owner over the subject lands. cEDIAa The most protuberant index of simulation of contract is the complete absence of an attempt in any manner on the part of the ostensible buyer to assert rights of ownership over the subject properties. Policronio's failure to take exclusive possession of the subject properties or, in the alternative, to collect rentals, is contrary to the principle of ownership. Such failure is a clear badge of simulation that renders the whole transaction void. 20 It is further telling that Policronio never disclosed the existence of the Deed of Sale to his children. This, coupled with Policronio's failure to exercise any rights pertaining to an owner of the subject lands, leads to the conclusion that he was aware that the transfer was only made for taxation purposes and never intended to bind the parties thereto. As the above factual circumstances remain unrebutted by the Heirs of Policronio, the factual findings of the RTC, which were affirmed by the CA, remain binding and conclusive upon this Court. 21

It is clear that the parties did not intend to be bound at all, and as such, the Deed of Sale produced no legal effects and did not alter the juridical situation of the parties. The Deed of Sale is, therefore, void for being absolutely simulated pursuant to Article 1409 (2) of the Civil Code which provides: Art. 1409. The following contracts are inexistent and void from the beginning: xxx xxx xxx (2) Those which are absolutely simulated or fictitious; xxx xxx xxx For guidance, the following are the most fundamental characteristics of void or inexistent contracts: 1) As a general rule, they produce no legal effects whatsoever in accordance with the principle "quod nullum est nullum producit effectum." 2) They are not susceptible of ratification. 3) The right to set up the defense of inexistence or absolute nullity cannot be waived or renounced. 4) The action or defense for the declaration of their inexistence or absolute nullity is imprescriptible. AaITCH 5) The inexistence or absolute nullity of a contract cannot be invoked by a person whose interests are not directly affected. 22 Since the Deed of Sale is void, the subject properties were properly included in the Deed of Extra-Judicial Partition of the estate of Alfonso. Absence and Inadequacy of Consideration The second presumption is rebutted by the lack of consideration for the Deed of Sale. In their Answer, 23 the Heirs of Alfonso initially argued that the Deed of Sale was void for lack of consideration, and even granting that there was consideration, such was inadequate. The Heirs of Policronio counter that the defenses of absence or inadequacy of consideration are not grounds to render a contract void. The Heirs of Policronio contended that under Article 1470 of the Civil Code, gross inadequacy of the price does not affect a contract of sale, except as it may indicate a defect in the consent, or that the parties really intended a donation or some other act or contract. Citing jurisprudence, they argued that inadequacy of monetary consideration does not render a conveyance inexistent as liberality may be sufficient cause for a valid contract, whereas fraud or bad faith may render it either rescissible or voidable, although valid until annulled. 24 Thus, they argued that if the contract suffers from inadequate consideration, it remains valid until annulled, and the remedy of rescission calls for judicial intervention, which remedy the Heirs of Alfonso failed to take. It is further argued that even granting that the sale of the subject lands for a consideration of P2,000.00 was inadequate, absent any evidence of the fair market

value of the land at the time of its sale, it cannot be concluded that the price at which it was sold was inadequate. 25 As there is nothing in the records to show that the Heirs of Alfonso supplied the true value of the land in 1969, the amount of P2,000.00 must thus stand as its saleable value. On this issue, the Court finds for the Heirs of Alfonso. For lack of consideration, the Deed of Sale is once again found to be void. It states that Policronio paid, and Alfonso received, the P2,000.00 purchase price on the date of the signing of the contract: cISAHT That I, ALFONSO F. URETA, . . . for and in consideration of the sum of TWO THOUSAND (P2,000.00) PESOS, Philippine Currency, to me in hand paid by POLICRONIO M. URETA, . . . , do hereby CEDE, TRANSFER, and CONVEY, by way of absolute sale, . . . six (6) parcels of land . . . . 26 [Emphasis ours] Although, on its face, the Deed of Sale appears to be supported by valuable consideration, the RTC found that there was no money involved in the sale. 27 This finding was affirmed by the CA in ruling that the sale is void for being absolutely simulated. Considering that there is no cogent reason to deviate from such factual findings, they are binding on this Court. It is well-settled in a long line of cases that where a deed of sale states that the purchase price has been paid but in fact has never been paid, the deed of sale is null and void for lack of consideration. 28 Thus, although the contract states that the purchase price of P2,000.00 was paid by Policronio to Alfonso for the subject properties, it has been proven that such was never in fact paid as there was no money involved. It must, therefore, follow that the Deed of Sale is void for lack of consideration. Given that the Deed of Sale is void, it is unnecessary to discuss the issue on the inadequacy of consideration. Parol Evidence and Hearsay The Heirs of Policronio aver that the rules on parol evidence and hearsay were violated by the CA in ruling that the Deed of Sale was void. They argued that based on the parol evidence rule, the Heirs of Alfonso and, specifically, Amparo Castillo, were not in a position to prove the terms outside of the contract because they were not parties nor successors-in-interest in the Deed of Sale in question. Thus, it is argued that the testimony of Amparo Castillo violates the parol evidence rule. Stemming from the presumption that the Heirs of Alfonso were not parties to the contract, it is also argued that the parol evidence rule may not be properly invoked by either party in the litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. 29

Their arguments are untenable. HCaDIS The objection against the admission of any evidence must be made at the proper time, as soon as the grounds therefor become reasonably apparent, and if not so made, it will be understood to have been waived. In the case of testimonial evidence, the objection must be made when the objectionable question is asked or after the answer is given if the objectionable features become apparent only by reason of such answer. 30 In this case, the Heirs of Policronio failed to timely object to the testimony of Amparo Castillo and they are, thus, deemed to have waived the benefit of the parol evidence rule. Granting that the Heirs of Policronio timely objected to the testimony of Amparo Castillo, their argument would still fail. Section 9 of Rule 130 of the Rules of Court provides: Section 9. Evidence of written agreements. When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. [Emphasis ours] Paragraphs (b) and (c) are applicable in the case at bench. The failure of the Deed of Sale to express the true intent and agreement of the parties was clearly put in issue in the Answer 31 of the Heirs of Alfonso to the Complaint. It was alleged that the Deed of Sale was only made to lessen the payment of estate and inheritance taxes and not meant to transfer ownership. The exception in paragraph (b) is allowed to enable the court to ascertain the true intent of the parties, and once the intent is clear, it shall prevail over what the document appears to be on its face. 32 As the true intent of the parties was duly proven in the present case, it now prevails over what appears on the Deed of Sale. CASIEa The validity of the Deed of Sale was also put in issue in the Answer, and was precisely one of the issues submitted to the RTC for resolution. 33 The operation of the parol evidence rule requires the existence of a valid written agreement. It is, thus, not applicable in a proceeding where the validity of such agreement is the fact in dispute, such as when a contract may be void for lack of consideration. 34

Considering that the Deed of Sale has been shown to be void for being absolutely simulated and for lack of consideration, the Heirs of Alfonso are not precluded from presenting evidence to modify, explain or add to the terms of the written agreement. The Heirs of Policronio must be in a state of confusion in arguing that the Heirs of Alfonso may not question the Deed of Sale for not being parties or successors-ininterest therein on the basis that the parol evidence rule may not be properly invoked in a proceeding or litigation where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. If their argument was to be accepted, then the Heirs of Policronio would themselves be precluded from invoking the parol evidence rule to exclude the evidence of the Heirs of Alfonso. Indeed, the applicability of the parol evidence rule requires that the case be between parties and their successors-in-interest. 35 In this case, both the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of the parties to the Deed of Sale as they claim rights under Alfonso and Policronio, respectively. The parol evidence rule excluding evidence aliunde, however, still cannot apply because the present case falls under two exceptions to the rule, as discussed above. With respect to hearsay, the Heirs of Policronio contended that the rule on hearsay was violated when the testimony of Amparo Castillo was given weight in proving that the subject lands were only sold for taxation purposes as she was a person alien to the contract. Even granting that they did not object to her testimony during trial, they argued that it should not have been appreciated by the CA because it had no probative value whatsoever. 36 The Court disagrees. It has indeed been held that hearsay evidence whether objected to or not cannot be given credence for having no probative value. 37 This principle, however, has been relaxed in cases where, in addition to the failure to object to the admissibility of the subject evidence, there were other pieces of evidence presented or there were other circumstances prevailing to support the fact in issue. In Top-Weld Manufacturing, Inc. v. ECED S.A., 38 this Court held: cTEICD Hearsay evidence alone may be insufficient to establish a fact in an injunction suit (Parker v. Furlong, 62 P. 490) but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves. (Smith v. Delaware & Atlantic Telegraph & Telephone Co., 51 A 464). Although we should warn of the undesirability of issuing judgments solely on the basis of the affidavits submitted, where as here, said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable, we are

constrained to uphold the allegations of the respondents regarding the multifarious violations of the contracts made by the petitioner. In the case at bench, there were other prevailing circumstances which corroborate the testimony of Amparo Castillo. First, the other Deeds of Sale which were executed in favor of Liberato, Prudencia, and Valeriana on the same day as that of Policronio's were all presented in evidence. Second, all the properties subject therein were included in the Deed of Extra-Judicial Partition of the estate of Alfonso. Third, Policronio, during his lifetime, never exercised acts of ownership over the subject properties (as he never demanded or took possession of them, never demanded or received the produce thereof, and never paid real estate taxes thereon). Fourth, Policronio never informed his children of the sale. As the Heirs of Policronio failed to controvert the evidence presented, and to timely object to the testimony of Amparo Castillo, both the RTC and the CA correctly accorded probative weight to her testimony. Prior Action Unnecessary The Heirs of Policronio averred that the Heirs of Alfonso should have filed an action to declare the sale void prior to executing the Deed of Extra-Judicial Partition. They argued that the sale should enjoy the presumption of regularity, and until overturned by a court, the Heirs of Alfonso had no authority to include the land in the inventory of properties of Alfonso's estate. By doing so, they arrogated upon themselves the power of invalidating the Deed of Sale which is exclusively vested in a court of law which, in turn, can rule only upon the observance of due process. Thus, they contended that prescription, laches, or estoppel have set in to militate against assailing the validity of the sale. TADaCH The Heirs of Policronio are mistaken. A simulated contract of sale is without any cause or consideration, and is, therefore, null and void; in such case, no independent action to rescind or annul the contract is necessary, and it may be treated as non-existent for all purposes. 39 A void or inexistent contract is one which has no force and effect from the beginning, as if it has never been entered into, and which cannot be validated either by time or ratification. A void contract produces no effect whatsoever either against or in favor of anyone; it does not create, modify or extinguish the juridical relation to which it refers. 40 Therefore, it was not necessary for the Heirs of Alfonso to first file an action to declare the nullity of the Deed of Sale prior to executing the Deed of Extra-Judicial Partition. Personality to Question Sale The Heirs of Policronio contended that the Heirs of Alfonso are not parties, heirs, or successors-in-interest under the contemplation of law to clothe them with the personality to question the Deed of Sale. They argued that under Article 1311 of the Civil Code, contracts take effect only between the parties, their assigns and

heirs. Thus, the genuine character of a contract which personally binds the parties cannot be put in issue by a person who is not a party thereto. They posited that the Heirs of Alfonso were not parties to the contract; neither did they appear to be beneficiaries by way of assignment or inheritance. Unlike themselves who are direct heirs of Policronio, the Heirs of Alfonso are not Alfonso's direct heirs. For the Heirs of Alfonso to qualify as parties, under Article 1311 of the Civil Code, they must first prove that they are either heirs or assignees. Being neither, they have no legal standing to question the Deed of Sale. They further argued that the sale cannot be assailed for being barred under Article 1421 of the Civil Code which provides that the defense of illegality of a contract is not available to third persons whose interests are not directly affected. Again, the Court disagrees. Article 1311 and Article 1421 of the Civil Code provide: Art. 1311. Contracts take effect only between the parties, their assigns and heirs, ... Art. 1421. The defense of illegality of contracts is not available to third persons whose interests are not directly affected. The right to set up the nullity of a void or non-existent contract is not limited to the parties, as in the case of annullable or voidable contracts; it is extended to third persons who are directly affected by the contract. Thus, where a contract is absolutely simulated, even third persons who may be prejudiced thereby may set up its inexistence. 41 The Heirs of Alfonso are the children of Alfonso, with his deceased children represented by their children (Alfonso's grandchildren). The Heirs of Alfonso are clearly his heirs and successors-in-interest and, as such, their interests are directly affected, thereby giving them the right to question the legality of the Deed of Sale. CHTcSE Inapplicability of Article 842 The Heirs of Policronio further argued that even assuming that the Heirs of Alfonso have an interest in the Deed of Sale, they would still be precluded from questioning its validity. They posited that the Heirs of Alfonso must first prove that the sale of Alfonso's properties to Policronio substantially diminished their successional rights or that their legitimes would be unduly prejudiced, considering that under Article 842 of the Civil Code, one who has compulsory heirs may dispose of his estate provided that he does not contravene the provisions of the Civil Code with regard to the legitime of said heirs. Having failed to do so, they argued that the Heirs of Alfonso should be precluded from questioning the validity of the Deed of Sale. Still, the Court disagrees. Article 842 of the Civil Code provides:

Art. 842. 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. 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. This article refers to the principle of freedom of disposition by will. What is involved in the case at bench is not a disposition by will but by Deed of Sale. Hence, the Heirs of Alfonso need not first prove that the disposition substantially diminished their successional rights or unduly prejudiced their legitimes. Inapplicability of Article 1412 The Heirs of Policronio contended that even assuming that the contract was simulated, the Heirs of Alfonso would still be barred from recovering the properties by reason of Article 1412 of the Civil Code, which provides that if the act in which the unlawful or forbidden cause does not constitute a criminal offense, and the fault is both on the contracting parties, neither may recover what he has given by virtue of the contract or demand the performance of the other's undertaking. As the Heirs of Alfonso alleged that the purpose of the sale was to avoid the payment of inheritance taxes, they cannot take from the Heirs of Policronio what had been given to their father. On this point, the Court again disagrees. EHSIcT Article 1412 of the Civil Code is as follows: Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the following rules shall be observed: (1) When the fault is on the part of both contracting parties, neither may recover what he has given by virtue of the contract, or demand the performance of the other's undertaking; (2) When only one of the contracting parties is at fault, he cannot recover what he has given by reason of the contract, or ask for the fulfillment of what has been promised him. The other, who is not at fault, may demand the return of what he has given without any obligation to comply with his promise. Article 1412 is not applicable to fictitious or simulated contracts, because they refer to contracts with an illegal cause or subject-matter. 42 This article presupposes the existence of a cause, it cannot refer to fictitious or simulated contracts which are in reality non-existent. 43 As it has been determined that the Deed of Sale is a simulated contract, the provision cannot apply to it. Granting that the Deed of Sale was not simulated, the provision would still not apply. Since the subject properties were included as properties of Alfonso in the Deed of Extra-Judicial Partition, they are covered by corresponding inheritance and estate taxes. Therefore, tax evasion, if at all present, would not arise, and Article 1412 would again be inapplicable. Prescription

From the position that the Deed of Sale is valid and not void, the Heirs of Policronio argued that any question regarding its validity should have been initiated through judicial process within 10 years from its notarization in accordance with Article 1144 of the Civil Code. Since 21 years had already elapsed when the Heirs of Alfonso assailed the validity of the Deed of Sale in 1996, prescription had set in. Furthermore, since the Heirs of Alfonso did not seek to nullify the tax declarations of Policronio, they had impliedly acquiesced and given due recognition to the Heirs of Policronio as the rightful inheritors and should, thus, be barred from laying claim on the land. The Heirs of Policronio are mistaken. Article 1410 of the Civil Code provides: Art. 1410. The action for the declaration of the inexistence of a contract does not prescribe. This is one of the most fundamental characteristics of void or inexistent contracts. 44 aATEDS As the Deed of Sale is a void contract, the action for the declaration of its nullity, even if filed 21 years after its execution, cannot be barred by prescription for it is imprescriptible. Furthermore, the right to set up the defense of inexistence or absolute nullity cannot be waived or renounced. 45 Therefore, the Heirs of Alfonso cannot be precluded from setting up the defense of its inexistence. Validity of the Deed of Extra-Judicial Partition The Court now resolves the issue of the validity of the Deed of Extra-Judicial Partition. Unenforceability The Heirs of Alfonso argued that the CA was mistaken in annulling the Deed of Extra-Judicial Partition due to the incapacity of Conrado to give the consent of his co-heirs for lack of a special power of attorney. They contended that what was involved was not the capacity to give consent in behalf of the co-heirs but the authority to represent them. They argue that the Deed of Extra-Judicial Partition is not a voidable or an annullable contract under Article 1390 of the Civil Code, but rather, it is an unenforceable or, more specifically, an unauthorized contract under Articles 1403 (1) and 1317 of the Civil Code. As such, the Deed of Extra-Judicial Partition should not be annulled but only be rendered unenforceable against the siblings of Conrado. They further argued that under Article 1317 of the Civil Code, when the persons represented without authority have ratified the unauthorized acts, the contract becomes enforceable and binding. They contended that the Heirs of Policronio ratified the Deed of Extra-Judicial Partition when Conrado took possession of one of the parcels of land adjudicated to him and his siblings, and when another parcel was used as collateral for a loan entered into by some of the Heirs of Policronio.

The Deed of Extra-Judicial Partition having been ratified and its benefits accepted, the same thus became enforceable and binding upon them. The Heirs of Alfonso averred that granting arguendo that Conrado was not authorized to represent his co-heirs and there was no ratification, the CA should not have remanded the case to the RTC for partition of Alfonso's estate. They argued that the CA should not have applied the Civil Code general provision on contracts, but the special provisions dealing with succession and partition. They contended that contrary to the ruling of the CA, the extra-judicial partition was not an act of strict dominion, as it has been ruled that partition of inherited land is not a conveyance but a confirmation or ratification of title or right to the land. 46 Therefore, the law requiring a special power of attorney should not be applied to partitions. DHEaTS On the other hand, the Heirs of Policronio insisted that the CA pronouncement on the invalidity of the Deed of Extra-Judicial Partition should not be disturbed because the subject properties should not have been included in the estate of Alfonso, and because Conrado lacked the written authority to represent his siblings. They argued with the CA in ruling that a special power of attorney was required before Conrado could sign in behalf of his co-heirs. The Heirs of Policronio denied that they ratified the Deed of Extra-Judicial Partition. They claimed that there is nothing on record that establishes that they ratified the partition. Far from doing so, they precisely questioned its execution by filing a complaint. They further argued that under Article 1409 (3) of the Civil Code, ratification cannot be invoked to validate the illegal act of including in the partition those properties which do not belong to the estate as it provides another mode of acquiring ownership not sanctioned by law. Furthermore, the Heirs of Policronio contended that the defenses of unenforceability, ratification, and preterition are being raised for the first time on appeal by the Heirs of Alfonso. For having failed to raise them during the trial, the Heirs of Alfonso should be deemed to have waived their right to do so. The Court agrees in part with the Heirs of Alfonso. To begin, although the defenses of unenforceability, ratification and preterition were raised by the Heirs of Alfonso for the first time on appeal, they are concomitant matters which may be taken up. As long as the questioned items bear relevance and close relation to those specifically raised, the interest of justice would dictate that they, too, must be considered and resolved. The rule that only theories raised in the initial proceedings may be taken up by a party thereto on appeal should refer to independent, not concomitant matters, to support or oppose the cause of action. 47

In the RTC, the Heirs of Policronio alleged that Conrado's consent was vitiated by mistake and undue influence, and that he signed the Deed of Extra-Judicial Partition without the authority or consent of his co-heirs. The RTC found that Conrado's credibility had faltered, and his claims were rejected by the RTC as gratuitous assertions. On the basis of such, the RTC ruled that Conrado duly represented his siblings in the Deed of Extra-Judicial Partition. On the other hand, the CA annulled the Deed of Extra-Judicial Partition under Article 1390 (1) of the Civil Code, holding that a special power of attorney was lacking as required under Article 1878 (5) and (15) of the Civil Code. These articles are as follows: Art. 1878. Special powers of attorney are necessary in the following cases: xxx xxx xxx (5) To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration; xxx xxx xxx (15) Any other act of strict dominion. Art. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; HICEca (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. This Court finds that Article 1878 (5) and (15) is inapplicable to the case at bench. It has been held in several cases 48 that partition among heirs is not legally deemed a conveyance of real property resulting in change of ownership. It is not a transfer of property from one to the other, but rather, it is a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. It is merely a designation and segregation of that part which belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore, be considered as an act of strict dominion. Hence, a special power of attorney is not necessary. In fact, as between the parties, even an oral partition by the heirs is valid if no creditors are affected. The requirement of a written memorandum under the statute of frauds does not apply to partitions effected by the heirs where no creditors are involved considering that such transaction is not a conveyance of property resulting in change of ownership but merely a designation and segregation of that part which belongs to each heir. 49

Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates the incapacity of a party to give consent to a contract. What is involved in the case at bench though is not Conrado's incapacity to give consent to the contract, but rather his lack of authority to do so. Instead, Articles 1403 (1), 1404, and 1317 of the Civil Code find application to the circumstances prevailing in this case. They are as follows: Art. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; Art. 1404. Unauthorized contracts are governed by Article 1317 and the principles of agency in Title X of this Book. Art. 1317. No one may contract in the name of another without being authorized by the latter, or unless he has by law a right to represent him. AIHECa A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party. Such was similarly held in the case of Badillo v. Ferrer: The Deed of Extrajudicial Partition and Sale is not a voidable or an annullable contract under Article 1390 of the New Civil Code. Article 1390 renders a contract voidable if one of the parties is incapable of giving consent to the contract or if the contracting party's consent is vitiated by mistake, violence, intimidation, undue influence or fraud. . . . The deed of extrajudicial partition and sale is an unenforceable or, more specifically, an unauthorized contract under Articles 1403(1) and 1317 of the New Civil Code. 50 Therefore, Conrado's failure to obtain authority from his co-heirs to sign the Deed of Extra-Judicial Partition in their behalf did not result in his incapacity to give consent so as to render the contract voidable, but rather, it rendered the contract valid but unenforceable against Conrado's co-heirs for having been entered into without their authority. A closer review of the evidence on record, however, will show that the Deed of Extra-Judicial Partition is not unenforceable but, in fact, valid, binding and enforceable against all the Heirs of Policronio for having given their consent to the contract. Their consent to the Deed of Extra-Judicial Partition has been proven by a preponderance of evidence. Regarding his alleged vitiated consent due to mistake and undue influence to the Deed of Extra-Judicial Partition, Conrado testified, to wit:

Q: Mr. Ureta you remember having signed a document entitled deed of extra judicial partition consisting of 11 pages and which have previously [been] marked as Exhibit I for the plaintiffs? TEHDIA A: Yes sir. Q: Can you recall where did you sign this document? A: The way I remember I signed that in our house. Q: And who requested or required you to sign this document? A: My aunties. Q: Who in particular if you can recall? A: Nay Pruding Panadero. Q: You mean that this document that you signed was brought to your house by your Auntie Pruding Pa[r]adero [who] requested you to sign that document? A: When she first brought that document I did not sign that said document because I [did] no[t] know the contents of that document. Q: How many times did she bring this document to you [until] you finally signed the document? A: Perhaps 3 times. Q: Can you tell the court why you finally signed it? A: Because the way she explained it to me that the land of my grandfather will be partitioned. IEAHca Q: When you signed this document were your brothers and sisters who are your co-plaintiffs in this case aware of your act to sign this document? A: They do not know. xxx xxx xxx Q: After you have signed this document did you inform your brothers and sisters that you have signed this document? A: No I did not. 51 xxx xxx xxx Q: Now you read the document when it was allegedly brought to your house by your aunt Pruding Pa[r]adero? A: I did not read it because as I told her I still want to ask the advise of my brothers and sisters. Q: So do I get from you that you have never read the document itself or any part thereof? A: I have read the heading. xxx xxx xxx Q: And why is it that you did not read all the pages of this document because I understand that you know also how to read in English? A: Because the way Nay Pruding explained to me is that the property of my grandfather will be partitioned that is why I am so happy. IADaSE

xxx xxx xxx Q: You mean to say that after you signed this deed of extra judicial partition up to the present you never informed them? A: Perhaps they know already that I have signed and they read already the document and they have read the document. Q: My question is different, did you inform them? A: The document sir? I did not tell them. Q: Even until now? A: Until now I did not inform them. 52 This Court finds no cogent reason to reverse the finding of the RTC that Conrado's explanations were mere gratuitous assertions not entitled to any probative weight. The RTC found Conrado's credibility to have faltered when he testified that perhaps his siblings were already aware of the Deed of Extra-Judicial Partition. The RTC was in the best position to judge the credibility of the witness' testimony. The CA also recognized that Conrado's consent was not vitiated by mistake and undue influence as it required a special power of attorney in order to bind his coheirs and, as such, the CA thereby recognized that his signature was binding to him but not with respect to his co-heirs. Findings of fact of the trial court, particularly when affirmed by the CA, are binding to this Court. 53 Furthermore, this Court notes other peculiarities in Conrado's testimony. Despite claims of undue influence, there is no indication that Conrado was forced to sign by his aunt, Prudencia Paradero. In fact, he testified that he was happy to sign because his grandfather's estate would be partitioned. Conrado, thus, clearly understood the document he signed. It is also worth noting that despite the document being brought to him on three separate occasions and indicating his intention to inform his siblings about it, Conrado failed to do so, and still neglected to inform them even after he had signed the partition. All these circumstances negate his claim of vitiated consent. Having duly signed the Deed of Extra-Judicial Partition, Conrado is bound to it. Thus, it is enforceable against him. Although Conrado's co-heirs claimed that they did not authorize Conrado to sign the Deed of Extra-Judicial Partition in their behalf, several circumstances militate against their contention. 2005jurcd First, the Deed of Extra-Judicial Partition was executed on April 19, 1989, and the Heirs of Policronio claim that they only came to know of its existence on July 30, 1995 through an issue of the Aklan Reporter. It is difficult to believe that Conrado did not inform his siblings about the Deed of Extra-Judicial Partition or at least broach its subject with them for more than five years from the time he signed it, especially after indicating in his testimony that he had intended to do so. Second, Conrado retained possession of one of the parcels of land adjudicated to him and his co-heirs in the Deed of Extra-Judicial Partition.

Third, after the execution of the partition on April 19, 1989 and more than a year before they claimed to have discovered the existence of the Deed of Extra-Judicial Partition on July 30, 1995, some of the Heirs of Policronio, namely, Rita Solano, Macario Ureta, Lilia Tayco, and Venancio Ureta executed on June 1, 1994, a Special Power of Attorney 54 in favor of their sister Gloria Gonzales, authorizing her to obtain a loan from a bank and to mortgage one of the parcels of land adjudicated to them in the Deed of Extra-Judicial Partition to secure payment of the loan. They were able to obtain the loan using the land as collateral, over which a Real Estate Mortgage 55 was constituted. Both the Special Power of Attorney and the Real Estate Mortgage were presented in evidence in the RTC, and were not controverted or denied by the Heirs of Policronio. Fourth, in the letter dated August 15, 1995, sent by the counsel of the Heirs of Policronio to the Heirs of Alfonso requesting for amicable settlement, there was no mention that Conrado's consent to the Deed of Extra-Judicial Partition was vitiated by mistake and undue influence or that they had never authorized Conrado to represent them or sign the document on their behalf. It is questionable for such a pertinent detail to have been omitted. The body of said letter is reproduced hereunder as follows: Greetings: Your nephews and nieces, children of your deceased brother Policronio Ureta, has referred to me for appropriate legal action the property they inherited from their father consisting of six (6) parcels of land which is covered by a Deed of Absolute Sale dated October 25, 1969. These properties ha[ve] already been transferred to the name of their deceased father immediately after the sale, machine copy of the said Deed of Sale is hereto attached for your ready reference. Lately, however, there was published an Extra-judicial Partition of the estate of Alfonso Ureta, which to the surprise of my clients included the properties already sold to their father before the death of said Alfonso Ureta. This inclusion of their property is erroneous and illegal because these properties were covered by the Deed of Absolute Sale in favor of their father Policronio Ureta no longer form part of the estate of Alfonso Ureta. Since Policronio Ureta has [sic] died in 1974 yet, these properties have passed by hereditary succession to his children who are now the true and lawful owners of the said properties. My clients are still entitled to a share in the estate of Alfonso Ureta who is also their grandfather as they have stepped into the shoes of their deceased father Policronio Ureta. But this estate of Alfonso Ureta should already exclude the six (6) parcels of land covered by the Deed of Absolute Sale in favor of Policronio Ureta. My clients cannot understand why the properties of their late father [should] be included in the estate of their grandfather and be divided among his brothers and

sisters when said properties should only be divided among themselves as children of Policronio Ureta. Since this matter involves very close members of the same family, I have counseled my clients that an earnest effort towards a compromise or amicable settlement be first explored before resort to judicial remedy is pursued. And a compromise or amicable settlement can only be reached if all the parties meet and discuss the problem with an open mind. To this end, I am suggesting a meeting of the parties on September 16, 1995 at 2:00 P.M. at B Place Restaurant at C. Laserna St., Kalibo, Aklan. It would be best if the parties can come or be represented by their duly designated attorney-in-fact together with their lawyers if they so desire so that the problem can be discussed unemotionally and intelligently. SACTIH I would, however, interpret the failure to come to the said meeting as an indication that the parties are not willing to or interested in amicable settlement of this matter and as a go signal for me to resort to legal and/or judicial remedies to protest the rights of my clients. Thank you very much. 56 Based on the foregoing, this Court concludes that the allegation of Conrado's vitiated consent and lack of authority to sign in behalf of his co-heirs was a mere afterthought on the part of the Heirs of Policronio. It appears that the Heirs of Policronio were not only aware of the existence of the Deed of Extra-Judicial Partition prior to June 30, 1995 but had, in fact, given Conrado authority to sign in their behalf. They are now estopped from questioning its legality, and the Deed of Extra-Judicial Partition is valid, binding, and enforceable against them. In view of the foregoing, there is no longer a need to discuss the issue of ratification. Preterition The Heirs of Alfonso were of the position that the absence of the Heirs of Policronio in the partition or the lack of authority of their representative results, at the very least, in their preterition and not in the invalidity of the entire deed of partition. Assuming there was actual preterition, it did not render the Deed of Extra-Judicial Partition voidable. Citing Article 1104 of the Civil Code, they aver that a partition made with preterition of any of the compulsory heirs shall not be rescinded, but the heirs shall be proportionately obliged to pay the share of the person omitted. Thus, the Deed of Extra-Judicial Partition should not have been annulled by the CA. Instead, it should have ordered the share of the heirs omitted to be given to them. The Heirs of Alfonso also argued that all that remains to be adjudged is the right of the preterited heirs to represent their father, Policronio, and be declared entitled to his share. They contend that remand to the RTC is no longer necessary as the issue is purely legal and can be resolved by the provisions of the Civil Code for there is

no dispute that each of Alfonso's heirs received their rightful share. Conrado, who received Policronio's share, should then fully account for what he had received to his other co-heirs and be directed to deliver their share in the inheritance. These arguments cannot be given credence. Their posited theory on preterition is no longer viable. It has already been determined that the Heirs of Policronio gave their consent to the Deed of ExtraJudicial Partition and they have not been excluded from it. Nonetheless, even granting that the Heirs of Policronio were denied their lawful participation in the partition, the argument of the Heirs of Alfonso would still fail. Preterition under Article 854 of the Civil Code is as follows: 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. cHDAIS If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. Preterition has been defined as the total omission of a compulsory heir from the inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. 57 Preterition is thus a concept of testamentary succession and requires a will. In the case at bench, there is no will involved. Therefore, preterition cannot apply. Remand Unnecessary The Deed of Extra-Judicial Partition is in itself valid for complying with all the legal requisites, as found by the RTC, to wit: A perusal of the Deed of Extra-judicial Partition would reveal that all the heirs and children of Alfonso Ureta were represented therein; that nobody was left out; that all of them received as much as the others as their shares; that it distributed all the properties of Alfonso Ureta except a portion of parcel 29 containing an area of 14,000 square meters, more or less, which was expressly reserved; that Alfonso Ureta, at the time of his death, left no debts; that the heirs of Policronio Ureta, Sr. were represented by Conrado B. Ureta; all the parties signed the document, was witnessed and duly acknowledged before Notary Public Adolfo M. Iligan of Kalibo, Aklan; that the document expressly stipulated that the heirs to whom some of the properties were transferred before for taxation purposes or their children, expressly recognize and acknowledge as a fact that the properties were transferred only for the purpose of effective administration and development convenience in the payment of taxes and, therefore, all instruments conveying or effecting the transfer of said properties are null and void from the beginning (Exhs. 1-4, 7-d). 58

Considering that the Deed of Sale has been found void and the Deed of ExtraJudicial Partition valid, with the consent of all the Heirs of Policronio duly given, there is no need to remand the case to the court of origin for partition. WHEREFORE, the petition in G.R. No. 165748 is DENIED. The petition in G.R. No. 165930 is GRANTED. The assailed April 20, 2004 Decision and October 14, 2004 Resolution of the Court of Appeals in CA-G.R. CV No. 71399, are hereby MODIFIED in this wise: AEIcSa (1) The Deed of Extra-Judicial Partition, dated April 19, 1989, is VALID, and (2) The order to remand the case to the court of origin is hereby DELETED. SO ORDERED. XIII. RESERVA TRONCAL NCC 891 Edroso v Sablan, 25 Phil 295 FIRST DIVISION [G.R. No. 6878. September 13, 1913.] MARCELINA EDROSO, petitioner-appellant, vs. PABLO and BASILIO SABLAN, opponents-appellees. Francisco Dominguez for appellant. Crispin Oben for appellees. SYLLABUS 1. ESTATES; DUTY OF ASCENDANT, WHO INHERITS THROUGH A DESCENDANT, TO RESERVE THE PROPERTY IN ACCORDANCE WITH LAW; ARTICLE 811, CIVIL CODE. Property which an ascendant inherits by operation of law from his descendant and which was inherited by the latter from another ascendant of his, must be reserved by the ascendant heir in favor of uncles of the descendant from whom the inheritance proceeded, who are his father's brothers, because they are relatives within the third degree, if they belong to the line whence the property proceeded, according to the provisions of article 811 of the Civil Code. 2. ID.; ID.; RIGHTS OF PERSONS FOR WHOM SUCH PROPERTY IS RESERVED. Since the reservation does not imply coownership of any kind between the reservor and the reservees, that is, between the ascendant who is the immediate heir of the person from whom the inheritance proceeded and who is the actual owner of the property to be reserved and the relatives within the third degree of such person, who are merely in their turn and eventually his possible heirs in second place, if they outlive the heir who must make the reservation, such reservees, with only the expectation of inheriting, are not in law entitled to act and be regarded as though they actually participated in the ownership of the property to be registered by taking part or pretending to take part in the application for

registration which the reservor presents; the fact being that with such expectation of inheriting, which is neither a real nor a personal a personal right, but at most a legitimate expectation of a right, they cannot be better off than a mortgage who has a real right to the property that his debtor attempts to register, and yet the Land Registration Act (No 496, sec. 19 b) only grants him the right that the application of the mortgagor cannot be presented without his consent in writing. 3. ID.; ID.; RIGHT OF ASCENDANT TO DISPOSE OF OR REGISTER THE PROPERTY IN HIS OWN NAME. The heir of real property who has beyond any doubt the rights of using and enjoying it, and even of alienating it, is not prevented from himself alone registering the title to the property he has inherited, merely because to his right of disposal there is annexed a condition subsequent arising from the expectation of a right, when the reservees who have that expectation of a right agreed thereto, provided that, in accordance with the law, the reservable character of such property in their favor be entered in the record. DECISION ARELLANO, C.J p: The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other of 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment. Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue, and by his decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership. Two legitimate brothers of Victoriano Sablan that is, two uncles german of Pedro Sablan appeared in the case to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.) The Court of Land Registration denied the registration and the applicant appealed through a bill of exceptions. Registration was denied because the trial court held that the parcels of land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the lands which are the subject matter of the application are required by law to be reserved a contention we regard as indefensible. Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between him and his brothers. There are admitted facts. A very definite conclusion of law is that the hereditary title is one without a valuable consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of blood relationship. "The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another ascendant, or from a brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line whence the property proceeded." (Civil Code, art. 811.) Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which had acquired without a valuable consideration that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to reserve them intact for the claimants, who are uncles or relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature of property required by law to be reserved is therefore in accordance with the law. But the appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to be reserved. The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the opponents speak; hence, prescription of the right of action; and, finally, opponents' renunciation of their right, admitting that it existed and that they had it" (p. 49). However that be, it is not superfluous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died

"unmarried and without issue." The trial court so held as a conclusion of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code: "In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to the exclusion of collaterals." The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrates any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the predecessor in interest. (Act. No. 190, sec. 334, No. 26.) All the provisions of article 811 of the Civil Code have therefore been fully complied with. If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant. "The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what is established in article 836." (Civil Code, art. 809.) In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law would fall to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says. No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either of them became her inheritance through the free disposal of her son. Proof of testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also presumed to be acquired by operation of law that is, by intestate succession. Otherwise, proof to offset this presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish and not by operation of law. Nor is the third assignment of error admissible that the trial court failed to sustain the renunciation of the right required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers at the trial:

"The day after my brother-in-law Pablo Sablan died and was buried, his brother came to my house and said that those rice lands were mine, because we had already talked about making delivery of them" (p. 91). The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the lands belong to the appellant and must be delivered to her it cannot be deduced that he renounced the right required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to her. The fourth assignment of error sets up the defense of prescription of the right of action. The appellant alleges prescription of the opponents' right of action for requiring fulfillment of the obligation they attribute to her recording in the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is created by law, it prescribes in the time fixed in No. 2 of section 43 of Act No. 190. She adds: "Prescription of the right alleged to be reserved by force by law has not been invoked." (Eighth allegation.) The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are entitled to the guaranty of that right for seeking that guaranty, for to those who are entitled to that right the Mortgage Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of the record.) The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the right required by law to be reserved; but because that right of action has prescribed, that property has not been divested of its character of property required by law to be reserved; that it has such character by virtue of article 811 of the Civil Code, which went into effect in the Philippines in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which did not yet form part of the positive legislation of the country; that although the Mortgage Law has been in effect in the country since July, 1893, still

it has in no way altered the force of article 811 of the Civil Code, but has operated to reinforce the same merely by granting the right of action to the persons in whose favor the right is reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of the accessory does not mean loss of the principal. (Fifth and sixth allegations.) The existence of the right required by law to be reserved in the two parcels of land in question being indisputable, even though it be admitted that the right of action which the Mortgage Law grants as a guaranty of final enforcement of such right has prescribed, the only thing to be determined in this appeal is the question raised in the first assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as there have slipped into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the rights required to be reserved in Spanish-Philippine law, a brief digression on the most essential points may not be out of place here. The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law States: "The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in those regions the renovation of the law on real property, and consequently of agrarian credit." The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day. Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968 thereof, where it says: "Besides the reservation imposed by article 811, the widow or widower contracting a second marriage shall be obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she may have acquired from the deceased spouse by will, by intestate succession, by gift, or other transfer without a valuable consideration." The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 1889, do not contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the right in favor of the children of the first marriage when their father or mother contracts a second marriage. Nevertheless, the holding of the

supreme court of Spain, for the first time set forth in the decision on appeal of November 8, 1894, has been reiterated: "That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be reserved in the property refer especially to the spouses who contract second or later marriages, they do not thereby cease to be applicable to the right established in article 811, because, aside from the legal reason, which is the same in both cases, such must be the construction from the important and conclusive circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either testate or intestate, and because article 968, which heads the section that deals in general with property required by law to be reserved, makes reference to the provisions in article 811; and it would consequently be contradictory to the principle of the law and of the common nature of said provisions not to hold them applicable to that right." Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already declared, the guaranties that the Code fixes in articles 977 and 978 for the rights required by law to be reserved to which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists and because of the general nature of the provisions of the chapter in which they are found." From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a right required to be reserved by article 811, the persons entitled to such right would have been able to institute, against the ascendants who must make the reservation, proceedings for the assurance and guaranty that articles 977 and 978 grant to the children of a first marriage against their father or mother who has married again. The proceedings for assurance, under article 977, are: Inventory of the property subject to the right reserved, annotation in the property registry of such right reserved in the real property and appraisal of the personal property; and the guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly alienated. But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of said law, which is an advantage over the law of Spain, to wit, article 199, which read thus: "The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be required by the persons who should legally represent them. In either case the right of the persons in whose favor the property must be reserved will be secured by the same requisites as set forth in

the preceding articles (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to reserve the right the provisions with respect to the father." In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article 168 reads thus: "Legal mortgage is established: "1. . . . "2. In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be reserved, upon the property of the person obligated to reserve it." This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should be noted that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for the exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the person who must make the reservation. Article 191 of the law reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the foregoing article refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article 199, to the person obligated to reserve the right the provisions with respect to the father." Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the interested parties may require the institution of such proceedings, if they are of age; and in any other case, their legal representatives." Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the exercise of this right of action by the persons in whose favor the right must be reserved, but really the commencement thereof, and enables them to exercise it at any time, since no limit is set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an allegation of prescription against the exercise of such right of action cannot be sustained. Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the proceedings that should be

instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action cannot take place, because such right of action does not exist with reference to instituting proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in the present case, to intervene in the registration proceedings with the claim set up by the two opponents for recording therein the right reserved in either parcel of land. Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its decision: "Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common." (B. of E., p. 20.) It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person who has in himself all these rights has the absolute or complete ownership of the thing; otherwise, the person who has the rights to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights of using and enjoying, and then he is said not to have the fee simple that is, the rights of disposal and recovery, which pertain to another who, after the usufruct expires, will come into full ownership. The question set up in the first assignment of error of the appellant's brief is this: "What are the rights in the property of the person who holds it subject to the reservation of article 811 of the Civil Code?" There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the persons in whose favor the reservation is made. If that were so, the person holding the property could not apply for registration of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be admissible, although it appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof. Another writer says: "This opinion only looks at two salient points the usufruct and the fee simple; the remaining features of the arrangement are not perceived, but become obscured in the presence of that deceptive emphasis which only brings out two things: that the person holding the property will enjoy it and that he must keep what he enjoys for other person." (Manresa, VII, 189.) In another place he says: "We do not believe that the third opinion can now be maintained that is, that the surviving spouse (the person obligated by article 968 to make the reservation) can be regarded as a mere usufructuary and the

descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.) The ascendants who inherits from a descendant, whether by the latter's wish or by operation of law, acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership belong to him exclusively use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third decree who belong to the line whence the property proceeded, then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have any support in the law, as it does not have, according to the opinion that has been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference between the case where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case, there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and only he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property (except that he may dispose of the right of usufruct in accordance with the provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the ascendant who holds the property required by article 811 to be reserved, and the father or mother required by article 968 to reserve the right, can dispose of the property they inherit itself, the former from his descendant and the latter from his or her child in first marriage, and recover it from anyone who may unjustly detain it, while the persons in whose favor the rights is required to be reserved in either case cannot perform any act whatsoever of disposal of recovery. Article 975 states explicitly that the father or mother required by article 968 to reserve the right may dispose of the property itself: "Alienation of the property required by law to be reserved which may be made by the surviving spouse after contracting a second marriage shall be valid only if at his or her death no legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the Mortgage Law."

It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage survive." If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The law says that the alienation subsists (to subsist is to continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says: "The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate it, provided always that he preserve the right of the parties interested in said conditions by expressly reserving that right in the registration." In such case, the child or legitimate descendant of the first marriage in whose favor the right is reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right should outlive all the persons in whose favor the right is reserved and then there would be no reason for the condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved would disappear, and the alienation would not only be valid but also in every way absolutely effective. Consequently, the alienation is valid when the right required by law to be reserved to the children is respected; while the effects of the alienation depend upon a condition, because it will or will not become definite, it will continue to exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968, wherein the legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that the ascendant must make the reservation. Manresa, with his recognized ability, summarizes the subject under the hearing, "Rights and obligations during the existence of the right required by law to be reserved," in these words: "During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs.

"The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the articles of the Code referring to use and usufruct. "But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the property, he can dispose of it in the manner provided in articles 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the attitude of the legislator on this subject, and the relatives within the third degree ought not to be more privileged in the right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.) Another commentator corroborates the foregoing in every way. He says: "The ascendant acquires that property with a condition subsequent, to wit, whether or not there exist at the time of his death relatives within the third degree of the descendant from whom they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendant. If they do not exist, the ascendant can freely dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendant may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will acquire it and all the rest that has the same character in complete ownership, in fee simple, because the condition and the usufructuary." (Morell, Estudios sobre bienes reservables, 304, 305.) The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a

word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do. On the other hand, the relatives within the third degree in whose favor the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree, that is to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their right has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as it may even become absolute should that person die." Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendant from whom he got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." ( Decision of December 30, 1897.) Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made of the property the law requires to be reserved, in the present case, that which the applicant has made of the two parcels of land in question to a third party, because the conditional alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved

are all that the person who must reserve it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual and positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish of the predecessor in interest. If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it, although under a condition, the whole question is reduced to the following terms: Cannot the heir of the property required by law to be reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose favor the reservation must be made agree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides? It is well known that the vendee under pacto de retracto acquires all the rights of the vendor: "The vendee substitutes the vendor in all his rights and actions." (Civil Code, art. 1511.) If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says: "Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold with the obligation to comply with article 1518, and whatever more may have been agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged that is to say, the latter with the consent of his creditor and the former with the consent of the vendor. He may alienate the thing bought when the acquirer knows very well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purposes of the law would be defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more powerful and conclusive; ubi eadem ratio, eadem legis dispositio.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the application, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special finding as to costs. Sienes v Esparcia, 1 SCRA 750 EN BANC [G.R. No. L-12957. March 24, 1961.] CONSTANCIO SIENES, ET AL., plaintiffs-appellants, vs. FIDEL ESPARCIA, ET AL., defendants-appellees. Proceso R. Remollo for plaintiffs-appellants. Leonardo O. Mancao for defendants-appellees. SYLLABUS 1. "RESERVA TRONCAL"; RESERVABLE PROPERTY; RESERVOR HAS LEGAL TITLE AND DOMINION OVER PROPERTY SUBJECT TO A RESOLUTORY CONDITION; ALIENATIONS MADE BY HIM SUBJECT TO RESERVATION; TRANSFEREE'S RIGHT REVOKED BY THE SURVIVAL OF A RESERVEE UPON DEATH OF RESERVOR. The reservor has the legal title and dominion to the reservable property but subject to a resolutory condition. Thus he may alienate the same but subject to reservation, i.e., the rights acquired by the transferee being revoked upon the survival of reservees at the time of death of the reservor (Edroso vs. Sablan, 25 Phil., 295; Lunsod vs. Ortega, 46 Phil., 664; Florentino vs. Florentino, 40 Phil., 480; and Director of Lands vs. Aguas, 63 Phil., 279.) 2. ID.; ID.; RESERVA INSTITUTED BY LAW IN FAVOR OF RESERVEES IS ALIENABLE TO A RESOLUTORY CONDITION. THE reserva instituted in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may alienate and dispose of, although conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the reservor. 3. ID.; ID.; WHEN RESERVEE BECOMES EXCLUSIVE OWNER. Upon the death of the reservor, there being a surviving reservee, the reservable property passes in exclusive ownership to the latter. DECISION DIZON, J p: Appellants commence this action below to secure judgments (1) declaring null and void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to

reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the costs of suit. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that if such sale was made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered together with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the property as owners. After trial upon the issues thus joined, the lower court rendered judgment as follows: "In view of all the foregoing, judgment is hereby rendered declaring (1) that the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have no valid title thereto; and (3) that the reservable property in question is part of and must be reverted to the estate of Cipriano Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea Gutang as of December 13, 1951. No pronouncement as to costs." From the above decision the Sienes spouses interposed the present appeal, their principal contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in annuling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee, was entitled to inherit said land. There is no dispute as to the following facts: Lot 3368 originally belong to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death - the date of which does not clearly appear of record - where left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375, to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to

Francisco. As a result of the cadastral proceedings. Original Certificate of Title No. 10275 covering Lot 3368 was issued in the name of Francisco. Because Francisco was a minor at the time, his mother administered the property for him, declared it in her name for taxation purposes (Exhs. A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1 & A-2). When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole heir, executed the public instrument Exhibit F entitled extra-judicial settlement and sale whereby, among other things, for and in consideration of the sum of P800.00, she sold the property in question to appellants. When thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original Certificate of Title No. 10275 which was in their possession the latter refused, thus giving rise to the filing of the corresponding motion in the cadastral record No. 507. The same, however, was denied (Exhs. 8 & 9). Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco, and who as such had declared the property in their name on January 1, 1951 executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and thereafter secured the issuance in their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 and 5-A). As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10). In connection with reservable property, the weight of opinion is that the reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). The Court has held in connection with this matter that the reservista has the legal title and dominion to the reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservista, the rights acquired by the transferee being revoked or resolved by the survival of reservatorios at the time of death of the reservista (Edroso vs. Sablan, 25 Phil.,

295; Lunsod vs. Ortega, 46 Phil., 664; Florentino vs. Florentino, 40 Phil., 480; and Director of Lands vs. Aguas, 63 Phil., 279). The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any person entitled to the reservable property. Inasmuch as when Andrea Gutang died, Cipriano Yaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana. On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaesco in favor of the spouse Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by law in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's death. While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees the Esparcia spouses did not appeal therefrom. WHEREFORE, the appealed decision as above modified is affirmed, with costs, and without prejudice to whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance of the property in question. Florentino v Florentino, 40 Phil 480 FIRST DIVISION [G.R. No. 14856. November 15, 1919.] ENCARNACION FLORENTINO ET AL., plaintiffs-appellants, vs. MERCEDES FLORENTINO ET AL., defendants-appellees. Ramon Querubin, Simeon Ramos and Orense & Vera for appellants. Vicente Foz, Jose Singson Tongson and Angel Encarnacion for appellees. SYLLABUS 1. RESERVABLE PROPERTY The property proceeding from an ascendant or from a brother of a deceased descendant who may have acquired same by lucrative title and from whom afterwards another ascendant of deceased will inherit is by law invested with the character of reservable property in favor of

said deceased's relatives, within the third degree, of the line from whence such property proceeds. (Art. 811 of the Civil Code.) 2. ID.; WHEN IT LOSES THIS CHARACTER. The ascendant, who inherits property of a reservable character from his deceased descendant who has a relative within the third degree still living, is no more than a life usufructuary or a fiduciary of said reservable property. But if, during the lifetime of the said ascendant, all the relatives, within the third degree, of his predecessor in interest should die or disappear, according to law the condition of reservation with which the property had been burdened ceases to exist, and said property now becomes a part of the legitimate legitime of the ascendant who had inherited same through the death of those for whom it had been reserved (reservatarios). 3. ID; RIGHTS OF SUCCESSION. According to the order of succession prescribed by law for legitimes, when there are relatives within the third degree of the deceased descendant, the right of the relative's nearest reservative (reservatario) to the property excludes that of the one more remote. Wherefore the property ought to be handed over to said relative by the reservist (reservista), without it being possible to allege a right of representation when he who attempts the same is not comprehended within the third degree, among the predecessor-in-interest's relatives. Inasmuch as the right conceded by the aforementioned article 811 of the Civil Code is, in the highest degree, for the personal and exclusive benefit of the persons pointed out by law, in no manner can there be included relatives of the fourth and succeeding degrees, not recognize by law. 4. ID., NATURE OF. Reservable property neither comes nor falls under the absolute dominion of the ascendant who inherits and receives same from his deceased descendant and, therefore, neither forms part of his estate nor integrates the legitime of his forced heirs. It becomes the ascendant's own property, received as an inheritance, only under the condition that all of the deceased descendant's relatives, within the third degree, shall have died. Under these circumstances the property, transmitted by the predecessor in interest to his ascendant, has lost its character of reservation. 5. ID., ID. Reservable property left, through a will or otherwise, by the death of ascendant (reservista) to other with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable the heir receiving same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest, without prejudicing the right of the heir to an aliquot part of property, if he has at the same time the right of a reservatario. DECISION TORRES, J p:

On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and Antonio of the surname Florentino; for Miguel Florentino, guardian ad litem of the minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad, and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of the minors Jose and Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and her husband, alleging as follows: That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine children called Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he had two children, Mercedes and Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890. That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan, Maria and Isabel died single, without leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita Florentino, now deceased, and her husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the deceased Apolonio Isabelo Florentino. That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumos Apolonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages. That, in the partition of the said testator's estate, there as given to Apolonio Florentino III, his posthumos son the property marked with the letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces of gold, of silver and of table service, livestock, palay, some personal property and other objects mentioned in the complaint. That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino; that, as such heir, said daughter took

possession of all the property left at the death of her mother, Severina Faz de Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon inherited from her deceased son, the posthumos Apolonio, as reservable property; that, as a reservist, the heir of the said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits of the reservable property described therein, either by direct participation or by representation, in the manner mentioned in paragraph 9 of the complaint. That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding part of the reservable property; that without any justifiable motive the defendants have refused and do refuse to deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for the lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at four pesos per bundle; that thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twentyeight pesos and fifty-eight centavos, in addition to three hundred and eight pesos and fifty-eight centavos for the value of the fruits not gathered, of one thousand pesos (P1,000) for the unjustifiable retention of the aforementioned reservable property and for the expenses of this suit. Wherefore they pray it be declared that all the foregoing property is reservable property; that the plaintiffs had and do have a right to the same, in the quantity and proportion mentioned in the aforementioned paragraph 9 of the complaint; that the defendants Mercedes Florentino and her husband be ordered to deliver to the plaintiffs their share of the property in question, of the palay and of the corn above mentioned, or their value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos (P1,000) together with the costs of this instance. To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the obligation of the widow Severina Faz de Leon to reserve the property she inherited from her deceased son Apolonio Florentino y Faz de Leon v. Ho, in turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did not remarry after the death of this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968 and the following articles, but that established in article 811 of the Civil Code; that the object of the provisions of the aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the owner thereof; that if the property inherited by the widow Severina Faz de Leon from her deceased son Apolonio Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the

hands of the defendant, Mercedes Florentino y Encarnacion, a daughter of the common ancestor's second marriage (said Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at the death of the posthumos son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his legitimate heirs as an ascendant, into the hands of strangers; that said property having been inherited by Mercedes Florentino y Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the present case because, when the defendant Mercedes, by operation of law, entered into and succeeded to, the possession, of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the possession of her mother, lost the character of reservable property there being a legitimate daughter of Severina Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law whereby said property may not passed into the possession of strangers are void, inasmuch as the said widow had no obligation to reserve same, as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that, in the present case, there ii no property reserved for the plaintiffs since there is a forced heiress, entitled to the property left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is secondary to the duty of respecting the legitime; that in the instant case, the widow Severina Faz de Leon was in duty bound to respect the legitime of her daughter Mercedes, the defendant; that her obligation to reserve the property could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of these statements the decision of the supreme court of Spain of January 4, 1911; that, finally, the application of article 811 of the Civil Code in favor of the plaintiffs would presuppose the exclusion of the defendant from her right to succeed exclusively to all the property, rights and actions left by her legitimate mother, altho the said defendant has a better right than the plaintiffs; and that there would be injustice if the property claimed be adjudicated to the plaintiffs, as well as a violation of section 5 of the Jones Law which invalidates any law depriving any person of an equal protection. Wherefore they prayed that the demurrer be sustained, with costs against the plaintiffs. After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and condemned the plaintiffs to pay the costs. Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was overruled; the plaintiffs excepted thereto and filed the corresponding bill of exceptions which was allowed, certified and forwarded to the clerk of this court. On appeal the trial judge sustained the demurrer of the defendants to the complaint of the plaintiffs, but, instead of ordering the latter to amend their complaint within

the period prescribed by the rules undoubtedly believing that the plaintiffs could not alter nor change the facts constituting the cause of action, and that, as both parties were agreed as to the facts alleged in the complaint as well as in the demurrer, every question reduced itself to one of the law, already submitted to the decision of the court the said judge, disregarding the ordinary procedure established by law, decided the case by absolving the defendants from the complaint and by condemning the plaintiffs to pay the costs of the instance. There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs, confined themselves to filing a demurrer based on the ground that the facts alleged in the complaint do not constitute a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the cause, instead of dismissing the same, because undoubtedly he believed, in view of the controversy between the parties, that the arguments adduced to support the demurrer would be the same which the defendants would allege in their answer those dealing with a mere question of law which the courts would have to decide and that, the demurrer having been sustained, if the plaintiffs should insist they could do no less upon alleging the same facts as those set out in their complaint and if another demurrer were afterwards set up, he would be obliged to dismiss said complaint with costs against the plaintiffs in spite of being undoubtedly convinced in the instant case that the plaintiffs absolutely lack the right to bring the action stated in their complaint. Being of the opinion that the emendation of the indicated defects is not necessary as in this case what has been done does not prejudice the parties the appellate court will now proceed to decide the suit according to its merits, as found in the record and to the legal provisions applicable to the question of law in controversy so that unnecessary delay and greater expense may be avoided, inasmuch as, even if all the ordinary proceedings be followed, the suit would be subsequently decided in the manner and terms that it is now decided in the opinion thoughtfully and conscientiously formed for its determination. In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and, if so, whether in accordance with the provision of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had the obligation to preserve and reserve same for the relatives, within the third degree, of her aforementioned deceased son Apolonio III. The above mentioned article reads:

"Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came." During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his father). At the death of Apolonio Isabelo Florentino under a will, his eleven children succeeded to the inheritance he left, one of whom, the posthumos son Apolonio III, was given, as his share, the aforementioned property enumerated in the complaint. In 1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited the property he left and who on dying, November 18, 1908, instituted by will as her sole heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left by her father, same constituting the inheritance. Included in said inheritance is the property, specified in paragraph 5 of the complaint, which had been inherited by the posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino, and which, at the death of the said posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his legitimate mother and ascendant, Severina Faz de Leon. The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came. According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated persons who, on the death of the said ascendants-reservists, (taking into consideration the nature of the line from which such property came) acquire the ownership of said property in fact and by operation of law in the same manner as forced heirs (because they are also so such) said property reverts to said line as long as the aforementioned persons who, from the death of the ascendant reservists, acquire in

fact the right of reservatarios (persons for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came. Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the legitimate owner of his own property which is not reservable property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such property came. Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code. In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have

the right to represent their aforementioned father, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother; and that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father Pedro Florentino, one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that this decision does not deal with them. There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his halfbrothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled as reservatarios to the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II. In spite of the provision of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that said article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her brother, Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the property of the deceased Apolonio III never did come into existence because there is a forced heiress who is entitled to such property. The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the

pretension of the plaintiffs to apply said article in the instant case would be permitting the reservable right to reduce and impair the forced legitime which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911. The principal question submitted to the court for decision consists mainly in determining whether the property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon. The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue, the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the Code, with the object that the same should not fall into the possession of persons other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary, with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino. Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista), in which case said reservable property losses such character. With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to the reservatarios, one of whom is her own daughter, Mercedes Florentino.

It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or forms part of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could not inherit all by operation of law and in accordance with the order of legitimate succession, because the other relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable property. For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawfull or just reason which serves as real foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in question. As these relatives are at present living, claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated property. The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received from the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother, the said Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the deceased Apolonio III, is evidently erroneous for the reason that as has been already stated, the reservable property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her death nor of the legitimate of the heiress Mercedes. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did same lose the character of reservable property held before the reservatarios received same. It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in question, same did not pass into the hands of strangers. But it is likewise true that the said Mercedes is not the only reservataria. And there is no reason founded upon law and upon the principle of justice why the other reservatarios, the other brothers and nephews, relatives within the third degree in accordance with the precept of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain to them.

From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968 and consequently of the Civil Code is not applicable in the instant case. Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot be reduced or impaired and said article is expressly respected in this decision. However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any legal foundation, that the reservable property belonged to, and was under the absolute dominion of, the reservista, there being relatives within the third degree of the person from whom same came; that said property, upon passing into the hands of the forced heiress of the deceased reservista, formed part of the legitime of the former; and that the said forced heiress, in addition to being a reservataria, had an exclusive right to receive all of said property and to deprive the other reservatarios, her relatives within the third degree, of certain portions thereof. Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected, it is not proper to grant the first for there is no evidence of any damage which can give rise to the obligation of refunding same. As to the second, the delivery of the fruits produced by the land forming the principal part of the reservable property, the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the same, from January 17, 1918, the date the complaint was filed; and the remaining seventh part should go to the defendant Mercedes. For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the complaint is denied, without special findings as to the costs of both instances. So ordered. Padura v Baldovino, 104 Phil 1065
NATURE Appeal from order of CFI Laguna

FACTS - A g u s t in P a d u ra co n t ra c t e d t wo m a r r i a g e s d u r i n g h i s l if e t im e . W it h h i s f i r st wi f e G e r va c i a L a n d i g , h e h a d o n e ch i l d , M a n u e l P a d u r a . W it h t h e se c o n d wi f e , B e n i t a Garing, he had two children, Fortunato and Candelaria Padura.- A gu s t in d ie d o n A p r 2 6 , 1 9 0 8 , le a vi n g a l a s t wi l l a n d t e s t a m e n t , d u l y p ro b a t e d , wh e r e i n h e b e qu e a t h e d h i s p r o p e rt i e s a m o n g h i s t h r e e ch i l d re n a n d h i s su r vi vi n g spouse, Benita Garing.- Fortunato was adjudicated four parcels of land. He died unmarried on May 28, 1908,wi t h o u t h a vi n g e xe c u t e d a wi l l ; a n d n o t h a vi n g a n y i s s u e , t h e p a r ce l s o f la n d we r e inherited exclusively by his mother Benita.- Benita was issued a Torrens Certificate of Title in her name, subject to the conditiont h a t t h e p ro p e r t i e s we r e r e s e r va b le in f a vo r o f r e l a t i ve s wi t h in t h e t h i r d d e g r e e belonging to the line from which said property came.- On Aug 26, 1934, Candelaria died, leaving as her heirs her four legitimate children:Cristeta, Melania, Anicia, and Pablo Baldovino (Oppositorsappellants)- On Oct 6, 1940, Manuel also died, survived by his legitimate children Dionisia, Felisa,Flora, Cornelio, Francisco, Juana, and Severino Padura (Petitionersappellees)- Upon the death of Benita (the reservista) on Oct 15, 1952, the heirs took possessiono f t h e r e s e r v a b l e p r o p e r t i e s . C F I L a g u n a d e c l a r e d t h e c h i l d r e n o f M a n u e l a n d C a n d e l a r i a t o b e t h e r i gh t f u l re s e r ve e s , a n d a s su ch , e n t i t le d t o t h e r e se r va b l e properties (the original reservees, Candelaria and Manuel, having predeceased thereservista)- The Baldovino heirs filed a petition seeking to have the properties partitioned, suchthat one-half be adjudicated to them, and the other half to the appellees, allegedly onthe basis that they inherited by right of representation from their respective parents,the original reservees.- Padura heirs opposed, maintaining that they should all be deemed as inheriting intheir own right, under which, they claim, each should have an equal share.(In essence, the Baldovino heirs, who are whole blood relatives of the reservista, werecontending that they should get more than their half-blood relatives, the Padura heirs. They anchor their claim on Articles 1006 and 1008 of the Civil Code)- trial court declared all the reservees, without distinction, co-owners, pro-indiviso, inequal shares of the parcels of land. ISSUE WON the reserved properties should, as the trial court held, be apportioned amongthe heirs equally. HELD NO. T h e n e p h e ws o f t h e wh o le b l o o d s h o u ld t a ke a sh a r e t wi c e a s l a r g e a s t h a t o f t h e nephews of the half blood.- The reserva troncal is a special rule designed primarily to assure the return of thereservable property to the third degree relatives belonging to the line from which theproperty originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant (reservista). Article 891 of the Code provides: ART 891. The ascendant who inherits from his descendant any property which thelatter may have acquired by gratuitous title from another ascendant, or a brother o r s i s t e r , i s o b l i g e d t o r e s e r v e s u c h p r o p e rt y as h e m a y h a v e a c q u i r e d b y operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

- the purpose of the reserva troncal is accomplished once the property has devolvedto the specified relatives of the line of origin. But from this time on, there is no furtheroccasion for its application. In the relations between one reservatario and another of the same degree, there is no call for applying Art 891 any longer; the respective shareo f e a ch in t h e r e ve r s i o n a r y p r o p e r t y s h o u ld b e go ve r n e d b y t h e o r d i n a r y r u l e s o f interstate succession. - F l o r e n t in o v F l o re n t in o ( a s r e st a t e d i n t h e c a s e ) : u p o n t h e d e a t h o f t h e a s ce n d a n t reservista, the reservable property should pass, not to all the reservatorios as a class,but only to those nearest in degree to the descendant (prepositus), excluding thoser e se r va t a r io s o f m o r e r e m o t e d e g r e e . . . A n d wi t h i n t h e t h i rd d e g r e e o f re l a t io n s h ip f r o m t h e d e s c e n d a n t ( p r e p o s i t u s ) , t h e r i g h t o f re p re s e n t a t io n o p e ra t e s i n f a vo r o f nephews.P r o xi m i t y o f d e g r e e a n d r i g h t o f r e p re s e n t a t io n a r e b a si c p r i n c i p le s o f o r d i n a r yi n t e s t a t e su c c e s s i o n ; s o i s t h e r u le t h a t wh o le b l o o d b r o t h e r s a n d n e p h e ws a r e entitled to share double that of brothers and nephews of half-blood. If in determiningt h e r i g h t s o f t h e r e s e r v a t a r i o s i n t e r s e , p r o x i m i t y o f d e g r e e a n d t h e r i g h t o f representation of nephews are made to aply, the rule of double share for immedaitecollaterals of the whole blood should likewise be operative.in other words, reserva troncal merely determines the grou p o f r e l a t i v e s (reservatarios) to whom the property should be returned; but within that group, theindividual right to the property should be decided by the applicable rules of ordinaryintestate succession, since Art 891 does not specify otherwise. The reserva being ane xc e p t i o n a l c a se , i t s a p p l i ca t io n s h o u ld b e l i m it e d t o wh a t i s s t r i c t l y n e e d e d t o accomplish the purpose of the law.- e ve n d u r i n g t h e r e se r vi s t a s l if e t im e , t h e r e se r va t a r i o s, wh o a re t h e u lt im a t e acquirers of the property, can already assert the right to prevent the reservista fromdoing anything that might frustrate their reversionary right: and for this purpose theyc a n c o m p e l t h e a n n o t a t io n o f t h e i r r i g h t in t h e R e g i s t r y o f P ro p e r t y e ve n wh i l e ther e s e r v i s t a i s a l i v e . T h i s r i g h t i s i n c o m p a t i b l e w i t h t h e m e r e e x p e c t a n c y t h a t corresponds to the natural heirs of the reservista. It is also clear that the reservableproperty is not part of the estate of the reservista, who may not dispose of them bywill, so long as there are reservatarios existing. The latter, therefore, do not inheritfrom the reservista, but from the descendant prepositus, of whom the reservatariosa r e t h e h e i r s m o r t i s c a u sa , s u b je c t t o t h e c o n d i t io n t h a t t h e y m u s t su r vi ve t h e reservista.

Chua v CFI, 78 SCRA 406 FIRST DIVISION [G.R. No. L-29901. August 31, 1977.] 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. DECISION MARTIN, J p: 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 Juanito 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, 19311 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; marriage; P3,000.00 in favor of Lorenzo Frias Chua; and P1,550.00 in favor of Ignacio Frias, Chua , his sons in the second marriage; By the 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 ownerspro-indiviso of Lot No. 339. On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After his death, is mother Consolacion de la Torre succeeded to his 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. cdrep 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 (subsequently segregated as 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 Chua but which passed to Consolacion de la Torre upon the latter's death, be declared as reservable property for the reason that

the lot in question was subject to reserva troncal pursuant to Article 981 of the New Civil code. private respondent as administratrix of the estate of the Consolacion de la Torre and the heirs of the latter traversed individually the complaint of petitioners. 4 On July 29, 1968, the respondent Court rendered a decision dismissing the complaint of petitioners. Hence this instant petition. The pertinent provision on reserva troncal under the New Civil Code provides: "ART. 891. The ascendant who inherits from his descendant any property which the latter may have required by gratuitous title from another ascendant, 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 Iron which said property came." Pursuant 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 ascendant 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, Juanito Frias Chua of the second marriage died intestate in 1952; he died without leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre by operation of law. When Consolacion de la Torre died, Juanito Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remedios Chua, the supposed 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 requisite of reserva troncal whether the property in question as 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 to 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 a reserva 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 states in express terms: cdrep "2. Se adjudicada por el presente a favor de Consolacion de la Torre, viuda, mayor de edad, y de su hijo, Juanito Frias Chua, menor de edad, todos residentes de San Enrique, Negros Occidental, I.F., como herederos del finado Jose Frias Chua Choo, estas propiedades: 14483 La parcela de terreno conocida por Lote No. 399 del Catastro de la Carlota, Negros Occidental, de 191.954 metros cuadrados y cubierto por el Certificado de Titulo No. 11759, en partes equales pro-indiviso; por con la obligacion de pagar a las Standard Oil Co. of New York la deuda de P3,971.20, sus intereses, costas y demas gastos resultantes del asunto civil No. 5300 de 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, it is gratuitous. It does not matter if later the court orders one of the heirs, in this case Juanito Frias Chua, to pay the Standard 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. As far as the deceased Jose Frias Chua is concerned the transmission of the property to his heirs is gratuitous. This being the case the lot in question is subject to reserva troncal under Art. 891 of the New Civil Code. It is contended 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 respondents' 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 son of the deceased Jose Frias Chua by the latter's second marriage. According to the records, Juanito Frias Chua died on February 27, 1952 without any issue. After his death his mother Consolacion de la Torre succeeded to his onehalf 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 petitioners herein. cdphil 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 of the property in question and their cause of action 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. Gonzales v CFI, 104 SCRA 161 SECOND DIVISION [G.R. No. L-34395. May 19, 1981.] BEATRIZ L. GONZALEZ, petitioner, vs. COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDES, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO

LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DOA FILOMENA ROCES DE LEGARDA, respondents. Eligio G. Lagman and Roberto A. Gianzon for petitioner. Teves, Campos, Mendoza and Hernandez Baizas, Alberto and Association, Macias and Achos for private-respondents. SYNOPSIS The real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his two daughters and the heirs of his deceased son Benito Legarda y De La Paz who was survived by his widow, Filomena Roces y Legarda and their seven children: four daughters named, Beatriz, Rosario, Teresa and Filomena and their three sons, named Benito, Alejandro and Jose. Meanwhile. one of the daughters, Filomena, died intestate and without an issue and her mother Filomena Roces y Legarda who became her sole heir, partitioned their one-third share in the estate of Benito Legarda y Tuason with her six surviving children and then conveyed the properties she inherited from her deceased daughter by holographic will to her 16 grandchildren. In opposition thereto, one of the daughters Beatriz Legarda Gonzales filed a motion in the testate proceeding and an ordinary civil action in the lower court contending that the disputed properties are reservable properties. The lower court dismissed the complaint. On appeal by certiorari, the Supreme Court held that the properties in question are subject to reserva troncal under Art. 891 of the Civil Code which the testatrix as reservor could not dispose by holographic will to the reservees within the third degree (her sixteen grandchildren) and deprive the reservees in the second degree (her six children) of their share therein. Decision Reversed. SYLLABUS 1. CIVIL LAW; SUCCESSION; LEGITIME; RESERVA TRONCAL; NATURE. Resersa troncal is also called lineal, familiar, extraordinaria o semitroncal. It is provided for in Article 811 of the Spanish Civil Code now article 891 of the Civil Code. In reserva troncal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of

law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) who belong to the line from which the property came. 2. ID.; ID.; ID.; ID.; TRANSMISSION INVOLVED. The three transmissions involved are: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Toneas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9). If there are only two transmissions there is no reserva. 3. ID.; ID.; ID.; ID.; PERSONS INVOLVED. The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus ( propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatarin) who is within the third degree from the prepositus and who belongs to the line (linea o tronco) from which the property came and for whom the property should be reserved by the reservor. 4. ID.; ID.; ID.; ID.; RELATIVES CONSIDERED RESERVEES. The reservees may be half-brothers and sisters (Rodrigues vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480). 5. ID.; ID.; ID.; ID.; RATIONALE. The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos sedularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras", or "impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino, 104 Phil. 1065). 6. ID.; ID.; ID.; ID.; PREPOSITUS DEFINED. Prepositus or the person from whom the degree should be reckoned is the descendant, or the one at the end

of the line from which the property came and upon whom the property last revolved by descent (Cabardo vs. Villanueva, 44 Phil. 186, 190). 7. ID.; ID.; ID.; ID.; NEAREST RELATIVE EXCLUDE THE MORE REMOTE. Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065). 8. ID.; ID.; ID.; ID.; NATURE OF RELATIONSHIP CONTEMPLATED. Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded. 9. ID.; ID.; ID.; ID.; GRATUITOUS TITLE DEFINED. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189190, citing 6 Manresa, Codigo Civil, 7th. Ed., 1951, p. 360). 10. ID.; ID.; ID.; ID.; RESOLUTORY CONDITIONS CREATED BY RESERVA. The reserva creates two resolutory conditions, namely: (I) the death of the ascendant obliged to reserve; and (2) the survival, at the time of his death, of relatives within the third degree belonging to the fine from which the property came (Sienes vs. Esparcia, 111 Phil. 349, 353). 11. ID.; ID.; ID.; ID.; NATURE OF RESERVOR'S TITLE. The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the time o the death of the reservor but become indefeasible when the reservees predecease the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279). "The authorities are all agreed that there being reservatorios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J.B.L. Rayes in Cano vs. Director of Lands, 105 Phil. 1, 5). 12. ID.; ID.; ID.; ID.; RESERVOR'S TITLE COMPARED WITH THAT OF THE VENDEE A RETRO OR TO A FIDEICOMISO CONDICIONAL. The reservor's title has been compared with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the

transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664: Gueco vs. Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120). 13. ID.; ID.; ID.; ID.; NATURE OF RESERVEE'S TITLE. The reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee. There is a holding that renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the tetervor (Sienes vs. Esparcia, ill Phil. 349, 353). "The reservatorio receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime" (J.B.L. Reyes in Cano vs. Director of Lands, Supra). 14. ID.; ID.; ID.; ID.; RESERVEE'S (RESERVATORIO'S) RIGHT OVER THE PROPERTY DURING RESERVOR'S (RESERVISTA'S) LIFETIME. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944). "Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their revisionary right. and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive." (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295) 15. ID.; ID.; ID.; ID.; RESERVABLE PROPERTY, NOT A PART OF THE ESTATE OF RESERVOR (RESERVISTA); CASE AT BAR. The right to reserva troncal is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista (reservor). It is likewise clear that the reservable property is no part of the estate of the reservista (reservor) who may not dispose of them (it) by will, so long as there are reservatarios (reservees) existing (Arroyo vs. Gerona, 58 Phil. 226, 237). "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa. subject to the condition that they must survive the reservista." (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-l1960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano vs. Director of Lands, Supra) Mrs. Filomena

Legarda, as reservor in the case at bar could not convey in her holographic will to her sixteen grandchildren (the reservees within the third degree) the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cobardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. 16. ID.; ID.; ID.; ID.; RESERVABLE PROPERTIES INHERITED FROM THE PREPOSITUS; CASE AT BAR. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor. Art. 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. 17. ID.; ID.; ID.; ID.; WHEN RESERVATION IS EXTINGUISHED; CASE AT BAR. Under the rule of stare decisis at non quieta movere. the Court is bound to follow in this case the doctrine of the Florentino case which means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. Hence, in the case at bar, the reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 4). DECISION AQUINO, J p: Beatriz Legarda Gonzalez appealed from the decision of the Court of First Instance of Manila, dismissing her complaint for partition, accounting, reconveyance and damages and holding, as not subject to reserva troncal, the properties which her mother Filomena Roces inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows: Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow, Filomena Roces, and their seven children: four daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito, Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were represented by Benito F. Legarda. Filomena Legarda y Roces died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Roces Vda. de Legarda. Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following: (a) Savings deposit in the National City Bank of New York with a credit balance of P3,699.63. (b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular Life Assurance Company and the Manila Times. (c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and 57512 of the Manila registry of deeds. 1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds; 1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of the registry of deeds of Baguio; 1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of deeds; 1/7th of the lots and improvements at 181 San Rafael described in TCT Nos. 50495 and 48161 of the Manila registry of deeds; 1/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets); 1/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds (Streets and Estero); 2/21st of the property described in TCT No. 13458 of the registry of deeds of Tayabas. These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other six children. Mrs. Legarda on March 6, 1953 executed two hand-written identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document reads: "A mis hijos:

"Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la Distileria 'La Rosario' recientemente comprada a los hermanos Valdes Legarda. "De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las Hijas de Jesus, en Guipit. "La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; porque ella esta construida sobre terreno de los hermanos Legarda Roces. "(Sgd.) FILOMENA ROCES LEGARDA "6 Marzo 1953" During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz. Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena Roces Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzalez, CA-G.R. No. 43480-R, July 30, 1976. In the testate proceeding, Beatriz Legarda Gonzalez, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda. Without awaiting the resolution on that motion, Mrs. Gonzalez filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil. 1085). As already stated, the lower court dismissed the action of Mrs. Gonzalez. In this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in question as reservable properties under article 891 of the Civil Code. On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred in not holding that Mrs. Legarda acquired the estate of her daughter Filomena Legarda in exchange for her conjugal and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in

not holding that Mrs. Gonzalez waived her right to the reservable properties and that her claim is barred by estoppel, laches and prescription. The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzalez' petition for review is a closed matter. This Court in its resolution of December 16, 1971 denied respondents' motion to dismiss and gave due course to the petition for review. In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject to reserva troncal, that is the only legal issue to be resolved in this appeal. The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed by this Court. The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Roces Vda. de Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six children. Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter Filomena to the reservees within the third degree and to bypass the reservees in the second degree or should that inheritance automatically go to the reservees in the second degree, the six children of Mrs. Legarda? As will hereinafter be shown that is not a novel issue or a question of first impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in the Florentino case and other pertinent rulings, it may be useful to make a brief discourse on the nature of reserva troncal, also called lineal, familiar, extraordinaria o semi-troncal. Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserva troncal, which together with the reserva viudal and reversion legal, was abolished by the Code Commission to prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy and is incompatible with the socialization of ownership. The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover, the reservas, insofar as they penalize legitimate relationship, is considered unjust and inequitable. However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserva troncal, a legal institution which, according to Manresa and Castan Tobeas, has provoked questions and doubts that are difficult to resolve.

Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which reads: "ART. 811. El ascendiente que heredare de su descendiente bienes que ste hubiese adquirido por titulo lucrativo de otro ascendiente, o de un hermano, se halla obligado reservar los que hubiere adquirido por ministerio de la ley en favor de los parientes que esten dentro del tercer grado y pertenezcan a la linea de donde los bienes proceden." "ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, 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 who belong to the line from which said property came. " In reserva troncal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant ( prepositus) and who belong to the line from which the said property came. So, three transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Tobeas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9). If there are only two transmissions there is no reserva. Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his half-sister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino, 111 Phil. 872). The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus ( propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatario) who is within the third degree from the prepositus and who belongs to the line (linea o tronco) from

which the property came and for whom the property should be reserved by the reservor. The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras", or "impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino, 104 Phil. 1065). An illustration of reserva troncal is found in Edroso vs. Sablan, 25 Phil. 295. In that case, Pedro Sablan inherited two parcels of land from his father Victoriano. Pedro died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from him the two parcels of land. It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive her, should be noted in the title. In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land was inherited by her daughter, Juliana Maalac. When Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto Maalac who owned the other one-half portion. Anacleto died intestate in 1942, survived by his second wife and their six children. It was held that the said one-half portion was reservable property in the hands of Anacleto Maalac and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana Maalac, who belonged to the line from which said one-half portion came (Aglibot vs. Maalac, 114 Phil. 964). Other illustrations of reserva troncal are found in Florentino vs. Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita, 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno, 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784. The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property

last revolved by descent. He is called the prepositus (Cabardo vs. Villanueva, 44 Phil. 186, 190). In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. In his hands, the property was reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree. First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480). Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065). Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44 Phil. 186-189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 1951, p. 360). The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (Sienes vs. Esparcia, 111 Phil. 349, 353). The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279.) The reservor's title has been compared with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120).

On the other hand, the reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944). There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353). "The reservatario receives the property as a conditional heir of the descendant ( prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J. J.B.L. Reyes in Cano vs. Director of Lands, 105 Phil. 1, 5.) "Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive" (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295). This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of them (it) by will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237). "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista." (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano vs. Director of Lands, 105 Phil. 1, 5.)

In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda. So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the reservees in the second degree, her three daughters and three sons. As indicated at the outset, that issue is already res judicata or cosa juzgada. We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor. Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein. To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed. We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled: "Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest ( prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario" (reservee). In the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III's death in 1891, his

properties were inherited by his mother, Severina, who died in 1908. In her will she instituted her daughter Mercedes as heiress to all her properties, including those coming from her deceased husband through their son, Apolonio III. The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable properties, which Severina de Leon had inherited from Apolonio III, which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes. Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this Court. It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not be inherited from her by her daughter Mercedes alone. As there were seven reservees, Mercedes was entitled, as a reservee, to oneseventh of the properties. The other six-sevenths portions were adjudicated to the other six reservees. Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of the Florentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded. The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to reserve is irrelevant and sans binding force in the light of the ruling in the Florentino case. It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda who belong to the paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." That same contention was advanced in the Florentino case where the reservor willed the reservable properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the half-blood of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be given to all the seven reservees or nearest relatives of the prepositus within the third degree. This Court noted that, while it is true that by giving the reservable property to only one reservee it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property (pp. 894-5). Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said properties, by operation of article 891, should go to Mrs. Legarda's six children as reservees within the second degree from Filomena Legarda. It should be repeated that the reservees do not inherit from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor (Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065). The trial court said that the disputed properties lost their reservable character due to the non-existence of third degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree relatives who pertain to both" the Legarda and Roces lines. That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 1, 4). WHEREFORE, the lower court's decision is reversed and set aside. It is hereby adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents. SO ORDERED. De Papa v Camacho, 144 SCRA 281 FIRST DIVISION

[G.R. No. L-28032. September 24, 1986.] FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and JANUARIO PAP, plaintiffs-appellees, vs. DALISAY TONGKO CAMACHO, PRIMO TONGKO and GODOFREDO CAMACHO, defendants-appellants. SYLLABUS 1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; SUCCESSION; RESERVA TRONCAL; RIGHTS OF RESERVATIONS DETERMINED BY PRINCIPLES OF INTESTACY. The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower Court, all relatives of the praepositus within the third degree in the appropriation line succeed without distinction to the reservable property upon the death of the reservista, as seems to be implicit in Art. 891 of the Civil Code, or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession. That question has already been answered in Padura vs. Baldovino, where the reservatario was survived by eleven nephews and nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code. 2. ID.; ID.; ID.; ID.; ID.; AUNTS AND UNCLES OF PRAEPOSITUS EXCLUDED FROM SUCCESSION BY NEPHEWS AND NIECES. Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter. To this effect in Abellana vs. Ferraris where Arts. 1001, 1004, 1005 and 1009 of the civil Code were cited and applied. 3. ID.; ID.; ID.; ID.; ID.; RESERVATIONS INHERIT FROM PRAEPOSITUS, NOT FROM RESERVISTA. This conclusion is fortified by the observation, also made in Padura, supra, that as to the reservable property, the reservatarios do not inherit from the reservista, but from the descendant praepositus: ". . . . It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of it by will, as long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter, therefore, do not inherit from the reservista, but from the decedent prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista. (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310) . . . ."

4. ID.; ID.; ID.; ID.; ID.; WHEN INTESTACY PROCEEDINGS NOT NECESSARY. To the same effect is Cano vs. Director of Lands, where is was ruled that intestacy proceedings to determine the right of a reservatario are not necessary where the final decree of the land court ordering issuance of title in the name of the reservista over property subject to reserva troncal identifies the reservatario and there are no other claimants to the latter's right as such: "The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario will succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the reservista's estate; the reservatario receives the property as a conditional heir of the decedent (praepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the matter must be deemed to have enjoyed no more than a life interest in the reservable property. It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the praepositus (the appellee in this case) becomes, automatically and by operation of law, the owner of the reservable property. As already stated, the property is no part of the estate of the reservista, and does not even answer for the debts of the latter. . . ." DECISION NARVASA, J p: This case, which involves the application of Article 891 of the Civil Code on reserva troncal, was submitted for judgment in the lower court by all the parties on the following "Stipulation of Facts and Partial Compromise": "1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the plaintiffs, Francisca Tioco de Papa, Manuel Tioco and Nicolas Tioco, are legitimate relatives, plaintiffs being said defendant's grandaunt and granduncles. 2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho have as a common ancestor the late Balbino Tioco (who had a sister by the name of Romana Tioco), father of plaintiffs and great grandfather of defendant. The family relationship of the parties is as shown in the chart attached hereto as Annex 'A' and made an integral part of this stipulation. 3. They stipulate that Romana Tioco during her lifetime gratuitously donated four (4) parcels of land to her niece Toribia Tioco (legitimate sister of plaintiffs), which parcels of land are presently covered by Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila, copies of which are attached to this stipulation as Annexes 'B', 'B-1', and 'B-2'. 4. They stipulate that Toribia Tioco died intestate in 1915, survived by her husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon and

Trinidad Dizon (mother of defendant Dalisay D. Tongko-Camacho) and leaving the afore-mentioned four (4) parcels of land as the inheritance of her said two children in equal pro-indiviso shares. 5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his legitimate children by his wife Marciana Felix (among them plaintiffs) and legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition of his estate, three (3) parcels of land now covered by Transfer Certificates of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of which are attached hereto as Annexes 'C' and 'C-1', were adjudicated as the inheritance of the late Toribia Tioco, but as she had predeceased her father, Balbino Tioco, the said three (3) parcels of land devolved upon her two legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso shares. 6. They stipulate that in 1937, Faustino Dizon died intestate, single and without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7) parcels of land above-mentioned to his father, Eustacio Dizon, as his sole intestate heir, who received the said property subject to a reserva troncal which was subsequently annotated on the Transfer Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C1'. 7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her rights and interests in the parcels of land abovementioned were inherited by her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to the usufructuary right of her surviving husband, defendant Primo Tongko. 8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate, survived his only legitimate descendant, defendant Dalisay D. Tongko-Camacho. 9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns one-half (1/2) of all the seven (7) parcels of land abovementioned as her inheritance from her mother, Trinidad Dizon-Tongko. 10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice, the other half of the said seven (7) parcels of land abovementioned by virtue of the reserva troncal imposed thereon upon the death of Faustino Dizon and under the laws on intestate succession; but the plaintiffs, also upon legal advice, oppose her said claim because they claim three-fourths (3/4) of the one-half pro-indiviso interest in said parcel of land, which interest was inherited by Eustacio Dizon from Faustino Dizon, or three-eights (3/8) of the said parcels of land, by virtue of their being also third degree relatives of Faustino Dizon. 11. The parties hereby agree to submit for judicial determination in this case the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled to the whole of the seven (7) parcels of land in question, or whether the plaintiffs, as third degree relatives of Faustino Dizon are reservatarios (together with said defendant) of the one-half pro-indiviso share therein which was inherited by Eustacio Dizon

from his son Faustino Dizon, and entitled to three-fourths (3/4) of said one-half pro-indiviso share, or three-eights (3/8) of said seven (7) parcels of land, and, therefore, to three eights (3/8) of the rentals collected and to be collected by defendant Dalisay P. Tongko Camacho from the tenants of said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals. 12. In view of the fact that the parties are close blood relatives and have acted upon legal advice in pursuing their respective claims, and in order to restore and preserve harmony in their family relations, they hereby waive all their claims against each other for damages (other than legal interest on plaintiffs' share in the rentals which this Honorable Court may deem proper to award), attorney's fees and expenses of litigation which shall be borne by the respective parties." 1 On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco, Manuel Tioco and Nicolas Tioco, as well as the defendant Dalisay TongkoCamacho, entitled, as reservatarios, to one-half of the seven parcels of land in dispute, in equal proportions, rendering judgment as follows: LLpr ". . . Resolving, therefore, the legal question submitted by the parties, the court holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco are entitled to three fourths (3/4) of one-half (1/2) pro-indiviso shares or three-eights (3/8) of the seven (7) parcels of land involved in this action. Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals collected and to be collected by the defendant Dalisay D. Tioco-Camacho from the tenants of the said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals. IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived all their claims against each other for damages including attorney's fees and expenses of litigation other than the legal interests on plaintiffs' share in the rentals, the court renders judgment adjudging the plaintiffs entitled to three-eights (3/8) of the seven (7) parcels of land described in Transfer Certificate of Title Nos. T64165, T-64166, T-64167, T-16546 and T-16554 of the Registry of Deeds of Manila. The defendant Dalisay D. Tioco-Camacho is hereby ordered to make an accounting of all rents received by her on the properties involved in this action for the purpose of determining the legal interests which should be paid to the plaintiffs on their shares in the rentals of the property in question. SO ORDERED." 2 Not satisfied, the defendant appealed to this Court. The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower Court, all relatives of the praepositus within the third degree in the appropriate line succeed without distinction to the reservable property upon the

death of the reservista, as seems to be implicit in Art. 891 of the Civil Code, which reads: LLpr "Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, 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 who belong to the line from which said property came. (811)", or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession. That question has already been answered in Padura vs. Baldovino, 3 where the reservatario was survived by eleven nephews and nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code. Said the Court: "The issue in this appeal may be formulated as follows: In a case of reserva troncal where the only reservatarios (reserves) surviving the reservista, and belonging to the line of origin, are nephews of the descendant (prepositus), but some are nephews of the half blood and the others are nephews of the whole blood, should the reserved properties be apportioned among them equally, or should the nephews of the whole blood take a share twice as large as that of the nephews of the half blood? "xxx xxx xxx The case is one of first impression and has divided the Spanish commentators on the subject. After mature reflection, we have concluded that the position of the appellants is correct. The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant (reservista). "xxx xxx xxx The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of the line of origin. But from this time on, there is no further occasion for its application. In the relations between one reservatario and another of the same degree there is no call for applying Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be governed by the ordinary rules of intestate succession. In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the ascendant reservista, the reservable property should pass, not to all the

reservatarios as a class but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree (Florentino vs. Florentino, 40 Phil. 489-490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905). And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews (Florentino vs. Florentino, supra). "Following the order prescribed by law in legitimate succession when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are within the third degree of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. "In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came . . ." (Florentino vs. Florentino, 40 Phil. 480, 489-490) (Emphasis supplied) See also Nieva and Alcala vs. Alcala and de Ocampo, 41 Phil. 915). Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should be likewise operative. In other words, the reserva troncal merely determines the group of relatives (reservatarios) to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise. This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its application should be limited to what is strictly needed to accomplish the purpose of the law. As expressed by Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250):

". . . crendose un verdadero estado excepcional del derecho, no debe ampliarse, sino m s bien restringirse, el alcance del precepto, manteniendo la excepcion mientras fuere necesaria y estuviese realmente contenida en la disposicion, y aplicando las reglas generales y fundamentales del Codigo en materia de sucesion, en aquellos extremos no resueltos de un modo expreso, y que quedan fuera de la propia esfera de accion de la reserva que se crea." The restrictive interpretation is the more imperative in view of the new Civil Code's hostility to successional reservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of the Code of 1889 (Art. 812 and 968-980)." Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter. To this effect is Abellana vs. Ferraris 4 where Arts. 1001, 1004, 1005 and 1009 of the Civil Code were cited and applied: "Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the Philippines, that provide as follows: "Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitle to one-half of the inheritance and the brothers and sisters or their children to the other half." "Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares." "Art. 1005. Should brothers and sisters survive together with nephews and nieces who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes." "Art. 1009. Should there be neither brothers nor sisters, nor children of brothers and sisters, the other collateral relatives shall succeed to the estate." Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows: "Art. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if

not separated by a final decree of divorce shall succeed to the entire estate of the deceased." "Art. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased. The latter shall succeed without distinction of lines or preference among them by reason of the whole blood." It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals." "xxx xxx xxx We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. . . ." This conclusion is fortified by the observation, also made in Padura, supra, that as to the reservable property, the reservatarios do not inherit from the reservista, but from the descendant praepositus: LLjur ". . . It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of it by will, as long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter, therefore, do not inherit from the reservista, but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista. (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310) . . ." To the same effect is Cano vs. Director of Lands 5 , where it was ruled that intestacy proceedings to determine the right of a reservatario are not necessary where the final decree of the land court ordering issuance of title in the name of the reservista over property subject to reserva troncal identifies the reservatario and there are no other claimants to the latter's rights as such: "The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario will succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the reservista's estate; the reservatario receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista,

the matter must be deemed to have enjoyed no more than a life interest in the reservable property. It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the prepositus (the appellee in this case) becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of the reservista, and does not even answer for the debts of the latter . . ." Had the reversionary property passed directly from the praepositus, there is no doubt that the plaintiffs-appellees would have been excluded by the defendantappellant under the rules of intestate succession. There is no reason why a different result should obtain simply because "the transmission of the property was delayed by the interregnum of the reserva;" 6 i.e., the property took a "detour" through an ascendant thereby giving rise to the reservation before its transmission to the reservatario. Upon the stipulated facts, and by virtue of the rulings already cited, the defendantappellant Dalisay Tongko-Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees. WHEREFORE, the appealed judgment of the lower Court is reversed and set aside and the complaint is dismissed, with costs against the plaintiffs-appellants. SO ORDERED. Mendoza v De los Santos, GR 176422, March 20, 2013
FIRST DIVISION G.R. No. 176422 March 20, 2013

MARIA MENDOZA, in her own capacity and as Attorney-in-fact of DEOGRACIAS, MARCELA, DIONISIA, ADORA CION, all surnamed MENDOZA, REMEDIOS MONTILLA, FELY BAUTISTA, JULIANA GUILALAS and ELVIRA MENDOZA, Petitioners, vs. JULIA POLl CARPIO DELOS SANTOS, substituted by her heirs, CARMEN P. DELOS SANTOS, ROSA BUENA VENTURA, ZENAIDA P. DELOS SANTOS VDA. DE MATEO, LEONILA P. DELOS SANTOS, ELVIRA P. DELOS SANTOS VDA. DE JOSE, TERESITA P. DELOS SANTOS-CABUHAT, MERCEDITA P. DELOS SANTOS, LYDIA P. DELOS SANTOS VDA. DE HILARIO, PERFECTO P. DELOS SANTOS, JR., and CECILIA M. MENDOZA,Respondents. DECISION REYES, J.:

Reserva troncal is a special rule designed primarily to assure the return of a reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant.1 The Facts The properties subject in the instant case are three parcels of land located in Sta. Maria, Bulacan: (1) Lot 1681-B, with an area of 7,749 square meters;2 (2) Lot 1684, with an area of 5,667 sq m;3 and (3) Lot No. 1646-B, with an area of 880 sq m.4 Lot Nos. 1681B and 1684 are presently in the name of respondent Julia Delos Santos 5(respondent). Lot No. 1646-B, on the other hand, is also in the name of respondent but co-owned by Victoria Pantaleon, who bought one-half of the property from petitioner Maria Mendoza and her siblings. Petitioners are grandchildren of Placido Mendoza (Placido) and Dominga Mendoza (Dominga). Placido and Dominga had four children: Antonio, Exequiel, married to Leonor, Apolonio and Valentin. Petitioners Maria, Deogracias, Dionisia, Adoracion, Marcela and Ricardo are the children of Antonio. Petitioners Juliana, Fely, Mercedes, Elvira and Fortunato, on the other hand, are Valentins children. Petitioners alleged that the properties were part of Placido and Domingas properties that were subject of an oral partition and subsequently adjudicated to Exequiel. After Exequiels death, it passed on to his spouse Leonor and only daughter, Gregoria. After Leonors death, her share went to Gregoria. In 1992, Gregoria died intestate and without issue. They claimed that after Gregorias death, respondent, who is Leonors sister, adjudicated unto herself all these properties as the sole surviving heir of Leonor and Gregoria. Hence, petitioners claim that the properties should have been reserved by respondent in their behalf and must now revert back to them, applying Article 891 of the Civil Code on reserva troncal. Respondent, however, denies any obligation to reserve the properties as these did not originate from petitioners familial line and were not originally owned by Placido and Dominga. According to respondent, the properties were bought by Exequiel and Antonio from a certain Alfonso Ramos in 1931. It appears, however, that it was only Exequiel who was in possession of the properties.6 The Regional Trial Court (RTC) of Malolos, Bulacan, Branch 6, found merit in petitioners claim and granted their action for Recovery of Possession by Reserva Troncal, Cancellation of TCT and Reconveyance. In its Decision dated November 4, 2002, the RTC disposed as follows: WHEREFORE, premised from the foregoing judgment is hereby rendered: 1. Ordering respondents (heirs of Julia Policarpio) to reconvey the three (3) parcels of land subject of this action in the name of the plaintiffs enumerated in the complaint including intervenor Maria Cecilia M. Mendoza except one-half of

the property described in the old title, TCT No. T-124852(M) which belongs to Victorina Pantaleon; 2. Ordering the Register of Deeds of Bulacan to cancel the titles in the name of Julia Policarpio, TCT No. T-149033(M), T-183631(M) and T-149035(M) and reconvey the same to the enumerated plaintiffs; and 3. No pronouncement as to claims for attorneys fees and damages and costs. SO ORDERED.7 On appeal, the Court of Appeals (CA) reversed and set aside the RTC decision and dismissed the complaint filed by petitioners. The dispositive portion of the CA Decision dated November 16, 2006 provides: WHEREFORE, premises considered, the November 4, 2002 Decision of the Regional Trial Court, Br. 6, Third Judicial Region, Malolos, Bulacan, is REVERSED and SET ASIDE. The Third Amended Complaint in Civil Case No. 609-M-92 is hereby DISMISSED. Costs against the Plaintiffs-Appellants. SO ORDERED.8 Petitioners filed a motion for reconsideration but the CA denied the same per Resolution9 dated January 17, 2007. In dismissing the complaint, the CA ruled that petitioners failed to establish that Placido and Dominga owned the properties in dispute.10 The CA also ruled that even assuming that Placido and Dominga previously owned the properties, it still cannot be subject to reserva troncal as neither Exequiel predeceased Placido and Dominga nor did Gregoria predecease Exequiel.11 Now before the Court, petitioners argue that: A. THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE SUBJECT PROPERTIES ARE NOT RESERVABLE PROPERTIES, COMING AS THEY DO FROM THE FAMILY LINE OF THE PETITIONERS MENDOZAS. B. THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE PETITIONERS MENDOZAS DO NOT HAVE A RIGHT TO THE SUBJECT PROPERTIES BY VIRTUE OF THE LAW ON RESERVA TRONCAL.12

Petitioners take exception to the ruling of the CA, contending that it is sufficient that the properties came from the paternal line of Gregoria for it to be subject to reserva troncal. They also claim the properties in representation of their own predecessors, Antonio and Valentin, who were the brothers of Exequiel.13 Ruling of the Court This petition is one for review on certiorari under Rule 45 of the Rules of Court. The general rule in this regard is that it should raise only questions of law. There are, however, admitted exceptions to this rule, one of which is when the CAs findings are contrary to those of the trial court.14 This being the case in the petition at hand, the Court must now look into the differing findings and conclusion of the RTC and the CA on the two issues that arise one, whether the properties in dispute are reservable properties and two, whether petitioners are entitled to a reservation of these properties. Article 891 of the Civil Code on reserva troncal The principle of reserva troncal is provided in Article 891 of the Civil Code: Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, 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. (Emphasis ours) There are three (3) lines of transmission in reserva troncal. The first transmission is by gratuitous title, whether by inheritance or donation, from an ascendant/brother/sister to a descendant called the prepositus. The second transmission is by operation of law from the prepositus to the other ascendant or reservor, also called the reservista. The third and last transmission is from the reservista to the reservees or reservatarios who must be relatives within the third degree from which the property came. 15 The lineal character of the reservable property is reckoned from the ascendant from whom the prepositus received the property by gratuitous title Based on the circumstances of the present case, Article 891 on reserva troncal is not applicable.

The fallacy in the CAs resolution is that it proceeded from the erroneous premise that Placido is the ascendant contemplated in Article 891 of the Civil Code. From thence, it sought to trace the origin of the subject properties back to Placido and Dominga, determine whether Exequiel predeceased Placido and whether Gregoria predeceased Exequiel. The persons involved in reserva troncal are: (1) The ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title; (2) The descendant or prepositus (propositus) who received the property; (3) The reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law; and (4) The reservee (reservatario) who is within the third degree from the prepositus and who belongs to the (linea o tronco) from which the property came and for whom the property should be reserved by the reservor.16 It should be pointed out that the ownership of the properties should be reckoned only from Exequiels as he is the ascendant from where the first transmission occurred, or from whom Gregoria inherited the properties in dispute. The law does not go farther than such ascendant/brother/sister in determining the lineal character of the property.17 It was also immaterial for the CA to determine whether Exequiel predeceased Placido and Dominga or whether Gregoria predeceased Exequiel. What is pertinent is that Exequiel owned the properties and he is the ascendant from whom the properties in dispute originally came. Gregoria, on the other hand, is the descendant who received the properties from Exequiel by gratuitous title.

Moreover, Article 891 simply requires that the property should have been acquired by the descendant or prepositus from an ascendant by gratuitous or lucrative title. A transmission is gratuitous or by gratuitous title when the recipient does not give anything in return.18 At risk of being repetitious, what was clearly established in this case is that the properties in dispute were owned by Exequiel (ascendant). After his death, Gregoria (descendant/prepositus) acquired the properties as inheritance. Ascendants, descendants and collateral relatives under Article 964 of the Civil Code Article 891 provides that the person obliged to reserve the property should be an ascendant (also known as the reservor/reservista) of the descendant/prepositus. Julia, however, is not Gregorias ascendant; rather, she is Gregorias collateral relative. Article 964 of the Civil Code provides for the series of degrees among ascendants and descendants, and those who are not ascendants and descendants but come from a common ancestor, viz: Art. 964. A series of degrees forms a line, which may be either direct or collateral.1wphi1 A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (Emphasis and italics ours) Gregorias ascendants are her parents, Exequiel and Leonor, her grandparents, great grandparents and so on. On the other hand, Gregorias descendants, if she had one, would be her children, grandchildren and great-grandchildren. Not being Gregorias ascendants, both petitioners and Julia, therefore, are her collateral relatives. In determining the collateral line of relationship, ascent is made to the common ancestor and then descent to the relative from whom the computation is made. In the case of Julias collateral relationship with Gregoria, ascent is to be made from Gregoria to her mother Leonor (one line/degree), then to the common ancestor, that is, Julia and Leonors parents (second line/degree), and then descent to Julia, her aunt (third line/degree). Thus, Julia is Gregorias collateral relative within the third degree and not her ascendant. First cousins of the descendant/prepositus are fourth degree relatives and cannot be considered reservees/reservatarios Moreover, petitioners cannot be considered reservees/reservatarios as they are not relatives within the third degree of Gregoria from whom the properties came. The

person from whom the degree should be reckoned is the descendant/prepositusthe one at the end of the line from which the property came and upon whom the property last revolved by descent.19 It is Gregoria in this case. Petitioners are Gregorias fourth degree relatives, being her first cousins. First cousins of the prepositus are fourth degree relatives and are not reservees or reservatarios.20 They cannot even claim representation of their predecessors Antonio and Valentin as Article 891 grants a personal right of reservation only to the relatives up to the third degree from whom the reservable properties came. The only recognized exemption is in the case of nephews and nieces of the prepositus, who have the right to represent their ascendants (fathers and mothers) who are the brothers/sisters of the prepositus and relatives within the third degree.21 In Florentino v. Florentino,22 the Court stated: Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belong to the line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 now Article 891 is in the highest degree personal and for the exclusive benefit of the designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. x x x Nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. x x x.23 (Emphasis and underscoring ours) The conclusion, therefore, is that while it may appear that the properties are reservable in character, petitioners cannot benefit from reserva troncal. First, because Julia, who now holds the properties in dispute, is not the other ascendant within the purview of Article 891 of the Civil Code and second, because petitioners are not Gregorias relatives within the third degree. Hence, the CAs disposition that the complaint filed with the RTC should be dismissed, only on this point, is correct. If at all, what should apply in the distribution of Gregorias estate are Articles 1003 and 1009 of the Civil Code, which provide: Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. Art. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Nevertheless, the Court is not in the proper position to determine the proper distribution of Gregorias estate at this point as the cause of action relied upon by petitioners in their complaint filed with the RTC is based solely on reserva troncal. Further, any determination would necessarily entail reception of evidence on Gregorias entire estate and the heirs entitled thereto, which is best accomplished in an action filed specifically for that purpose. A reservista acquires ownership of the reservable property until the reservation takes place or is extinguished Before concluding, the Court takes note of a palpable error in the RTCs disposition of the case. In upholding the right of petitioners over the properties, the RTC ordered the reconveyance of the properties to petitioners and the transfer of the titles in their names. What the RTC should have done, assuming for arguments sake that reserva troncal is applicable, is have the reservable nature of the property registered on respondents titles. In fact, respondent, as reservista, has the duty to reserve and to annotate the reservable character of the property on the title.24 In reserva troncal, the reservista who inherits from a prepositus, whether by the latters wish or by operation of law, acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of ownership belong to him exclusively.25 The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferees rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor.26(Citations omitted) It is when the reservation takes place or is extinguished,27 that a reservatario becomes, by operation of law, the owner of the reservable property.28 In any event, the foregoing discussion does not detract from the fact that petitioners are not entitled to a reservation of the properties in dispute. WHEREFORE, the petition is DENIED. The Decision dated November 16, 2006 and Resolution dated January 17, 2007 of the Court of Appeals in CA-G.R. CV No. 77694 insofar as it dismissed the Third Amended Complaint in Civil Case No. 609-M-92 are AFFIRMED. This Decision is without prejudice to any civil action that the heirs of Gregoria

Mendoza may file for the settlement of her estate or for the determination of ownership of the properties in question. SO ORDERED.

http://www.scribd.com/doc/75732156/8/XVI-RESERVA-TRONCAL XIV. RESERVA ADOPTIVA Article 39 of PD 603 repealed by Article 254 of the Family Code Banawa v Mirano, 87 SCRA 517 FIRST DIVISION [G.R. No. L-24750. May 16, 1980.] DOROTEO BANAWA, JULIANA MENDOZA, CASIANO AMPONIN and GLICERIA ABRENICA, petitioners, vs. PRIMITIVA MIRANO, GREGORIA MIRANO, JUANA MIRANO and MARCIANO MIRANO, respondents. Jose W. Diokno for petitioners. Recto Law Office for respondents. DECISION FERNANDEZ, J p: This is a petition for review by certiorari of the decision of the Court of Appeals promulgated on April 12, 1965 1 in CA-G.R. No. 23597-R, entitled "Primitiva Mirano, et al., Plaintiffs-Appellees, versus, Doroteo Banawa, et al., DefendantsAppellants", the dispositive part of which is: "In view of the foregoing, the appealed judgment is hereby affirmed, with costs against defendants-appellants." The judgment of the lower court which was affirmed reads as follows: "WHEREFORE, judgment is hereby rendered: "(a) Declaring the plaintiffs to be the owners of the two parcels of land described in paragraph 3 of the complaint; "(b) Ordering the defendants to deliver the possession of the said parcels of land to the plaintiffs; "(c) Declaring the deed of sale executed by Roman Biscocho, Paula Biscocho and Maria Carmen Mendoza in favor of Doroteo Banawa and Juliana Mendoza, dated April 4, 1940, as evidenced by Exhibit 'E' and its registration in the registry of deeds of Batangas, to be null and void; "(d) Declaring null and void the deed of donation, dated August 7, 1956, evidenced by Exhibit 'D' executed by the spouses Doroteo Banawa and Juliana Mendoza in favor of the spouses Casiano Amponin and Gliceria Abrenica, as well

as Tax Declarations No. 26818 in the names of the spouses Doroteo Banawa and Juliana Mendoza, and No. 26845 in the names of the spouses Casiano Amponin and Gliceria Abrenica, and the registration of the said deed of donation in the registry of deeds of Batangas; and "(e) Ordering the defendants to pay to the plaintiffs actual damages in the amount of P4,500 and attorney's fees in the amount of P500.00, and the costs of this action. SO ORDERED." 2 The spouses Doroteo Banawa and Juliana Mendoza both died during the pendency of this case in the Court of Appeals. They have been substituted by the petitioners Casiano Amponin and his wife Gliceria Abrenica, legally adopted daughter of one of the deceased petitioners and donee of the Carsuche property. 3 The petitioners filed on May 20, 1965, a motion for reconsideration of the decision of the Court of Appeals. Said motion was denied on June 28, 1965. 4 As found by the Court of Appeals, the facts are: "It appears that sometime in 1911, Maria Mirano, a niece of appellant Juliana Mendoza, and who was then about nine years old, was taken in by the appellantsspouses, Doroteo Banawa and Juliana Mendoza, in the latter's house in Mahabang Lodlod, Taal, Batangas. Appellants spouses being childless, treated and reared her up like their own child. They hired a private tutor to teach her the rudiments of reading, writing and arithmetic. They supported her, gave her money, clothes and even jewelry. Maria reciprocated their care and affection by helping with the household chores. "A few years later, the spouses opened up a store for general merchandise in barrio Lutucan, Sariaya, Quezon, from which they derived considerable income and which enabled them to acquire several parcels of land. "On July 31, 1949, after a lingering illness, Maria Mirano died in Taal, Batangas while still living with the spouses. At the time of her death she left as her only nearest relatives the herein plaintiffs, namely Primitiva Mirano, who is a surviving sister, and Gregoria, Juana and Marciano, all surnamed Mirano, who are the children of a deceased brother, Martin Mirano. "The parties do not dispute the identity of the two parcels of land in controversy, which are described in paragraph 3 of the complaint as follows: '1. A parcel of sugar land situated in the Barrio of Iba, Taal, Batangas, with an area of 44,200 square meters, more or less. Bounded on the North, by Ravine; on the East, by the property of Leodovico Garcia; on the South, by the property of Gregorio Amponin; and on the West, by the property of Gregorio Maria Aniversario (now Doroteo Banawa). Under Tax Declaration No. 25994 in the name of Maria Mirano and assessed at P2,210.00.

'2. A parcel of sugar land situated in the barrio of Carsuche, Taal, Batangas, with an area of 54,093 square meters, more or less. Bounded on the North, by the property of Agapito Aro and Alley; on the East, by an Alley; on the South, by the properties of Filomeno Diomampo, Gregorio de la Rosa and Andres Moratilla; and on the West, by the property of Agapito Aro. Under Tax Declaration No. 19786 in the name of Maria Mirano and assessed at P2,760.00.' "For purposes of clearness and convenience, and since the respective assertions and evidences adduced by the parties regarding the two parcels of land are in sharp divergence, we shall refer to the first parcel as the Iba Property and to the second parcel as the Carsuche property and, moreover, we shall treat and discuss the two separately. "Parcel 1, or the Iba Property. "The parties agree that the Iba Property was originally owned by Placido Punzalan from whom it was acquired on May 5, 1921. Plaintiffs' evidence upon this point tends to show that the acquisition of the said parcel of land was pursuant to a deed of sale contained in a public instrument acknowledged before Notary Public Ramon A. Cabrera on the date aforesaid, a photostatic copy of which was introduced in evidence as Exhibit 'A', the same having been secured from an original copy on file with the Division of Archives, Bureau of Libraries. The deed of sale in question states that the Iba property consisted formerly of two parcels of land and that they were sold for the amount of P2,000.00 in favor of Maria Mirano. Defendant Doroteo Banawa impliedly admitted the execution of this notarial document when he declared that in the execution of the document concerning the purchase of the Iba property from Punzalan the notary public charged him P20.00 and another P5.00 for stamps in the name of Maria Mirano since 1923 (Exhs. 'A-1' to 'A-7'). "By contrast, defendants' claim of ownership over the Iba property is predicated upon their assertion that the money used in buying said land pertained to the spouses Doroteo Banawa and Juliana Mendoza. Defendants contend that since 1919 Placido Punzalan borrowed money from defendant spouses on three different occasions for the sums of P1,200.00, P1,800.00 and P1,080.00, respectively, each of which was evidenced by Exhs. '1', '2', and '3', respectively. Upon the failure of Placido Punzalan to discharge said obligations in 1921, he agreed to sell the land aforementioned to the spouses for P3,700.00, but as the total value of the three loans was P4,080.00, Punzalan had to reimburse to said spouses the difference of P380.00. The document of sale stated the price to be only P2,000.00 in view of the fact that Doroteo Banawa had only P25.00 with him when the deed was prepared by the notary public, and the latter was charging P10.00 for every one thousand pesos mentioned as the consideration of the contract. Defendants likewise maintain that the sale was made to appear in favor of Maria Mirano because said spouses

being already old, they wanted to leave something to Maria Mirano for her to lean upon when they would have been gone. They, however, made Maria understand that although the property was placed under her name, they would continue to be the owners thereof, to administer and enjoy the fruits of the same as long as they live, and that she would become the owner of the land only after their death. Maria supposedly expressed her conformity to and appreciation for the said arrangement. Maria Mirano was 19 years old when the deed of sale was executed. "Parcel 2, or the Carsuche Property. "There is no dispute between the parties that the Carsuche property was acquired by way of purchase from its original owners, to wit: Roman Biscocho, his sister Paula Biscocho, and sister-in-law Carmen Mendoza. The sale took place sometime in December 1935. There is, however, a sharp conflict of evidence between the parties concerning the form of the document evidencing the same and in whose favor the sale was made at that time. The plaintiffs claim that the sale was evidenced by a public instrument executed before and ratified by Notary Public Vicente Ilagan of Taal, Batangas, and that the vendee mentioned in the said document was Maria Mirano. The defendants, on the other hand, assert that the sale was evidenced by a private writing prepared in the handwriting of Roman Biscocho and that it was in favor of the spouses Doroteo Banawa and Juliana Mendoza. Neither the public instrument allegedly ratified by Atty. Ilagan nor the private writing supposedly prepared by Roman Biscocho was presented before the lower court. "After laying the proper predicate for the presentation of secondary evidence, the plaintiffs presented Atty. Vicente Ilagan and Roman Biscocho to testify upon the execution of the aforesaid public instrument in December, 1935. These two declared that sometime in December, 1935, the spouses Doroteo Banawa and Juliana Mendoza, Maria Mirano, Roman Biscocho, Paula Biscocho and Carmen Mendoza, accompanied by Atty. Regino Aro, went to the office of Atty. Ilagan in Taal, Batangas; that Atty. Aro, who was a classmate of Atty. Ilagan in the law school, asked the latter's permission to use his typewriter on which he prepared a document in English and which he asked Atty. Ilagan to ratify; that Atty. Ilagan translated into Tagalog the contents of the said document to the parties and, the witnesses, after which they all signed the same; that the document involved the sale of the Carsuche property in favor of Maria Mirano; that after paying him P20.00 for his services which Atty. Ilagan would not accept at first, Doroteo Banawa asked Atty. Ilagan in Tagalog whether the document that he ratified was 'strong enough' (Matibay) to safeguard the rights of Maria Mirano, to which Atty. Ilagan answered in the affirmative. "Doroteo Banawa, on the other hand, stated that on being offered the Carsuche property by the owners thereof, they agreed on the purchase price of P3,700.00 of

which a down payment of P1,200.00 was made and, later, an additional sum of P100.00 was given to Roman Biscocho, both payments being evidenced by a receipt dated December 15, 1936 (Exh. '9'). A few days later, Roman Biscocho prepared in his own handwriting a private document selling the Carsuche property in favor of the spouses Doroteo Banawa and Juliana Mendoza for the sum of P4,000.00, the vendors having asked for a P300.00 increase in price. Doroteo Banawa, thereafter brought said private document to the municipal treasurer of Taal Batangas, to whom he expressed the desire to have the land declared in the name of Maria Mirano so that the latter might attend to the payment of taxes over the land whenever he was away. This wish of Doroteo Banawa was done by his thumb-marking an affidavit, thus accounting for the fact that said land appears in the name of Maria Mirano in the tax declarations covering the same from 1934 to 1956." 5 The petitioners assign the following errors: "I THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING THAT THE PLACING OF IBA PROPERTY IN THE NAME OF THE LATE MARIA MIRANO WAS IN THE NATURE OF A DONATION INTERVIVOS. II THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING THAT PETITIONERS' INTERPRETATION OF ARTICLE 632 OF THE OLD CIVIL CODE IS TOO LITERAL AND IGNORES THE RATIONALE OF THE LEGAL PROVISION. III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING THAT THE 'EXCEPTIVE CLAUSE' OF ARTICLE 1448 OF THE CIVIL CODE IS APPLICABLE IN THE PRESENT CASE. IV THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING THAT SECTION 5, RULE 100 OF THE OLD RULES OF COURT DOES NOT APPLY IN THE INSTANT CASE BECAUSE MARIA MIRANO WAS NOT LEGALLY ADOPTED. V THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN LAW IN RULING WITH RESPECT TO THE CARSUCHE PROPERTY (LOT NO. 2) THAT THE DEED OF SALE EXECUTED IN 1940 IN FAVOR OF THE PETITIONERS DOROTEO BANAWA AND HIS WIFE JULIANA MENDOZA AND WHICH WAS DULY REGISTERED DID NOT IMPAIR THE PRETENDED SALE TO MARIA MIRANO." 6

The first, second, third and fourth errors assigned refer to the Iba property, parcel 1, while the fifth error assigned refers to the Carsuche property, Lot 2. 7 As may be discerned from the assignment of errors, the basic issue is the ownership of the two parcels of land in question. The plaintiffs appellees, respondents herein, assert title to the lands as heirs of Maria Mirano. Defendantsappellants, petitioners herein, claim ownership over them by virtue of purchase from the original owners. Considering that in the case at bar the findings of fact of the Court of Appeals are not contrary to those of the trial court, a minute scrutiny by this Court of said findings is not necessary. In Tolentino vs. de Jesus, et al., 8 this Court held: "The findings of facts of the respondent Court of Appeals are conclusive on the parties and on this Court (Tamayo vs. Callejo, L-25563, July 28, 1972, 46 SCRA 27; Nery, et al. vs. Lorenzo, et al., L-23096 & L-23376, April 27, 1972, 44 SCRA 431; Viacrucis vs. CA, L-29831, March 29, 1972, 44 SCRA 176; Dela Cruz, et al. vs. CA, L-24000, Nov. 29, 1971, 42 SCRA 68; Naga Dev. Corp. vs. CA, L-28175, Sept. 30 1971, 41 SCRA 105, 115; Lacson & Basilio vs. Pineda, et al., L-28523 July 16, 1971, 40 SCRA 35; Quiano, et al. vs. CA, et al., L-23024, May 31, 1971, 39 SCRA 227; Reyes, et al. vs. CA, et al., L-28466, March 27, 1971, 38 SCRA 138, 142; Gotamco Hermanas vs. Shotwell, et al., L-22519, March 27, 1971, 38 SCRA 112-117; Limjoco vs. CA, L-20656, Feb. 27, 1971, 37 SCRA 663-669; De Garcia, et al. vs. CA, L-20264, Jan. 30, 1971, 37 SCRA 130, 136-137; Simeon vs. Pea, L-29049, Dec. 29, 1970, 36 SCRA 611), unless (1) the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admission of both appellant and appellees [Roque vs. Buan, L-22459, Oct. 31, 1967, 21 SCRA 648]; (6) the findings of facts of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions without citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents [Garcia vs. CA, L-26490, June 30, 1970, 33 SCRA 622]; and (9) when the finding of fact of the Court of Appeals is premised on the absence of evidence and is contradicted by evidence on record [Salazar vs. Gutierrez, L-21727, May 29, 1970, 33 SCRA 243]." The instant case does not fall under any of the exceptions. However, all the issues raised by the petitioners shall be passed upon individually. The first error assigned reads:

"The Honorable Court of Appeals gravely erred in law in ruling that the placing of the Iba Property in the name of the late Maria Mirano was in the nature of a donation intervivos." The respondents 9 correctly pointed out that neither the Court of Appeals nor the Court of First Instance of Batangas categorically stated that the placing of the properties in the name of Maria Mirano was in the nature of a donation intervivos. In rejecting the petitioners' contention that a donation mortis causa was executed, the Court of Appeals said that, under the facts and circumstances narrated by the petitioners, the placing of the Iba property in the name of Maria Mirano if it was to be called a donation at all was not in the nature of a donation mortis causa but rather it would be in the nature of a donation inter-vivos, giving its reasons and citing the applicable law and decisions of this Court on the matter. The Court of First Instance made the same hypothetical conclusion. 10 The finding of the Court of First Instance of Batangas which was sustained by the Court of Appeals is that what was donated by the spouses Doroteo Banawa and Juliana Mendoza to Maria Mirano was the money used in the purchase of the lands in question. This conclusion of the Court of First Instance of Batangas was supported by the testimony of Macario B. Aro, a nephew of the deceased Doroteo Banawa, that the money used by Maria Mirano in the purchase of the Iba and Carsuche properties was given to her by Doroteo Banawa. 11 If the money used by Maria Mirano in purchasing the properties was given to her by the spouses Doreteo Banawa and Juliana Mendoza, or by either of them, then the money had belonged to her. Maria Mirano purchased and paid for the said properties with her money. As a matter or fact, the deed of sale, Exhibit "A", 12 recites as follows: "Que en consideracion a la suma de Dos Mil Pesos moneda filipina (P2,000.00) que me ha pagado Maria Mirano . . .". It is also contended by the petitioners that the deeds of sale executed by the owners of the land in favor of Maria Mirano were simulated contracts intended to shortcut two different transactions: (1) a sale in favor of the spouses Doroteo Banawa and Juliana Mendoza; and (2) a donation of lands by the spouses in favor of Maria Mirano. 13 There are two kinds of simulated contracts, namely: the absolutely simulated contract and the relatively simulated one. In both instances, however, their nullity is based on the want of true consent of the parties. There is no intent to be bound or the true intent is hidden or concealed. Such contracts are even generally regarded as fraudulent with intent of injuring third persons. The purpose, therefore, of a simulated contract which may be annulled is to conceal the parties' true intent, or to deceive or defraud third persons.

From the record, there is no showing of deception or fraud, nor of concealment of intent of the parties as to the sale of the Iba property by the vendors in favor of Maria Mirano. The transactions which transpired were purely: (1) donations of money or things representing or equivalent to money by the spouses in favor of Maria Mirano which could be made and accepted verbally; and (2) purchase of lands by Maria Mirano with the use of that money or credits (pre-existing indebtedness in favor of the spouses) as consideration thereof. The petitioners' contention that "the contract of sale had been intended to be a contract of sale between the vendors and the spouses Doroteo Banawa and Juliana Mendoza" has no merit. The petitioners were present when the sales were made to Maria Mirano. They were the ones who caused the titles to the properties to be placed in the name of Maria Mirano because they wished "that after our death Maria Mirano could have something for her maintenance". 14 Moreover, the testimony of Vicente Ilagan, the notary public before whom the deed of sale was executed, to the effect that he was asked by Doroteo Banawa in Tagalog: "Kung matibay ang documentong ito para kay Maria" 15 and to which query he answered, "Yes, sir", 16 supports this conclusion. The conduct of the spouses at the time of the execution of the contracts are inconsistent with those which the petitioners, the late spouses and their successors-in-interest, now assert. Their intention to make Maria Mirano the owner of the said parcels of land was clearly shown by their conduct at the time of the execution of the deeds of sale which influenced the vendors to believe that Maria Mirano was indeed the vendee in their agreement. The petitioners had full knowledge of the facts surrounding the execution of the document of sale. They are equitably estopped 17 to deny that the transfer of the lands in question in favor of Maria Mirano was the actual and true intent of the parties as embodied in the documents of sale of the Iba and Carsuche properties. The documents are what they purport to be contracts of sale from the vendors to the vendee, Maria Mirano. The petitioners submit that since there was transfer of title to the land in litigation to Maria Mirano when the purchase price was in fact actually paid by the petitioners-spouses, an implied trust was created. The present law on implied trust is Article 1448 of the New Civil Code which provides: "Art. 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child."

The transactions in question took place before the Civil Code of the Philippines became effective on August 30, 1950. Hence Article 1448 of said Code is not applicable. 18 Moreover, there is no showing that Maria Mirano bought the lands in question in trust for the petitioners. The petitioners also claim that they have become owners of the properties by acquisitive prescription under Article 1957 of the Old Civil Code which provides: "Ownership and other real rights in immovable property shall prescribe by possession in good faith and under a just title for ten years as between persons present and for twenty years as between absentees." The above-cited provision speaks of two essential requirements: (1) possession for ten (10) years as between persons present and twenty (20) years, for absentees; and (2) a just title. As regards the Iba property (Lot No. 1), petitioners have not presented any title, just or otherwise, to support their claim. And Article 1954 of the Old Civil Code provides, further, that a "just title must be proven; it never can be presumed." Not having a just title, as required by Article 1957 of the Old Civil Code, the petitioners cannot invoke prescription with respect to the Iba property. llcd The petitioners also assert ownership by acquisitive prescription over the Iba property under Section 41 of the Code of Civil Procedure. The pertinent portion of Section 41 of the Code of Civil Procedure reads: "Ten years actual adverse possession by any person claiming to be the owner for that time of any land or interest in land, uninterruptedly continued for ten years by occupancy, descent, grants, or otherwise in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to the persons under disabilities the rights secured by the next section. In order to constitute such title by prescription or adverse possession, the possession by the claimant or by the person under or through whom he claims must have been actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants . . ." It is a fact that while Maria Mirano was alive she possessed the property in question as the owner thereof. Hence, it is error for the petitioners to claim ownership over the Iba property by acquisitive prescription under Article 41 of the Code of Civil Procedure for their possession of the said property became adverse and exclusive only in July 1949 after Maria Mirano's death. From 1949 to the date of the filing in 1957 of the present action by the respondents only eight years had elapsed. The second error assigned is:

"The Honorable Court of Appeals gravely erred in law in ruling that petitioners' interpretation of Article 632 of the Old Civil Code is too literal and ignores the rationale of the legal provision." Article 632 of the Old Civil Code provides: "Donations of personal property may be made verbally or in writing. Verbal donation requires the simultaneous delivery of the gift. In the absence of this requisite the donation shall produce no effect, unless made in writing and accepted in the same form." It is contended by the petitioners that oral donation of personal property requires simultaneous delivery of the gift. As regards the Iba property, the consideration given by Maria Mirano for the purchase of the said property from Placido Punzalan was the pre-existing debts of the latter to the spouses Doroteo Banawa and Juliana Mendoza. The contention of the petitioners that there was no simultaneous delivery of the credits to Maria Mirano is not meritorious. Delivery may be actual or constructive. Actual delivery consists in the giving of actual possession to the vendee or his agent, as for example, in manually transferring the possession of a thing from the vendor to the vendee. Constructive delivery is a general term comprehending all those acts which, although not conferring physical possession of the thing, have been held by construction of law equivalent to acts of real delivery, as for example, the giving of the key to the house, as constructive delivery of the house from the vendor to the vendee. In the instant case, the oral donation of the gift consisting of pre-existing obligations of the vendor, Placido Punzalan, was simultaneous or concurrent with the constructive delivery thereof to Maria Mirano when the spouses consented to the execution of the deed of sale of the Iba property in favor of Maria Mirano. The execution of the said deed of sale constituted payment by the vendor, Placido Punzalan, of his outstanding obligations due to the spouses, Doroteo Banawa and Juliana Mendoza. Consequently, there was constructive transfer of possession of the incorporeal rights of the spouses over the property in question to Maria Mirano. It is no longer necessary to discuss the third error assigned because of the holding that Article 1448 of the New Civil Code has no retroactive application to the instant case. Anent the fourth error assigned, the petitioners urge that the donor-spouses are entitled to the land in question by virtue of Section 5, Rule 100 of the Old Rules of Court, the pertinent portion of which reads: ". . . In case of the death of the child, his parents and relatives by nature, and not by adoption, shall be his legal heirs, except as to property received or inherited by the adopted child from either of his parents by adoption, which shall become the

property of the latter or their legitimate relatives who shall participate in the order established by the Civil Code for intestate estate". The submission of the petitioners is that extrajudicial adoption is within the contemplation and spirit of this rule of reversion adoptiva. However, the rule involved specifically provides for the case of the judicially adopted child. It is an elementary rule of construction that when the language of the law is clear and unequivocal, the law must be taken to mean exactly what it says. prcd The fifth error assigned is: "The Honorable Court of Appeals gravely erred in law in ruling with respect to the Carsuche property (Lot No. 2) that the deed of sale executed in 1940 in favor of the petitioner Doroteo Banawa and his wife Juliana Mendoza did not impair the pretended sale to Maria Mirano." The Court of Appeals found that there was a sale of the Carsuche property in 1935 in favor of Maria Mirano and that such sale was embodied in a public instrument. However, in 1940 the same land was sold to the petitioners. The sale was duly registered. The petitioners immediately entered into the possession of the land as owners. The claim of the petitioners that they have acquired by acquisitive prescription the Carsuche property (Lot No. 2) is meritorious. Section 40 of the Code of Civil Procedure provides: "Period of prescription as to real estate An action for recovery of title to, or possession of, real property, or an interest therein, can only be brought within ten years after the cause of action accrues." That the aforesaid Section 40 governs the instant case is clear from Article 1116 of the New Civil Code which provides that "prescriptions already running before the effectivity of the New Civil Code, shall be governed by the laws previously in force." The prescriptive period commenced to run since 1940, the date the sale in favor of the Banawas was registered with the Register of Deeds of Batangas. Hence the Code of Civil Procedure governs. The instant case, not having been filed within ten (10) years from the time the cause of action accrued in 1940, prescribed under Section 40 of the Code of Civil Procedure in 1950 because the same was filed only in 1957, seventeen (17) years later. The possession of the Banawas over the Carsuche property ripened into full ownership in 1950, ten (10) years after 1940, when the possession of the petitionerspouses which was actual, open, public and continuous, under a claim of title exclusive of any other right and adverse to all other claims, commenced. (Sec. 41, Code of Civil Procedure). The sale in favor of the Banawas was registered in 1940 with the Register of Deeds of Batangas. The actual and adverse possession of the petitioner-spouses was continued by their present successors.

The alleged bad faith of the petitioners in that they knew that the land was previously sold to Maria Mirano is of no consequence because Section 41 of the Code of Civil Procedure provides that there is prescription "in whatever way such occupancy may have commenced." As held in one case ". . . guilty knowledge is of no moment for under the law title by prescription may be acquired in whatever way possession may have been commenced or continued and so long as the possessor had possessed the land openly, publicly, continuously and under a claim of title for a period of over ten years." 19 The trial court found that the two parcels of land in question with a combined area of a little less than ten (10) hectares had an average annual net yield of P500.00, A total amount of P4,500.00 as actual damages was awarded in as much as Maria Mirano had been dead for nine (9) years when the decision of the trial court was rendered. An adjustment should be made in view of the finding of this Court that the Carsuche property, Lot 2, belongs to the petitioners. LibLex The Iba property, Lot 1, is about 45% of the combined area of the two lands in question. Forty-five percent (45%) of the annual net income of P500.00 is equivalent to P225.00. Maria Mirano has been dead for about thirty-one (31) years now. During all this period, the petitioners have been in possession of the Iba property and receiving the products thereof. They should pay as actual damages the total amount of P6,975.00 representing the net income for the period of thirty-one (31) years on the basis of P225.00 a year. The respondents are also entitled to attorney's fees in the amount of P1,000.00. WHEREFORE, the decision of the Court of Appeals is hereby affirmed as to the Iba property (Lot No. 1) but reversed as to the Carsuche property (Lot No. 2) which was acquired by the spouses Doroteo Banawa and Juliana Mendoza who could validly donate the said property to Casiano Amponin and Gliceria Abrenica. The petitioners are ordered to pay the private respondents the total amount of Six Thousand Nine Hundred Seventy-Five Pesos (P6,975.00) as actual damages and the amount of One Thousand Pesos (P1,000.00) as attorney's fees, without pronouncement as to costs. SO ORDERED. Guerrero, De Castro and Melencio-Herrera, JJ., concur. Teehankee (Chairman), concurs in the result. Separate Opinions MAKASIAR, J., concurring and dissenting: I dissent, re the Iba parcel; because there was no valid donation of the land or of the purchase money. In addition to the views expressed by the learned counsel for the petitioners, to which I subscribe, I wish to stress the following. LLjur

1. The money with which to buy the property was not donated to Maria by the spouses Juliana Mendoza and Doroteo Banawa. Said spouses would not donate the large amount of P4,080.00 (although the deed states the amount as P2,000.00) to Maria Mirano who was merely tutored to learn the 3 R's reading, writing and arithmetic at the expense of said spouses. While it is true that they supported her, gave her money, clothes and even jewelry, they did not send her to school, much less give her a college education. It is unthinkable that the said spouses would give her P4,080.00 where they could not even give her a primary education which would cost very much less (from 1911 to 1915). The jewelry they could have given to her could not be better than trinkets, the cost of which was negligible but could be a fond possession of a poor, impressionable child in the rural area like Maria; 2. No cash actually passed to Maria from the spouses - The amount of P4,080.00 allegedly donated by the spouses to Maria represented the various loans in the amounts of P1,200.00, P1,800.00 and P1,080.00 previously extended to Placido Punzalan who, as vendor, sold the Iba parcel in payment of his debt. While the selling price was P3,700.00, the purchase price was made to appear in the document as P2,000.00 to save on notarial fees; 3. Up to the time of her death on July 31, 1949 at the age of 48, Maria was still living with the spouses who reared her. This fact shows that Maria was still being supported by the spouses Doroteo Banawa and Juliana Mendoza; 4. If there was a valid donation of the money to pay for the Iba sugar land in Taal in 1921, which consists of 4.42 hectares, it would seem that Maria would have sufficient funds derived from the produce of such a big parcel with which to purchase for herself the Carsuche parcel for the amount of P3,700,00 or P4,000.00. But the fact of the matter is that it was still the spouses Juliana Mendoza and Doroteo Banawa who paid for the Carsuche property, only that the sale was allegedly made in favor of Maria, whom they did not legally adopt, to insure the survival of Maria long after they would have been dead as they were then already old. Again, this goes against the grain of human nature; because no such deep concern was exhibited by the spouses in favor of their legally adopted daughter Gliceria Abrenica; and 5. The spouses legally adopted petitioner Gliceria Abrenica, wife of copetitioner Casiano Ampunin, but never legally adopted Maria, niece of petitioner Juliana Mendoza. If the said spouses wanted to favor their niece Maria for helping in their business, they could have easily adopted her legally and thereby make her their legal heir, like petitioner Gliceria Abrenica. I concur re the Carsuche parcel. There was no valid sale in favor of Maria Mirano of said lot because:

1. While a photostat copy of the earlier deed of sale of 1921 was secured from the Division of Archives of the Bureau of Libraries and submitted in evidence as Exhibit A; no copy of the later alleged deed of sale in 1935 was presented in evidence concerning the Carsuche parcel. If there was such a 1935 deed of sale (14 years after the 1921 deed), a certified true copy thereof could be more easily secured from the Division of Archives of the Bureau of Libraries, as it was a later document (1935) than the 1921 deed of sale, which is available. The alleged sale in December, 1935 was allegedly notarized by Atty. Vicente Ilagan. It is strange that Atty. Aro who allegedly prepared the deed of sale, was not the one who notarized the same; 2. In 1935, Maria was already 23 years old. Being a very important document purportedly evidencing her title to the Carsuche sugar land also in Taal, of 5.4093 hectares, she should have retained the original or a copy of the alleged deed of sale, specially considering that the sum of P4,000.00 was allegedly paid for the same; 3. The cancelled tax declaration of the previous owner the vendor or the new tax declaration in the name of the buyer, usually states the reason for such cancellation, like a deed of sale with its date and may include the name of the notary public and place of execution of the document. There is no intimation of such a statement or entry in the cancelled tax declaration of the vendor or in the new tax declaration in the name of Maria Mirano; and 4. There is no discussion of any exhaustive examination of the other four possible sources of the copies of the alleged 1935 deed of sale from the vendor, the notary public, the office of the clerk of court, and as above-stated, the alleged vendee herself. Teotico v del Val, 13 SCRA 406 EN BANC [G.R. No. L-18753. March 26, 1965.] VICENTE B. TEOTICO, petitioner-appellant, vs. ANA DEL VAL CHAN, ETC., oppositor-appellant. Antonio Gonzales for petitioner-appellants. J. C. Zulueta, G.D. David & N.J. Quisumbing for oppositor-appellee. SYLLABUS 1. CITIZENSHIP; NATURALIZATION; ALIEN WIFE OF CITIZEN NOT AUTOMATICALLY CITIZEN BUT MUST PROVE COMPLIANCE WITH REQUIREMENTS. The alien wife of a Filipino citizen does not automatically become a Philippine citizen upon her husband's naturalization. She must first prove that she has all the qualifications required by Section 2 and none of the disqualifications enumerated in Section 4 of the Naturalization Law before she may be deemed a Philippine citizen.

2. ID.; ID.; ID.; REASON FOR RULE; POLICY OF SELECTIVE ADMISSION TO PHILIPPINE CITIZENSHIP. The rule laid down by this Court in this and in other cases heretofore decided is believed to be in line with the national policy of selective admission to Philippine citizenship which after all is a privilege granted only to those who are found worthy thereof, and not indiscriminately to anybody at all on the basis alone of marriage to a man who is a citizen of the Philippines, irrespective of moral character, ideological belief, and identification with Filipino ideals, customs and traditions. DECISION BAUTISTA ANGELO, J p: Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of Manila leaving properties worth P600,000.00. She left a will written in Spanish which she executed at her residence in No. 2 Legarda St., Quiapo, Manila. She affixed her signature at the bottom of the will and on the left margin of each and every page thereof in the presence of Pilar Borja, Pilar G. Sanchez, and Modesto Formilleza, who in turn affixed their signatures below the attestation clause and on the left margin of each and every page of the will in the presence of the testatrix and of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton by the testatrix and her witnesses. In said will the testatrix made the following preliminary statement: that she was possessed of the full use of her mental faculties; that she was free from illegal pressure or influence of any kind from the beneficiaries of the will and from any influence of fear or threat; that she freely and spontaneously executed said will and that she had neither ascendants nor descendants of any kind such that she could dispose of all her estate. Among the many legacies and devises made in the will was one of P20,000.00 to Rene A. Teotico, married to the testatrix's niece named Josefina Mortera. To said spouses the testatrix left the usufruct of her interest in the Calvo building, while the naked ownership thereof she left in equal parts to her grandchildren who are the legitimate children of said spouses. The testatrix also instituted Josefina Mortera as her sole and universal heir to all the remainder of her properties not otherwise disposed of in the will. On July 17, 1955, Vicente B. Teotico filed a petition for the probate of the will before the Court of First Instance of Manila which was set for hearing on September 3, 1955 after the requisite publication and service to all parties concerned. Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a deceased sister of the testatrix, as well as an acknowledged natural child of Jose Mortera, a deceased brother of the same testatrix, filed on September 2, 1955 an opposition to the probate of the will alleging the following grounds: (1) said will

was not executed as required by law; (2) the testatrix was physically and mentally incapable to execute the will at the time of its execution; and (3) the will was executed under duress, threat or influence of fear. Vicente B. Teotico filed a motion to dismiss the opposition alleging that the oppositor had no legal personality to intervene. The probate court, after due hearing, allowed the oppositor to intervene as an adopted child of Francisco Mortera, and on June 17, 1959, the oppositor amended her opposition by alleging the additional ground that the will is inoperative as to the share of Dr. Rene Teotico because the latter was the physician who took care of the testatrix during her last illness. After the parties had presented their evidence, the probate court rendered its decision on November 10, 1960 admitting the will to probate but declaring the disposition made in favor of Dr. Rene Teotico void with the statement that the portion to be vacated by the annulment should pass to the testatrix's heirs by way of intestate succession. Petitioner Teotico, together with the universal heir Josefina Mortera, filed a motion for reconsideration of that part of the decision which declares the portion of the estate to be vacated by the nullity of the legacy made to Dr. Rene Teotico as passing to the legal heirs, while the oppositor filed also a motion for reconsideration of the portion of the judgment which decrees the probate of the will. On his part, Dr. Rene Teotico requested leave to intervene and to file a motion for reconsideration with regard to that portion of the decision which nullified the legacy made in his favor. The motions for reconsideration above adverted to having been denied, both petitioner and oppositor appealed from the decision, the former from that portion which nullifies the legacy in favor of Dr. Rene Teotico and declares the vacated portion as subject of succession in favor of the legal heirs, and the latter from that portion which admits the will to probate. And in this instance both petitioner and oppositor assign several error which, stripped of non-essentials, may be boiled down to the following: (1) Has oppositor Ana del Val Chan the right to intervene in this proceeding?; (2) Has the will in question been duly admitted to probate?; and (3) Did the probate court commit an error in passing on the intrinsic validity of the provisions of the will and in determining who should inherit the portion to be vacated by the nullification of the legacy made in favor of Dr. Rene Teotico? These issues will be discussed separately. 1. It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in 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 (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an interested party has been defined as one who would be benefitted by the

estate such as an heir or one who has a claim against the estate like a creditor (Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L-17750, December 17, 1962, this Court said: "According to Section 2, Rule 80 of the Rules of Court, a petition for letters of administration must be filed by an 'interested person.' An interested party has been defined in this connection as one who would be benefitted by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Intestate Estate of Julio Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction that in civil actions as well as special proceedings, the interest required in order that a person may be a party thereto must be material and direct, and not merely indirect or contingent. (Trillana vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311)." The question now may be asked: Has oppositor any interest in any of the provisions of the will, and, in the negative, would she acquire any right to the estate in the event that the will is denied probate? Under the terms of the will, oppositor has no right to intervene because she has no interest in the estate either as heir, executor, or administrator, nor does she have any claim to any property affected by the will, because it nowhere appears therein any provision designating her as heir, legatee or devisee of any portion of the estate. She has also no interest in the will either as administratrix or executrix. Neither has she any claim against any portion of the estate because she is not a coowner thereof, and while she previously had an interest in the Calvo building located in Escolta, she had already disposed of it long before the execution of the will. In the supposition that the will is denied probate, would the oppositor acquire any interest in any portion of the estate left by the testatrix? She would acquire such right only if she were a legal heir of the deceased, but she is not under our Civil Code. It is true that oppositor claims to be an acknowledged natural child of Jose Mortera, a deceased brother of the deceased, and also an adopted daughter of Francisca Mortera, a deceased sister of the testatrix, but such claim cannot give her any comfort for, even if it be true, the law does not give her any right to succeed to the estate of the deceased sister of both Jose Mortera and Francisca Mortera. And this is so because being an illegitimate child she is prohibited by law from succeeding to the legitimate relatives of her natural father. Thus, Article 992 of our Civil Code provides: "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; . . ." And the philosophy behind this provision is well expressed in Grey vs. Fabie, 68 Phil., 128, as follows: "'Between the natural child and the legitimate relatives of the father or mother who acknowledged it, the Code denies any right of succession. They cannot be called

relatives and they have no right to inherit. Of course, there is a blood tie, but the law does not recognize it. In this, article 943 is based upon the reality of the facts and upon the presumptive will of the interested parties; the natural child is disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by the natural 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 natural child nothing but the product of sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life; the law does no more them recognize this truth, by avoiding further grounds of resentment.' (7 Manresa, 3d ed., p. 110.)" The oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca Mortera because under our law the relationship established by adoption is limited solely to the adopter and the adopted does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter. "The relationship established by the adoption, however, is limited to the adopting parent, and does not extend to his other relatives, except as expressly provided by law. Thus, the adopted child cannot be considered as a relative of the ascendants and collaterals of the adopting parents, nor of the legitimate children which they may have after the adoption, except that the law imposes certain impediments to marriage by reason of adoption. Neither are the children of the adopted considered as descendants of the adopter. The relationship created is exclusively between, the adopter and the adopted, and does not extend to the relatives of either." (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652) "Relationship by adoption is limited to adopter and adopted, and does not extend to other members of the family of either; but the adopted is prohibited to marry the children of the adopter to avoid scandal." (An Outline of Philippines Civil law by Justice Jose B. L, Reyes and Ricardo C. Puno, Vol. 1, p. 313; See also Caguioa, Comments and Cases on Civil law, 1955, Vol. 1, pp. 312-313; Paras, Civil Code of the Philippines, 1959 ed., Vol. 1, p. 515) It thus appears that the oppositor has no right to intervene either as testamentary or as legal heir in this probate proceeding contrary to the ruling of the court a quo. 2. The next question to be determined is whether the will Exhibit A was duly admitted to probate. Oppositor claims that the same should not have been admitted not only because it was not properly attested to but also because it was procured thru pressure and influence and the testatrix affixed her signature by mistake believing that it contained her true intent.

The claim that the will was not properly attested to is contradicted by the evidence of record. In this respect it is fit that we state briefly the declarations of the instrumental witnesses. Pilar Borja testified that the testatrix was in perfect state of health at the time she executed the will for she carried her conversation with her intelligently; that the testatrix signed immediately above the attestation clause and on each and every page thereof at the left-hand margin in the presence of the three instrumental witnesses and the notary public; that it was the testatrix herself who asked her and the other witnesses to act as such; and that the testatrix was the first one to sign and later she gave the will to the witnesses who read and signed it. Pilar G. Sanchez also testified that she knew the testatrix since 1945; that it was the testatrix herself who asked her to be a witness to the will; that the testatrix was the first one to sign and she gave the will later to the witnesses to sign and afterwards she gave it to the notary public; that on the day of the execution of the will the testatrix was in the best of health. Modesto Formilleza also testified that he was asked by the testatrix to be one of the witnesses to the will; that he read and understood the attestation clause before he signed the document, and that all the witnesses spoke either in Spanish or in Tagalog. He finally said that the instrumental witnesses and the testatrix signed the will at the same time and place and identified their signatures. This evidence which has not been successfully refuted proves conclusively, that the will was duly executed because it was signed by the testatrix and her instrumental witnesses and the notary public in the manner provided for by law. The claim that the will was procured by improper pressure and influence is also belied by the evidence. On this point the court a quo made the following observation: "The circumstance that the testatrix was then living under the same roof with Dr. Rene Teotico is no proof adequate in law to sustain the conclusion that there was improper pressure and undue influence. Nor is the alleged fact of isolation of the testatrix from the oppositor and her witnesses, for their supposed failure to see personally the testatrix, attributable to the vehemence of Dr. Rene Teotico to exclude visitors, took place years after the execution of the will on May 17, 1951. Although those facts may have some weight to support the theory of the oppositor, yet they must perforce yield to the weightier fact that nothing could have prevented the testatrix, had she really wanted to, from subsequently revoking her 1951 will if it did not in fact reflect and express her own testamentary dispositions. For, as testified to by the oppositor and her witnesses, the testatrix was often seen at the Escolta, in Quiapo and in Sta. Cruz, Manila, walking and accompanied by no one. In fact, on different occasions, each of them was able to talk with her."

We have examined the evidence on the matter and we are fully in accord with the foregoing observation. Moreover, the mere claim that Josefina Mortera and her husband Rene Teotico had the opportunity to exert pressure on the testatrix simply because she lived in their house several years prior to the execution of the will and that she was old and suffering from hypertension in that she was virtually isolated from her friends for several years prior to her death is insufficient to disprove what the instrumental witnesses had testified that the testatrix freely and voluntarily and with full consciousness of the solemnity of the occasion executed the will under consideration. The exercise of improper pressure and undue influence must be supported by substantial evidence and must be of a kind that would overpower and subjugate the mind of the testatrix as to destroy her free agency and make her express the will of another rather than her own (Coso vs. Deza, 42 Phil., 596). The burden is on the person challenging the will that such influence was exerted at the time of its execution, a matter which here was not done, for the evidence presented not only is sufficient but was disproved by the testimony the instrumental witnesses. 3. The question of whether the probate court could determine the intrinsic validity of the provisions of a will has been decided by this Court in a long line of decisions among which the following may be cited: "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." (Palacios vs. Palacios, 58 O.G. 220) ". . . The authentication of a will decides no other questions 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 of the provisions; these may be impugned as being vicious or null, notwithstanding its authentication. The questions relating to these points remain entirely unaffected, and may be raised even after the will has been authenticated. . . . "From the fact that the legalization of a will does not validate the provisions therein contained, it does not follow that such provisions lack of efficiency, or fail to produce the effects which the law recognizes when they are not impugned by anyone. In the matter of wills it is a fundamental doctrine that the will of the testator is the law governing the interested parties, and must be punctually complied with in so far as it is not contrary to the law or to public morals." (Montaano vs. Suesa, 14 Phil., pp. 676, 679-680) "To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new

code for the probate of a will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid." Castaeda vs. Alemany, 3 Phil., 426, 428) Pursuant to the foregoing precedents the pronouncement made by the court a quo declaring invalid the legacy made to Dr. Rene Teotico in the will Exhibit A must be set aside as having been made in excess of its jurisdiction. Another reason why said pronouncement should be set aside is that the legatee was not given an opportunity to defend the validity of the legacy for he was not allowed to intervene in this proceeding. As a corollary, the other pronouncements, touching on the disposition of the estate in favor of some relatives of the deceased should also be set aside for the same reason. WHEREFORE, with the exception of that portion of the decision which declares that the will in question has been duly executed and admitted the same to probate, the rest of the decision is hereby set aside. This case is ordered remanded to the court a quo for further proceedings. No pronouncement as to costs. XV. DISINHERITANCE NCC 915-923 Ching v Hon. Rodriguez, Nov. 28, 2011 SECOND DIVISION [G.R. No. 192828. November 28, 2011.] RAMON S. CHING AND PO WING PROPERTIES, INC., petitioners, vs. HON. JANSEN R. RODRIGUEZ, in his capacity as Presiding Judge of the Regional Trial Court of Manila, Branch 6, JOSEPH CHENG, JAIME CHENG, MERCEDES IGNE AND LUCINA SANTOS, substituted by her son, EDUARDO S. BALAJADIA, respondents. RESOLUTION REYES, J p: The Case Before us is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court assailing the December 14, 2009 Decision 2 and July 8, 2010 Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 99856. The dispositive portion of the assailed Decision reads: CDHcaS WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us DENYING the petition filed in this case and AFFIRMING the assailed Orders dated March 15, 2007 and May 16, 2007 issued by the respondent Judge of

the Regional Trial Court (RTC), Branch 6, in Manila in Civil Case No. 02-105251. 4 The assailed Resolution denied the petitioners' Motion for Reconsideration. The Factual Antecedents Sometime between November 25, 2002 and December 3, 2002, 5 the respondents filed a Complaint 6 against the petitioners and Stronghold Insurance Company, Global Business Bank, Inc. (formerly PhilBank), Elena Tiu Del Pilar, Asia Atlantic Resources Ventures, Inc., Registers of Deeds of Manila and Malabon, and all persons claiming rights or titles from Ramon Ching (Ramon) and his successorsin-interest. The Complaint, captioned as one for "Disinheritance, Declaration of Nullity of Agreement and Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of Title with Prayer for [the] Issuance of [a] Temporary Restraining Order and [a] Writ of Preliminary Injunction," was docketed as Civil Case No. 02-105251 and raffled to Branch 8 of the Regional Trial Court of Manila (RTC). CIETDc In the Complaint, the respondents alleged the following as causes of action: First Cause of Action. They are the heirs of Lim San, also known as Antonio Ching/Tiong Cheng/Ching Cheng Suy (Antonio). Respondents Joseph Cheng (Joseph) and Jaime Cheng (Jaime) are allegedly the children of Antonio with his common-law wife, respondent Mercedes Igne (Mercedes). Respondent Lucina Santos (Lucina) claimed that she was also a common-law wife of Antonio. The respondents averred that Ramon misrepresented himself as Antonio's and Lucina's son when in truth and in fact, he was adopted and his birth certificate was merely simulated. On July 18, 1996, Antonio died of a stab wound. Police investigators identified Ramon as the prime suspect and he now stands as the lone accused in a criminal case for murder filed against him. Warrants of arrest issued against him have remained unserved as he is at large. From the foregoing circumstances and upon the authority of Article 919 7 of the New Civil Code (NCC), the respondents concluded that Ramon can be legally disinherited, hence, prohibited from receiving any share from the estate of Antonio. Second Cause of Action. On August 26, 1996, prior to the conclusion of the police investigations tagging Ramon as the prime suspect in the murder of Antonio, the former made an inventory of the latter's estate. Ramon misrepresented that there were only six real estate properties left by Antonio. The respondents alleged that Ramon had illegally transferred to his name the titles to the said properties. Further, there are two other parcels of land, cash and jewelries, plus properties in Hongkong, which were in Ramon's possession. AaCcST Third Cause of Action. Mercedes, being of low educational attainment, was sweettalked by Ramon into surrendering to him a Global Business Bank, Inc. (Global

Bank) Certificate of Time Deposit of P4,000,000.00 in the name of Antonio, and the certificates of title covering two condominium units in Binondo which were purchased by Antonio using his own money but which were registered in Ramon's name. Ramon also fraudulently misrepresented to Joseph, Jaime and Mercedes that they will promptly receive their complete shares, exclusive of the stocks in Po Wing Properties, Inc. (Po Wing), from the estate of Antonio. Exerting undue influence, Ramon had convinced them to execute an Agreement 8 and a Waiver 9 on August 20, 1996. The terms and conditions stipulated in the Agreement and Waiver, specifically, on the payment by Ramon to Joseph, Jaime and Mercedes of the amount of P22,000,000.00, were not complied with. Further, Lucina was not informed of the execution of the said instruments and had not received any amount from Ramon. Hence, the instruments are null and void. Fourth Cause of Action. Antonio's 40,000 shares in Po Wing, which constitute 60% of the latter's total capital stock, were illegally transferred by Ramon to his own name through a forged document of sale executed after Antonio died. Po Wing owns a ten-storey building in Binondo. Ramon's claim that he bought the stocks from Antonio before the latter died is baseless. Further, Lucina's shares in Po Wing had also banished into thin air through Ramon's machinations. DcITaC Fifth Cause of Action. On October 29, 1996, Ramon executed an Affidavit of Extra-Judicial Settlement of Estate 10 adjudicating solely to himself Antonio's entire estate to the prejudice of the respondents. By virtue of the said instrument, new Transfer Certificates of Title (TCTs) covering eight real properties owned by Antonio were issued in Ramon's name. Relative to the Po Wing shares, the Register of Deeds of Manila had required Ramon to post a Surety Bond conditioned to answer for whatever claims which may eventually surface in connection with the said stocks. Co-defendant Stronghold Insurance Company issued the bond in Ramon's behalf. Sixth Cause of Action. Ramon sold Antonio's two parcels of land in Navotas to codefendant Asia Atlantic Business Ventures, Inc. Another parcel of land, which was part of Antonio's estate, was sold by Ramon to co-defendant Elena Tiu Del Pilar at an unreasonably low price. By reason of Ramon's lack of authority to dispose of any part of Antonio's estate, the conveyances are null and void ab initio. Since Ramon is at large, his wife, Belen Dy Tan Ching, now manages Antonio's estate. She has no intent to convey to the respondents their shares in the estate of Antonio. DcTaEH The respondents thus prayed for the following in their Complaint: 1. . . . a temporary restraining order be issued restraining the defendant RAMON CHING and/or his attorney-in-fact Belen Dy Tan Ching from disposing, selling or alienating any property that belongs to the estate of the deceased ANTONIO CHING;

xxx xxx xxx 4. ... a.) Declaring that the defendant RAMON CHING who murdered his father ANTONIO CHING disqualified as heir and from inheriting to (sic) the estate of his father; b.) Declaring the nullity of the defendant RAMON CHING transfer (sic) of the six [6] parcels of land from the name of his father ANTONIO CHING to his name covered by TCT No. . . . ; c.) Declaring the nullity of the AGREEMENT and WAIVER executed by plaintiffs . . . in favor of . . . RAMON CHING for being patently immoral, invalid, illegal, simulated and (sic) sham; ACEIac d.) Declaring the nullity of the transfer of the shares of stocks at (sic) PO WING from the names of ANTONIO CHING and LUCINA SANTOS to the defendant ANTONIO CHING's name for having been illegally procured through the falsification of their signatures in the document purporting the transfer thereof; e.) Declaring the nullity and to have no force and effect the AFFIDAVIT OF SETTLEMENT OF ESTATE executed by . . . RAMON CHING for being contrary to law and existing jurisprudence; f.) Declaring the nullity of the DEED OF SALES (sic) executed by . . . RAMON CHING (i) over two (2) parcels of land . . . to defendant ASIA ATLANTIC BUSINESS VENTURES, Inc.; and (ii) one (1) parcel of land . . . sold to . . . ELENA TIU DEL PILAR for having illegally procured the ownership and titles of the above properties; xxx xxx xxx. 11 The petitioners filed with the RTC a Motion to Dismiss 12 alleging forum shopping, litis pendentia, res judicata and the respondents as not being the real parties in interest. ADSTCa On July 30, 2004, the RTC issued an Omnibus Order 13 denying the petitioners' Motion to Dismiss. The respondents filed an Amended Complaint 14 dated April 7, 2005 impleading Metrobank as the successor-in-interest of co-defendant Global Bank. The Amended Complaint also added a seventh cause of action relative to the existence of a Certificate of Premium Plus Acquisition (CPPA) in the amount of P4,000,000.00 originally issued by PhilBank to Antonio. The respondents prayed that they be declared as the rightful owners of the CPPA and that it be immediately released to them. Alternatively, the respondents prayed for the issuance of a hold order relative to the CPPA to preserve it during the pendency of the case. On April 22, 2005, the petitioners filed their Consolidated Answer with Counterclaim. 15

On October 28, 2005, the RTC issued an Order 16 admitting the respondents' Amended Complaint. The RTC stressed that Metrobank had already filed Manifestations admitting that as successor-in-interest of Global Bank, it now possesses custody of Antonio's deposits. Metrobank expressed willingness to abide by any court order as regards the disposition of Antonio's deposits. The petitioners' Motion for Reconsideration filed to assail the aforecited Order was denied by the RTC on May 3, 2006. DcTaEH On May 29, 2006, the petitioners filed their Consolidated Answer with Counterclaim to the respondents' Amended Complaint. On August 11, 2006, the RTC issued a pre-trial order. 17 On January 18, 2007, the petitioners filed a Motion to Dismiss 18 the respondents' Amended Complaint on the alleged ground of the RTC's lack of jurisdiction over the subject matter of the Complaint. The petitioners argued that since the Amended Complaint sought the release of the CPPA to the respondents, the latter's declaration as heirs of Antonio, and the propriety of Ramon's disinheritance, the suit partakes of the nature of a special proceeding and not an ordinary action for declaration of nullity. Hence, jurisdiction pertains to a probate or intestate court and not to the RTC acting as an ordinary court. On March 15, 2007, the RTC issued an Order 19 denying the petitioners' Motion to Dismiss on grounds: IADaSE In the case at bar, an examination of the Complaint would disclose that the action delves mainly on the question of ownership of the properties described in the Complaint which can be properly settled in an ordinary civil action. And as pointed out by the defendants, the action seeks to declare the nullity of the Agreement, Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of Title, which were all allegedly executed by defendant Ramon Ching to defraud the plaintiffs. The relief of establishing the status of the plaintiffs which could have translated this action into a special proceeding was nowhere stated in the Amended Complaint. With regard [to] the prayer to declare the plaintiffs as the rightful owner[s] of the CPPA and that the same be immediately released to them, in itself poses an issue of ownership which must be proved by plaintiffs by substantial evidence. And as emphasized by the plaintiffs, the Amended Complaint was intended to implead Metrobank as a co-defendant. As regards the issue of disinheritance, the court notes that during the Pre-trial of this case, one of the issues raised by the defendants Ramon Ching and Po Wing Properties is: Whether or not there can be disinheritance in intestate succession? Whether or not defendant Ramon Ching can be legally disinherited from the estate of his father? To the mind of the Court, the issue of disinheritance, which is one of the causes of action in the Complaint, can be fully settled after a trial on the merits.

And at this stage, it has not been sufficiently established whether or not there is a will. 20 (Emphasis supplied.) caADSE The above Order, and a subsequent Order dated May 16, 2007 denying the petitioners' Motion for Reconsideration, became the subjects of a petition for certiorari filed with the CA. The petition, docketed as CA-G.R. SP No. 99856, raised the issue of whether or not the RTC gravely abused its discretion when it denied the petitioners' Motion to Dismiss despite the fact that the Amended Complaint sought to establish the status or rights of the respondents which subjects are within the ambit of a special proceeding. On December 14, 2009, the CA rendered the now assailed Decision 21 denying the petition for certiorari on grounds: Our in-depth assessment of the condensed allegations supporting the causes of action of the amended complaint induced us to infer that nothing in the said complaint shows that the action of the private respondents should be threshed out in a special proceeding, it appearing that their allegations were substantially for the enforcement of their rights against the alleged fraudulent acts committed by the petitioner Ramon Ching. The private respondents also instituted the said amended complaint in order to protect them from the consequence of the fraudulent acts of Ramon Ching by seeking to disqualify Ramon Ching from inheriting from Antonio Ching as well as to enjoin him from disposing or alienating the subject properties, including the P4 Million deposit with Metrobank. The intestate or probate court has no jurisdiction to adjudicate such issues, which must be submitted to the court in the exercise of its general jurisdiction as a regional trial court. Furthermore, we agree with the trial court that the probate court could not take cognizance of the prayer to disinherit Ramon Ching, given the undisputed fact that there was no will to be contested in a probate court. CcEHaI The petition at bench apparently cavils the subject amended complaint and complicates the issue of jurisdiction by reiterating the grounds or defenses set up in the petitioners' earlier pleadings. Notwithstanding, the jurisdiction of the court over the subject matter is determined by the allegations of the complaint without regard to whether or not the private respondents (plaintiffs) are entitled to recover upon all or some of the causes of action asserted therein. In this regard, the jurisdiction of the court does not depend upon the defenses pleaded in the answer or in the motion to dismiss, lest the question of jurisdiction would almost entirely depend upon the petitioners (defendants). 22 Hence, we focus our resolution on the issue of jurisdiction on the allegations in the amended complaint and not on the defenses pleaded in the motion to dismiss or in the subsequent pleadings of the petitioners. In fine, under the circumstances of the present case, there being no compelling reason to still subject the action of the petitioners in a special proceeding since the nullification of the subject documents could be achieved in the civil case, the lower

court should proceed to evaluate the evidence of the parties and render a decision thereon upon the issues that it defined during the pre-trial in Civil Case No. 02105251. 23 (emphasis supplied) The petitioners' Motion for Reconsideration was denied by the CA through a Resolution 24 issued on July 8, 2010. SECcIH The Issue The instant Petition for Review on Certiorari 25 is anchored on the issue of: WHETHER OR NOT THE RTC SHOULD HAVE GRANTED THE MOTION TO DISMISS FILED BY THE PETITIONERS ON THE ALLEGED GROUND OF THE RTC'S LACK OF JURISDICTION OVER THE SUBJECT MATTER OF THE AMENDED COMPLAINT, TO WIT, (A) FILIATIONS WITH ANTONIO OF RAMON, JAIME AND JOSEPH; (B) RIGHTS OF COMMONLAW WIVES, LUCINA AND MERCEDES, TO BE CONSIDERED AS HEIRS OF ANTONIO; (C) DETERMINATION OF THE EXTENT OF ANTONIO'S ESTATE; AND (D) OTHER MATTERS WHICH CAN ONLY BE RESOLVED IN A SPECIAL PROCEEDING AND NOT IN AN ORDINARY CIVIL ACTION. The petitioners argue that only a probate court has the authority to determine (a) who are the heirs of a decedent; (b) the validity of a waiver of hereditary rights; (c) the status of each heir; and (d) whether the property in the inventory is conjugal or the exclusive property of the deceased spouse. 26 Further, the extent of Antonio's estate, the status of the contending parties and the respondents' alleged entitlement as heirs to receive the proceeds of Antonio's CPPA now in Metrobank's custody are matters which are more appropriately the subjects of a special proceeding and not of an ordinary civil action. STcAIa The respondents opposed 27 the instant petition claiming that the petitioners are engaged in forum shopping. Specifically, G.R. Nos. 175507 28 and 183840, 29 both involving the contending parties in the instant petition were filed by the petitioners and are currently pending before this Court. Further, in Mendoza v. Hon. Teh, 30 the SC declared that whether a particular matter should be resolved by the RTC in the exercise of its general jurisdiction or its limited probate jurisdiction, is not a jurisdictional issue but a mere question of procedure. Besides, the petitioners, having validly submitted themselves to the jurisdiction of the RTC and having actively participated in the trial of the case, are already estopped from challenging the RTC's jurisdiction over the respondents' Complaint and Amended Complaint. 31 The Court's Ruling We resolve to deny the instant petition. The petitioners failed to comply with a lawful order of this Court directing them to file their reply to the respondents' Comment/Opposition to the instant Petition. While the prescribed period to comply expired on March 15, 2011, the petitioners

filed their Manifestation that they will no longer file a reply only on October 10, 2011 or after the lapse of almost seven months. Further, no reversible errors were committed by the RTC and the CA when they both ruled that the denial of the petitioners' second motion to dismiss Civil Case No. 02-105251 was proper. SaITHC Even without delving into the procedural allegations of the respondents that the petitioners engaged in forum shopping and are already estopped from questioning the RTC's jurisdiction after having validly submitted to it when the latter participated in the proceedings, the denial of the instant Petition is still in order. Although the respondents' Complaint and Amended Complaint sought, among others, the disinheritance of Ramon and the release in favor of the respondents of the CPPA now under Metrobank's custody, Civil Case No. 02-105251 remains to be an ordinary civil action, and not a special proceeding pertaining to a settlement court. An action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court. 32 A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. 33 It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. 34 To initiate a special proceeding, a petition and not a complaint should be filed. Under Article 916 of the NCC, disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. This Court agrees with the RTC and the CA that while the respondents in their Complaint and Amended Complaint sought the disinheritance of Ramon, no will or any instrument supposedly effecting the disposition of Antonio's estate was ever mentioned. Hence, despite the prayer for Ramon's disinheritance, Civil Case No. 02-105251 does not partake of the nature of a special proceeding and does not call for the probate court's exercise of its limited jurisdiction. TaCIDS The petitioners also argue that the prayers in the Amended Complaint, seeking the release in favor of the respondents of the CPPA under Metrobank's custody and the nullification of the instruments subject of the complaint, necessarily require the determination of the respondents' status as Antonio's heirs. It bears stressing that what the respondents prayed for was that they be declared as the rightful owners of the CPPA which was in Mercedes' possession prior to the execution of the Agreement and Waiver. The respondents also prayed for the alternative relief of securing the issuance by the RTC of a hold order relative to the CPPA to preserve Antonio's deposits with Metrobank during the pendency of the

case. It can thus be said that the respondents' prayer relative to the CPPA was premised on Mercedes' prior possession of and their alleged collective ownership of the same, and not on the declaration of their status as Antonio's heirs. Further, it also has to be emphasized that the respondents were parties to the execution of the Agreement 35 and Waiver 36 prayed to be nullified. Hence, even without the necessity of being declared as heirs of Antonio, the respondents have the standing to seek for the nullification of the instruments in the light of their claims that there was no consideration for their execution, and that Ramon exercised undue influence and committed fraud against them. Consequently, the respondents then claimed that the Affidavit of Extra-Judicial Settlement of Antonio's estate executed by Ramon, and the TCTs issued upon the authority of the said affidavit, are null and void as well. Ramon's averment that a resolution of the issues raised shall first require a declaration of the respondents' status as heirs is a mere defense which is not determinative of which court shall properly exercise jurisdiction. In Marjorie Cadimas v. Marites Carrion and Gemma Hugo, 37 the Court declared: cDTaSH It is an elementary rule of procedural law that jurisdiction of the court over the subject matter is determined by the allegations of the complaint irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. As a necessary consequence, the jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or upon the motion to dismiss, for otherwise, the question of jurisdiction would almost entirely depend upon the defendant. What determines the jurisdiction of the court is the nature of the action pleaded as appearing from the allegations in the complaint. The averments in the complaint and the character of the relief sought are the matters to be consulted. In sum, this Court agrees with the CA that the nullification of the documents subject of Civil Case No. 02-105251 could be achieved in an ordinary civil action, which in this specific case was instituted to protect the respondents from the supposedly fraudulent acts of Ramon. In the event that the RTC will find grounds to grant the reliefs prayed for by the respondents, the only consequence will be the reversion of the properties subject of the dispute to the estate of Antonio. Civil Case No. 02-105251 was not instituted to conclusively resolve the issues relating to the administration, liquidation and distribution of Antonio's estate, hence, not the proper subject of a special proceeding for the settlement of the estate of a deceased person under Rules 73-91 of the Rules of Court. cDSAEI The respondents' resort to an ordinary civil action before the RTC may not be strategically sound, because a settlement proceeding should thereafter still follow, if their intent is to recover from Ramon the properties alleged to have been illegally transferred in his name. Be that as it may, the RTC, in the exercise of its

general jurisdiction, cannot be restrained from taking cognizance of respondents' Complaint and Amended Complaint as the issues raised and the prayers indicated therein are matters which need not be threshed out in a special proceeding. WHEREFORE, the instant petition is DENIED. The petitioners' (a) Opposition to the respondents' Motion to Admit Substitution of Party; 38 and (b) Manifestation 39 through counsel that they will no longer file a reply to the respondents' Comment/Opposition to the instant petition are NOTED. SO ORDERED. ADCEaH Principles Affecting the Freely Disposable Portion XVI. INSTITUTION OF HEIRS A. In General 1. Definition, NCC 840 2. Requisites for valid institution of heirs. See NCC 785, 787 3. Effect if will institutes no heir, NCC 841 4. Freedom of disposition, NCC 842 Ureta v Ureta, Sept. 14, 2011 5. Manner of designating an heir, NCC 843-844 in rel to 789 6. Disposition in favor of an unknown person, NCC 845 7. Disposition in favor of a definite class, NCC 845 in rel to 786 8. Equality of heirs, NCC 846, 848 9. Individuality of institution, NCC 847 10. Simultaneity of institution, NCC 849 11. Institution based on a false cause, NCC 850 Austria v Reyes, 31 SCRA 754 FIRST DIVISION [G.R. No. L-23079. February 27, 1970.] 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, Ordoez, Yap, Sicat & Associates for petitioners. Ruben Austria for himself and co-petitioners. De los Santos, De los Santos & De los Santos for respondent Perfecto Cruz.

Villareal, Almacen, Navarra & Amores for other respondents. SYLLABUS 1. CIVIL LAW; TESTATE SUCCESSION; REQUISITES TO ANNUL INSTITUTION OF HEIRS. 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. 2. ID.; ID.; CAUSE FOR ANNULMENT OF INSTITUTION OF HEIRS MUST BE CLEAR; CASE AT BAR. If the impelling reason or cause for the institution of the respondents as her heirs was the testatrix's belief that under the law she could not do otherwise, 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 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. 3. ID.; ID.; TESTACY FAVORED AND WISHES OF TESTATOR MUST PREVAIL. 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, 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. As in one case where the probate court has found, by final judgment, that the testator was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence this Court held, it is its duty to give full expression to her will. 4. ID.; ID.; LEGALITY OF ADOPTION APART FROM CASE OF TESTATE SUCCESSION, ADOPTION NOT SUBJECT TO COLLATERAL ATTACK. 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. REMEDIAL LAW; COURTS; INHERENT POWER OF COURT. Every court has the inherent power to amend and control its processes and orders so as to make them conformable to law and justice. 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. DECISION CASTRO, J p: 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-Meez, 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, 1969, 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, 1969 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, et 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-Meez, 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-Meez, 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 "V "Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ariariang 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 (1/2) 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 (1/2) 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 (1/2) ng ilang lagay na lupa na nasa Tenejeros, 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 de scribe 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 estate 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, 1969, 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 justice. 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. 12. Shares in the institution, NCC 851-853 13. Predecease of heirs, NCC 856 B. Kinds of Institution 1. Simple or Pure, NCC 777 2. Conditional, NCC 871 a. Kinds Vda de Kilayko v Tengco, 207 SCRA 600 THIRD DIVISION [G.R. No. L-45425. March 27, 1992.] CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS L. VDA. DE GUINTO, petitioners, vs. HON. JUDGE ERNESTO TENGCO of the Court of First Instance of Negros Occidental, Bacolod City, Branch IV and RODOLFO LIZARES and AMELO LIZARES, as Judicial Administrators of the Estate of the late EUSTAQUIA LIZARES, respondents. [G.R. No. L-45965. March 27, 1992.] RODOLFO LIZARES and AMELO LIZARES, as Judicial Administrators of the ESTATE OF EUSTAQUIA LIZARES, petitioners, vs. HON. JUDGE ERNESTO TENGCO, CELSA D. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS VDA. DE GUINTO, respondents. Dominador R. Santiago for Rodolfo and Amelo Lizares. Siguion Reyna, Montecillo & Ongsiako for C. Vda. de Kilayko, E. Vda. de Panlilio and R.L. Vda. de Guinto. DECISION ROMERO, J p: These consolidated cases seek to annul the orders 1 dated September 20, 1978, January 7, 1977 and January 31, 1977 of the then Court of First Instance of Negros Occidental, Branch IV, respectively, cancelling the notice of lis pendens filed by Celsa L. Vda. de Kilayko, et al. with the Register of Deeds of Negros Occidental, denying the motion for reconsideration of the order dated September 20, 1976 filed

by Celsa L. Vda. de Kilayko, et al., and holding in abeyance the resolution of defendants' motion to dismiss. prLL The undisputed facts of the case are as follows: On November 20, 1962, the late Maria Lizares y Alunan executed a "Testamento"2 which contains among its provisions, the following: DECIMA Asimismo, ordeno y dispongo que mi participacion consistente en una tercera parte (1/3) de una catorce (1/14) avas partes pro indivisas de la Hda. Minuluan, que he adquirido mediante permuta de mi hermano Dr. Antonio A. Lizares, se adjudique, como por el presente se adjudica, a mi sobrina Eustaquia Lizares; ENTENDIENDOSE, sin embargo, que en el caso de que mi citada sobrina Eustaquia Lizares muera soltera o sin descendientes legitimos, mi referida participacion en la Hda. Minuluan se adjudicara a mi hermano Antonio A. Lizares que me sobrevivan. UNDECIMA Tambien ordeno y dispongo que el resto de todas mis propiendades, incluyendo mis participaciones, derechos e intereses (no dispuestos mas arriba) en las Haciendas "Minuluan" (Lotes Nos. 439, 403, 1273, 1274, 1278, 1279 y 1280 del Catastro de Talisay, Negros Occidental) y "Matab-ang" (Lotes Nos. 514, 550, 552, 553 y 1287-C del Catastro de Talisay, Negros Occidental), situadas en el Municipio de Talisay, Provincia de Negros Occidental, I.F., el resto de mis acciones en la Central Talisay-Silay Milling Co., Inc. (unas 2,860 acciones) y de la Financing Corporation of the Philippines (unas 53,636 acciones), registradas a mi nombre y no heredadas de mi difunta madre Da. Enrica A. Vda. de Lizares, mis acciones en la Central Bacolod-Murcia Milling Co., Inc., Negros Navigation Co. y otras Compaas Mineras, y todos los demas bienes no mencionados en este testamento y que me pertenezcan en la fecha de mi muerte, se adjudiquen, como por el presente adjudico, a mi sobrina Srta. Eustaquia Lizares, hija de mi difunto hermano Don Simplicio Lizares, en reconocimiento de los valiosos servicios y cuidados que mi citada sobrina me ha prestado y signe prestandome hasta ahora. Ordeno, sin embargo, a mi referida sobrina, Srta. Eustaquia Lizares, que ella se haga cargo de pagar todas las obligaciones que tengo y que gravan sobre las propriedades adjudicadas a la misma. Asimismo ordeno a mi citada sobrina que ella mande celebrar una Misa Gregoriana cada ao en sufragio de mi alma, y misas ordinarias en sufragio de las almas de mi difunto Padre y de mi difunta Madre, el 6 de Marzo y 17 de Deciembre de cada ao, respectivamente, y mande celebrar todos los aos la fiesta de San Jose en Talisay como lo hago hasta ahora. En el caso de que mi citada sobrina, Srta. Eustaquia Lizares, falleciere sin dejar descendientes legitimos, ordeno y dispongo que mi participacion consistente en una sexta parte (1/6) de la Hda. Matab-ang, con su correspondiente cuota de azucar y otros mejoras, se adjudique a mis hermanas y hermano antes mencionados y que me sobrevivan (Emphasis supplied).

On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the possession and custody of her niece, Eustaquia Lizares. 3 On February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of Maria Lizares y Alunan, before the Court of First Instance of Negros Occidental, Branch IV, docketed as Special Proceedings No. 8452. 4 The required publication of the notice of hearing of the petition having been made, in due course, the probate court issued an order declaring the will probated and appointing Estaquia as the executrix of the estate of Maria Lizares. 5 On July 10, 1968, Eustaquia filed a project of partition 6 which was granted by the probate court in an order dated January 8, 1971. Simultaneously, said court declared the heirs, devisees, legatees and usufructuaries mentioned in the project of partition as the only heirs, devisees, legatees and usufructuaries of the estate; adjudicated to them the properties respectively assigned to each and every one of them, and ordered the Register of Deeds of Negros Occidental and Bacolod City to effect the corresponding transfer of the real properties to said heirs as well as the transfer of shares, stocks, and dividends in different corporations, companies and partnerships in the name of Maria Lizares to the heirs and legatees, and the closure of the testate proceedings of Maria Lizares. 7 Thereafter, Eustaquia filed an urgent motion to reopen the testate proceedings in order that some properties of Maria Lizares which had been omitted in the partition be adjudicated to her. 8 The Court granted the motion and correspondingly reopened the testate proceedings. It adjudicated to Eustaquia certain shares of stocks, a revolving fund certificate, plantation credits and sugar quota allocations, and real or personal properties of Maria Lizares which were not given by her to any other person in her last will and testament. 9 On November 28, 197Z, the heirs of Maria Lizares, namely: Encarnacion L. Vda. de Panlilio, Remedios L. Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia Lizares executed an agreement of partition and subdivision, thereby terminating their co-ownership over Lots Nos. 550, 514, 553, 1287-C of plan SWO-7446, and 552, all of the Cadastral Survey of Talisay covered by Transfer Certificates of Title Nos. T-65004, T-65005; T-65006, T-65007, and T-65008. 10 A year later or on November 23, 1973, Eustaquia Lizares died single without any descendant. 11 In due time, Rodolfo Lizares and Amelo Lizares were appointed joint administrators of Eustaquia's intestate estate. On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria Lizares, which were allegedly in the nature of a simple substitution, Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto (hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to reopen once again the testate

estate proceedings of Maria Lizares. They prayed among others that a substitute administrator be appointed; that the order dated January 8, 1971 be reconsidered and amended by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which form an aggregate area of 33 hectares; that the Register of Deeds of Negros Occidental, after such amendment, be ordered to register at the back of their respective certificates of title, the order of probate and a "declaration" that movants are the heirs of said properties, and correspondingly issue new certificates of title in their names. 12 Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo, and Aurora Lizares Wagner opposed the aforesaid motion. They alleged that the court had no more jurisdiction to reopen the testate estate proceedings of Maria Lizares as the order of closure had long become final and that the testamentary provisions sought to be enforced are null and void. 13 On April 6, 1974, the Court issued an order denying the motion to reopen the testate proceedings and holding that inasmuch as the settlement of an estate is a proceeding in rem, the judgment therein is binding against the whole world. It observed that inspite of the fact that the movants knew that the court had jurisdiction over them, they did not take part in the proceedings nor did they appeal the order of January 8, 1871. Thus, the court concluded, even if the said order was erroneous, and since the error was not jurisdictional, the same could have been corrected only by a regular appeal. The period for filing a motion for reconsideration having expired, the court opined that the movants could have sought relief from judgment under Rule 38 of the Rules of Court, but unfortunately for the movants, the period for filing such remedy had also elapsed. 14 Celsa L. Vda. de Kilayko, et al. then filed a motion for reconsideration of said order. It was denied on June 17, 1974. 15 Hence, on October 14, 1974, the said movants filed a complaint for recovery of ownership and possession of real property against the joint administrators of the estate of Eustaquia Lizares, Rodolfo and Amelo Lizares. It was docketed as Civil Case No. 11639 with the then Court of First Instance of Negros Occidental, Branch IV. 16 On the same date, they availed of their rights under Rule 14, Section 24 of Rules of Court by filing a notice of lis pendens with the Register of Deeds of Negros Occidental. 17 As duly appointed judicial joint administrators of the estate of the late Eustaquia Lizares, Rodolfo Lizares and Amelo Lizares (the joint administrators for brevity), filed a motion to dismiss alleging that the court had no jurisdiction over the subject matter or nature of the case; the cause of action was barred by prior judgment, and the complaint stated no cause of action. 18 This motion was opposed by the plaintiffs.

On January 23, 1975, the joint administrators filed a motion for the cancellation of the notice of lis pendens on the contentions that there existed exceptional circumstances which justified the cancellation of the notice of lis pendens and that no prejudice would be caused to the plaintiffs. 19 The latter opposed said motion. The defendants having filed a reply thereto, the plaintiffs filed a rejoinder reiterating their arguments in their opposition to the motion for cancellation of notice of lis pendens. 20 On September 20, 1976, respondent judge issued an order granting the motion for cancellation of notice of lis pendens. 21 The court simultaneously held in abeyance the resolution of the motion to dismiss the complaint. The joint administrators filed their answer to the complaint in Civil Case No. 11639. 22 Thereafter, they filed a motion for preliminary hearing on affirmative defenses. 23 Celsa L. Vda. de Kilayko, et al. vigorously opposed said motion. 24 On November 3, 1976, Celsa L. Vda. de Kilayko, et al. filed a motion praying for the reconsideration of the order dated September 20, 1976. 25 The joint administrators having filed an opposition thereto, 26 on January 7, 1977 the lower court denied the aforesaid motion for reconsideration. 27 It held that while a notice of lis pendens would serve as notice to strangers that a particular property was under litigation, its annotation upon the certificates of title to the properties involved was not necessary because such properties, being in custodia legis, could not just be alienated without the approval of the court. Moreover, the court added, a notice of lis pendens would prejudice any effort of the estate to secure crop loans which were necessary for the viable cultivation and production of sugar to which the properties were planted. Upon receipt of a copy of said order, Celsa L. Vda. de Kilayko, et al. filed in this Court a motion for extension of time to file a petition for review on certiorari. Docketed as G.R. No. L-45425, the petition contends that the grounds of lis pendens, namely, that the properties are in custodia legis and the lending institutions would not grant crop loans to the estate, are not the legal grounds provided for under Sec. 24, Rule 14 of the Rules of Court for the cancellation of a notice of lis pendens. Meanwhile, on January 31, 1977, the lower court issued an order stating that since on September 21, 1976 it had held in abeyance the resolution of the motion to dismiss, it was also proper to suspend the resolution of the affirmative defenses interposed by the defendants until after trial on the merits of the case. Accordingly, the court set the date of pre-trial for March 24, 1977. 28 On April 13, 1977, the joint administrators filed before this Court a petition for certiorari, prohibition and/or mandamus with prayer for a writ of preliminary injunction. It was docketed as G.R. No. L-45965. Petitioners contend that the lower court had no jurisdiction over Civil Case No. 11639 as it involves the interpretation

of the will of Maria Lizares, its implementation and/or the adjudication of her properties. They assert that the matter had been settled in Special Proceedings No. 8452 which had become final and unappealable long before the complaint in Civil Case No. 11639 was filed, and therefore, the cause of action in the latter case was barred by the principle of res judicata. They aver that the claim of Celsa, Encarnacion and Remedios, sisters of Maria Lizares, over the properties left by their niece Eustaquia and which the latter had inherited by will from Maria Lizares, was groundless because paragraphs 10 and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et al. base their claim, conceived of a fideicommissary substitution of heirs. Petitioners contend that said provisions of the will are not valid because under Article 863 of the Civil Code, they constitute an invalid fideicommissary substitution of heirs. On April 26, 1977, this Court issued a temporary restraining order enjoining the lower court from further proceeding with the trial of Civil Case No. 11839. 29 After both G.R. Nos. L-45425 and L-45965 had been given due course and submitted for decision, on January 20, 1986, the two cases were consolidated. The petition in G.R. No. L-45965 is impressed with merit. In testate succession, there can be no valid partition among the heirs until after the will has been probated. 30 The law enjoins the probate of a will and the public requires it, because unless a 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. 31 The authentication of a will decides no other question than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law prescribes for the validity of a will. 32 Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is Section 1, Rule 90 of the Rules of Court which reads: 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 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 abovementioned 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." Applying this rule, in the cases of De Jesus v. Daza, 33 and Torres vs. Encarnacion, 34 the Court said: ". . . (T)he probate court, having the custody and control of the entire estate, is the most logical authority to effectuate this provision, within the estate proceeding, proceeding being the most convenient one in which this power and function of the court can be exercised and performed without the necessity of requiring the parties to undergo the inconvenience and litigate an entirely different action." Some decisions of the Court pertinent to the issue that the probate court has the jurisdiction to settle the claims of an heir and the consequent adjudication of the properties, are worth mentioning. In the cases of Arroyo v. Gerona, 35 and Benedicto v. Javellana, 36 this Court said: ". . . any challenge to the validity of a will, any objection to the authentication thereof, and every demand or claim which any heir, legatee or party interested in a testate or intestate succession may make, must be acted upon and decided within the same special proceedings, not in a separate action, and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised, inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties . . ." (Emphasis supplied). The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each distributee is entitled . . . 37 A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto. 38 In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the parcels of land, subject matters of the complaint for reconveyance, were included as property of the estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said project of partition which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio, Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia Lizares executed an Agreement of Partition and Subdivision on November 28, 1972, whereby they agreed to terminate their coownership over Lots Nos. 550, 514, 553, 1287-C of SWO-7446 and 552 covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T-65007 and T65008. These facts taken altogether show that the Lizares sisters recognized the decree of partition sanctioned by the probate court and in fact reaped the fruits thereof. llcd

Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and repudiate what does not suit him. 39 Thus, where a piece of land has been included in a partition and there is no allegation that the inclusion was effected through improper means or without petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for its proper disposition according to the tenor of the partition. 40 The question of private respondents' title over the lots in question has been concluded by the partition and became a closed matter. The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint, Civil Case No. 11639, that Eustaquia had been in possession of the questioned lots since March 2, 1971 up to the time of her death indicates that the distribution pursuant to the decree of partition has already been carried out. Moreover, it cannot be denied that when Celsa L. Vda. de Kilay ko, et al. moved for the reopening of the testate estate proceedings of Maria Lizares, the judicial decree of partition and order of closure of such proceedings was already final and executory, the then reglementary period of thirty (30) days having elapsed from the time of its issuance, with no timely appeal having been filed by them. Therefore, they cannot now be permitted to question the adjudication of the properties left by will of Maria Lizares, by filing an independent action for the reconveyance of the very same properties subject of such partition. A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the same has become final, the validity or invalidity of the project of partition becomes irrelevant. 41 It is a fundamental concept in the origin 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 time fixed by law, interest rei publicae ut finis sit litum. "The very object of which the courts were constituted was to put an end to controversies." 42 The only instance where 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 the opening of the same by proper motion within the reglementary period, instead of an independent action, the effect of which if successful, would be 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. 43 The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be permitted to litigate the same issue more than once, that, when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or estate. 44 All the requisites for the existence of res judicata are present. Thus, the order approving the distribution of the estate of Maria Lizares to the heirs instituted in said will has become final and unappealable; the probate court that rendered judgment had jurisdiction over the subject matter and over the parties; the judgment or orders had been rendered on the merits; the special proceedings for the settlement of the estate of Maria Lizares was a proceeding in rem that was directed against the whole world including Celsa L. Vda. de Kilay ko, et al., so that it can be said that there is a similarity of parties in Special Proceedings No. 8452 and Civil Case No. 11639, the judicial administrators of Eustaquia being privy to Celsa L. Vda. de Kilay ko, et al; there is identity of subject matter involved in both actions, namely, the properties left by Maria Lizares; there is identity of causes of action because in the first action there was a declaration of the probate court in its order dated April 6, 1974, that although the testatrix intended a fideicommissary substitution in paragraphs 10 and 11 of her will, the substitution can have no effect because the requisites for it to be valid, had not been satisfied. 45 Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of Celsa L. Vda. de Kilay ko et al. that they are conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares 46 is not meritorious. While the allegation of the joint administrators that paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommissary substitution under Article 863 of the Civil Code is also baseless as said paragraphs do not impose upon Eustaquia a clear obligation to preserve the estate in favor of Celsa L. Vda. de Kilay ko, et al., neither may said paragraphs be considered as providing for a vulgar or simple substitution. cdll It should be remembered that when a testator merely names an heir and provides that if such heir should die a second heir also designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the Civil Code but it shall be effective only if the first heir dies before the testator. 47 In this case, the instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of

Maria Lizares could only inherit the estate of Eustaquia by operation of the law of intestacy. With respect to the cancellation of the notice of lis pendens on the properties involved, there is no merit in the contention of Celsa L. Vda. de Kilay ko, et al., that the lower court acted contrary to law and/or gravely abused its discretion in cancelling the notice of lis pendens. The cancellation of such a precautionary notice, being a mere incident in an action, may be ordered by the court having jurisdiction over it at any given time. 48 Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may be cancelled "after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded." 49 In this case, the lower court ordered the cancellation of said notice on the principal reason that the administrators of the properties involved are subject to the supervision of the court and the said properties are under custodia legis. Therefore, such notice was not necessary to protect the rights of Celsa L. Vda. de Kilay ko, et al. More so in this case where it turned out that their claim to the properties left by Eustaquia is without any legal basis. LibLex WHEREFORE, the petition for review on certiorari in L-45425 is hereby DENIED but the petition for certiorari and prohibition and/or mandamus in L-45965 is GRANTED. The temporary restraining order of April 26, 1977 which was issued by the Court in L-45965 is made PERMANENT. Costs against the petitioners in L45425. SO ORDERED. b. Inoperative Conditions, NCC 872-874, rel to 1183 c. Disposition Captatoria, NCC 875 d. Compliance, NCC 876-877, 2nd par. e. Effect, NCC 1034 3rdpar., 879, 880, 881, 884 3. Institution with a Term a. Kinds NCC 885 1st par. b. Effect NCC 878, 885 2nd par. in rel 880 4. Modal Institution, NCC 882-883

XVII. SUBSTITUTION OF HEIRS A. Concept NCC 857 B. Kinds NCC 858

1. Simple or common 859 2. Brief or compendious 860 3. Reciprocal 860 4. Fideicommisary 863-869 Palacios v Ramirez, 111 SCRA 704 SECOND DIVISION [G.R. No. L-27952. February 15, 1982.] 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. Ignacio R. Ortigas for appellee. Messrs. Luna, Purugganan, Sison & Ongsiako for oppositor-appellants. Messrs. Gamboa & Hofilea for movant. Messrs. Quasha, Asperilla, Zafra, Tayag & Archeta for oppositor M. Vda. de Ramirez. SYNOPSIS Jose Eugenio Ramirez, a Filipino national, died in Spain with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X. The administratrix of the estate submitted a project of partition giving one part of the estate to the widow "en pleno dominio'' in satisfaction of her legitime while the other part of the "free portion" to his two grandnephews Roberto and Jorge Ramirez, as the oppositors-appellants. Furthermore, one third 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 Wrobleski. Jorge and Roberto Ramirez opposed the project of partition as well as the substitutions provided by the testator as to the usufructs of the widow and of Wanda. Nonetheless, the lower court approved the project of partition in its order dated May 3, 1967. Jorge and Roberto appealed. The Supreme Court upheld the vulgar substitution of Wanda's usufruct despite her having survived the testator as said substitution under Art 859 of the Civil Code includes not only death but also refusal or incapacity to accept the inheritance but disallowed the fideicommissary aspect of the same as the substitutes are not related to the heir as required by Art. 863 of the said Code. The Court further ruled that: (a) the widow who is entitled to one-half of the estate "en pleno dominio" as her legitime is not entitled to the one third usufruct over the free portion, hence the question on its substitution has become moot and (b) that a usufruct in favor of an alien, albeit a real right does not vest title to the land in the usufructuary and therefore not contrary to the Constitution.

Order modified. SYLLABUS 1. CIVIL LAW; TESTAMENTARY SUCCESSION; WILLS; WHEN LEGITIME IS MORE THAN TESTATOR'S DISPOSITION; EFFECT. The widow who is entitled to one-half of the estate "en pleno dominio" as her legitime which is more than what she is given under the will is not entitled to the one third usufruct over the free portions which is an additional share in the estate that will run counter to the testator's intention. 2. ID.: ID.; ID.; SUBSTITUTION; DEFINITION. "Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted" (Art. 857, Civil Code). 3. ID.; ID.; ID.; ID.; KINDS. 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 two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two.'' (III Civil Code, p.185 [1973]). The simple or vulgar is that provided in Art. 859 of the Civil Code while the fideicommissary substitution is described in Art. 863 of the same Code. 4. ID.; ID.; ID.; ID.; VULGAR SUBSTITUTION; COVERAGE. Vulgar substitution is valid although the heir survived the testator or stated differently did not predecease the testator because dying before the testator is not the only case for vulgar substitution. It also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code. 5. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; DEGREE OF RELATIONSHIP REQUIRED; NOT PRESENT IN CASE AT BAR. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted.'' Hence in the case at bar, appellants are correct in their claim that the substitution is void because the substitutes are not related to the heir originally instituted. 6. ID.; ID.; ID.; I D.; MEANING OF "ONE DEGREE" EXPLAINED. "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 transmission 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 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." (Tolentino, I I I Civil Code pp. 193-194 [1973]). 7. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; OBLIGATION OF FIDUCIARY TO DELIVER THE INHERITANCE TO THE SECOND HEIR. Fideicommissary substitution is void where there is no absolute duty imposed on the first heir to transmit the usufruct to the substitutes as required by Arts. 865 and 857 of the Civil Code but 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." 8. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES; PROHIBITION AGAINST ACQUISITION OF LANDS BY ALIENS; DOES NOT COVER USUFRUCT. Notwithstanding 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, the usufruct in favor of an alien is upheld, because the same, albeit a real right, does not vest title to land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution. DECISION ABAD SANTOS, J p: 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. llcd 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) pro-indivisa de un terreno, con su mejoras y edificaciones, situado en la Escolta, Manila P500,000.00 Una sexta parte (1/6) pro-indivisa de dos parcelas de terreno situadas en Antipolo, Rizal 658.34

Cuatrocientos noventa y un (491) acciones de la 'Central Azucarera de la Carlota' a P17.00 por accion 8,347.00 Diez mil ochocientos seiz (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 Pilipinas, garantizada con prenda de las acciones de La Carlota P5,000.00 VALOR LIQUIDO P507,976.97" The testamentary dispositions are as follows: "A. En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambos menores de edad, residentes en Manila, I. F., calle Wright, 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 reciproca 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 Rapia, Avenida de los Reyes 13, b. Y en cuanto a las dos terceras partes restantes, a favor de la nombrado Da. Wanda de Wrobleski, con sustitucion vulgar y fideicomisaria, a saber: "En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapia, Palma de Mallorca; y en cuanto 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 fideicomisarias precedentemente ordinadas, las usufructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier momento vender a tercero los bienes objeto delegado, sin intervencion alguna de los titulares fideicomisarios." 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 of 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 de Wrobleski, who is an alien, violates Section 5, Article XIII 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 will 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). cdrep 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 appointment 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." (III 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 substitucion vulgar reciproca 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 is 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 transmission 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. LexLib 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. Crisologo v Singson, 49 SCRA 491 EN BANC [G.R. No. L-13876. February 28, 1962.] 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. SYLLABUS 1. WILLS AND TESTAMENTS; DESIGNATION OF HEIRS; PURPOSE OF FIDEICOMMISSARY SUBSTITUTION. It is 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. DECISION DIZON, J p: Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located at 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 Doa 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 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; "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 Doa 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, and her nieces Rosario, Emilia and Trinidad, and her grandniece Consolacion, 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 materiales 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 apellido 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 ellos muriere antes. . . . . (Exhibit F)." The issue to be decided is whether the testamentary disposition above quoted provided for what is called sustitucion 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 preceding paragraph, unless the testator has otherwise provided." "ART. 785. 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 sustitusion 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 sustitusion 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 that 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 ordene o encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera persona o entidad el todo o 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 aade 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, exige 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 Da. Leona Singson established a mere sustitucin vulgar, the substitution of 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. C. Time-limitation on inalienability NCC 870

XVIII. LEGACIES AND DEVISES NCC 924-959 Fernandez v Dimagiba, 21 SCRA 428 EN BANC [G.R. Nos. L-23638 and L-23662. October 12, 1967.] DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent; MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent. Jose D. Villena and Benjamin L. Bargas for petitioners. Ezequiel M. Zaballero for petitioners Antonio P. Barredo for respondent. SYLLABUS 1. WILLS; PROBATE DECREE, EFFECTS OF; FINALITY OF PROBATE ORDER, WHERE NO TIMELY APPEAL IS FILED. A probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament irrespective of whether its provisions are valid and enforceable or otherwise. (Montaano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil, 710) As such, the probate order is final and appealable and is so recognized by Sec. 1, Rule 109 that prescribes that "any interested person may appeal in special proceedings from an order or judgment . . . where such order or judgment: (a) allows or disallows a will." Where no timely appeal is filed, the probate decree becomes final and conclusive and appellate courts may no longer revoke said decree nor review the evidence on which it is made to rest. 2. ID.; REVOCATION, TOTAL AND ABSOLUTE TO PRECLUDE PROBATE; IMPLIED REVOCATION WILL NOT AFFECT WILL ITSELF, BUT ONLY THE PARTICULAR DEVICE OR LEGACY. Only the total and absolute revocation of the will can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra). If the revocation invoked is merely implied from later acts of the testatrix it will not affect the will itself but merely the particular devise or legacy. 3. ID.; ID.; SUBSEQUENT ALIENATIONS BY TESTRATRIX AFTER EXECUTION OF WILL, NOT NECESSARILY INDICATIVE OF CHANGE FROM ORIGINAL INTENT OF TESTATRIX. The subsequent alienations made by the testatrix in 1943 and: 1944 after the execution of her will in 1930 do not necessarily mean a change or departure from her original intent as expressed in her will, when, as in this case, the alienations were made in favor of the legatee

herself and the testatrix merely intended to comply in advance with what she had ordained in her testament. 4. ID.; ID.; ID.; ANNULMENT OF CONVEYANCES DOES NOT NECESSARILY RESULT IN REVOCATION OF LEGACIES; REVOCATION, AND EXCEPTION. If the annulment of the subsequent conveyance was due to undue influence, then the transferor was not expressing her own will and intent in making such conveyances; hence, it cannot be concluded, either, that such conveyances established an intent to abandon the original legacy in the will or to revoke the same. An alienation made through undue influence in no way differs from one made through violence or intimidation. In either case, the transferor is not expressing his true intent; and it cannot be said that there is an alienation which could produce a revocation of the anterior bequest. DECISION REYES, J.B.L., J p: The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of Appeals (in CA-G.R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in Special Proceeding No. 831 of said Court, admitting to probate the alleged last will and testament of the deceased, and overruling the opposition to the probate. It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes, and one month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent, and revocation of the will by two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 (unpublished). After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that the will was genuine and properly executed; but deferred resolution on the questions of estoppel and revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the will or when the question of adjudication of the properties is opportunely presented." Oppositors Fernandez and Reyes petitioned for reconsideration and/or new trial, insisting that the issues of estoppel and revocation be considered and resolved;

whereupon, on July 27, 1959, the Court overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the issue of implied revocation at the opportune time." On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole purpose of submitting an Inventory of the estate and this was done on February 9, 1960. On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court of Appeals. The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final for lack of opportune appeal; that the same was appealable independently of the issue of implied revocation; that contrary to the claim of oppositors- appellants there had been no legal revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had been made in favor of the legatee herself, and affirmed the decision of the Court of First Instance. Oppositors then appealed to this Court. In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositorsappellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26, 1943 and April 3, 1944. As to the first point, oppositors-appellants contend that the order allowing the will to probate should be considered interlocutory, because it failed to resolve the issues of estoppel and revocation propounded in their opposition. We agree with the Court of Appeals that the appellant's stand is untenable. It is elementary that a probate decree finally and definitely settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Montaano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the probate order is final and appealable; and it is so recognized by express provisions of Section 1 of Rule 109, that specifically prescribes that "any interested person may appeal in special proceedings from an

order or judgment . . . where such order or judgment (a) allows or disallows a will." Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their opposition before taking an appeal, as otherwise there would be a multiplicity of resources to the higher Courts. This contention is without weight, since Rule 109, section 1, expressly enumerates six different instances when appeal may be taken in special proceedings. There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed. The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation becomes superfluous: in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the- testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra). As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75) It would be non-sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled. The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889), which recites: "ART. 957. The legacy or device shall be without effect: xxx xxx xxx" (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or device shall be without effect only with respect to the part thus alienated. If after the alienation the

thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right or repurchase; xxx xxx xxx" It is well to note that, unlike the French and Italian Codes, the basis of the quoted provision is a presumed change of intention on the part of the testator. As pointed out by Manresa in his Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743) "Este caso se funda en la presunta voluntad del testador. Si ste, despus de legar, se desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncin de que ha cambiado de voluntad, y no quiere que el legado se cumpla. Mas para que pueda presumirse esa voluntad, es necesario que medien actos del testador que la indiquen. Si la prdida del derecho sobre la cosa ha sido independiente de la voluntad del testador, el legado podr quedar sin efecto, mas no en virtud del nmero 2: del artculo 869, que exige siempre actos voluntarios de enajenacin por parte del mismo testador." As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had ordained in her testament, rather than an alteration or departure therefrom. 1 Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines does not apply to the case at bar. Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that "it was the moral influence, originating from their confidential relationship, which was the only cause for the execution of Exhs. A and B" (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620). If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances

established a decision on her part to abandon the original legacy. True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in an absolute sense. 2 Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were voided because the testator was mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And the same thing could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through violence or intimidation. In either case, the transferor is not expressing his real intent, 3 and it can not held that there was in fact an alienation that could produce a revocation of the anterior bequest. In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs against appellants Reyes and Fernandez. So ordered. Belen v BPI, L-14474, Oct. 31, 1960 EN BANC [G.R. No. L-14474. October 31, 1960.] ONESIMA D. BELEN, petitioner-appellant, vs. BANK OF THE PHILIPPINE ISLANDS and MILAGROS BELEN DE OLAGUERA, oppositors-appellees. E. A. Beltran for appellant. E. P. Villar for appellees. R. F. Aviado for Trustee Bank. SYLLABUS 1. WILLS AND TESTAMENT; CODICIL; INTERPRETATION AND CONSTRUCTION; PHRASE "SUS DESCENDIENTES" INCLUDES CHILDREN AND GRANDCHILDREN. The word "descendants" (descendientes) when used in a will or deed to designate a class to take property in substitution of named legatees, includes not only children but also grandchildren. In other words, in the absence of other indications of contrary intent, the proper rule to apply is that the testator, by designating a class or group of legatees, intended all members thereof to succeed per capita, in consonance with article 846, New Civil Code. So that the original legacy to F.D. in question should be equally divided among her surviving children and grandchildren. DECISION REYES, J.B.L., J p:

Appeal from an order, dated May 23, 1958, of the Court of First Instance of Manila in Special Proceedings No. 9226, denying appellant's petition therein as hereafter discussed. Briefly, the facts and circumstances that brought about this present appeal may be narrated as follows:. Benigno Diaz executed a codicil on September 29, 1944, the pertinent provisions of which read: "9.o En caso de muerte de alguno o de todos los legatarios nom brados por mi, seran beneficiarios o sea pasaran los legados a favor solamente de los descendientes y ascendientes legitimos, pero no a los viudos conyuges. 10.o Transcurridos diez o quince aos despues de mi muerte todas mis propiedades, muebles o inmuebles, derechos y acciones, cuando asi convenga a los legatarios y los precios sean ventajosos, pueden proceder a la venta de todos dando preferencia a los legatarios y de su importe total se deduciran mil pesos (P1,000) para los cuatro hijos de mi difunto hermano Fabian, todos los gastos y reservando una cantidad suficiente y bien calculada para sufragar los gastos para otros diez aos para las mandas y misas. El resto se distribuira a las siguientes personas que aun viven, o a sus descendientes legitimos: A Isabel M. de Santiago cincuenta por ciento (50%) Los hijos de Domingo Legarda treinta por ciento (30%) Filomena Diaz diez por ciento (10%) Nestor M. Santiago diez por ciento (10%)." On November 7, 1944, Benigno Diaz died; and the aforesaid codicil, together with the will, was admitted to probate in Special Proceedings No. 894 of the same Court of First Instance of Manila. The proceedings for the administration of the estate of Benigno Diaz were closed in 1950 and the estate was thereafter put under the administration of the appellee Bank of the Philippine Islands, as trustee for the benefit of the legatees. Filomena Diaz died on February 8, 1954, leaving two legitimate children, Milagros Belen de Olaguera, married, with seven (7) legitimate children, and Onesima D. Belen, single. On March 19, 1958, Onesima D. Belen filed a petition in Special Proceedings No. 9226, contending that the amount that would have appertained to Filomena Diaz under the codicil should now be divided (equally) only between herself and Milagros Belen de Olaguera, as the surviving children of the said deceased, to the exclusion, in other words, of the seven (7) legitimate children of Milagros Belen de Olaguera. The court, in its order of May 23, 1958, denied, as we initially pointed out, Onesima's petition. More specifically, the court said: "After due consideration of the petition filed by Onesima D. Belen on March 19, 1958, wherein it is prayed that the trustee Bank of the Philippine Islands be

directed to deliver to her 'one-half of whatever share is due to the deceased Filomena Diaz as legatee in the will and codicil of the deceased testator Benigno Diaz y Heredia, subject of trusteeship in these proceedings,' this Court finds that said petition should be, as it is hereby, denied in view of the resolution of September 28, 1959, in which resolution the following was declared: 'That the share of Filomena Diaz in the residue of the proceeds of the sale of the properties covered in paragraph 10 of the codicil aforementioned does not and should not form part of her estate; pertains to her legitimate descendants; and 'That the aforesaid share of Filomena Diaz should be distributed not only between her children, Milagros Belen de Olaguera and Onesima D. Belen, but also among her other legitimate descendants, if any, for descendientes include not only children but also grandchildren, etc., and in this connection, it is not amiss to observe that one may be a descendant and yet not be an heir, and vice versa, one may be an heir and yet not be a descendant." From this order Onesima D. Belen has appealed to this Court, insisting that (1) the Court below was in error in holding that its former resolution of September 16, 1955 had been affirmed by our decision of February 28, 1958 in the case of Arguelles vs. Belen de Olaguera, G. R. No. L-10164 Feb. 28, 1958; and (2) that the term "sus descendientes legitimos," as used in the codicil, should be interpreted to mean descendants nearest in degree to the original legatee Filomena Diaz. In the present case, they are her two daughters (Milagros and Onesima Belen), thereby excluding the seven grandchildren of said legatee. As to her first point, the appellant is correct in her view that the trial court's interpretation of clause 10 of the codicil to the will of Benigno Diaz has not been affirmed in our previous decision (G. R. No. L-10164). Perusal of that judgment will show that this Court left the issue open at the time, contenting itself with pointing out that the then appellant Administrator of the estate of Filomena Diaz was not the proper party to raise the particular issue. As to the actual meaning of the provision "El resto se distribuira a las siguientes personas que aun viven, o a sus descendientes legitimos", it is undeniable that by this clause the testator ordained a simple substitution (sustitucion vulgar) with a plurality of substitutes for each legatee. This form of substitution is authorized by the first part of Article 860 of the Civil Code (Art. 778 of the Code of 1889): "Two or more persons may be substituted for one; and one person for two or more heirs." The issue is now squarely before us: do the words "sus descendientes legitimos" refer conjointly to all living descendants (children and grandchildren) of the legatee, as a class; or do they refer to the descendants nearest in degree?

Appellant Onesima Belen contends that the phrase should be taken to mean the relatives nearest in degree to Filomena Diaz; and that the legacy should be therefore divided equally between her and her sister Milagros Belen de Olaguera, to the exclusion of the latter's sons and daughters, grandchildren of the original legatee, Filomena Diaz. As authority in support of her thesis, appellant invokes Article 959 of the Civil Code of the Philippines (reproducing ne varietur Article 751 of the Code of 1889): "A distribution made in general terms in favor of the testator's relatives shall be understood as made in favor of those nearest in degree." The argument fails to note that this article is specifically limited in its application to the case where the beneficiaries are relatives of the testator, not those of the legatee. In such an event, the law assumes that the testator intended to refer to the rules of intestacy, in order to benefit the relatives closest to him, because, as Manresa observes, "la razon y la logica hacen fundadamente suponer que, el procurar este favorecer a sus parientes, habra de ajustarse mas a su intencion el que gozasen sus bienes aquellas personas mas ligadas al mismo (testador) por los vnculos de la sangre y de la familia" (6 Manresa, Comm., 7th Ed., p. 72). But the ratio legis (that among a testator's relatives the closest are dearest) obviously does not apply where the beneficiaries are relatives of another person (the legatee) and not of the testator. There is no logical reason in this case to presume that the testator intended to refer to the rules of intestacy, for he precisely made a testament and provided substitutes for each legatee; nor can it be said that his affections would prefer the nearest relatives of the legatee to those more distant, since he envisages all of them in a group, and only as mere substitutes for a preferred beneficiary. Should Article 959 (old Art. 751) be applied by analogy? There are various reasons against this. The most important one is that under this article, as recognized by the principal commentators on the Code of 1889, the nearest exclude all the farther relatives and the right of representation does not operate. Castan, in his monograph "El derecho de representacion y mecanismos jurdicos afines en la sucesion testamentaria" (Reus, 1942), says on this question (pp. 13, 14, 15): "En el subgrupo iberico de Europa y Amrica predomina, aunque haya excepciones, como ya hemos visto, al criterio de que la representacion, cuando menos en principio, no tiena cabida en la sucesion testamentaria. Asi, por ejemplo, lo establece la doctrina cientifica en Portugal y en la Argentina y lo ha sancionado la jurisprudencia en Cuba. En igual sentido, en la doctrina espaola es opinion general que el derecho de representacion, dentro del Codigo civil, no tiene lugar mas que en la sucesion intestada, y en la testamentaria en la parte referente a las legtimas. MUCIUS

SCAEVOLA juzga que la representacion, atrada por la herencia legtima, es repelida por la testada, y apunta, como razon de ello, la de que 'la primera descansa en la ley de la sangre, en el parentesco con su consiguiente atributo da linea y grado, elementos propios c indispensables para la representacion, en tanto que la segunda se basa exclusivamente en la voluntad del testador, elemento diverso, en el orden legal, al de la naturaleza o de la sangre'. Y el maestro DE DIEGO, con orientacion analoga, piensa que 'como el titulo de la sucesion testada es de origen voluntario y caracter personalsimo, es evidente que no hay terminos habiles para el derecho de representacion: los llamamientos son individuales y la premoriencia del institudo, como su incapacidad, aniquilan la institucion'. In the second place, the history of Article 751 (of the 1889 Code) shows that the right of representation was deliberately suppressed. Says Castan (op. cit., 24): "En nuestra Patria opno GARCIA GOYENA que deba tener lugar el derecho de representacion aun cuando el testador llame a los parientes mas cercanos", pues 'en lo que no se contraria abiertamente la voluntad del testador, debe observarse el orden de la sucesion legtima, al que se presume que en todo lo demas quiso atemperarse'. Por ello, el art. 562 Proyecto de 1851 qudo redactado as: "La disposicion hecha simple y generalmente a favor de los parientes del testador, se entiende hecha en favor de los mas proximos en grado; pero habra lugar al derecho de representacion con todos sus efectos, con arreglo al titulo siguiente'. Con poco acierto, a nuestro juicio, los autores del vigente Codigo han suprimido esta ultima salvedad del Proyecto del 51, y con ello han instaurado una norma rigida, distanciada de lo que exige la equidad y de lo que suelen establecer los Codigos extranjeros. Los commentaristas convienen en que la supresion ha sido intencionada, y por consiguiente el proposito del legislador es que en esta clase de llamamientos no se da el derecho de representacion. Dice Manresa que el art. 751 'tiene por favorecidos con tal institucion, no a los parientes de mejor derecho, sino a los mas proximos en grado y, por lo tanto, los de primer grado excluiran a los de segundo y asi sucesivamente, toda ves que la proximidad del parentesco se aprecia en esta forma con arreglo al art. 915'. La misma interpretacion dan al artculo de referencia NAVARRO AMANDI, MUCIUS SCAEVOLA, SANCHEZ ROMAN y VALVERDE." The result would be that by applying to the descendants of Filomena Diaz the "nearest relatives" rule of Article 959, the inheritance would be limited to her children, or anyone of them, excluding the grandchildren altogether. This could hardly be the intention of the testator who, in the selfsame clause 10 of his codicil (ante), speaks of "cuatro hijos de mi difunto hermano Fabian" and of "los hijos de Domingo Legarda," as well as of "descendientes legitimos" of the other legatees, to us indicating clearly that he understood well that hijos and descendientes are not synonymous terms. Observe that, in referring to the substitutes of Filomena Diaz,

Nestor Santiago and Isabel M. de Santiago, the testator, does not even use the description "sus hijos o descendientes," but only "descendientes". It is suggested that "descendientes legitimos" could mean the nearest descendant but with right of representation in favor of the more distant relatives. Unquestionably, the testator was at liberty to provide a series of successive substitutions in the order of proximity of relationship to the original legatee. And he, likewise, was free to ordain that the more distant descendants should enjoy the right of representation as in intestate succession. But to arrive at such conclusion, we must declare that the testator had: (a) Rejected, or intended to reject, the right of accretion among co-heirs and colegatees, as established for testamentary successions by Articles 1016 (old Art. 982) and 1019, and intended to replace such accretion with representation: "ART. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and(2) That one of the persons thus called die before the testator or renounce the inheritance, or be incapacitated to receive it. xxx xxx xxx ART. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit." (b) Refused, likewise, the rule of Article 846 (reproduced from Article 765 of the Code of 1889) 'providing that: "Heirs instituted without designation of shares shall inherit in equal parts", which would not obtain if the right of representation were to apply; (c) Rejected finally the rule of Article 1022 (old Art. 986), that vacancies in the free part should be filled according to the rules of accretion or substitution (not representation); and in default of these two, ultimately inherited by the testator's own heirs intestate: "ART. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations." There is no doubt that, the testator's intention being the cardinal rule of succession in the absence of compulsory (forced) heirs, he could have rendered inoperative all the articles mentioned, if he had so desired. But without any other supporting circumstances, we deem it extremely conjectural to hold that by the simple expression "o a sus descendientes legitimos," the testator Benigno Diaz did intend to circumvent all the legal provisions heretofore quoted. It was incumbent upon appellant to prove such intention on the part of the testator; yet she has not done so.

It is interesting to note that even under the Anglo-Saxon doctrine, the courts are divided on the question whether a bequest to "relatives" or "issue," made in general terms, gives rise to a succession per capita or per stirpes. In Wyeth, et al., vs. Crane, 174 N.E. 871, the Supreme Court of Illinois said: "The meaning of the word 'descendants', when used in a will or deed to designate a class to take property passing by the will or deed, has been frequently considered and decided by the courts of England and the United States. The established rule in England from an early date was that the word 'descendants' or the word 'issue', unexplained by anything in the context of the instrument, means all persons descending lineally from another, to the remotest degree, and includes persons so descended, even though their parents are living, and that such descendants take per capita and not per stirpes." "The courts of this country are divided on the question of whether in case of a gift or conveyance to 'descendants' or 'issue', children take concurrently with their parents. The so-called English rule has been adhered to in New York, New Jersey, and Tennessee. . . . On the other hand, the courts of Massachusetts, Maine, Rhode Island and South Carolina have held that, in case of a gift or conveyance to descendants or issue, unexplained by anything in the context of the instrument, children do not take concurrently with their parents." We conclude that in the absence of other indications of contrary intent, the proper rule to apply in the instant case is that the testator, by designating a class or group of legatees, intended all members thereof to succeed per capita, in consonance with article 846. So that the original legacy to Filomena Diaz should be equally divided among her surviving children and grandchildren. The order appealed from is affirmed, with costs to the appellant. Villanueva v Branoco, GR 172804, January 24, 2011 SECOND DIVISION [G.R. No. 172804. January 24, 2011.] GONZALO VILLANUEVA, represented by his heirs, petitioner, vs. SPOUSES FROILAN and LEONILA BRANOCO, respondents. DECISION CARPIO, J p: The Case This resolves the petition for review 1 of the ruling 2 of the Court of Appeals dismissing a suit to recover a realty. EAISDH The Facts Petitioner Gonzalo Villanueva (petitioner), here represented by his heirs, 3 sued respondents, spouses Froilan and Leonila Branoco (respondents), in the Regional Trial Court of Naval, Biliran (trial court) to recover a 3,492 square-meter parcel of

land in Amambajag, Culaba, Leyte (Property) and collect damages. Petitioner claimed ownership over the Property through purchase in July 1971 from Casimiro Vere (Vere), who, in turn, bought the Property from Alvegia Rodrigo (Rodrigo) in August 1970. Petitioner declared the Property in his name for tax purposes soon after acquiring it. In their Answer, respondents similarly claimed ownership over the Property through purchase in July 1983 from Eufracia Rodriguez (Rodriguez) to whom Rodrigo donated the Property in May 1965. The two-page deed of donation (Deed), signed at the bottom by the parties and two witnesses, reads in full: KNOW ALL MEN BY THESE PRESENTS: That I, ALVEGIA RODRIGO, Filipino, of legal age, widow of the late Juan Arcillas, a resident of Barrio Bool, municipality of Culaba, subprovince of Biliran, Leyte del Norte, Philippines, hereby depose and say: That as we live[d] together as husband and wife with Juan Arcillas, we begot children, namely: LUCIO, VICENTA, SEGUNDINA, and ADELAIDA, all surnamed ARCILLAS, and by reason of poverty which I suffered while our children were still young; and because my husband Juan Arcillas aware as he was with our destitution separated us [sic] and left for Cebu; and from then on never cared what happened to his family; and because of that one EUFRACIA RODRIGUEZ, one of my nieces who also suffered with our poverty, obedient as she was to all the works in our house, and because of the love and affection which I feel [for] her, I have one parcel of land located at Sitio Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878 declared in the name of Alvegia Rodrigo, I give (devise) said land in favor of EUFRACIA RODRIGUEZ, her heirs, successors, and assigns together with all the improvements existing thereon, which parcel of land is more or less described and bounded as follows: TACEDI 1. Bounded North by Amambajag River; East, Benito Picao; South, Teofilo Uyvico; and West, by Public land; 2. It has an area of 3,492 square meters more or less; 3. It is planted to coconuts now bearing fruits; 4. Having an assessed value of P240.00; 5. It is now in the possession of EUFRACIA RODRIGUEZ since May 21, 1962 in the concept of an owner, but the Deed of Donation or that ownership be vested on her upon my demise. That I FURTHER DECLARE, and I reiterate that the land above described, I already devise in favor of EUFRACIA RODRIGUEZ since May 21, 1962, her heirs, assigns, and that if the herein Donee predeceases me, the same land will not be reverted to the Donor, but will be inherited by the heirs of EUFRACIA RODRIGUEZ; That I EUFRACIA RODRIGUEZ, hereby accept the land above described from Inay Alvegia Rodrigo and I am much grateful to her and praying further for a

longer life; however, I will give one half (1/2) of the produce of the land to Apoy Alve during her lifetime. 4 Respondents entered the Property in 1983 and paid taxes afterwards. The Ruling of the Trial Court The trial court ruled for petitioner, declared him owner of the Property, and ordered respondents to surrender possession to petitioner, and to pay damages, the value of the Property's produce since 1982 until petitioner's repossession and the costs. 5 The trial court rejected respondents' claim of ownership after treating the Deed as a donation mortis causa which Rodrigo effectively cancelled by selling the Property to Vere in 1970. 6 Thus, by the time Rodriguez sold the Property to respondents in 1983, she had no title to transfer. HaSEcA Respondents appealed to the Court of Appeals (CA), imputing error in the trial court's interpretation of the Deed as a testamentary disposition instead of an inter vivos donation, passing title to Rodriguez upon its execution. Ruling of the Court of Appeals The CA granted respondents' appeal and set aside the trial court's ruling. While conceding that the "language of the [Deed is] . . . confusing and which could admit of possible different interpretations," 7 the CA found the following factors pivotal to its reading of the Deed as donation inter vivos: (1) Rodriguez had been in possession of the Property as owner since 21 May 1962, subject to the delivery of part of the produce to Apoy Alve; (2) the Deed's consideration was not Rodrigo's death but her "love and affection" for Rodriguez, considering the services the latter rendered; (3) Rodrigo waived dominion over the Property in case Rodriguez predeceases her, implying its inclusion in Rodriguez's estate; and (4) Rodriguez accepted the donation in the Deed itself, an act necessary to effectuate donations inter vivos, not devises. 8 Accordingly, the CA upheld the sale between Rodriguez and respondents, and, conversely found the sale between Rodrigo and petitioner's predecessor-in-interest, Vere, void for Rodrigo's lack of title. In this petition, petitioner seeks the reinstatement of the trial court's ruling. Alternatively, petitioner claims ownership over the Property through acquisitive prescription, having allegedly occupied it for more than 10 years. 9 IaHDcT Respondents see no reversible error in the CA's ruling and pray for its affirmance. The Issue The threshold question is whether petitioner's title over the Property is superior to respondents'. The resolution of this issue rests, in turn, on whether the contract between the parties' predecessors-in-interest, Rodrigo and Rodriguez, was a donation or a devise. If the former, respondents hold superior title, having bought the Property from Rodriguez. If the latter, petitioner prevails, having obtained title from Rodrigo under a deed of sale the execution of which impliedly revoked the earlier devise to Rodriguez.

The Ruling of the Court We find respondents' title superior, and thus, affirm the CA. Naked Title Passed from Rodrigo to Rodriguez Under a Perfected Donation We examine the juridical nature of the Deed whether it passed title to Rodriguez upon its execution or is effective only upon Rodrigo's death using principles distilled from relevant jurisprudence. Post-mortem dispositions typically caIETS (1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; (2) That before the [donor's] death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; (3) That the transfer should be void if the transferor should survive the transferee. 10 Further [4] [T]he specification in a deed of the causes whereby the act may be revoked by the donor indicates that the donation is inter vivos, rather than a disposition mortis causa[;] [5] That the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is "to take effect at the death of the donor" are not controlling criteria; such statements are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor[;] [and] DSTCIa (6) That in case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed. 11 It is immediately apparent that Rodrigo passed naked title to Rodriguez under a perfected donation inter vivos. First. Rodrigo stipulated that "if the herein Donee predeceases me, the [Property] will not be reverted to the Donor, but will be inherited by the heirs of . . . Rodriguez," signaling the irrevocability of the passage of title to Rodriguez's estate, waiving Rodrigo's right to reclaim title. This transfer of title was perfected the moment Rodrigo learned of Rodriguez's acceptance of the disposition 12 which, being reflected in the Deed, took place on the day of its execution on 3 May 1965. Rodrigo's acceptance of the transfer underscores its essence as a gift in presenti, not in futuro, as only donations inter vivos need acceptance by the recipient. 13 Indeed, had Rodrigo wished to retain full title over the Property, she could have easily stipulated, as the testator did in another case, that "the donor, may transfer, sell, or encumber to any person or entity the

properties here donated . . ." 14 or used words to that effect. Instead, Rodrigo expressly waived title over the Property in case Rodriguez predeceases her. ScTCIE In a bid to diffuse the non-reversion stipulation's damning effect on his case, petitioner tries to profit from it, contending it is a fideicommissary substitution clause. 15 Petitioner assumes the fact he is laboring to prove. The question of the Deed's juridical nature, whether it is a will or a donation, is the crux of the present controversy. By treating the clause in question as mandating fideicommissary substitution, a mode of testamentary disposition by which the first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, 16 petitioner assumes that the Deed is a will. Neither the Deed's text nor the import of the contested clause supports petitioner's theory. Second. What Rodrigo reserved for herself was only the beneficial title to the Property, evident from Rodriguez's undertaking to "give one [half] . . . of the produce of the land to Apoy Alve during her lifetime." 17 Thus, the Deed's stipulation that "the ownership shall be vested on [Rodriguez] upon my demise," taking into account the non-reversion clause, could only refer to Rodrigo's beneficial title. We arrived at the same conclusion in Balaqui v. Dongso 18 where, as here, the donor, while "b[inding] herself to answer to the [donor] and her heirs . . . that none shall question or disturb [the donee's] right," also stipulated that the donation "does not pass title to [the donee] during my lifetime; but when I die, [the donee] shall be the true owner" of the donated parcels of land. In finding the disposition as a gift inter vivos, the Court reasoned: aCTHDA Taking the deed . . . as a whole, . . . . it is noted that in the same deed [the donor] guaranteed to [the donee] and her heirs and successors, the right to said property thus conferred. From the moment [the donor] guaranteed the right granted by her to [the donee] to the two parcels of land by virtue of the deed of gift, she surrendered such right; otherwise there would be no need to guarantee said right. Therefore, when [the donor] used the words upon which the appellants base their contention that the gift in question is a donation mortis causa [that the gift "does not pass title during my lifetime; but when I die, she shall be the true owner of the two aforementioned parcels"] the donor meant nothing else than that she reserved of herself the possession and usufruct of said two parcels of land until her death, at which time the donee would be able to dispose of them freely. 19 (Emphasis supplied) Indeed, if Rodrigo still retained full ownership over the Property, it was unnecessary for her to reserve partial usufructuary right over it. 20 Third. The existence of consideration other than the donor's death, such as the donor's love and affection to the donee and the services the latter rendered, while also true of devises, nevertheless "corroborates the express irrevocability of . . .

[inter vivos] transfers." 21 Thus, the CA committed no error in giving weight to Rodrigo's statement of "love and affection" for Rodriguez, her niece, as consideration for the gift, to underscore its finding. AaDSTH It will not do, therefore, for petitioner to cherry-pick stipulations from the Deed tending to serve his cause (e.g., "the ownership shall be vested on [Rodriguez] upon my demise" and "devise"). Dispositions bearing contradictory stipulations are interpreted wholistically, to give effect to the donor's intent. In no less than seven cases featuring deeds of donations styled as "mortis causa" dispositions, the Court, after going over the deeds, eventually considered the transfers inter vivos, 22 consistent with the principle that "the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is 'to take effect at the death of the donor' are not controlling criteria [but] . . . are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor." 23 Indeed, doubts on the nature of dispositions are resolved to favor inter vivos transfers "to avoid uncertainty as to the ownership of the property subject of the deed." 24 Nor can petitioner capitalize on Rodrigo's post-donation transfer of the Property to Vere as proof of her retention of ownership. If such were the barometer in interpreting deeds of donation, not only will great legal uncertainty be visited on gratuitous dispositions, this will give license to rogue property owners to set at naught perfected transfers of titles, which, while founded on liberality, is a valid mode of passing ownership. The interest of settled property dispositions counsels against licensing such practice. 25 HTSIEa Accordingly, having irrevocably transferred naked title over the Property to Rodriguez in 1965, Rodrigo "cannot afterwards revoke the donation nor dispose of the said property in favor of another." 26 Thus, Rodrigo's post-donation sale of the Property vested no title to Vere. As Vere's successor-in-interest, petitioner acquired no better right than him. On the other hand, respondents bought the Property from Rodriguez, thus acquiring the latter's title which they may invoke against all adverse claimants, including petitioner. Petitioner Acquired No Title Over the Property Alternatively, petitioner grounds his claim of ownership over the Property through his and Vere's combined possession of the Property for more than ten years, counted from Vere's purchase of the Property from Rodrigo in 1970 until petitioner initiated his suit in the trial court in February 1986. 27 Petitioner anchors his contention on an unfounded legal assumption. The ten year ordinary prescriptive period to acquire title through possession of real property in the concept of an owner requires uninterrupted possession coupled with just title and good faith. 28 There is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or

other real rights, but the grantor was not the owner or could not transmit any right. 29 Good faith, on the other hand, consists in the reasonable belief that the person from whom the possessor received the thing was the owner thereof, and could transmit his ownership. 30 caIEAD Although Vere and petitioner arguably had just title having successively acquired the Property through sale, neither was a good faith possessor. As Rodrigo herself disclosed in the Deed, Rodriguez already occupied and possessed the Property "in the concept of an owner" ("como tag-iya") 31 since 21 May 1962, nearly three years before Rodrigo's donation in 3 May 1965 and seven years before Vere bought the Property from Rodrigo. This admission against interest binds Rodrigo and all those tracing title to the Property through her, including Vere and petitioner. Indeed, petitioner's insistent claim that Rodriguez occupied the Property only in 1982, when she started paying taxes, finds no basis in the records. In short, when Vere bought the Property from Rodrigo in 1970, Rodriguez was in possession of the Property, a fact that prevented Vere from being a buyer in good faith. Lacking good faith possession, petitioner's only other recourse to maintain his claim of ownership by prescription is to show open, continuous and adverse possession of the Property for 30 years. 32 Undeniably, petitioner is unable to meet this requirement. cIaCTS Ancillary Matters Petitioner Raises Irrelevant Petitioner brings to the Court's attention facts which, according to him, support his theory that Rodrigo never passed ownership over the Property to Rodriguez, namely, that Rodriguez registered the Deed and paid taxes on the Property only in 1982 and Rodriguez obtained from Vere in 1981 a waiver of the latter's "right of ownership" over the Property. None of these facts detract from our conclusion that under the text of the Deed and based on the contemporaneous acts of Rodrigo and Rodriguez, the latter, already in possession of the Property since 1962 as Rodrigo admitted, obtained naked title over it upon the Deed's execution in 1965. Neither registration nor tax payment is required to perfect donations. On the relevance of the waiver agreement, suffice it to say that Vere had nothing to waive to Rodriguez, having obtained no title from Rodrigo. Irrespective of Rodriguez's motivation in obtaining the waiver, that document, legally a scrap of paper, added nothing to the title Rodriguez obtained from Rodrigo under the Deed. WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 6 June 2005 and the Resolution dated 5 May 2006 of the Court of Appeals. TIaCHA SO ORDERED. LEGAL OR INTESTATE SUCCESSION XIX. GENERAL PROVISIONS

A. In general 1. When does it take place? NCC 960 2. Who are the intestate heirs? NCC 961 Rosales v Rosales, 148 SCRA 69 FIRST DIVISION [G.R. No. L-40789. February 27, 1987.] 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. SYLLABUS 1. CIVIL LAW; WILLS AND SUCCESSION; INTESTATE SUCCESSION; INTESTATE OR LEGAL HEIRS; CLASSIFICATION. 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. 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, or by the right of representation provided for in Article 981 of the same law. 2. ID.; ID.; ID.; DAUGHTER-IN-LAW, NOT AN INTESTATE HEIR OF HER SPOUSE'S PARENT. 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. 3. ID.; ID.; WIDOW OR WIDOWER MENTIONED IN ARTICLE 887 OF THE CIVIL CODE REFERS TO SURVIVING SPOUSE. Petitioner argues that she is a compulsory heir in accordance with the provisions of article 887 of the Civil Code. The aforesaid provision of law 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.

4. ID.; ID.; ID.; SURVIVING SPOUSE CONSIDERED A THIRD PARTY WITH RESPECT TO ESTATE OF 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, 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. . . . . ". 5. ID.; ID.; ID.; RIGHT OF REPRESENTATION; BLOOD RELATIONSHIP; BASIS THEREOF. 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. 6. ID.; ID.; ID.; INCHOATE RIGHT TO ESTATE EXTINGUISHED BY DEATH OF HEIR. Petitioner contends that at the time of the death of her husband Corterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heirs. 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. DECISION GANCAYCO, J p: 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. prLL 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 Fortunato 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 deceased 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 individuals the legal heirs of the deceased and prescribing their respective share of the estate Fortunato 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 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. 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 shall 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-inlaw, it would have so provided in the Code. LLjur 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. llcd

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 rot 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-inlaw. 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. LLjur SO ORDERED. 3. Order and share in the intestate succession 962 De los Santos v De la Cruz, 37 SCRA 555 EN BANC [G.R. No. L-29192. February 22, 1971.] GERTRUDES DE LOS SANTOS, plaintiff-appellee, vs. MAXIMO DE LA CRUZ, defendant-appellant. Benjamin Pineda for plaintiff-appellee. Ceasar R. Monteclaros for defendant-appellant. DECISION

VILLAMOR, J p: Direct appeal to this Court on questions of law from the judgment of the Court of First Instance of Rizal, Branch IX, in its Civil Case No. Q-8792. From the record of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los Santos filed a complaint for specific performance against Maximo de la Cruz, alleging, among others, that on August 24, 1963, she and several coheirs, including the defendant, executed an extrajudicial partition agreement (a copy of which was attached to the complaint) over a certain portion of land with an area of around 20,000 sq. m.; that the parties thereto had agreed to adjudicate three (3) lots to the defendant, in addition to his corresponding share, on condition that the latter would undertake the development and subdivision of the estate which was the subject matter of the agreement, all expenses in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3) lots; that in spite of demands by the plaintiff, by the other co-heirs, and by the residents of the subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the aforesaid lots. The plaintiff prayed the court to order the defendant to comply with his obligation under the extra-judicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs. In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, but set up the affirmative defenses that the plaintiff had no cause of action against him because the said agreement was void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the property, and was included in the extrajudicial partition agreement by mistake; and that although he had disposed of the three lots adjudicated to him, nevertheless the proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of reversion. The defendant prayed that the complaint be dismissed; that the extrajudicial partition agreement be declared void with respect to the plaintiff; and, on his counterclaim, that the plaintiff be ordered to pay him the sum of P2,500.00. On motion of the defendant, the court below entered an order on July 19, 1965, declaring the plaintiff in default for not having answered the counterclaim. On July 6, 1966, the case was submitted for decision on the following stipulation of facts: "1. That the parties admit the existence and execution of the 'Extra-Judicial Partition Agreement' dated August 24, 1963, which we marked as Exhibit 'A' for

the plaintiff, and Exhibit "1" for the defendant, which partition agreement was marked as Annex 'A' in the complaint; "2. That the parties agree that the original purpose of the above-mentioned Extra-Judicial Partition Agreement was for the distribution of the lard in question for the heirs of Pelagia de al Cruz; however the parties further agree that several lots in the said land have been sold by some of the co-heirs, and there are now several houses constructed therein and residents therein; "3. That the parties agree that the defendant is the appointed Administrator and In-charge of the development and subdivision of the land in question, as provided for in the aforementioned extrajudicial partition agreement; "4. That parties agree that Lots 1, 2 and 3 as described on page 3, 3rd paragraph to the last of said partition agreement have been sold by the defendant herein; and parties further agree that there are no properly constructed roads, nor proper light and water facilities; "5. That the parties agree that the defendant is the nephew of the deceased Pelagia de la Cruz aforementioned, who was the owner and predecessor in interest of the land which was the subject matter of the extrajudicial partition agreement; "6. That the parties agree that the plaintiff is the grandniece of the said Pelagia de la Cruz; "7. That Pelagia de la Cruz died intestate and without issue on October 16, 1962, as evidenced by a death certificate, which is marked as Exhibit '2' for the defendant; and "8. That Marciana de la Cruz is the mother of the plaintiff and the niece of the said Pelagia de la Cruz, and that the said Marciana de la Cruz died on September 22, 1935, as evidenced by Exhibit '3' for the defendant." In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the extrajudicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit from the decedent Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd29561 as described on page 2 of the Extrajudicial Partition Agreement" (meaning, apparently, that the defendant should develop the subdivision because said Lots 1, 2 and 3 were intended to be sold for this purpose), and to pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees, and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for New Trial' but the same was denied. Hence, this appeal. The seven (7) errors assigned by defendant-appellant in his brief boil down to the following:

1. The court a quo erred in not holding that the extrajudicial partition agreement is null and void with respect to plaintiff-appellee, and, consequently, that plaintiff-appellee has no cause of action against defendant-appellant. 2. The court a quo erred in holding that defendant-appellant is estopped from questioning plaintiff-appellee's right to have the agreement enforced. 3. The court a quo erred in ordering defendant-appellant to pay actual damages to plaintiff-appellee, and, on the other hand, in not granting the relief prayed for by defendant-appellant in his counterclaim. We shall discuss seriatim these errors as thus condensed. 1. In the stipulation of facts submitted to the court below, the parties admit that the owner of the estate, subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on October 16, 1962 that defendantappellant is a nephew of the said decedent; that plaintiff-appellee is a grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a niece of the said Pelagia de la Cruz; that plaintiff-appellee's mother died on September 22, 1935, thus pre-deceasing Pelagia de la Cruz; and that the purpose of the extrajudicial partition agreement was to divide and distribute the estate among the heirs of Pelagia de la Cruz. The pivotal question is whether, in the premises, plaintiff-appellee is an heir of the decedent. We are convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she could not inherit from the latter by right of representation. "ART. 972. The right of representation takes place in the direct descending line, but never in the ascending. "In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood." Much less could plaintiff-appellee inherit in her own right. "ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place . . ." Applying these two (2) provisions, this Court, in Linart y Pavia vs. Ugarte y Iturralde, 5 Phil., 176 (1905), said: ". . . [I]n an intestate succession a grandniece of the deceased can not participate with a niece in the inheritance, because the latter being a nearer relative, the more distant grandniece is excluded. In the collateral line the right of representation does not obtain beyond sons and daughters of the brothers and sisters, which would have been the case if Pablo Linart, the father of the plaintiff, had survived his deceased uncle." In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces, one of whom is defendant-appellant. Necessarily, plaintiffappellee, a grandniece, is excluded by law from the inheritance.

But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial partition agreement insofar as her right to bring the present action is concerned? They did not confer upon her the right to institute this action. The express purpose of the extrajudicial partition agreement, as admitted by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz. Indeed, the said agreement itself states that plaintiff-appellee was participating therein in representation of her deceased mother. The pertinent portion of the agreement is herein quoted, thus: "NOW, THEREFORE, we . . . and Diego delos Santos, married to Anastacia dela Cruz, Mariano delos Santos married to Andrea Ramoy: Gertrudes delos Santos, married to Pascual Acuna; Alejo delos Santos, married to Leonila David; and Sotera delos Santos, married to Narciso Ramota; all in representation of our mother, MARCIANA DELA CRUZ, . . ., do hereby by these presents, mutually, voluntarily and amicably agree among ourselves to equitably divide the property left by the deceased PELAGIA DELA CRUZ, and adjudicate unto ourselves definite and independent portions of the estate in the following manner . . ." It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code, which reads: "ART. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person." Partition of property affected between a person entitled to inherit from the deceased owner thereof and another person who thought he was an heir, when he was not really and lawfully such, to the prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori, plaintiff-appellee could hardly derive from the agreement the right to have its terms enforced. 2. The extrajudicial partition agreement being void with respect to plaintiffappellee, she may not be heard to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17 Am. Jur. 605), or on acts which are prohibited by law or are against public policy (Baltazar vs. Lingayen Gulf Electric Power Co., et al., G.R. Nos. 16236-38, June 30, 1965 [14 SCRA 522]). In Ramiro vs. Grao, et al., 54 Phil., 744 (1930), this Court held: "No estoppel arises where the representation or conduct of the party sought to be estopped is due to ignorance founded upon a mistake. And while there is authority to the contrary, the weight of authority is that the acts and declarations of a party based upon an innocent mistake as to his legal rights will not estop him to assert the same, especially where every fact known to the party sought to be estopped is equally well known to the party setting up the estoppel. (21 C.J., 1125, 1126.)"

And in Capili, et al. vs. Court of Appeals, et al., G.R. No. L-18148, February 28, 1963 (7 SCRA 367), this Court said: "Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be apprised of his rights at the time he performs the act constituting estoppel, because silence without knowledge works no estoppel . . ." 3. The award of actual damages in favor of plaintiff-appellee cannot be sustained in view of the conclusion we have arrived at above. Furthermore, actual or compensatory damages must be duly proved (Article 2199, Civil Code). Here, no proof of such damages was presented inasmuch as the case was decided on a stipulation of facts and no evidence was adduced before the trial court. We now come to defendant-appellant's counterclaim, in which he alleged that plaintiff-appellee sold her share to a certain person for the price of P10,000.00, and claims that he is entitled to one-fourth (1/4) of the proceeds by right of reversion. It will be noted that plaintiff-appellee had been declared in default on defendantappellant's counterclaim; but the latter did not present any evidence to prove the material allegation therein more specifically, the alleged sale of the former's share for the sum of P10,000.00. That no such evidence had been adduced is understandable, for the parties expressly submitted the case for the resolution of the court upon their stipulation of facts which, unfortunately, did not make any mention of the alleged sale; and neither had defendant made any offer or move to introduce the necessary evidence to that effect for the consideration and evaluation by the trial court. Defendant-appellant contends, however, that in view of plaintiff-appellee's having been declared in default, the latter must be deemed to have admitted all the allegations in his counterclaim, so that the court a quo should have granted the relief prayed for by him. We find no merit in this contention. Section 1, Rule 18 of the Revised Rules of Court, reads: "SECTION 1. Judgment by default. If the defendant fails to answer within the time specified in these rules, the court shall, upon motion of the plaintiff and proof of such failure, declare the defendant in default. Thereupon the court shall proceed to receive the plaintiff's evidence and render judgment granting him such relief as the complaint and the fact proven may warrant. This provision applies where no answer is made to a counterclaim, crossclaim, or third-party complaint within the period provided in this rule."

The abovequoted rule was taken from Sections 128 and 129 of the Code of Civil Procedure. In Macondray & Co. vs. Eustaquio, 64 Phil., 446 (1937), this Court said: "Under section 128 of our Code of Civil Procedure, the judgment by default against a defendant who has neither appeared nor filed his answer does not imply a waiver of rights except that of being heard and of presenting evidence in his favor. It does not imply admission by the defendant of the facts and causes of action of the plaintiff, because the codal section requires the latter to adduce his evidence in support of his allegations as an indispensable condition before final judgment could be given in his favor. Nor could it be interpreted as an admission by the defendant that the plaintiff's causes of action find support in the law or that the latter is entitled to the relief prayed for . . ." Nevertheless, the basic fact appears in the stipulation submitted by the parties that said plaintiff-appellee admitted having received a portion of the estate by virtue of the extrajudicial partition agreement dated August 24, 1963, to wit: "(9). Lot 9, (LRC) Psd-29561, containing an area of 1,691 sq. m. as described in the Technical Description to be adjudicated to Diego delos Santos, married to Anastacia dela Cruz; Mariano delos Santos, married to Regina Baluyot; Hilario delos Santos, married to Andrea Ramoy; Gertrudes delos Santos, married to Pascual Acuna; Alejo delos Santos, married to Leonila David; and Sotera delos Santos, married to Narciso Ramota, in co-ownership, share and share alike." Such being the case, defendant-appellant is apparently correct in his contention that the lower court erred in not passing on his counterclaim and, consequently, in not sentencing appellee to turn over to him his corresponding share of said portion received by appellee under the void partition. Remote relatives or unrelated persons who unduly received and took possession of the property of a deceased person without any right, by virtue of a null and void partition, must restore it to the legitimate successor in the inheritance (De Torres vs. De Torres, et al., supra). Of course, if such share has already been disposed of by appellee to a bona fide purchaser, as seems to be indicated in the unproven allegations of the counterclaim, We cannot render judgment awarding any specific amount to defendant-appellant as his proportionate share of the proceeds of such sale for the reason that, as already stated above, this aspect of the counterclaim has not been touched upon in the stipulation of facts nor has it been supported by evidence which appellant should have presented in the lower court but did not. IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is hereby reversed and set aside; the defendant-appellant is absolved from any liability to and in favor of plaintiff-appellee; and, on appellant's counterclaim, appellee is hereby sentenced to restore or reconvey to him his corresponding share of the property she has received under the extrajudicial partition hereinbefore

mentioned if the same has not already been disposed of as alleged. Costs in both instance against plaintiff-appellee. Bagunu v Piedad, 347 SCRA 571 THIRD DIVISION [G.R. No. 140975. December 8, 2000.] OFELIA HERNANDO BAGUNU, petitioner, vs. PASTORA PIEDAD, respondent. Ceferino Padua Law Office and Gatmaytan Law Office for petitioner. P.C. Jose & Associates for respondent. SYNOPSIS Petitioner is the daughter of a first cousin of the deceased, or a collateral relative within the fifth civil degree of the decedent. Respondent, on the other hand, is the maternal aunt of the decedent, a collateral relative within the third civil degree of the decedent. The issue here is the applicability of the rule on proximity among collateral relatives. Thus, the question is: Can petitioner inherit alongside respondent? The rule on proximity is a concept that favors the relatives nearest in degree to the decedent and excludes the more distant ones except when and to the extent that the right of representation can apply. In the collateral line, the right of representation may only take place in favor of the children of brothers or sisters of the decedent when such children survive with their uncles or aunts. The right of representation does not apply to "other collateral relatives within the fifth civil degree" (to which group both petitioner and respondent belong) who are sixth in the order of preference. Applying now the rule on proximity, respondent relative within the third civil degree excludes petitioner relative within the fifth civil degree from succeeding ab intestato to the estate of the decedent. SYLLABUS 1. CIVIL LAW; DIFFERENT MODES OF ACQUIRING OWNERSHIP; SUCCESSION; APPRECIATION OF THE LAW. The various provisions of the Civil Code on succession embody an almost complete set of law to govern, either by will or by operation of law, the transmission of property, rights and obligations of a person upon his death. Each article is construed incongruity with, rather than in isolation of, the system set out by the Code. 2. ID.; ID.; ID.; INTESTATE SUCCESSION; RULE ON PROXIMITY; APPLICATION OF RIGHT OF REPRESENTATION. The rule on proximity is a concept that favors the relatives nearest in degree to the decedent and excludes the more distant ones except when and to the extent that the right of representation can apply. . . . By right of representation, a more distant blood relative of a decedent is, by operation of law, "raised to the same place and degree" of relationship as that of a closer blood relative of the same decedent. The

representative thereby steps into the shoes of the person he represents and succeeds, not from the latter, but from the person to whose estate the person represented would have succeeded. . . . In the direct line, right of representation is proper only in the descending, never in the ascending, line. In the collateral line, the right of representation may only take place in favor of the children of brothers or sisters of the decedent when such children survive with their uncles or aunts. SacTCA 3. ID.; ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE TO "OTHER COLLATERAL RELATIVES WITHIN THE FIFTH CIVIL DEGREE." The right of representation does not apply to "other collateral relatives within the fifth civil degree" (to which group both petitioner and respondent belong) who are sixth in the order of preference following, firstly, the legitimate children and descendants, secondly, the legitimate parents and ascendants, thirdly, the illegitimate children and descendants, fourthly, the surviving spouse, and fifthly, the brothers and sisters/nephews and nieces, of the decedent. Among collateral relatives, except only in the case of nephews and nieces of the decedent concurring with their uncles or aunts, the rule of proximity, expressed in Article 962 of the Code, is an absolute rule. In determining the degree of relationship of the collateral relatives to the decedent, Article 966 of the Civil Code gives direction. Respondent, being a relative within the third civil degree, of the late Augusto H. Piedad excludes petitioner, a relative of the fifth degree, from succeeding ab intestato to the estate of the decedent. DECISION VITUG, J p: On 28 August 1995, herein petitioner Ofelia Hernando Bagunu moved to intervene in Special Proceedings No. 3652, entitled "In the Matter of the Intestate Proceedings of the Estate of Augusto H. Piedad," pending before the Regional Trial Court ("RTC"), Branch 117, of Pasay City. Asserting entitlement to a share of the estate of the late Augusto H. Piedad, petitioner assailed the finality of the order of the trial court awarding the entire estate to respondent Pastora Piedad contending that the proceedings were tainted with procedural infirmities, including an incomplete publication of the notice of hearing, lack of personal notice to the heirs and creditors, and irregularity in the disbursements of allowances and withdrawals by the administrator of the estate. The trial court denied the motion, prompting petitioner to raise her case to the Court of Appeals. Respondent sought the dismissal of the appeal on the thesis that the issues brought up on appeal only involved pure questions of law. Finding merit in that argument, the appellate court dismissed the appeal, citing Section 2(c) of Rule 41 of the 1997 Revised Rules on Civil Procedure which would require all appeals involving nothing else but questions of law to be raised before the Supreme Court by petition for review on

certiorari in accordance with Rule 45 thereof and consistently with Circular 2-90 of the Court. aDSTIC In a well-written resolution, the Court of Appeals belabored the distinctions between questions of law and questions of fact, thus: "There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts, and there is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts. There is question of fact when the query necessarily invites calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevance of specific surrounding circumstances, and their relation to each other and to the whole and the probabilities of the situation." 1 Justice Eugenio S. Labitoria, speaking for the appellate court, ratiocinated that whether or not the RTC erred in denying the intervention considering (1) that the intervenor-appellant had a prima facie interest over the case, (2) that the jurisdiction over the person of the proper parties was not acquired in view of the deficient publication or notice of hearing, and (3) that the proceedings had yet to be closed and terminated, were issues which did not qualify as "questions of fact" as to place the appeal within the jurisdiction of the appellate court; thus: "The issues are evidently pure questions of law because their resolution are based on facts not in dispute. Admitted are the facts that intervenor-appellant is a collateral relative within the fifth degree of Augusto H. Piedad; that she is the daughter of the first cousin of Augusto H. Piedad; that as such, intervenorappellant seek to inherit from the estate of Augusto H. Piedad; that the notice of hearing was published for three consecutive weeks in a newspaper of general circulation; that there was no order of closure of proceedings that has been issued by the intestate court; and that the intestate court has already issued an order for the transfer of the remaining estate of Augusto H. Piedad to petitioner-appellee. "These facts are undisputed. "In this case, there is no doubt nor difference that arise as to the truth or falsehood on alleged facts. The question as to whether intervenor-appellant as a collateral relative within the fifth civil degree, has legal interest in the intestate proceeding which would justify her intervention; the question as to whether the publication of notice of hearing made in this case is defective which would amount to lack of jurisdiction over the persons of the parties and the question as to whether the proceedings has already been terminated when the intestate court issued the order of transfer of the estate of Augusto H. Piedad to petitioner-appellee, in spite the absence of an order of closure of the intestate court, all call for the application and interpretation of the proper law. There is doubt as to what law is applicable on a certain undisputed state of facts. aHCSTD

"The resolution of the issues raised does not require the review of the evidence, nor the credibility of witnesses presented, nor the existence and relevance of specific surrounding circumstances. Resolution on the issues may be had even without going to examination of facts on record." 2 Still unsatisfied, petitioner contested the resolution of the appellate court in the instant petition for review on certiorari. The Court finds no reversible error in the ruling of the appellate court. But let us set aside the alleged procedural decrepitude and take on the basic substantive issue. Specifically, can petitioner, a collateral relative of the fifth civil degree, inherit alongside respondent, a collateral relative of the third civil degree? Elsewise stated, does the rule of proximity in intestate succession find application among collateral relatives? Augusto H. Piedad died without any direct descendants or ascendants. Respondent is the maternal aunt of the decedent, a third-degree relative of the decedent, while petitioner is the daughter of a first cousin of the deceased, or a fifth degree relative of the decedent. The various provisions of the Civil Code on succession embody an almost complete set of law to govern, either by will or by operation of law, the transmission of property, rights and obligations of a person upon his death. Each article is construed in congruity with, rather than in isolation of, the system set out by the Code. The rule on proximity is a concept that favors the relatives nearest in degree to the decedent and excludes the more distant ones, except when and to the extent that the right of representation can apply. Thus, Article 962 of the Civil Code provides: "ARTICLE 26. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. "Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines. By right of representation, a more distant blood relative of a decedent is, by operation of law, "raised to the same place and degree" of relationship as that of a closer blood relative of the same decedent. The representative thereby steps into the shoes of the person he represents and succeeds, not from the latter, but from the person to whose estate the person represented would have succeeded. "ARTICLE 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." "ARTICLE 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." aSATHE In the direct line, right of representation is proper only in the descending, never in the ascending, line. In the collateral line, the right of representation may only take place in favor of the children of brothers or sisters of the decedent when such children survive with their uncles or aunts. "ARTICLE 972. The right of representation takes place in the direct descending line, but never in the ascending. "In the collateral line, it takes place only in favor of the children of brothers or sister, whether they be of the full or half blood." "ARTICLE 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit." "ARTICLE 975. When children of one or more brothers or sisters of the 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." The right of representation does not apply to "other collateral relatives within the fifth civil degree" (to which group both petitioner and respondent belong) who are sixth in order of preference following, firstly, the legitimate children and descendants, secondly, the legitimate parents and ascendants, thirdly, the illegitimate children and descendants, fourthly, the surviving spouse, and fifthly, the brothers and sisters/nephews and nieces, of the decedent. Among collateral relatives, except only in the case of nephews and nieces of the decedent concurring with their uncles or aunts, the rule of proximity, expressed in Article 962, aforequoted, of the Code, is an absolute rule. In determining the degree of relationship of the collateral relatives to the decedent, Article 966 of the Civil Code gives direction. "ARTICLE 966. . . . "In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin and so forth." SCHATc Accordingly Respondent, being a relative within the third civil degree, of the late Augusto H. Piedad excludes petitioner, a relative of the fifth degree, from succeeding ab intestato the estate of the decedent. The provisions of Article 1009 and Article 1010 of the Civil Code

"ARTICLE 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. "The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood." Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line." invoked by petitioner do not at all support her cause. The law means only that among the other collateral relatives (the sixth in the line of succession), no preference or distinction shall be observed "by reason of relationship by the whole blood." In fine, a maternal aunt can inherit alongside a paternal uncle, and a first cousin of the full blood can inherit equally with a first cousin of the half blood, but an uncle or an aunt, being a third-degree relative, excludes the cousins of the decedent, being in the fourth-degree of relationship; the latter, in turn, would have priority in succession to a fifth-degree relative. ISADET WHEREFORE, the instant Petition is DENIED. No costs. SO ORDERED. Heirs of Uriarte v CA, 284 SCRA 511 SECOND DIVISION [G.R. No. 116775. January 22, 1998.] HEIRS OF PASCASIO URIARTE, namely, ROSELYN URIARTE, MADRILYN and LOURDES URIARTE, and FELOMINA BUNIEL URIARTE, and HEIRS OF PRIMITIVA ARNALDO and HEIRS OF GREGORIO ARNALDO, represented herein by FELISA ARNALDO SULLANO and LUPECINO ARNALDO, petitioners, vs. COURT OF APPEALS and BENEDICTO ESTRADA, respondents. Amado A. Caballero for petitioners. Antonia C. Buenaflor for private respondent. SYNOPSIS Private respondent brought in the Regional Trial Court an action for partition of the land left by Justa Arnaldo-Sering who died intestate and without issue, claiming to be the sole surviving heir of decedent. Private respondent contended that petitioners could claim only one-half of the land which the decedent had inherited from her parents. However, the petitioners claimed that the land was originally owned by their great granduncle, Ambrocio Arnaldo, who allegedly bequeathed the land to his nephews Domingo Arnaldo, uncle of the decedent, and Juan Arnaldo, father of the decedent. Petitioners contended that private respondent did not have any right to the property because he was not an heir of Ambrocio Arnaldo. The trial court sustained petitioners' contention. On appeal, the Court of Appeals reversed the decision of the trial court. The Court of Appeals held that private respondent is the nephew of the decedent, being the son of Agatonica

Arreza, half-sister of the decedent, and is therefore a third degree relative of the decedent. On the other hand, the petitioners are the sons and daughters of decedent's cousins and are therefore fifth degree relatives of the decedent. Applying Article 962 of the Civil Code which provides that the nearest excludes the farthest, the Court of Appeals held that the private respondent is the lawful heir of the decedent. Hence, this petition. Petitioners are questioning private respondent's filiation contending that the Court of Appeals gravely abused its discretion in holding that private respondent is the son of Agatonica Arreza, who was the half-sister of the decedent. Petitioners also make much of the fact that private respondent is not an Arnaldo, and is therefore not qualified to share in the estate of the decedent. The Supreme Court found that petition to be without merit. It is well-settled that questions not taken up during the trial of a case cannot be raised for the first time on appeal. With more reason should such a question be disallowed when raised for the first time on appeal to the Supreme Court. The Court also held that petitioners misappreciate the relationship between the decedent and private respondent. A nephew is considered a collateral relative who may inherit if no descendant, ascendant, or spouse survive the decedent. That private respondent is only a halfblood relative is immaterial. This alone does not disqualify him from being his aunt's heir. The determination of whether the relationship is of the full or halfblood is important only to determine the extent of the share of the survivors. HETDAa SYLLABUS 1. REMEDIAL LAW; ACTIONS; APPEALS; ISSUES NOT RAISED DURING THE TRIAL CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL. It is well-settled, however, that questions not taken up during the trial of a case cannot be raised for the first time on appeal. With more reason, therefore, should such a question be disallowed when raised for the first time on appeal to this Court. 2. CIVIL LAW; INTESTATE SUCCESSION; A NEPHEW IS A COLLATERAL RELATIVE WHO MAY INHERIT IF NO DESCENDANT, ASCENDANT, OR SPOUSE SURVIVE THE DECEDENT. Petitioners misappreciate the relationship between Justa and private respondent. As already stated, private respondent is the son of Justa's half-sister Agatonica. He is therefore Justa's nephews. A nephew is considered a collateral relative who may inherit if no descendant, ascendant, or spouse survive the decedent. 3. ID.; ID.; ID.; BEING A HALF-BLOOD RELATIVE, NOT A DISQUALIFICATION FROM BEING HIS AUNT'S HEIR. That private respondent is only a half-blood relative is immaterial. This alone does not disqualify him from being his aunt's heir. As the Court of Appeals correctly

pointed out, "The determination of whether the relationship is of the full or half blood is important only to determine the extent of the share of the survivors." EDHCSI DECISION MENDOZA, J p: This is a petition for review on certiorari of the decision 1 of the Court of Appeals, reversing the decision of the Regional Trial Court, Branch 27, of Tandag, Surigao del Sur, as well as the appellate court's resolution denying petitioners' motion for reconsideration. At issue is the right of the parties to a 2.7 hectare piece of land in Sungkit, Madrid, Surigao del Sur, which Justa Arnaldo-Sering left upon her death on March 31, 1989. cdasia The parties and their relationship to Justa Arnaldo-Sering are as follows: Private respondent Benedicto Estrada is the son of Agatonica Arreza, whose parents were Pedro Arreza and Ursula Tubil. Upon the death of Pedro Arreza, Ursula married Juan Arnaldo by whom she had another daughter, the decedent Justa. 2 Private respondent Benedicto Estrada is thus the nephew of Justa by her half sister Agatonica. Petitioners, referred to in this case as the heirs of Pascasio Uriarte, are the widow and daughters of Pascasio Uriarte. Pascasio was one of the sons of Primitiva Arnaldo and Conrado Uriarte. His mother, Primitiva Uriarte, was the daughter of Domingo Arnaldo and Catalina Azarcon. Domingo Arnaldo and Justa's father, Juan Arnaldo, were brothers. 3 Petitioners are thus grandchildren, the relatives within the fifth degree of consanguinity of Justa by her cousin Primitiva Arnaldo Uriarte. cdtai The other petitioners are the children of Primitiva and those of her brother Gregorio. 4 The children of Primitiva by Conrado Uriarte, aside from Pascasio, are Josefina, Gaudencio, Simplicio, Domingo and Virgilio, all surnamed Uriarte. The children of Gregorio Arnaldo, Primitiva's brother, by Julieta Ilogon, are Jorencio, Enecia, Nicolas, Lupecino and Felisa. These other petitioners are thus grandchildren and relatives within the fifth degree of consanguinity of Justa by her cousins Gregorio Arnaldo and Primitiva Arnaldo. Private respondent Benedicto Estrada brought this case in the Regional Trial Court for the partition of the land left by Justa Arnaldo-Sering. The land, consisting of 2.7 hectares, had been acquired by Justa as follows: 0.5 hectare by inheritance from her parents Juan Arnaldo and Ursula Tubil, and 2.2 hectares by purchase. 5 Private respondent claimed to be the sole surviving heir of Justa, on the ground that the latter died without issue. He complained that Pascasio Uriarte who, he claimed, worked the land as Justa's tenant, refused to give him (private respondent) his share of the harvest. 6 He contended that Pascasio had no right to the entire land of Justa

but could claim only one-half of the 0.5 hectare land which Justa had inherited from her parents Juan Arnaldo and Ursula Tubil. 7 Pascasio died during the pendency of the case and was substituted by his heirs. 8 In their answer, the heirs denied they were mere tenants of Justa 9 but the latter's heirs entitled to her entire land. cdt They claimed that the entire land, subject of the case, was originally owned by Ambrocio Arnaldo, 10 their great granduncle. It was alleged bequeathed to Domingo and Juan Arnaldo, Ambrocio's nephews, in a holographic will executed by Ambrocio in 1908. 11 Domingo was to receive two-thirds of the land and Juan, one-third. 12 The heirs claimed that the land had always been in their possession and that in her lifetime Justa never asserted exclusive right over the property but only received her share of the harvest from it. 13 They alleged that private respondent did not have any right to the property because he was not an heir of Ambrocio Arnaldo, 14 the original owner of the property. The trial court sustained petitioner's contention. In its decision rendered on November 8, 1991 it ruled: As earlier stated, the land of Ambrosio Arnaldo which he left to his two nephews, Domingo and Juan Arnaldo, was only .5481 hectares, divided as follows: twothirds or 3,654 square meters to Domingo, and one-third or 1,827 square meters to Juan. The area increased to 2.7588 hectares from .5481 hectares because the adjacent lot of about two hectares was acquired by Justa Arnaldo Sering, daughter of Juan Arnaldo, after the latter's death. The entire 2.7588 hectares was covered by tax declaration in the name of Justa Arnaldo Sering. The latter however died intestate and without issue. Her nearest surviving relatives are the children of her uncle Domingo Arnaldo, to whom her entire estate passed on after her death by operation of law, to the exclusion of all other relatives. Thus, the rights to the succession are transmitted from the moment of the death of the decedent (Art. 277, Civil Code). 15 Accordingly, the court ordered: aisadc WHEREFORE, judgment is hereby rendered in favor of the defendants and the intervenors [herein petitioners] and against the plaintiff [private respondent], declaring the defendants and the intervenors, together with the other heirs of the late Domingo Arnaldo, as entitled to the entire parcel of land described in Tax Declaration No. 124 and subsequent revising tax declarations in the name of Justa Arnaldo Sering. No cost. SO ORDERED. 16 On appeal, the Court of Appeals reversed. Contrary to the trial court's finding, the appellate court found that the 0.5 hectares had been acquired by Justa's parents, Juan Arnaldo and Ursula Tubil, during their marriage. As the nephew of Justa by her half-sister Agatonica, private respondent was held to be entitled to share in the

estate of Justa. In the dispositive portion of its decision the appellate court ordered: cdta WHEREFORE, the judgment appealed from is hereby REVERSED and another is hereby entered Ordering the partition of the property described in the second amended complaint in the following manner: (1) .2500 hectare as the share of defendants-intervenors, and (2) 2.58 hectare as the share of the plaintiff. cdasia For this purpose, the court a quo is hereby directed to proceed with the partition in accordance with the procedure laid down in Rule 69 of the Rules of Court. SO ORDERED. 17 Hence, this petition by the heirs of Pascasio Uriarte, the heirs of Primitiva Uriarte, and the heirs of Gregorio Arnaldo. Petitioners allege: cdtai I THE RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK AND/OR IN EXCESS OF JURISDICTION IN HOLDING THAT THE PLAINTIFF IS THE SON OF AGATONA ARREZA, THE HALF SISTER OF JUSTA ARNALDO SERING; II THE RESPONDENT COURT OF APPEALS PREFERRED TECHNICALITY OVER SUBSTANTIALITY WHEN IT GRAVELY ABUSED ITS DISCRETION IN HOLDING THAT THE HOLOGRAPHIC WILL LEFT BY THE DECEASED AMBROCIO ARNALDO CANNOT PASS REAL OR PERSONAL PROPERTY; III THE PRAYERS FOR RESTRAINING ORDER AND/OR WRIT OF PRELIMINARY INJUNCTION AND DAMAGES IS MERITORIOUS; cdt IV AND THE INSTANT PETITION IS IMPRESSED WITH MERIT AND SHOULD HAVE BEEN GRANTED. 18 After due consideration of the petition, we find it to be without merit. As already stated, Justa left a piece of land consisting 2.7 hectares. Half of this land (0.5 hectares), as the Court of Appeals found, formerly was conjugal property of her parents, Juan Arnaldo and Ursula Tubil. The rest, consisting of 2.2 hectares, was acquired by Justa after the death of her parents. Accordingly, the division of Justa's property should be as follows as private respondent contends: A The first hectare should be divided into two parts, the share of Juan Arnaldo which will accrue to petitioners and the second half which pertains to Ursula Tubil, which will accrue to private respondent. aisadc B As to the second portion of the area of the land in question which as already stated was consolidated with the hectare originally belonging to the conjugal partnership of Juan Arnaldo and Ursula Tubil, the same shall accrue to private respondent, who is the son of Agatonica Arreza, and who is only three degrees

from Justa Arnaldo, whereas petitioners who are the children of Primitiva Arnaldo and Gregorio Arnaldo, are five degrees removed from Justa Arnaldo. 19 The issue in this case is who among the petitioners and the private respondent is entitled to Justa's estate as her nearest relatives within the meaning of Art. 962 of the Civil Code. As a preliminary matter, petitioners contend that the Court of Appeals gravely abused its discretion in holding that private respondent is the son of Agatonica Arreza, who was the half-sister of Justa Arnaldo. Petitioners are raising this issue only now. It is well-settled, however, that questions not taken up during the trial of a case cannot be raised for the first time on appeal. With more reason, therefore, should such a question be disallowed when raised for the first time on appeal to this Court. 20 It is noteworthy that, in their brief before the Court of Appeals, 21 petitioners admitted that private respondent is Justa's nephew, his mother, Agatonica, being Justa's half-sister. Apparently they are now questioning private respondent's filiation because, as explained by the Court of Appeals, private respondent is the nearest relative of Justa and, therefore, the only one entitled to her estate. cdasia Indeed, given the fact that 0.5 hectares of the land in question belonged to the conjugal partnership of Justa's parents, Justa was entitled to 0.125 hectares of the half hectare land as her father's (Juan Arnaldo's) share in the conjugal property, while petitioners are entitled to the other 0.125 hectares. In addition, Justa inherited her mother's (Ursula Tubil's) share consisting of 0.25 hectares. Plus the 2.2 hectares which belonged to her in her own right, Justa owned a total of 2.575 or 2.58 hectares of the 2.7-hectare land. This 2.58-hectare land was inherited by private respondent Benedicto Estrada as Justa's nearest surviving relative. As the Court of Appeals held: According to Article 962 of the Civil Code, In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of Article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between paternal and maternal lines. cdtai The manner of determining the proximity of relationship are provided by Articles 963 - 966 of the Civil Code. They provide: ART. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. ART. 964. A series of degrees forms a line, which may be either direct or collateral. aisadc

A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. ART. 965. The direct line is either descending or ascending. cdt The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. ART. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. aisadc In the direct line, ascent is made to the common ancestor. Thus the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. In this case, plaintiff is the son of Agatonica, the half-sister of Justa. He is thus a third degree relative of Justa. cdta On the other hand, defendants and intervenors are the sons and daughters of Justa's cousin. They are thus fifth degree relatives of Justa. Applying the principle that the nearest excludes the farthest, then plaintiff is the lawful heir of Justa. The fact that his mother is only a half-sister of Justa is of no moment. 22 Nevertheless, petitioners make much of the fact that private respondent is not an Arnaldo, his mother being Ursula's daughter not by Juan Arnaldo but by Pedro Arreza. They claim that this being the case, private respondent is not an heir of Justa and thus not qualified to share in her estate. cdasia Petitioners misappreciate the relationship between Justa and private respondent. As already stated, private respondent is the son of Justa's half-sister Agatonica. He is therefore Justa's nephew. A nephew is considered a collateral relative who may inherit if no descendant, ascendant, or spouse survive the decedent. 23 The private respondent is only a half-blood relative is immaterial. This alone does not disqualify him from being his aunt's heir. As the Court of Appeals correctly pointed out, "The determination of whether the relationship is of the full or halfblood is important only to determine the extent of the share of the survivors." 24 Because of the conclusion we have thus reached, the third and fourth grounds of the petition for renew must fail. WHEREFORE, the petition is DENIED. The temporary restraining order issued by this Court is LIFTED, and the decision of the Court of Appeals is AFFIRMED. cdtai

SO ORDERED. B. Right of representation 970-977, 982, 902, 992, 1005-8 Teotico v Del Val, supra Diaz v IAC, 150 SCRA 645 EN BANC [G.R. No. L-66574. February 21, 1990.] ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all surnamed SANTERO, and FELIXBERTA PACURSA, guardian of FEDERICO SANTERO, et al., petitioners, vs. INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, respondents. Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners. Pedro S. Sarino for respondent Felisa Pamuti Jardin. SYLLABUS 1. CIVIL LAW; SUCCESSION; INTESTATE SUCCESSION; RIGHT OF REPRESENTATION; NOT AVAILABLE TO ILLEGITIMATE DESCENDANTS OF LEGITIMATE CHILDREN IN INHERITANCE OF A LEGITIMATE GRANDPARENT; ARTICLE 982 OF NEW CIVIL CODE, GENERAL RULE WHILE ARTICLE 992 OF SAME CODE, EXCEPTION. Articles 902, 989, and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception. 2. ID.; ID.; ID.; ID.; ARTICLES 982 AND 902 OF NEW CIVIL CODE, SUBJECT TO THE LIMITATION THAT AN ILLEGITIMATE CHILD HAS NO RIGHT TO INHERENT AB INTESTATO FROM LEGITIMATE CHILDREN

AND RELATIVES OF HIS FATHER OR MOTHER. The rules laid down in Article 982 that 'grandchildren and other descendants shall inherit by right of representation' and in Article 902 that the rights of illegitimate children . . . are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that 'an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother.' (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12) 3. ID.; ID.; ID.; ID.; SUCCESSION AB INTESTATO BETWEEN ILLEGITIMATE CHILD AND LEGITIMATE CHILDREN AND RELATIVES OF FATHER OR MOTHER OF SAID ILLEGITIMATE CHILD, ABSOLUTELY PROHIBITED; RATIONALE. "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 illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 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; and 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 ground of resentment." (7 Manresa 110 cited in Grey v. Fabie 40 OG (First S) No. 3, p. 196). 4. ID.; ID.; ID.; LEGITIMACY OR ILLEGITIMACY OF PERSON TO BE REPRESENTED, DETERMINING FACTOR. While the New Civil Code may have granted successional rights to illegitimate children, those articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed in Article 992. 5. ID.; ID.; ID.; WORD "RELATIVE" IN ARTICLE 992 OF NEW CIVIL CODE, BROAD ENOUGH TO COMPREHEND ALL KINDRED OF PERSON SPOKEN OF; CASE AT BAR. 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" is broad enough to comprehend all the kindred of the person spoken of (Comment, p. 139 Rollo citing p. 2862 Bouvier's Law Dictionary vol. II, Third Revision, Eight Edition) The record reveals 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. RESOLUTION PARAS, J p: The decision of the Second Division of this Court in the case of Anselma Diaz, et al. vs. Intermediate Appellate Court, et al., G.R. No. 6574, promulgated June 17, 1987 declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero, and its Resolution of February 24, 1988 denying the Motion for Reconsideration dated July 2, 1987, are being challenged in this Second Motion for Reconsideration dated July 5, 1988. After the parties had filed their respective pleadings, the Court, in a resolution dated October 27, 1988, resolved to grant the request of the petitioners for oral argument before the court en banc, and the case was set for hearing on November 17, 1988 to resolve the question: Does the term "relatives" in Article 992 of the New Civil Code which reads: "An illegitimate child has no right to inherit ab intestato from the legitimate children or relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child." include the legitimate parents of the father or mother of the illegitimate children? Invited to discuss as amici curiae during the hearing were the following: Justice Jose B.L. Reyes, former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben Balane. The facts of the case, as synthesized in the assailed decision, are as follows: "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." (pp. 1-2, Decision; pp. 190-191, Rollo) Briefly stated, the real issue in the instant case is this 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 present controversy is confined solely to the intestate estate of Simona Pamuti Vda. de Santero. In connection therewith, We are tasked with determining anew whether petitioners 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. LLphil Petitioners claim that the amendment of Articles 941 and 943 of the old Civil Code (Civil Code of Spain) by Articles 990 and 992 of the new Civil Code (Civil Code of the Philippines) constitute a substantial and not merely a formal change, which grants illegitimate children certain successional rights. We do not dispute the fact that the New Civil Code has given illegitimate children successional rights, which rights were never before enjoyed by them under the Old Civil Code. They were during that time merely entitled to support. In fact, they are now considered as compulsory primary heirs under Article 887 of the new Civil Code (No. 5 in the order of intestate succession). Again, We do not deny that fact. These are only some of the many rights granted by the new Code to illegitimate children. But that is all. A careful evaluation of the New Civil Code provisions, especially Articles 902, 982, 989, and 990, claimed by petitioners to have conferred illegitimate children the right to represent their parents in the inheritance of their legitimate grandparents, would in point of fact reveal that such right to this time does not exist. Let Us take a closer look at the above-cited provisions. "Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. Art. 982. The grandchildren and other descendants shall 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. (933). Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a). Art. 990. The hereditary lights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)" Emphasis for emphasis).

Articles 902, 989, and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception. "The rules laid down in Article 982 that 'grandchildren and other descendants shall inherit by right of representation' and in Article 902 that the rights of illegitimate children . . . are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that 'an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother."' (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12) "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 illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 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; and 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 ground of resentment." (7 Manresa 110 cited in Grey v. Fabie 40 OG (First S) No. 3, p. 196). According to petitioners, the commentaries of Manresa as above-quoted are based on Articles 939 to 944 of the old Civil Code and are therefore inapplicable to the

New Civil Code and to the case at bar. Petitioners further argue that the consistent doctrine adopted by this Court in the cases of Llorente vs. Rodriguez, et al., 10 Phil., 585; Centeno vs. Centeno, 52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited by former Justice Minister Justice Puno, Justice Caguioa, and Prof. Balane, which identically held that an illegitimate child has no right to succeed ab intestato the legitimate father or mother of his natural parent (also a legitimate child himself), is already abrogated by the amendments made by the New Civil Code and thus cannot be made to apply to the instant case. Once more, We decline to agree with petitioner. We are fully aware of certain substantial changes in our law of succession, but there is no change whatsoever with respect to the provision of Article 992 of the Civil Code. Otherwise, by the said substantial change, Article 992, which was a reproduction of Article 943 of the Civil Code of Spain, should have been suppressed or at least modified to clarify the matters which are now the subject of the present controversy. While the New Civil Code may have granted successional rights to illegitimate children, those articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed in Article 992. In this wise, the commentaries of Manresa on the matter in issue, even though based on the old Civil Code, are still very much applicable to the New Civil Code because the amendment, although substantial, did not consist of giving illegitimate children the right to represent their natural parents (legitimate) in the intestate succession of their grandparents (legitimate). It is with the same line of reasoning that the three aforecited cases may be said to be still applicable to the instant case. Equally important are the reflections of the Illustrious Hon. Justice Jose B.L. Reyes which also find support from other civilists. We quote: "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 not 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 992 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 Quarter, 1976, Volume 4, Number 1, pp. 40-41). (p. 7, Decision; p. 196, Rollo) 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" is broad enough to comprehend all the kindred of the person spoken of (Comment, p. 139 Rollo citing p. 2862 Bouvier's Law Dictionary vol. II, Third Revision, Eight Edition) The record reveals 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. It is Our shared view that the word "relatives" should be construed in its general acceptation. Amicus curiae Prof. Ruben Balane has this to say: "The term relatives, although used many times in the Code, is not defined by it. In accordance therefore with the canons of statutory interpretation, it should be understood to have a general and inclusive scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda. That the law does not make a distinction prevents us from making one: Ubi lex non distinguit, nec nos distinguera debemus. Escriche, in his Diccionario de Legislacion y Jurisprudencia defines parientes as "los que estan relacionados por los vinculos de la sangre, ya sea por proceder unos de otros, como los descendientes y ascendientes, ya sea por proceder de una misma raiz o tronco, como los colaterales." (cited in Scaevola, op. cit., p. 457).(p. 377, Rollo) According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is used and intended is not warranted by any rule of interpretation. Besides, he further states that when the law intends to use the term in a more restrictive sense, it qualifies the term with the word collateral, as in Articles 1003 and 1009 of the New Civil Code. prcd Thus, the word "relatives" is a general term and when used in a statute it embraces not only collateral relatives but also all the kindred of the person spoken of, unless

the context indicates that it was used in a more restrictive or limited sense which, as already discussed earlier, is not so in the case at bar. To recapitulate, We quote this: "The lines of this distinction between legitimates and illegitimates, which goes back very far in legal history, have been softened but not erased by present law. Our legislation has not gone so far as to place legitimate and illegitimate children on exactly the same footing. Even the Family Code of 1987 (EO 209) has not abolished the gradation between legitimate and illegitimate children (although it has done away with the subclassification of illegitimates into natural and 'spurious'). It would thus be correct to say that illegitimate children have only those rights which are expressly or clearly granted to them by law (vide Tolentino, Civil Code of the Philippines, 1973 ed., vol. III, p. 291). (Amicus Curiae's Opinion by Prof. Ruben Balane, p. 12). In the light of the foregoing, We conclude that until Article 992 is suppressed or at least amended to clarify the term "relatives", there is no other alternative but to apply the law literally. Thus, We hereby reiterate the decision of June 17, 1987 and declare Felisa Pamuti-Jardin to be the sole heir to the intestate estate of Simona Pamuti Vda. de Santero, to the exclusion of petitioners. WHEREFORE, the second Motion for Reconsideration is DENIED, and the assailed decision is hereby AFFIRMED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco, Corts, Grio-Aquino, Medialdea and Regalado, JJ., concur. Padilla, Bidin and Sarmiento, JJ., took no part. Separate Opinion GUTIERREZ, JR., J., dissenting: The ponente, Mr. Justice Edgardo L. Paras, is a noted teacher of Civil Law subjects and a well-known author of many Commentaries on the Civil Code. The amicus curiae former Justice Jose B.L. Reyes, former Justice Ricardo C. Puno, former Senator Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben Balane together with the ponente read like a veritable Who's Who in Civil Law in the Philippines. It is, therefore, with trepidation that I venture to cast a discordant vote on the issue before the Court. But it is perhaps because I am not as deeply steeped in the civil law tradition and in the usually tidy and methodical neatness characterizing its ancient precepts that I discern a change effected by our own version of the Civil Code. The orthodox rules which earlier inflexibly separated the legitimate from the illegitimate families have been relaxed a little. The oppobrium cast on illegitimate children and the disadvantages they suffer in law are no longer as overwhelming as before. The wall is no longer as rigid as it used to be. The efforts of the Code

Commission and the Congress to make our civil law conform "with the customs, traditions, and idiosyncrasies of the Filipino people and with modern trends in legislation and the progressive principles of law" have resulted in deviations from the strict and narrow path followed by Manresa and other early glossators. I, therefore, do not feel bound to follow the ancient interpretations in the presence of absurd and unjust results brought about by amendments in the new Civil Code. We have here a case of grandchildren who cannot inherit from their direct ascendant, their own grandmother, simply because their father (who was a legitimate son) failed to marry their mother. There are no other direct heirs. Hence, the properties of their grandmother goes to a collateral relative - her niece. If the niece is no longer alive, an even more distant group of grandnieces and grandnephews will inherit as against the grandmother's own direct flesh and blood. As pointed out by the petitioners, the decision of the Intermediate Appellate Court disregards the order of intestate succession in Arts. 978 to 1014 of the Civil Code and the right of representation in Art. 970 of descendants, whether legitimate or illegitimate as provided by Arts. 902, 993, and 995. I agree that a clear and precise amendment is needed if collateral relatives such as illegitimate children and legitimate uncles, aunts, or cousins or illegitimate siblings and their legitimate half-brothers or half-sisters are to inherit from one another. But I must stress that the barrier is between the legitimate and illegitimate families. I see no reason why we should include a grandmother or grandfather among those where a firm wall of separation should be maintained. She cannot be a separate "family" from her own grandchildren. The ancient wall was breached by our Code Commission and Congress in Art. 902 of the Code which provides: cdphil "The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a)" The illegitimate children of an illegitimate child have the right to represent him in the circumstances given in preceding articles. Before the Code was amended, that right was reserved to the illegitimate child's legitimate offspring. I find it absurd why the petitioners could have represented their father Pablo if their grandparents Simona and Pascual had not been legally married. Senator Tolentino, while supporting the majority view of this Court states: xxx xxx xxx "In the present article, the Code Commission took a step forward by giving an illegitimate child the right of representation, which he did not have under the old Code. But in retaining without change provisions of the old Code in Article 992, it created an absurdity and committed an injustice, because while the illegitimate descendant of an illegitimate child can represent, the illegitimate descendant of a

legitimate child cannot. The principle that the illegitimate child should succeed by operation of law only to persons with the same status of illegitimacy has thus been preserved. And this is unfair to the illegitimate descendants of legitimate children. Dura lex, sed lex." (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. III, 1987 ed., p. 330.) The adoption of a harsh and absurd interpretation, pending an amendment of the law, does not impress me as correct. Precisely, the word "relatives" in Art. 992 calls for reinterpretation because the Code has been amended. The meaning of "relatives" must follow the changes in various provisions upon which the word's effectivity is dependent. LexLib My dissent from the majority opinion is also premised on a firm belief that law is based on considerations of justice. The law should be interpreted to accord with what appears right and just. Unless the opposite is proved, I will always presume that a grandmother loves her grandchildren legitimate or illegitimate more than the second cousins of said grandchildren or the parents of said cousins. The grandmother may be angry at the indiscretions of her son but why should the law include the innocent grandchildren as objects of that anger. "Relatives" can only refer to collateral relatives, to members of a separate group of kins but not to one's own grandparents. I, therefore, vote to grant the motion for reconsideration. Abellana v Ferraris-Borromeo, 14 SCRA 986 EN BANC [G.R. No. L-19382. August 31, 1965.] IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELOIDA FARRARIS. FILOMENA ABELLANA DE BACAYO, petitioner-appellant, vs. GAUDENCIA FERRARIS DE BORROMEO, CATALINA FERRARIS DE VILLEGAS, JUANITO FERRARIS and CONCHITA FERRARIS, oppositors-appellees. Mateo C. Bacalso and Cesar A. Kintanar for petitioner-appellant. Gaudioso Sosmea and C. Tomakin for oppositors-appellees. SYLLABUS 1. SUCCESSION; INTESTACY; COLLATERAL RELATIVES EXCLUDED BY NEPHEWS AND NIECES. A decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. 2. ID.; ID.; WHEN COLLATERALS ENTITLED TO SUCCESSION. The absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. (Art. 1009 Civil Code.)

3. ID.; ID.; DEGREE OF RELATIONSHIP OF COLLATERAL RELATIVES TO THE DECEASED. An aunt of the deceased is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong, degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code Art. 966). 4. ID.; ID.; WHEN NEPHEWS AND NIECES INHERIT BY RIGHT OF REPRESENTATION. Nephews and nieces alone do not inherit by right of representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased. DECISION REYES, J.B.L., J p: This is a pauper's appeal, directly brought to this Court on points of law, from a resolution, dated September 20, 1961, excluding petitioner-appellant herein, Filomena Abellana de Bacayo, as heir in the summary settlement of the estate of Melodia Ferraris, Special Proceeding No. 2177-R of the Court of First Instance of Cebu, Third Branch, as well as from the order, dated October 16, 1961, denying a motion to reconsider said resolution. The facts of this case are not disputed by the parties. Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to Intramuros, Manila. She was known to have resided there continuously until 1944. Thereafter, up to the filing on December 22, 1960 of the petition for the summary settlement of her estate, she has not been heard of and her whereabouts are still unknown. More than ten (10) years having elapsed since the last time she was known to be alive, she was declared presumptively dead for purposes of opening her succession and distributing her estate among her heirs. Melodia Ferraris left properties in Cebu City, consisting of one third (1/3) share in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and which was adjudicated to her in Special Proceeding No. 13-V of the same court. The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or spouse, but was survived only by collateral relatives, namely, Filomena Abellana de Bacayo, an aunt, and half- sister of decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces and nephew, who were the children of Melodia's only brother of full blood, Arturo Ferraris, who pre-deceased her (the decedent). These two classes of heirs claim to be the nearest intestate heirs and seek to participate in the estate of said Melodia Ferraris. The following diagram will help illustrate the degree of relationship of the contending parties to said Melodia Ferraris:

The sole issue to be resolved in this case is: Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit: an aunt and the children of a brother who predeceased him or her? Otherwise, will the aunt concur with the children of the decedent's brother in the inheritance or will the former be excluded by the latter? The trial court ruled that the oppositors-appellees, as children of the only predeceased brother of the decedent, exclude the aunt (petitioner-appellant) of the same decedent, reasoning out that the former are nearer in degree (two degrees) than the latter since nieces and nephew succeed by right of representation, while petitioner- appellant is three degrees distant from the decedent, and that other collateral relatives are excluded by brothers or sisters, or children of brothers or sisters of the decedent in accordance with article 1009 of the New Civil Code. Against the above ruling, petitioner-appellant contends in the present appeal that she is of the same or equal degree of relationship as the oppositors-appellees, three degrees removed from the decedent; and that under article 975 of the New Civil Code no right or representation could take place when the nieces and nephew of the decedent do not concur with an uncle or aunt, as in the case at bar, but rather the former succeed in their own right. We agree with appellants that as an aunt of the deceased, she is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966). Appellant is likewise right in her contention that nephews and nieces alone do not inherit by right of representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased, as provided expressly by Article 975: "ART. 975. When children of one or more brothers or sisters of the 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." Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines, that provided as follows: "ART. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half." "ART. 1004. Should the only survivors be, brothers and sisters of the full blood, they shall inherit in equal shares."

"ART. 1005. Should brothers and sisters survive together with nephews and nieces who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes." "ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate." "The latter shall succeed without distinction of lines or preference among by reason of relationship by the whole blood." Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R. A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows: "ART. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce shall succeed to the entire estate of the deceased." "ART. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased. The latter shall succeed without distinction of lines or preference among them by reason of the whole blood." It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals. Appellants quote paragraph 2 of Tolentino's commentaries to Article 1009 of the present Civil Code as declaring that Article 1009 does not establish a rule of preference. Which is true as to "other collaterals", since preference among them is according to their proximity to the decedent, as established by Article 962, paragraph 1. "ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place." But Tolentino does not state that nephews and nieces concur with other collaterals of equal degree. On the contrary, in the first paragraph of his commentaries to Article 1009 (Vol. II, p. 439) (which counsel for appellants had unethically omitted to quote), Tolentino expressly states:

"Other Collaterals. The last of the relatives of the decedent to succeed in intestate succession are the collaterals other than brothers or sisters or children of brothers or sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we can safely say, there is hardly any affection to merit the succession of collaterals. Under the law, therefore, persons beyond the fifth degree are no longer considered as relatives, for successional purposes. "Article 1009 does not state any order of preference. However, this article should be understood in connection with the general rule that the nearest relatives exclude the farther. Collaterals of the same degree inherit in equal parts, there being no right of representation. They succeed without distinction of lines or preference among them on account of the whole blood relationship." (Italics supplied) We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. The decision appealed from, in so far as it conforms to this rule, is hereby affirmed. No costs. Corpus v Corpus, 85 SCRA 567 SECOND DIVISION [G.R. No. L-22469. October 23, 1978.] TOMAS CORPUS, plaintiff-appellant, vs. ADMINISTRATOR and/or EXECUTOR of the Estate of Teodoro R. Yangco, RAFAEL CORPUS, AMALIA CORPUS, JOSE A. V. CORPUS, RAMON L. CORPUS, ENRIQUE J. CORPUS, S. W. STAGG, SOLEDAD ASPRER and CIPRIANO NAVARRO, defendantsappellees. SYNOPSIS Teodoro R. Yangco was the acknowledged natural son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas Corpus, one of whom was Jose Corpus. Jose Corpus had a daughter, Juana Corpus. Petitioner Tomas Corpus is the son of Juana Corpus. As the sole heir of Juana Corpus, petitioner Tomas Corpus filed an action in the Court of First Instance to recover his mother's supposed share in the Yangco's intestate estate, claiming that the project of partition made pursuant to the order of the probate court as invalid and hence, the estate should be disposed of under the rules of intestacy. The trial court dismissed the action on the ground of res judicata stating that the intrinsic validity of Teodoro R. Yangco's will had already been passed upon in a special proceedings approving the project of partition. Plaintiff appealed to the Court of Appeals. The appeal was certified to the Supreme Court as it involved more than P50,00 pursuant to the Judiciary Law before it was amended.

The Supreme Court affirmed the trial court's judgment on another ground, namely that since Teodoro R. Yangco was an acknowledged natural child, and since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supported hereditary share of his mother, because there is no reciprocal succession between legitimate and illegitimate relatives. SYLLABUS 1. CIVIL LAW; WILL; DULY PROBATED WILL FORM PART OF JUDICIAL OR PUBLIC RECORDS; CASE AT BAR. Appellant's contentions that the probative value of the will of Luis R. Yangco, dated June 14, 1907 which states that Teodoro R. Yangco was his acknowledged natural son, cannot prevail over the presumption of legitimacy found in Section 69, Rule 123 of the old Rules of Court and the statement of Teodoro Yangco's biographer that Luis Yangco had two marriages, the first with Ramona Arguelles (Teodoro's mother) and the second with Victoria Obin have no merit. The authenticity of that will which had been admitted and duly probated is incontestable. That will is now part of a public or official judicial record. 2. ID.; FILIATION; PRESUMPTION OF LEGITIMACY; CHILD BORN OUT OF A UNION OF A MAN AND A WOMAN IS PRESUMED LEGITIMATE. It is disputably presumed "that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage"; (Semper praesumitur pro matrimonio) "that a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the ordinary course of nature and the ordinary habits of life". 3. ID.; ID.; SUCCESSION; NO SUCCESSIONAL RECIPROCITY BETWEEN LEGITIMATE AND ILLEGITIMATE RELATIVES. Article 943 of the old Civil Code "prohibits all successory reciprocity mortis causa between legitimate and illegitimate relatives. The rule is now found in article 992 of the new Civil Code which provides that "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 and relatives inherit in the same manner from the illegitimate child". 4. ID.; ID.; ID.; ID.; ARTICLE 943, OLD CIVIL CODE (ART. 922 NEW CIVIL CODE); BASIS OF. The rule found in Article 943 of the old Civil Code prohibiting successional reciprocity between legitimates and illegitimates is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family, while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avoid further grounds of resentment.

5. ID.; ID.; ID.; ID.; RULE ON SUCCESSION OF ACKNOWLEDGED OR LEGITIMATE CHILDREN. Under Article 944 and 945 of the Spanish Civil Code, if an acknowledged natural or legitimated child should die without issue, either legitimate or acknowledged, the father or mother who acknowledged such child shall succeed to his entire estate and if both acknowledged it and are alive, they shall inherit from it share and share like. In default of natural ascendants, decedents' natural and legitimated children shall be succeeded by their natural brothers and sisters in accordance with the rules established for legitimate brothers and sisters. DECISION AQUINO, J p: Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years. His will dated August 29, 1934 was probated in the Court of First Instance of Manila in Special Proceeding No. 54863. The decree of probate was affirmed in this Court's 1941 decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the will is quoted in that decision. Yangco had no forced heirs. At the time of his death, his nearest relatives were (1) his half brother, Luis R. Yangco, (2) his half sister, Paz Yangco, the wife of Miguel Ossorio, (3) Amalia Corpus, Jose A. V. Corpus, and Ramon L. Corpus, the children of his half brother, Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of his half brother Jose Corpus. Juanita died in October, 1944 at Palauig, Zambales. Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas Corpus, two of whom were the aforenamed Pablo Corpus and Jose Corpus. Pursuant to the order of the probate court, a project of partition dated November 26, 1945 was submitted by the administrator and the legatees named in the will. That project of partition was opposed by the estate of Luis R. Yangco whose counsel contended that an intestacy should be declared because the will does not contain an institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when Atty. Cruz appeared as her counsel. cdphil Atty. Cruz alleged in his opposition that the proposed partition was not in conformity with the will because the testator intended that the estate should be "conserved" and not physically partitioned. Atty. Cruz prayed "que declare que el finado no dispuso en su testamento de sus bienes y negocios y que ha lugar a sucession intestado con respecio a los mismos, y que seale un dia en esta causa para la recepcion de pruebas previa a la declaracion de quienes son los herederos legales o abintestato del difunto".

The probate court in its order of December 26, 1946 approved the project of partition. It held that in certain clauses of the will the testator intended to conserve his properties not in the sense of disposing of them after his death but for the purpose of preventing that "tales bienes fuesen malgastados o desfilpar rados por los legatarios" and that if the testator intended a perpetual prohibition against alienation, that condition would be regarded "como no puesta o no existente". It concluded that "no hay motivos legales o morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada." (See Barretto vs. Tuason, 50 Phil. 888, which cites article 785 of the Spanish Civil Code as prohibiting perpetual entails, and Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546.) From that order, Pedro Martinez, Juliana de Castro, Juanita Corpus (deceased) and the estate of Luis R. Yangco appealed to this Court (L-1476). Those appeals were dismissed in this Court's resolutions of October 10 and 31, 1947 after the legatees and the appellants entered into compromise agreements. In the compromise dated October 7, 1947 the legatees agreed to pay P35,000 to Pedro Martinez, the heirs of Pio V. Corpus, the heirs of Isabel Corpus and the heir of Juanita Corpus. Herein appellant Tomas Corpus signed that compromise settlement as the sole heir of Juanita Corpus. The estate of Luis R. Yangco entered into a similar compromise agreement. As the resolutions dismissing the appeals became final and executory on October 14 and November 4, 1947, entries of judgment were made on those dates. Pursuant to the compromise agreement, Tomas Corpus signed a receipt dated October 24, 1947 wherein he acknowledge that he received from the Yangco estate the sum of two thousand pesos (P2,000) "as settlement in full of my share of the compromise agreement as per understanding with Judge Roman Cruz, our attorney in this case" (Exh. D or 17). On September 20, 1949, the legatees executed an agreement for the settlement and physical partition of the Yangco estate. The probate court approved that agreement and noted that the 1945 project of partition was pro tanto modified. That did not set at rest the controversy over the Yangco estate. On October 5, 1951, Tomas Corpus, as the sole heir of Juanita Corpus, filed an action in the Court of First Instance of Manila to recover her supposed share in Yangco' intestate estate, He alleged ill his complaint that the dispositions in Yangco's will imposing perpetual prohibitions upon alienation rendered it void under article 785 of the old Civil Code and that the 1949 partition is invalid and, therefore, the decedent's estate should be distributed according to the rules on intestacy. LLphil The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res judicata and laches. It held that the intrinsic validity of Yangco's will was

passed upon in its order dated December 26, 1946 in Special Proceeding No. 54863 approving the project of partition for the testator's estate. Tomas Corpus appealed to the Court of Appeals which in its resolution dated January 23, 1964 in CA-G.R. No. 18720-R certified the appeal to this Court because it involves real property valued at more than fifty thousand pesos (Sec. 17[5], Judiciary Law before it was amended by Republic Act No. 2613). Appellant Corpus contends in this appeal that the trial court erred in holding (1) that Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized, and (3) that plaintiff's action is barred by res judicata and laches. In the disposition of this appeal, it is not necessary to resolve whether Yangco's will had been duly legalized and whether the action of Tomas Corpus is barred by res judicata and laches. The appeal may be resolved by determining whether Juanita Corpus, the mother of appellant Tomas Corpus, was a legal heir of Yangco. Has Tomas Corpus a cause of action to recover his mother's supposed intestate share in Yangco's estate? To answer that question, it is necessary to ascertain Yangco's filiation. The trial court found that Yangco "a su muerte tambien le abrevivieron Luis y Paz appellidados Yangco, hermanos naturales reconocidos por su padre natural Luis R. Yangco". The basis of the trial court's conclusion that Teodoro R. Yangco was an acknowledged natural child and not a legitimate child was the statement in the will of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his acknowledged natural children. His exact words are: "Primera. Declaro que tengo cuatro hijos naturales reconocidos, llamados Teodoro, Paz, Luisa y Luis, los cuales son mis unicos herederos forzosos." (Exh. 1 in Testate Estate of Teodoro Yangco). That will was attested by Rafael del Pan, Francisco Ortigas, Manuel Camus and Florencio Gonzales Diez. Appellant Corpus assails the probative value of the will of Luis R. Yangco, identified as Exhibit 1 herein, which he says is a mere copy of Exhibit 20, as found in the record on appeal in Special Proceeding No. 54863. He contends that it should not prevail over the presumption of legitimacy found in section 69, Rule 123 of the old Rules of Court and over the statement of Samuel W. Stagg in his biography of Teodoro R. Yangco, that Luis Rafael Yangco made a second marital venture with Victoria Obin, implying that he had a first marital venture with Ramona Arguelles, the mother of Teodoro. These contentions have no merit. The authenticity of the will of Luis Rafael Yangco, as reproduced in Exhibit 1 herein and as copied from Exhibit 20 in the proceeding for the probate of Teodoro R. Yangco's will, in incontestable. The said will is part of a public or official judicial record.

On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate. A marriage is presumed to have taken place between Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably presumed "That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage"; "that a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and [cc], Rule 131, Rules of Court). llcd Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives. The trial court did not err in dismissing the complaint of Tomas Corpus. Article 943 of the old Civil code provides that "el hijo natural y el legitimado no tienen derecho a suceder abintestato a los hijos y parientes legitimos del padre o madre que lo haya reconocido, ni ellos al hijo natural ni al legitimado". Article 943 "prohibits all successory reciprocity mortis causa between legitimate and illegitimate relatives" (6 Sanchez Roman, Civil Code, pp. 996-997 cited in Director of Lands vs. Aguas, 63 Phil. 279, 287. See 16 Scaevola, Codigo Civil, 4th Ed., 465-6) . . . Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would have no legal personality to intervene in the distribution of Yangco's estate (p. 8, appellant's brief). The rule in article 943 is now found in article 992 of the Civil Code which provides that "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". That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avoid further grounds of resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6). Under articles 944 and 945 of the spanish Civil Code, "if an acknowledged natural or legitimated child should die without issue, either legitimate or acknowledged, the father or mother who acknowledged such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit from it share and share alike. In default of natural ascendants, natural and legitimated children shall be succeeded by their natural brothers and sisters in accordance with the rules established for legitimate brothers and sisters." Hence, Teodoro R. Yangco's half

brothers on the Corpus side, who were legitimate, had no right to succeed to his estate under the rules of intestacy. Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of the mother cannot succeed her illegitimate child (Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693. See De Guzman vs. Sevilla, 47 Phil. 991). Where the testatrix, Rosario Fabie, was the legitimate daughter of Jose Fabie, the two acknowledged natural children of her uncle, Ramon Fabie, her father's brother, were held not to be her legal heirs (Grey vs. Fabie, 88 Phil. 128). By reason of that same rule, the natural child cannot represent his natural father in the succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate brother of her natural mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29). LLpr WHEREFORE the lower court's judgment is affirmed. No costs. SO ORDERED. Delgado v Rustia, 480 SCRA 334 SECOND DIVISION [G.R. No. 155733. January 27, 2006.] IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO AND GUILLERMO RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA DELGADO VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA DELGADO PERLAS, CAROLINA DELGADOARESPACOCHAGA, RODOLFO DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and MELINDA DELGADO CAMPO-MADARANG, petitioners, vs. HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZ-ENRIQUEZ and FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR., namely, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; and GUILLERMINA RUSTIA, as Oppositors; 1 and GUILLERMA RUSTIA, as Intervenor, 2 respondents. 3

DECISION CORONA, J p: In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55, 4 in SP Case No. 97668, which was reversed and set aside by the Court of Appeals in its decision 5 dated October 24, 2002. TSacCH FACTS OF THE CASE This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado. 6 The main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution. The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters, 7 his nephews and nieces, 8 his illegitimate child, 9 and the de facto adopted child 10 (ampun-ampunan) of the decedents. THE ALLEGED HEIRS OF JOSEFA DELGADO The deceased Josefa Delgado was the daughter of Felisa 11 Delgado by one Lucio Campo. Aside from Josefa, five other children were born to the couple, namely, Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and her full-blood siblings were all natural children of Felisa Delgado. ITcCSA However, Lucio Campo was not the first and only man in Felisa Delgado's life. Before him was Ramon Osorio 12 with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which was admittedly one without the benefit of marriage, the legal status of Ramon Osorio's and Felisa Delgado's union is in dispute. The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants because the answer will determine whether their successional rights fall within the ambit of the rule against reciprocal intestate succession between legitimate and illegitimate relatives. 13 If Ramon Osorio and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate half-blood brother of Josefa Delgado and therefore excluded from the latter's intestate estate. He and his heirs would be barred by the principle of absolute separation between the legitimate and illegitimate families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to inherit from Josefa Delgado's intestate estate, as they would all be within the illegitimate line.

Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they assert that no evidence was ever presented to establish it, not even so much as an allegation of the date or place of the alleged marriage. What is clear, however, is that Felisa retained the surname Delgado. So did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento 14 stated that he was "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado), 15 significantly omitting any mention of the name and other circumstances of his father. 16 Nevertheless, oppositors (now respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place. Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo Rustia executed an affidavit of selfadjudication of the remaining properties comprising her estate. THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado 17 but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as "Seorita" or unmarried woman. The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa on September 8, 1972. During this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. To support their proposition, oppositors presented the following pieces of evidence: 1. Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines; 2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947; 3. Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919; 18 4. Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa Delgado. aCcHEI

THE ALLEGED HEIRS OF GUILLERMO RUSTIA Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took into their home the youngsters Guillermina Rustia Rustia and Nanie Rustia. These children, never legally adopted by the couple, were what was known in the local dialect as ampun-ampunan. During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child, 19 the intervenor-respondent Guillerma Rustia, with one Amparo Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her father's demise. In fact, Josefa Delgado's obituary which was prepared by Guillermo Rustia, named the intervenor-respondent as one of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as her parent/guardian. 20 Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code. 21 On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition for the adoption 22 of their ampun-ampunan Guillermina Rustia. He stated under oath "[t]hat he ha[d] no legitimate, legitimated, acknowledged natural children or natural children by legal fiction." 23 The petition was overtaken by his death on February 28, 1974. Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz, and by the children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and Leticia Rustia Miranda. 24 ANTECEDENT PROCEEDINGS On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition for letters of administration of the intestate estates of the "spouses Josefa Delgado and Guillermo Rustia" with the RTC of Manila, Branch 55. 25 This petition was opposed by the following: (1) the sisters of Guillermo Rustia, namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz; 26 (2) the heirs of Guillermo Rustia's late brother, Roman Rustia, Sr., and (3) the ampun-ampunan Guillermina Rustia Rustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other claimants were barred under the law from inheriting from their illegitimate half-blood relative Josefa Delgado.

In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was the only surviving descendant in the direct line of Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the motion was granted. EaCSHI On April 3, 1978, the original petition for letters of administration was amended to state that Josefa Delgado and Guillermo Rustia were never married but had merely lived together as husband and wife. On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the interests of the petitioners and the other claimants remained in issue and should be properly threshed out upon submission of evidence. On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987. On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both estates. 27 The dispositive portion of the decision read: WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in the City of Manila on September 8, 1972, and entitled to partition the same among themselves in accordance with the proportions referred to in this Decision. Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of the oppositors and the other parties hereto. The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and effect. As the estates of both dece[d]ents have not as yet been settled, and their settlement [is] considered consolidated in this proceeding in accordance with law, a single administrator therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA. Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).

Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of administration of the subject estates, and is likewise ordered to turn over to the appointed administratix all her collections of the rentals and income due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the petitioner and appointed administratix CARLOTA DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby required to render an accounting of her actual administration of the estates in controversy within a period of sixty (60) days from receipt hereof. ATcaID SO ORDERED. 28 On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal was not filed on time. 29 They then filed a petition for certiorari and mandamus 30 which was dismissed by the Court of Appeals. 31 However, on motion for reconsideration and after hearing the parties' oral arguments, the Court of Appeals reversed itself and gave due course to oppositors' appeal in the interest of substantial justice. 32 In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the ground that oppositors' failure to file the record on appeal within the reglementary period was a jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our decision 33 read: As a rule, periods prescribed to do certain acts must be followed. However, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice. xxx xxx xxx The respondent court likewise pointed out the trial court's pronouncements as to certain matters of substance, relating to the determination of the heirs of the decedents and the party entitled to the administration of their estate, which were to be raised in the appeal, but were barred absolutely by the denial of the record on appeal upon too technical ground of late filing. xxx xxx xxx In this instance, private respondents' intention to raise valid issues in the appeal is apparent and should not have been construed as an attempt to delay or prolong the administration proceedings. xxx xxx xxx A review of the trial court's decision is needed. xxx xxx xxx WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private respondents' Record on

Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Court's May 11, 1990 decision. SO ORDERED. Acting on the appeal, the Court of Appeals 34 partially set aside the trial court's decision. Upon motion for reconsideration, 35 the Court of Appeals amended its earlier decision. 36 The dispositive portion of the amended decision read: With the further modification, our assailed decision is RECONSIDERED and VACATED. Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) entitled to partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as administratrix of his estate. The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate estate of Josefa Delgado shall issue to the nominee of the oppositors-appellants upon his or her qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of administration of the subject estates and to turn over to the appointed administrator all her collections of the rentals and incomes due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the appointed administrator, immediately upon notice of his qualification and posting of the requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual administration of the estates in controversy within a period of sixty (60) days from notice of the administrator's qualification and posting of the bond. The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo Rustia on June 15, 1973 is REMANDED to the trial court for further proceedings to determine the extent of the shares of Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) affected by the said adjudication. cIaCTS Hence, this recourse. The issues for our resolution are: 1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;

2. who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are; 3. who should be issued letters of administration. THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions of fact. Presumptions of law are, in turn, either conclusive or disputable. 37 Rule 131, Section 3 of the Rules of Court provides: Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; xxx xxx xxx In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as "spouses." Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness 38 attesting that they were not married, and a baptismal certificate which referred to Josefa Delgado as "Seorita" or unmarried woman. 39 We are not persuaded. First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place. 40 Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia, 41 the passport issued to her as Josefa D. Rustia, 42 the declaration under oath of no less than Guillermo Rustia that he was married to Josefa Delgado 43 and the titles to the properties in the name of "Guillermo Rustia married to Josefa Delgado," more than adequately support the presumption of marriage. These are public documents which are prima facie evidence of the facts stated therein. 44 No clear and

convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners. Second, Elisa vda. de Anson, petitioners' own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had "lived together as husband and wife." This again could not but strengthen the presumption of marriage. Third, the baptismal certificate 45 was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein, 46 such as the alleged single or unmarried ("Seorita") civil status of Josefa Delgado who had no hand in its preparation. Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume marriage. 47 THE LAWFUL HEIRS OF JOSEFA DELGADO To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed. HcTSDa As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may overturn them. 48 On the other hand, disputable presumptions, one of which is the presumption of marriage, can be relied on only in the absence of sufficient evidence to the contrary. Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgado's and Caridad Concepcion's Partida de Casamiento 49 identifying Luis as "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado). 50 All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings

Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado, 51 were her natural children. 52 Pertinent to this matter is the following observation: Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally? The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato (from) another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this, however, we submit that succession should be allowed, even when the illegitimate brothers and sisters are only of the halfblood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally. 53 Here, the above-named siblings of Josefa Delgado were related to her by fullblood, except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate, they may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa Delgado. We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces). Consequently, it cannot be exercised by grandnephews and grandnieces. 54 Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right to participate in the inheritance. 55 The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death. Together with Guillermo Rustia, 56 they

are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new Civil Code: 57 Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other one-half. Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefa's estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedent's entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate: SECTION 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, 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, he may adjudicate to himself the estate by means of an affidavit filed in the office of the register of deeds. . . . (emphasis supplied) THE LAWFUL HEIRS OF GUILLERMO RUSTIA Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child 58 of Guillermo Rustia. As such, she may be entitled to successional rights only upon proof of an admission or recognition of paternity. 59 She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect. TEDAHI Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent. Under the new law, recognition may be compulsory or voluntary. 60 Recognition is compulsory in any of the following cases: (1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) when the child is in continuous possession of status of a child of the alleged father (or mother) 61 by the direct acts of the latter or of his family; (3) when the child was conceived during the time when the mother cohabited with the supposed father; (4) when the child has in his favor any evidence or proof that the defendant is his father. 62

On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing. 63 Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing. There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts. 64 Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent. 65 On the death of either, the action for compulsory recognition can no longer be filed. 66 In this case, intervenor Guillerma's right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia on February 28, 1974. The claim of voluntary recognition (Guillerma's second ground) must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his. 67 Did intervenor's report card from the University of Santo Tomas and Josefa Delgado's obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenor's parent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which was published in the SUNDAY TIMES on September 10, 1972, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenor's claim. CSAaDE The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the latter's death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. We quote: Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the

procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its existence. 68 Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunan Guillermina Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters, 69 nieces and nephews. 70 ENTITLEMENT TO LETTERS OF ADMINISTRATION An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator: 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 a 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; IDSEAH (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 the 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 no such creditor competent and willing to serve, it may be granted to such other person as the court may select. In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. 71 The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, 72 a situation which obtains here. It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of

Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively. WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications: 1. Guillermo Rustia's June 15, 1973 affidavit of self-adjudication is hereby ANNULLED. 2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The remaining half shall pertain to (a) the full and halfsiblings of Josefa Delgado who survived her and (b) the children of any of Josefa Delgado's full- or half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgado's grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives of Josefa Delgado who are entitled to share in her estate. 3. Guillermo Rustia's estate (including its one-half share of Josefa Delgado's estate) shall be inherited by Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall be per stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates. 4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such amount as may be determined by the trial court. No pronouncement as to costs. DTIACH SO ORDERED. XX. ORDER OF INTESTATE SUCCESSION A. Descending Direct Line 1. Estate of a legitimate decedent a. Illegitimate descendants, 983, 895, 988-992 Corpus v Corpus, 85 SCRA 567 Leonardo v CA, 120 SCRA 890

SECOND DIVISION [G.R. No. L-51263. February 28, 1983.] CRESENCIANO LEONARDO, petitioner, vs. COURT OF APPEALS, MARIA CAILLES, JAMES BRACEWELL and RURAL BANK OF PARAAQUE, INC., respondents. Porfirio C. David for petitioner. Marquez & Marquez for private respondent. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE COURT OF APPEALS; GENERALLY NOT DISTURBED ON REVIEW; EXCEPTIONS. It is a well-established rule laid down by this Court in numerous cases that findings of facts by the Court of Appeals are, generally, final and conclusive upon this Court. The exceptions are. (1) when the conclusion is a finding grounded entirely on speculation; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; and (5) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the submission of both appellant and appellee. None of the abuse exceptions, however, exists in the case at bar, hence, there is no reason to disturb the findings of facts of the Court of Appeals. 2. CIVIL LAW; INTESTATE SUCCESSION; ILLEGITIMATE CHILDREN NOT ENTITLED TO INHERIT AB INTESTATO FROM THE LEGITIMATE CHILDREN AND RELATIVES OF HIS FATHER OR MOTHER; CASE AT BAR. Even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found by the Court of Appeals, he was born outside wedlock as shown by the fact that when he was born on September 13, 1938, his alleged putative father and mother were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most , petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father like the Deceased Francisco Reyes. (Article 992, Civil Code of the Philippines.) DECISION DE CASTRO, J p: Petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No. 43476-R, promulgated on February 21, 1979, reversing the judgment of the Court of First Instance of Rizal in favor of petitioner: LLjur "(a) Declaring plaintiff Cresenciano Leonardo as the great grandson and heir of deceased FRANCISCA REYES, entitled to one-half share in the estate of said deceased, jointly with defendant Maria Cailles;

"(b) Declaring the properties, subject of this complaint, to be the properties of the deceased FRANCISCA REYES and not of defendants Maria Cailles and James Bracewell; "(c) Declaring null and void any sale of these properties by defendant Maria Cailles in so far as the share of Cresenciano Leonardo are affected; "(d) Ordering the partition within 30 days from the finality of this decision, of the properties subject of this litigation, between defendant Maria Cailles and plaintiff Cresenciano Leonardo, share and share alike; "(e) Ordering defendants Maria Cailles and James Bracewell, within 30 days from the finality of this decision, to render an accounting of the fruits of the properties, and 30 days thereafter to pay to plaintiff Cresenciano Leonardo his onehalf share thereof with interest of 6% per annum; "(f) Ordering defendants Maria Cailles and James Bracewell to pay jointly and severally plaintiff Cresenciano Leonardo the amount of P2,000.00 as attorney's fees; "(g) Ordering defendants to pay the costs; and "(h) Dismissing defendants' counterclaim." 1 From the record, it appears that Francisca Reyes who died intestate on July 12, 1942 was survived by two (2) daughters, Maria and Silvestra Cailles, and a grandson, Sotero Leonardo, the son of her daughter, Pascuala Cailles who predeceased her. Sotero Leonardo died in 1944, while Silvestra Cailles died in 1949 without any issue. On October 29, 1964, petitioner Cresenciano Leonardo, claiming to be the son of the late Sotero Leonardo, filed a complaint for ownership of properties, sum of money and accounting in the Court of First Instance of Rizal seeking judgment (1) to be declared one of the lawful heirs of the deceased Francisca Reyes, entitled to one-half share in the estate of said deceased jointly with defendant, private respondent herein, Maria Cailles, (2) to have the properties left by said Francisca Reyes, described in the complaint, partitioned between him and defendant Maria Cailles, and (3) to have an accounting of all the income derived from said properties from the time defendants took possession thereof until said accounting shall have been made, delivering to him his share therein with legal interest. Answering the complaint, private respondent Maria Cailles asserted exclusive ownership over the subject properties and alleged that petitioner is an illegitimate child who cannot succeed by right of representation. For his part, the other defendant, private respondent James Bracewell, claimed that said properties are now his by virtue of a valid and legal deed of sale which Maria Cailles had subsequently executed in his favor. These properties were allegedly mortgaged to respondent Rural Bank of Paraaque, Inc. sometime in September 1963. cdrep

After hearing on the merits, the trial court rendered judgment in favor of the petitioner, the dispositive portion of which was earlier quoted, finding the evidence of the private respondent insufficient to prove ownership of the properties in suit. From said judgment, private respondents appealed to the Court of Appeals which, as already stated, reversed the decision of the trial court" thereby dismissing petitioner's complaint. Reconsideration having been denied by the appellate court, this petition for review was filed on the following assignment of errors: I "RESPONDENT COURT ERRED IN HOLDING THAT THE PROPERTIES IN QUESTION ARE THE EXCLUSIVE PROPERTIES OF PRIVATE RESPONDENTS. II "RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER HAS NOT ESTABLISHED HIS FILIATION. III "RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER, AS THE GREAT GRANDSON OF FRANCISCA REYES, HAS NO LEGAL RIGHT TO INHERIT BY REPRESENTATION." To begin with, the Court of Appeals found the subject properties to be the exclusive properties of the private respondents. "There being two properties in this case both will be discussed separately, as each has its own distinct factual setting. The first was bought in 1908 by Maria Cailles under a deed of sale (Exh. '60'), which describes it as follows: '. . . radicada en la calle Desposorio de este dicho Municipio dentro de los limites y linderos siquientes: Por la derecha a la entrada el solar de Teodorico Reyes por la izquierda el solar de Maria Calesa (Cailles) arriba citada por la espalda la via ferrea del Railroad Co., y la frente la dicha calle Desposorio' "After declaring it in her name, Maria Cailles paid the realty taxes starting from 1918 up to 1948. Thereafter as she and her son Narciso Bracewell, left for Nueva Ecija, Francisca Reyes managed the property and paid the realty tax of the land. However, for unexplained reasons, she paid and declared the same in her own name. Because of this, plaintiff decided to run after this property, erroneously thinking that as the great grandson of Francisca Reyes, he had some proprietary right over the same. "The second parcel on the other hand, was purchased by Maria Cailles in 1917 under a deed of sale (Exh. '3') which describes the property as follows: '. . . una parcela de terreno destinado al beneficio de la sal, que linda por Norte con la linea Ferrea y Salinar de Narciso Mayuga, por Este con los de Narciso Mayuga y Domingo Lozada, por Sur con los de Domingo Lozada y Fruto Silverio y por Oeste

con el de Fruto Silverio y Linea Ferrea, de una extension superficial de 1229.00 metros cuadrados.' "After declaring it in her name, Maria Cailles likewise paid the realty tax in 1917 and continued paying the same up to 1948. Thereafter when she and her son, Narciso Bracewell, established their residence in Nueva Ecija, Francisca Reyes administered the property and like in the first case, declared in 1949 the property in her own name. Thinking that the property is the property of Francisca Reyes, plaintiff filed the instant complaint, claiming a portion thereof as the same allegedly represents the share of his father. "As earlier stated, the court a quo decided the case in favor of the plaintiff principally because defendants' evidence do not sufficiently show that the 2 properties which they bought in 1908 and 1917, are the same as the properties sought by the plaintiff. "Carefully going over the evidence, We believe that the trial judge misinterpreted the evidence as to the identification of the lands in question. "To begin with, the deed of sale (Exh. '60') of 1908 clearly states that the land sold to Maria Cailles is 'en la calle Desposorio' in Las Pias, Rizal which was bounded by adjoining lands owned by persons living at the time, including the railroad track of the Manila Railroad Co. ('la via ferrea del Railroad Co.'). "With the exception of the area which was not disclosed in the deed, the description fits the land now being sought by the plaintiff, as this property is also located in Desposorio St. and is bounded by the M.R.R. Co. "With these natural boundaries, there is indeed an assurance that the property described in the deed and in the tax declaration is one and the same property. "The change of owners of the adjoining lands is immaterial since several decades have already passed between the deed and the declaration and 'during that period, many changes of abode would likely have occurred.' "Besides, it is a fact that defendants have only one property in Desposorio St. and they have paid the realty taxes of this property from May 29, 1914 up to May 28, 1948. Hence, there is no reason to doubt that this property is the same, if not identical to the property in Desposorio St. which is now being sought after by the plaintiff. "With respect to the other parcel which Maria Cailles bought from Tranquilino Mateo in 1917, it is true that there is no similar boundaries to be relied upon. It is however undeniable that after declaring it in her name, Maria Cailles began paying the realty taxes thereon on July 24, 1917 until 1948." (Reference to Exhibits omitted.) 2 Petitioner takes issue with the appellate court on the above findings of fact, forgetting that since the present petition is one for review on certiorari, only questions of law may be raised. It is a well-established rule laid down by this Court

in numerous cases that findings of facts by the Court of Appeals are, generally, final and conclusive upon this Court. The exceptions are: (1) when the conclusion is a finding grounded entirely on speculation; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; and (5) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the submission of both appellant and appellee. 3 None of the above exceptions, however, exists in the case at bar, hence, there is no reason to disturb the findings of facts of the Court of Appeals. Anent the second assignment of error, the Court of Appeals made the following findings: "Going to the issue of filiation, plaintiff claims that he is the son of Sotero Leonardo, the son of one of the daughters (Pascuala) of Francisca Reyes. He further alleges that since Pascuala predeceased Francisca Reyes, and that his father, Sotero, who subsequently died in 1944, survived Francisca Reyes, plaintiff can consequently succeed to the estate of Francisca Reyes by right of representation. "In support of his claim, plaintiff submitted in evidence his alleged birth certificate showing that his father is Sotero Leonardo, married to Socorro Timbol, his alleged mother. "Since his supposed right will either rise or fall on the proper evaluation of this vital evidence, We have minutely scrutinized the same, looking for that vital link connecting him to the family tree of the deceased Francisca Reyes. However, this piece of evidence does not in any way lend credence to his tale. "This is because the name of the child described in the birth certificate is not that of the plaintiff but a certain 'Alfredo Leonardo' who was born on September 13, 1938 to Sotero Leonardo and Socorro Timbol. Other than his bare allegation, plaintiff did not submit any durable evidence showing that the 'Alfredo Leonardo' mentioned in the birth certificate is no other than he himself. Thus, even without taking time and space to go into further details, We may safely conclude that plaintiff failed to prove his filiation which is a fundamental requisite in this action where he is claiming to be an heir in the inheritance in question." 4 That is likewise a factual finding which may not be disturbed in this petition for review in the absence of a clear showing that said finding is not supported by substantial evidence, or that there was a grave abuse of discretion on the part of the court making the finding of fact. prLL Referring to the third assignment of error, even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when he was born on September 13, 1938, his alleged putative father and mother

were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes. (Article 992, Civil Code of the Philippines.) WHEREFORE, the decision of the Court of Appeals sought to be reviewed in this petition is hereby affirmed, with costs against the petitioner. cdphil SO ORDERED. Diaz v IAC, 150 SCRA 645
SECOND DIVISION 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.

[G.R. No. L-66574. February 21, 1990.] ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all surnamed SANTERO, and FELIXBERTA PACURSA, guardian of FEDERICO SANTERO, et al., petitioners, vs. INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, respondents. Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners. Pedro S. Sarino for respondent Felisa Pamuti Jardin. SYLLABUS 1. CIVIL LAW; SUCCESSION; INTESTATE SUCCESSION; RIGHT OF REPRESENTATION; NOT AVAILABLE TO ILLEGITIMATE DESCENDANTS OF LEGITIMATE CHILDREN IN INHERITANCE OF A LEGITIMATE GRANDPARENT; ARTICLE 982 OF NEW CIVIL CODE, GENERAL RULE WHILE ARTICLE 992 OF SAME CODE, EXCEPTION. Articles 902, 989, and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception.

2. ID.; ID.; ID.; ID.; ARTICLES 982 AND 902 OF NEW CIVIL CODE, SUBJECT TO THE LIMITATION THAT AN ILLEGITIMATE CHILD HAS NO RIGHT TO INHERENT AB INTESTATO FROM LEGITIMATE CHILDREN AND RELATIVES OF HIS FATHER OR MOTHER. The rules laid down in Article 982 that 'grandchildren and other descendants shall inherit by right of representation' and in Article 902 that the rights of illegitimate children . . . are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that 'an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother.' (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12) 3. ID.; ID.; ID.; ID.; SUCCESSION AB INTESTATO BETWEEN ILLEGITIMATE CHILD AND LEGITIMATE CHILDREN AND RELATIVES OF FATHER OR MOTHER OF SAID ILLEGITIMATE CHILD, ABSOLUTELY PROHIBITED; RATIONALE. "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 illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 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; and 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 ground of resentment." (7 Manresa 110 cited in Grey v. Fabie 40 OG (First S) No. 3, p. 196). 4. ID.; ID.; ID.; LEGITIMACY OR ILLEGITIMACY OF PERSON TO BE REPRESENTED, DETERMINING FACTOR. While the New Civil Code may have granted successional rights to illegitimate children, those articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed in Article 992.

5. ID.; ID.; ID.; WORD "RELATIVE" IN ARTICLE 992 OF NEW CIVIL CODE, BROAD ENOUGH TO COMPREHEND ALL KINDRED OF PERSON SPOKEN OF; CASE AT BAR. 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" is broad enough to comprehend all the kindred of the person spoken of (Comment, p. 139 Rollo citing p. 2862 Bouvier's Law Dictionary vol. II, Third Revision, Eight Edition) The record reveals 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. RESOLUTION PARAS, J p: The decision of the Second Division of this Court in the case of Anselma Diaz, et al. vs. Intermediate Appellate Court, et al., G.R. No. 6574, promulgated June 17, 1987 declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero, and its Resolution of February 24, 1988 denying the Motion for Reconsideration dated July 2, 1987, are being challenged in this Second Motion for Reconsideration dated July 5, 1988. After the parties had filed their respective pleadings, the Court, in a resolution dated October 27, 1988, resolved to grant the request of the petitioners for oral argument before the court en banc, and the case was set for hearing on November 17, 1988 to resolve the question: Does the term "relatives" in Article 992 of the New Civil Code which reads: "An illegitimate child has no right to inherit ab intestato from the legitimate children or relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child." include the legitimate parents of the father or mother of the illegitimate children? Invited to discuss as amici curiae during the hearing were the following: Justice Jose B.L. Reyes, former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben Balane. The facts of the case, as synthesized in the assailed decision, are as follows: "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." (pp. 1-2, Decision; pp. 190-191, Rollo) Briefly stated, the real issue in the instant case is this 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 present controversy is confined solely to the intestate estate of Simona Pamuti Vda. de Santero. In connection therewith, We are tasked with determining anew whether petitioners 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. LLphil Petitioners claim that the amendment of Articles 941 and 943 of the old Civil Code (Civil Code of Spain) by Articles 990 and 992 of the new Civil Code (Civil Code of the Philippines) constitute a substantial and not merely a formal change, which grants illegitimate children certain successional rights. We do not dispute the fact that the New Civil Code has given illegitimate children successional rights, which rights were never before enjoyed by them under the Old Civil Code. They were during that time merely entitled to support. In fact, they are now considered as compulsory primary heirs under Article 887 of the new Civil Code (No. 5 in the order of intestate succession). Again, We do not deny that fact. These are only some of the many rights granted by the new Code to illegitimate children. But that is all. A careful evaluation of the New Civil Code provisions, especially Articles 902, 982, 989, and 990, claimed by petitioners to have conferred illegitimate children the right to represent their parents in the inheritance of their legitimate grandparents, would in point of fact reveal that such right to this time does not exist. Let Us take a closer look at the above-cited provisions. "Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. Art. 982. The grandchildren and other descendants shall 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. (933). Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a).

Art. 990. The hereditary lights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)" Emphasis for emphasis). Articles 902, 989, and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception. "The rules laid down in Article 982 that 'grandchildren and other descendants shall inherit by right of representation' and in Article 902 that the rights of illegitimate children . . . are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that 'an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother."' (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12) "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 illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 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; and 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 ground of resentment." (7 Manresa 110 cited in Grey v. Fabie 40 OG (First S) No. 3, p. 196). According to petitioners, the commentaries of Manresa as above-quoted are based on Articles 939 to 944 of the old Civil Code and are therefore inapplicable to the New Civil Code and to the case at bar. Petitioners further argue that the consistent doctrine adopted by this Court in the cases of Llorente vs. Rodriguez, et al., 10 Phil., 585; Centeno vs. Centeno, 52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited by former Justice Minister Justice Puno, Justice Caguioa, and Prof. Balane, which identically held that an illegitimate child has no right to succeed ab intestato the legitimate father or mother of his natural parent (also a legitimate child himself), is already abrogated by the amendments made by the New Civil Code and thus cannot be made to apply to the instant case. Once more, We decline to agree with petitioner. We are fully aware of certain substantial changes in our law of succession, but there is no change whatsoever with respect to the provision of Article 992 of the Civil Code. Otherwise, by the said substantial change, Article 992, which was a reproduction of Article 943 of the Civil Code of Spain, should have been suppressed or at least modified to clarify the matters which are now the subject of the present controversy. While the New Civil Code may have granted successional rights to illegitimate children, those articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed in Article 992. In this wise, the commentaries of Manresa on the matter in issue, even though based on the old Civil Code, are still very much applicable to the New Civil Code because the amendment, although substantial, did not consist of giving illegitimate children the right to represent their natural parents (legitimate) in the intestate succession of their grandparents (legitimate). It is with the same line of reasoning that the three aforecited cases may be said to be still applicable to the instant case. Equally important are the reflections of the Illustrious Hon. Justice Jose B.L. Reyes which also find support from other civilists. We quote: "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 not 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 992 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 Quarter, 1976, Volume 4, Number 1, pp. 40-41). (p. 7, Decision; p. 196, Rollo) 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" is broad enough to comprehend all the kindred of the person spoken of (Comment, p. 139 Rollo citing p. 2862 Bouvier's Law Dictionary vol. II, Third Revision, Eight Edition) The record reveals 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. It is Our shared view that the word "relatives" should be construed in its general acceptation. Amicus curiae Prof. Ruben Balane has this to say: "The term relatives, although used many times in the Code, is not defined by it. In accordance therefore with the canons of statutory interpretation, it should be understood to have a general and inclusive scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda. That the law does not make a distinction prevents us from making one: Ubi lex non distinguit, nec nos distinguera debemus. Escriche, in his Diccionario de Legislacion y Jurisprudencia defines parientes as "los que estan relacionados por los vinculos de la sangre, ya sea por proceder unos de otros, como los descendientes y ascendientes, ya sea por proceder de una misma raiz o tronco, como los colaterales." (cited in Scaevola, op. cit., p. 457).(p. 377, Rollo) According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is used and intended is not warranted by any rule of interpretation. Besides, he further states that when the law intends to use the term

in a more restrictive sense, it qualifies the term with the word collateral, as in Articles 1003 and 1009 of the New Civil Code. prcd Thus, the word "relatives" is a general term and when used in a statute it embraces not only collateral relatives but also all the kindred of the person spoken of, unless the context indicates that it was used in a more restrictive or limited sense which, as already discussed earlier, is not so in the case at bar. To recapitulate, We quote this: "The lines of this distinction between legitimates and illegitimates, which goes back very far in legal history, have been softened but not erased by present law. Our legislation has not gone so far as to place legitimate and illegitimate children on exactly the same footing. Even the Family Code of 1987 (EO 209) has not abolished the gradation between legitimate and illegitimate children (although it has done away with the subclassification of illegitimates into natural and 'spurious'). It would thus be correct to say that illegitimate children have only those rights which are expressly or clearly granted to them by law (vide Tolentino, Civil Code of the Philippines, 1973 ed., vol. III, p. 291). (Amicus Curiae's Opinion by Prof. Ruben Balane, p. 12). In the light of the foregoing, We conclude that until Article 992 is suppressed or at least amended to clarify the term "relatives", there is no other alternative but to apply the law literally. Thus, We hereby reiterate the decision of June 17, 1987 and declare Felisa Pamuti-Jardin to be the sole heir to the intestate estate of Simona Pamuti Vda. de Santero, to the exclusion of petitioners. WHEREFORE, the second Motion for Reconsideration is DENIED, and the assailed decision is hereby AFFIRMED. SO ORDERED. Manuel v Ferrer, August 21, 1995 THIRD DIVISION [G.R. No. 117246. August 21, 1995.] BENIGNO MANUEL, LIBERATO MANUEL, LORENZO MANUEL, PLACIDA MANUEL, MADRONA MANUEL, ESPERANZA MANUEL, AGAPITA MANUEL, BASILISA MANUEL, EMILIA MANUEL and NUMERIANA MANUEL, petitioners, vs. HON. NICODEMO T. FERRER, Presiding Judge, Regional Trial Court, Branch 37, Lingayen, Pangasinan, MODESTA BALTAZAR and ESTANISLAOA MANUEL, respondents. Eufrocino L. Bermudez for petitioners. Marcelo C. Espinoza for Modesta Baltazar. Nolan R. Evangelista for Estanislaoa Manuel. SYLLABUS 1. CIVIL LAW; WILLS AND SUCCESSION; ART. 992, CIVIL CODE OF THE PHILIPPINES; "BARRIER" BETWEEN MEMBERS OF THE

LEGITIMATE AND ILLEGITIMATE FAMILY; CONSTRUED. Article 992 of the Civil Code, a basic postulate, enunciates what is so commonly referred to in the rules on succession as the "principle of absolute separation between the legitimate family and the illegitimate family." The doctrine rejects succession ab intestato in the collateral line between legitimate relatives, on the one hand, and illegitimate relatives, on other hand, although it does not totally disavow such succession in the direct line. Since the rule is predicated on the presumed will of the decedent, it has no application, however, on testamentary dispositions. This "barrier" between the members of the legitimate and illegitimate family in intestacy is explained by a noted civilist. (Desiderio Jurado, Comments and Jurisprudence on Succession, 8th ed., 1991, pp. 423-424.) His thesis: "What is meant by the law when it speaks of brothers and sisters, nephews and nieces, as legal or intestate heirs of an illegitimate child? It must be noted that under Art. 992 of the Code, there is a barrier dividing members of the illegitimate family from members of the legitimate family. It is clear that by virtue of this barrier, the legitimate brothers and sisters as well as the children, whether legitimate or illegitimate, of such brothers and sisters, cannot inherit from the illegitimate child. Consequently, when the law speaks of 'brothers and sisters, nephews and nieces' as legal heirs of an illegitimate child, it refers to illegitimate brothers and sisters as well as to the children, whether legitimate or illegitimate, of such brothers and sisters." The Court, too, has had occasions to explain this "iron curtain," firstly, in the early case of Grey v. Fabie (40 O.G. [First S] No. 3, p. 196 citing 7 Manresa 110) and, then, in the relatively recent cases of Diaz v. Intermediate Appellate Court (150 SCRA 645) and De la Puerta v. Court of Appeals. (181 SCRA 861) In Diaz, we have said: "Article 992 of the New Civil Code . . . 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 Article 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 legitimate 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." The rule in Article 992 has consistently been applied by the Court in several other cases. Thus, it has ruled that where the illegitimate child had half-brothers who were legitimate, the latter had no right to the former's inheritance; (Corpus v. Corpus, 85 SCRA 567) that the legitimate collateral relatives of the mother cannot succeed from her illegitimate child;

(Cacho v. Udan, 13 SCRA 693) that a natural child cannot represent his natural father in the succession to the estate of the legitimate grandparent; (Llorente v. Rodriguez, 10 Phil. 585; Allarde v. Abaya, 57 Phil. 909) that the natural daughter cannot succeed to the estate of her deceased uncle who is a legitimate brother of her natural father; (Anuran v. Aquino and Ortiz, 38 Phil. 29) and that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father. (Leonardo v. Court of Appeals, 120 SCRA 890) Indeed, the law on succession is animated by a uniform general intent, and thus no part should be rendered inoperative (Javellana v. Tayo, 6 SCRA 1042) by, but must always be construed in relation to, any other part as to produce a harmonious whole. (Sotto v. Sotto, 43 Phil 688; Araneta v. Concepcion, 99 Phil 709) 2. ID.; ID.; ORDER OF PREFERENCE AND CONCURRENCE IN INTESTACY; GRAPHIC PRESENTATION. We might, in easy graphic presentation, collate the order of preference and concurrence in intestacy expressed in Article 978 through Article 1014, inclusive, of the Civil Code; viz: Order of Preference Order of Concurrence (a) Legitimate Children (a) Legitimate Children and Descendants and Descendants, Illegitimate Children and Descendants, and Surviving Spouse (b) Legitimate Parents (b) Legitimate Parents and Ascendants and Ascendants, Illegitimate Children and Descendants, and Surviving Spouse (c) Illegitimate Children (c) Illegitimate Children and Descendants (in the and Descendants and absence of ICDs and LPAs, Surviving Spouse the illegitimate Parents) (d) Surviving Spouse (d) Surviving Spouse and Illegitimate Parents (e) Brothers and Sisters/ (e) Brothers and Sisters/ Nephews and Nieces Nephews and Nieces and Surviving Spouse (f) Other Collateral Relatives (f) Alone (within the fifth civil degree) (g) State (g) Alone 3. ID.; ID.; WHEN A WARD IS NEITHER A COMPULSORY HEIR NOR A LEGAL HEIR. A ward (ampon), without the benefit of formal (judicial)

adoption, is neither a compulsory nor a legal heir. (Lim vs. Intermediate Appellate Court, G.R. No. 69679, 18 October 1988) 4. ID.; DAMAGES; WHEN NOT JUSTIFIED; CASE AT BAR. An adverse result of a suit in law does not mean that its advocacy is necessarily so wrongful as to justify an assessment of damages against the actor. (Rubio v. Court of Appeals, 141 SCRA 488, Tiu v. Court of Appeals, 228 SCRA 51) DECISION VITUG, J p: The property involved in this petition for review on certiorari is the inheritance left by an illegitimate child who died intestate without any surviving descendant or ascendant. Petitioners, the legitimate children of spouses Antonio Manuel and Beatriz Guiling, initiated this suit. During his marriage with Beatriz, Antonio had an extramarital affair with one Ursula Bautista. From this relationship, Juan Manuel was born. Several years passed before Antonio Manuel, his wife Beatriz, and his mistress Ursula finally crossed the bar on, respectively, 06 August 1960, 05 February 1981 and 04 November 1976. Juan Manuel, the illegitimate son of Antonio, married Esperanza Gamba. In consideration of the marriage, a donation propter nuptias over a parcel of land, with an area of 2,700 square meters, covered by Original Certificate of Title ("OCT") No. P-20594 was executed in favor of Juan Manuel by Laurenciana Manuel. Two other parcels of land, covered by OCT P-19902 and Transfer Certificate of Title ("TCT") No. 41134, were later bought by Juan and registered in his name. The couple were not blessed with a child of their own. Their desire to have one impelled the spouses to take private respondent Modesta ManuelBaltazar into their fold and so raised her as their own "daughter." On 03 June 1980, Juan Manuel executed in favor of Estanislaoa Manuel a Deed of Sale Con Pacto de Retro (with a 10-year period of redemption) over a one-half (1/2) portion of his land covered by TCT No. 41134. Juan Manuel died intestate on 21 February 1990. Two years later, or on 04 February 1992, Esperanza Gamba also passed away. On 05 March 1992, a month after the death of Esperanza, Modesta executed an Affidavit of Self-Adjudication claiming for herself the three parcels of land covered by OCT P-20594, OCT P-19902 and TCT No. 41134 (all still in the name of Juan Manuel). Following the registration of the document of adjudication with the Office of the Register of Deeds, the three titles (OCT P-20594, OCT P-19902 and TCT No. 41134) in the name of Juan Manuel were canceled and new titles, TCT No. 184223, TCT No. 184224 and TCT No. 184225, were issued in the name of Modesta Manuel-Baltazar. On 19 October 1992, Modesta executed in favor of her co-respondent Estanislaoa Manuel a Deed of Renunciation and Quitclaim over

the unredeemed one-half (1/2) portion of the land (now covered by TCT No. 184225) that was sold to the latter by Juan Manuel under the 1980 Deed of Sale Con Pacto de Retro. These acts of Modesta apparently did not sit well with petitioners. In a complaint filed before the Regional Trial Court of Lingayen, Pangasinan, the petitioners sought the declaration of nullity of the aforesaid instruments. The case, there being no material dispute on the facts, was submitted to the court a quo for summary judgment. The trial court, in its now assailed 15th August 1994 decision, dismissed the complaint holding that petitioners, not being heirs ab intestato of their illegitimate brother Juan Manuel, were not the real parties-in-interest to institute the suit. Petitioners were also ordered to jointly and severally (solidarily) pay (a) respondent Modesta Manuel-Baltazar the sum of P5,000.00 for moral damages, P5,000.00 for exemplary damages, P5,000.00 for attorney's fees and P500.00 for litigation expenses and (b) Estanislaoa Manuel the sum of P5,000.00 for moral damages, P5,000.00 for exemplary damages and P500.00 for attorney's fees. Petitioners' motion for reconsideration was denied by the trial court. The petition before us raises the following contentions: That "1. THE LOWER COURT (HAS) FAILED TO CONSIDER THE LAST PARAGRAPH OF ARTICLE 994 OF THE NEW CIVIL CODE, AS THE CONTROLLING LAW APPLICABLE BY VIRTUE OF THE ADMITTED FACTS, AND NOT ARTICLE 992 OF THE SAME CODE. "2. THE LOWER COURT, IN NOT ANNULLING ALL THE ACTS OF, AND VOIDING ALL DOCUMENTS EXECUTED BY, RESPONDENT MODESTA BALTAZAR, WHO ARROGATED UNTO HERSELF THE RIGHTS OF AN HEIR TO THE ESTATE OF DECEDENT JUAN MANUEL, (HAS) VIRTUALLY GRANTED SAID RESPONDENT THE STATUS OF AN HEIR MANIFESTLY CONTRARY TO LAW, MORALS AND PUBLIC POLICY. "3. TO ENFORCE ONE'S RIGHT WHEN THEY ARE VIOLATED IS NEVER A LEGAL WRONG." 1 Petitioners argue that they are the legal heirs over one-half of Juan's intestate estate (while the other half would pertain to Juan's surviving spouse) under the provision of the last paragraph of Article 994 of the Civil Code, providing thusly: "ARTICLE 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse, who shall be entitled to the entire estate. "If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half ." (Emphasis supplied.) Respondents, in turn, submit that Article 994 should be read in conjunction with Article 992 of the Civil Code, which reads:

"ARTICLE 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 relative inherit in the same manner from the illegitimate child." (Emphasis supplied.) Article 992, a basic postulate, enunciates what is so commonly referred to in the rules on succession as the "principle of absolute separation between the legitimate family and the illegitimate family." The doctrine rejects succession ab intestato in the collateral line between legitimate relatives, on the one hand, and illegitimate relatives, on other hand, although it does not totally disavow such succession in the direct line. Since the rule is predicated on the presumed will of the decedent, it has no application, however, on testamentary dispositions. This "barrier" between the members of the legitimate and illegitimate family in intestacy is explained by a noted civilist. 2 His thesis: "What is meant by the law when it speaks of brothers and sisters, nephews and nieces, as legal or intestate heirs of an illegitimate child? It must be noted that under Art. 992 of the Code, there is a barrier dividing members of the illegitimate family from members of the legitimate family. It is clear that by virtue of this barrier, the legitimate brothers and sisters as well as the children, whether legitimate or illegitimate, of such brothers and sisters, cannot inherit from the illegitimate child. Consequently, when the law speaks of 'brothers and sisters, nephews and nieces' as legal heirs of an illegitimate child, it refers to illegitimate brothers and sisters as well as to the children, whether legitimate or illegitimate, of such brothers and sisters." (Emphasis supplied) The Court, too, has had occasions to explain this "iron curtain," firstly, in the early case of Grey v. Fabie 3 and, then, in the relatively recent cases of Diaz v. Intermediate Appellate Court 4 and De la Puerta v. Court of Appeals. 5 In Diaz, we have said: "Article 992 of the New Civil Code . . . 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 Article 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 legitimate 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."

The rule in Article 992 has consistently been applied by the Court in several other cases. Thus, it has ruled that where the illegitimate child had half-brothers who were legitimate, the latter had no right to the former's inheritance; 6 that the legitimate collateral relatives of the mother cannot succeed from her illegitimate child; 7 that a natural child cannot represent his natural father in the succession to the estate of the legitimate grandparent; 8 that the natural daughter cannot succeed to the estate of her deceased uncle who is a legitimate brother of her natural father; 9 and that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father. 10 Indeed, the law on succession is animated by a uniform general intent, and thus no part should be rendered inoperative 11 by, but must always be construed in relation to, any other part as to produce a harmonious whole. 12 In passing, we might, in easy graphic presentation, collate the order of preference and concurrence in intestacy expressed in Article 978 through Article 1014, inclusive, of the Civil Code; viz: Order of Preference Order of Concurrence (a) Legitimate Children (a) Legitimate Children and and Descendants Descendants, Illegitimate Children and Descendants, and Surviving Spouse (b) Legitimate Parents (b) Legitimate Parents and and Ascendants Ascendants, Illegitimate Children and Descendants, and Surviving Spouse (c) Illegitimate Children and (c) Illegitimate Children Descendants (in the and Descendants and absence of ICDs and Surviving Spouse LPAs, the Illegitimate Parents) (d) Surviving Spouse (d) Surviving Spouse and Illegitimate Parents (e) Brothers and(e) Brothers and Sisters/Nephews and Sisters/Nephews and Nieces Nieces and Surviving Spouse (f) Other Collateral Relatives (f) Alone (within the fifth civil degree) (g) State (g) Alone In her answer to the complaint, Modesta candidly admitted that she herself is not an intestate heir of Juan Manuel. She is right. A ward (ampon), without the benefit of formal (judicial) adoption, is neither a compulsory nor a legal heir. 13

We must hold, nevertheless, that the complaint of petitioners seeking the nullity of the Affidavit of Self-Adjudication executed by Modesta, the three (3) TCT's issued to her favor, as well as the Deed of Renunciation and Quitclaim in favor of Estanislaoa Manuel, was properly dismissed by the trial court. Petitioners, not being the real "parties-in-interest" 14 in the case, had neither the standing nor the cause of action to initiate the complaint. The Court, however, sees no sufficient reason to sustain the award of amounts for moral and exemplary damages, attorney's fees and litigation expenses. An adverse result of a suit in law does not mean that its advocacy is necessarily so wrongful as to justify an assessment of damages against the actor. 15 WHEREFORE, the appealed decision of the Regional Trial Court of Pangasinan (Branch 37) is AFFIRMED, except insofar as it has awarded moral and exemplary damages, as well as attorney's fees and litigation expenses, in favor of private respondents, which portion is hereby DELETED. No special pronouncement on costs. SO ORDERED. Bolanos v Bernarte, G.R. No. 180997, Nov. 17, 2010 SECOND DIVISION [G.R. No. 180997. November 17, 2010.] SPOUSES MARIANO (a.k.a. QUAKY) and EMMA BOLAOS, petitioners, vs. ROSCEF ZUIGA BERNARTE, CLARO ZUIGA, PERFECTO ZUIGA, and CEFERINA ZUIGA-GARCIA, respondents. DECISION NACHURA, J p: This petition for review on certiorari 1 seeks to reverse and set aside the Decision dated March 30, 2007 2 and the Resolution dated November 26, 2007 3 of the Court of Appeals (CA) in CA-G.R. CV No. 84452. cDACST The antecedents Subject of the controversy is a 238-square-meter lot, designated as Lot No. 1-P, and situated in Poblacion, Rapu-Rapu, Albay. Petitioner-spouses Mariano and Emma Bolaos (petitioner-spouses) purchased it from Cresencia Zuiga-Echague (Cresencia) on June 20, 2001. The sale was registered in the name of petitionerspouses before the Municipal Assessor's Office in Rapu-Rapu, Albay. On October 30, 2001, respondents Roscef Zuiga Bernarte, Claro Zuiga, Perfecto Zuiga, and Ceferina Zuiga-Garcia (Roscef, et al.) filed a complaint 4 for declaration of partial nullity of deeds of transfer and sale with prayer for preliminary injunction against petitioner-spouses, Flavia Zuiga (Flavia), and Cresencia before the Regional Trial Court (RTC) of Legazpi City, docketed as Civil Case No. 10033.

The complaint, in essence, alleged that: Roscef, et al., and Flavia and Cresencia are legitimate half-blood brothers and sisters, all children of the deceased Roman Zuiga, Sr. (Roman) from his second and first marriages, respectively; during his lifetime, Roman owned a residential land with improvements, identified as Lot No. 1-P per Tax Declaration No. 99-001-01704 5 for the year 2000; Roman had the lot declared for taxation purposes in the name of Flavia, Sisters and Brothers, per a Sworn Statement 6 he executed in 1973, and filed with the then Assessor's Office, which issued Tax Declaration No. 2975; 7 Roman died on August 9, 1976, and his heirs did not settle or partition the subject property; on June 20, 2001, Flavia, without authority from the co-owners of the lot, executed a notarized Deed of Absolute Sale 8 over it in favor of Cresencia; Cresencia, in turn, also without authority from the said co-owners, executed on the same day a notarized Deed of Absolute Sale 9 in favor of petitioner-spouses; on the basis of these notarized deeds, Tax Declaration No. 99-001-01703 10 was issued to petitioner-spouses as sole declared owners of Lot No. 1-P. ISAaTH In praying for preliminary injunction, Roscef, et al., further alleged that petitionerspouses started demolishing their ancestral home on the subject property and initiated the construction of a new building thereon, despite pleas to desist from further destroying the ancestral home. In her answer with cross-claim, 11 Flavia denied the genuineness and due execution of the Deed of Absolute Sale in favor of Cresencia, and alleged that the subsequent sale made by the latter was valid and effective only as to her aliquot share, but null and void as to the rest of the property. She also claimed that, during the confrontation before the barangay, she informed Mariano of these facts and even admonished him not to destroy the existing house on Lot No. 1-P, nor to make any constructions thereon. She said that, despite this notice, petitionerspouses, on August 15, 2001, forcibly entered her house and demolished a large portion of it. In her own answer, 12 Cresencia denied the material allegations of the complaint, and alleged that Flavia was the sole owner of Lot No. 1-P, thus making her a buyer and seller in good faith and for value. Cresencia also averred that Roscef, et al., as children of Roman by his second wife, do not have any share in the subject property since Roman had already orally partitioned it during his lifetime. For their part, petitioner-spouses alleged that the subject property was owned in common by Flavia, Cresencia, and their full-blood brothers and sisters only, and that, later on, Flavia acquired the entire lot. Flavia then sold it to Cresencia, who, in turn, sold it to petitioner-spouses. They asserted that they had acquired Lot No. 1-P in good faith and for value, without any knowledge of the adverse claim of Roscef, et al., or that the property did not fully belong to Cresencia. 13 CSaHDT

During the pre-trial, the parties admitted that Roscef, et al., Flavia and Cresencia are legitimate half brothers and sisters and the identities of the parties and of the subject property. 14 Trial on the merits ensued. Thereafter, the RTC rendered its decision dated December 1, 2004, 15 disposing as follows WHEREFORE, Premises Considered, this Court renders judgment declaring that the property interest acquired by the spouses Mariano and Emma Bolaos over Lot No. 1-P a 238-square-meter lot situated [o]n Salazar Street, Poblacion RapuRapu, Albay is limited only to the ideal shares belonging to Flavia A. Zuiga and Cresencia Zuiga-Echague constitutive of an ideal share equivalent to 2/11 portion of such lot, and hereby partially nullifying the two deeds of absolute sale both dated 20 June 2001 over Lot No. 1-P exceeding the ideal share of 1/11 for each one of the sellers Flavia A. Zuiga and Cresencia Zuiga-Echague. The defendants are hereby ordered to pay the plaintiffs the amounts of: a) 15,000 pesos as attorney's fees; and b) 10,000 pesos as litigation expenses. The defendants shall pay the costs of suit. SO ORDERED. 16 Aggrieved, petitioner-spouses interposed an appeal before the CA, ascribing error to the RTC in holding that the property was the capital of Roman and in declaring that the property interest acquired by them was limited only to the ideal shares of Flavia. TEHIaA The CA denied the appeal, and affirmed in toto the RTC judgment. Hence, this petition anchored on the sole question of law of whether or not the CA wrongly applied the law on co-ownership, specifically Article 484, 17 relative to Article 980 18 of the Civil Code. Petitioner-spouses argue that the CA gravely erred when it concluded that Lot No. 1-P is owned in common by the children from the first and second marriages of Roman. They posit that the brothers and sisters mentioned in Tax Declaration No. 2975 for December 14, 1948-1949 refer only to Roman's children from his first marriage, when the property was bequeathed to them by their father, then still a widower, and prior to the celebration of his marriage to Ceferina on October 18, 1954. They claim that Roman did so probably because the property belonged to the paraphernal property of his deceased first spouse Flavia. According to them, there was no credible evidence, not even a single document, to prove that the property originally belonged to Roman, but the RTC and the CA gave credit to Ceferina's testimony that she was told by her father, while at a tender age, that the property belonged to them. They contend, to the contrary, that the testimony of Josefina, a child from the first marriage, should be the one given credence due to her unbiased assertion that the property was purchased from the paraphernal assets of their

mother Flavia, such that the lot had never been registered in the name of Roman because he had no reason to claim it as his own. DTEIaC We disagree. The assertions of petitioner-spouses cannot stand on the face of the evidence, both documentary and testimonial, presented before the RTC. More specifically, petitioner-spouses' contention, i.e., that the subject property really belonged to Roman's first spouse Flavia as her paraphernal property, cannot be sustained. This position was anchored from the testimony of Josefina 19 that the lot was actually bought by her maternal grandfather and given to her mother Flavia. Josefina's declarations before the RTC do not deserve merit and weight, particularly in light of her statement that she was told so by her elders way back in 1923, when at that time she was only around three (3) years of age. 20 Besides, such a pronouncement was not supported by any proof, save for the lame excuse that the deed of sale showing the said transaction was allegedly lost and destroyed by a typhoon at a time when she was already married, claiming that she was then the custodian of the supposed document. Evidence, to be worthy of credit, must not only proceed from the mouth of a credible witness but must be credible in itself. 21 In other words, it must be natural, reasonable, and probable to warrant belief. The standard as to the truth of human testimony is its conformity to human knowledge, observation, and experience; the courts cannot heed otherwise. 22 Regretfully, petitioner-spouses' allegations do not measure up to the yardstick of verity. SaTAED The findings of the RTC, as concurred by the CA, are enlightening The facts of the case that appear of record to be without dispute follow, to wit: Roman Zuiga, Sr. during his lifetime married twice. His first wife was Flavia while Ceferina became his second wife. Flavia died sometime in the year 1944 or 1945. Roman Sr. and Flavia begot seven children, namely: Josefina, Flavia, Woodrow, Pablo, Manuel, Roman, Jr. and Cresencia. On 18 October 1954, Roman Zuiga, Sr. married Ceferina Bendaa (Exhibits "F," "6"). Roman, Sr. and Ceferina had four children, and they were the plaintiffs Roscef, Claro, Perfecto and Ceferina. Roman Zuiga, Sr. died on 9 August 1976. It appears that his second wife Ceferina Bendaa died ahead of him. His eleven children by his first and by his second marriage survived him. In the face of the sworn statement he executed in the year 1973 he declared the lot in question (now Lot No. 1-P) then embraced by Tax Declaration No. 2975 as among the several properties that belonged to him (Exhibits "C," "3," in relation to Exhibits "A," "1"). Such lot under such tax declaration was declared for taxation purposes for the first time on 14 December 1948 in the name of Flavia A. Zuiga, brothers and sisters (Exhibits "A," "1"). Flavia A. Zuiga sold such 238-square-meter lot situated in Salazar St., Poblacion, Rapu-Rapu, Albay to her sister Cresencia Zuiga-Echague on 20 June 2001

(Exhibits "D," "2"). On the same day Cresencia Zuiga-Echague sold the same lot in favor of the spouses Mariano and Emma Bolaos (Exhibit "E"). AaHTIE Now, Roman Zuiga, Sr.'s first wife Flavia passed away in the year 1944 or 1945. On 18 October 1954, he married his second wife Ceferina. Lot No. 1-P was declared for tax purposes for the first time on 14 December 1948 in the name of Flavia Zuiga's sisters and brothers. The defendant Flavia A. Zuiga admitted that her parents always declared the properties they acquired in her name Flavia A. Zuiga[,] sisters and brothers since she was a 7-year-old lass. She never acquired the properties on her own including Lot No. 1-P. She would always recognize her father Roman Zuiga, Sr. as the actual owner of such lot when he was alive. The reckoning date for the acquisition of Lot No. 1-P should be the date when it was declared for tax purposes in the name of the defendant Flavia A. Zuiga, sisters and brothers which is 14 December 1948 notwithstanding the testimonies rendered that such lot was acquired while Roman Zuiga, Sr. was married to Flavia and even prior to such marriage. Such testimonies that are obviously easy to fabricate have no documentary evidence seen of record to sustain them. This Court finds Tax Declaration No. 2975 (Exhibit[s] "A," "1") that bec[a]me effective in the year 1949 as the credible ancient documentary evidence that speaks of the true date Roman Zuiga, Sr. acquired Lot No. 1-P. As earlier noted, his first wife died in the year 1944 or 1945 while he married his second wife on 18 October 1954. Obviously, Roman Zuiga, Sr., while still a widower in the year 1948, acquired Lot No. 1-P. Clearly such lot was his capital property. IcHDCS Roman Zuiga, Sr. having passed away on 9 August 1976, Lot No. 1-P now forms part of his estate. Except for Lot No. 1-P, the record has not shown any other property left by Roman Zuiga, Sr. at the time of his death. In the absence of whatever evidence that he executed a will his legitimate children by his first and second marriages inherit such lot in equal share[s] as intestate heirs (Article 980, The Civil Code). It follows that Lot No. 1-P has to be divided among them into eleven equal shares. Until such time that Lot No. 1-P has been partitioned among Roman Zuiga, Sr.'s eleven legitimate children, as co-owners being co-heirs their shares remain ideal (Article 1078, The Civil Code). Not one of the eleven children can claim as his or hers a specifically identified portion of Lot No. 1-P. This Court finds Flavia Zuiga's verbal claim that she never sold Lot No. 1-P to her sister Cresencia Zuiga-Echague to be without merit. Not a shred of evidence appears of record showing that the signature appearing in the face of the deed of absolute sale was not Flavia A. Zuiga's (Exhibits "D," "2"). At any rate, this Court holds that the written deed of absolute sale dated 20 June 2001 that Flavia A.

Zuiga signed is more credible evidence than her self-serving, uncorroborated and easy to concoct testimony that she never sold such lot to her sister Cresencia Zuiga-Echague. IaEASH However, the above deed of absolute sale that Flavia A. Zuiga executed was valid and effective only to the extent of her ideal share in Lot No. 1-P. The validity of the other deed of absolute sale Cresencia Zuiga-Echague executed in favor of the spouses Mariano and Emma Bolaos is limited to her ideal share and the other ideal share she acquired from Flavia A. Zuiga. In effect[,] the spouses Mariano and Emma Bolaos acquired the ideal shares of the sisters Flavia A. Zuiga and Cresencia Zuiga-Echague. The claim by the spouses Mariano and Emma Bolaos that they were purchasers in good faith has little relevance. Lot No. 1-P appears as [an] unregistered lot, and thus they merely step into the shoes of the seller. They cannot acquire [a] property interest greater tha[n] Cresencia Zuiga-Echague's. Anyway, the spouses Mariano and Emma Bolaos acquired Lot No. 1-P from Cresencia Zuiga-Echague on the very same day that Flavia A. Zuiga sold it to Cresencia Zuiga-Echague. The tax declaration over Lot No. 1-P at the time the spouses Mariano and Emma Bolaos acquired such lot speaks that its owners were Flavia A. Zuiga, sisters and brothers (Exhibit "G"). Awareness by the spouses Mariano and Emma Bolaos of such tax declaration while they were buying Lot No. 1-P, they knew that Flavia A. Zuiga was not the exclusive owner of Lot No. 1-P at the time they purchased it. 23 CaHcET Considering that Roman died on August 9, 1976, the provisions of the Civil Code on succession, then the law in force, should apply, particularly Articles 979 and 980, viz. Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. . . . . Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. Thus, the RTC correctly ruled that Lot No. 1-P rightfully belongs to the 11 children of Roman, seven (7) from his first marriage with Flavia and four (4) from his second marriage with Ceferina, in equal shares. As there was no partition among Roman's children, the lot was owned by them in common. And inasmuch as Flavia did not successfully repudiate her sale of her aliquot share to Cresencia, the transfer stands as valid and effective. Consequently, what Cresencia sold to petitioner spouses was her own share and Flavia's share in the property that she acquired by virtue of the notarized deed of sale, which is only 2/11 of Lot No. 1-P. Therefore, the restitution of the property in excess of that portion by petitioner spouses is clearly warranted. ADcHES

Indeed, the findings of the trial court, with respect to the operative facts and the credibility of witnesses, especially when affirmed by the appellate court, are accorded the highest degree of deference and respect by this Court, except when: (1) the findings of a trial court are grounded entirely on speculations, surmises, or conjectures; (2) a lower court's inference from its factual findings is manifestly mistaken, absurd, or impossible; (3) there is grave abuse of discretion in the appreciation of facts; (4) the findings of the court go beyond the issues of the case or fail to notice certain relevant facts which, if properly considered, will justify a different conclusion; (5) there is misapprehension of facts; and (6) the findings of fact are conclusions without mention of the specific evidence on which they are based are premised on the absence of evidence, or are contradicted by evidence on record. 24 Notably, none of these exceptions is attendant in this case. WHEREFORE, the petition is DENIED. Accordingly, the Decision dated March 30, 2007 and the Resolution dated November 26, 2007 of the Court of Appeals in C.A. G.R. CV No. 84452 are AFFIRMED. Costs against petitioners. SO ORDERED. SEIcAD 2. Estate of an illegitimate decedent a. Legitimate children and descendants, 903, 987-994 b. Illegitimate children and descendants, 990, 992 Diaz v IAC, 150 SCRA 645 De la Puerta v CA, 181 SCRA 861 FIRST DIVISION [G.R. No. 77867. February 6, 1990.] ISABEL DE LA PUERTA, petitioner, vs. THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, respondents. Isabel de la Puerta for and in her own behalf. Gilbert D. Camaligan for private respondent. DECISION CRUZ, J p: The basic issue involved in this case is the filiation of private respondent Carmelita de la Puerta, who claims successional rights to the estate of her alleged grandmother. Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving children, namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta. Isabel was given the free portion in addition to her legitime and was appointed executrix of the will. 1 The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was already senile at the time of the execution of the

will and did not fully comprehend its meaning. Moreover, some of the properties listed in the inventory of her estate belonged to them exclusively. 2 Meantime, Isabel was appointed special administratrix by the probate court. 3 Alfredo subsequently died, leaving Vicente the lone oppositor. 4 On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to adopt Carmelita de la Puerta. After hearing, the petition was granted. 5 However, the decision was appealed by Isabel to the Court of Appeals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case. 6 On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the payment to her of a monthly allowance as the acknowledged natural child of Vicente de la Puerta. 7 At the hearing on her motion, Carmelita presented evidence to prove her claimed status to which Isabel was allowed to submit counter-evidence. LLpr On November 12, 1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her support. The court added that "the evidence presented by the petitioner against it (was) too weak to discredit the same." 8 On appeal, the order of the lower court was affirmed by the respondent court, 9 which is now in turn being challenged in this petition before us. The petitioner's main argument is that Carmelita was not the natural child of Vicente de la Puerta, who was married to Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanito Austrial and Gloria Jordan. Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate child of Juanito Austrial and Gloria Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of Vicente de la Puerta because he was already married at the time of her birth in 1962. To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan. According to him, the two were living as husband and wife and had three children, including a girl named "Puti," presumably Carmelita. He said though that he was not sure if the couple was legally married. 10 Another witness, Genoveva de la Puerta, identified herself as Vicente de la Puerta's wife but said they separated two years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la Puerta in his house, which was only five or six houses away from where she herself was staying.

Genoveva said that the relationship between her husband and Gloria was well known in the community. 11 In finding for Carmelita, the lower court declared that: . . . By her evidence, it was shown to the satisfaction of the Court that she was born on December 18, 1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother is Gloria Jordan who were living as common law husband and wife until his death on June 14, 1978; that Vicente de la Puerta was married to, but was separated from, his legal wife Genoveva de la Puerta; that upon the death of Vicente de la Puerta on June 14, 1978 without leaving a last will and testament, she was the only child who survived him together with his spouse Genoveva de la Puerta with whom he did not beget any child; that she was treated by Vicente de la Puerta as a true child from the time of her birth until his father died; that the fact that she was treated as a child of Vicente de la Puerta is shown by the family pictures showing movant with Vicente de la Puerta (Exhs. D, D-1 and D-2) and school records wherein he signed the report cards as her parent (Exh. E and E-1); that during the hearing of her adoption case in Special Proceeding No. 0041 in Branch V of this Court at Mauban, Quezon, Vicente de la Puerta categorically stated in court that Carmelita de la Puerta is his daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de la Puerta during his lifetime who spent for her subsistence, support and education; . . . . 12 This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid down in a long line of decisions that will justify reversal. 13 Among these circumstances are: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. cdll The petitioner insists on the application of the following provisions of the Civil Code to support her thesis that Carmelita is not the natural child of Vicente de la Puerta but the legitimate child of Juanito Austrial and Gloria Jordan: Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: (1) By the impotence of the husband; (2) By the fact that the husband and wife were living separately, in such a way that access was not possible; (3) By the serious illness of the husband. Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. These rules are in turn based on the presumption that Juanito and Gloria were married at the time of Carmelita's birth in 1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court, providing that: Sec. 5. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (bb) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; But this last-quoted presumption is merely disputable and may be refuted with evidence to the contrary. As the Court sees it, such evidence has been sufficiently established in the case at bar. The cases 14 cited by the petitioner are not exactly in point because they involve situations where the couples lived continuously as husband and wife and so could be reasonably presumed to be married. In the case before us, there was testimony from Vicente's own wife that her husband and Gloria lived together as a married couple, thereby rebutting the presumption that Gloria was herself the lawful wife of Juanito Austrial. Such testimony would for one thing show that Juanito and Gloria did not continuously live together as a married couple. Moreover, it is not explained why, if he was really married to her, Juanito did not object when Gloria left the conjugal home and started openly consorting with Vicente, and in the same neighborhood at that. That was unnatural, to say the least. It was different with Genoveva for she herself swore that she had separated from Vicente two years after their marriage and had long lost interest in her husband. In fact, she even renounced in open court any claim to Vicente's estate. 15 The presumption of marriage between Juanito and Gloria having been destroyed, it became necessary for the petitioner to submit additional proof to show that the two were legally married. She did not. LexLib

Turning now to the evidence required to prove the private respondent's filiation, we reject the petitioner's contention that Article 278 of the Civil Code is not available to Carmelita. It is error to contend that as she is not a natural child but a spurious child (if at all) she cannot prove her status by the record of birth, a will, a statement before a court of record, or any authentic writing. On the contrary, it has long been settled that: The so-called spurious children or illegitimate children other than natural children, commonly known as bastards, include adulterous children or those born out of wedlock to a married woman cohabiting with a man other than her husband or to a married man cohabiting with a woman other than his wife. They are entitled to support and successional rights (Art. 287, CC). But their filiation must be duly proven. (Ibid, Art. 887) How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the paternity or maternity of spurious children under the circumstances specified in Articles 283 and 284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children are applicable to spurious children. Spurious children should not be in a better position than natural children. The rules on proof of filiation of natural children or the rule on voluntary and compulsory acknowledgment for natural children may be applied to spurious children. 16 This being so, we need not rule now on the admissibility of the private respondent's certificate of birth as proof of her filiation. That status was sufficiently established by the sworn testimony of Vicente de la Puerta at the hearing of the petition for adoption on September 6, 1976, where he categorically declared as follows: Q What relation if any do you have with Carmelita de la Puerta? A She is my daughter. 17 Finally, we move to the most crucial question, to wit: May Carmelita de la Puerta claim support and successional rights to the estate of Dominga Revuelta? According to Article 970 of the Civil Code: 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. The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not predecease his mother; and the second is that Carmelita is a spurious child. LibLex It is settled that In testamentary succession, the right of representation can take place only in the following cases: first, when the person represented dies before the testator; second, when the person represented is incapable of succeeding the testator; and third,

when the person represented is disinherited by the testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the children or descendants of the person represented to succeed by right of representation. 18 xxx xxx xxx The law is clear that there is representation only when relatives of a deceased person try to succeed him in his rights which he would have had if still living. In the present case, however, said deceased had already succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of the death of the testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's) death. And upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to succeed to the legacy. . . . In other words, the herein petitioners-appellants are not trying to succeed to the right to the property of the testatrix, but rather to the right of the legatee Reynaldo Cuison in said property. 19 Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his own right. No right of representation was involved, nor could it be invoked by Carmelita upon her father's death, which came after his own mother's death. It would have been different if Vicente was already dead when Dominga Revuelta died. Carmelita could then have inherited from her in representation of her father Vicente, assuming the private respondent was a lawful heir. But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from Dominga because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and illegitimate families. This article provides quite clearly: 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. Applying this rule in Leonardo v. Court of Appeals, 20 this Court declared: . . . even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when he was born, his alleged putative father and mother were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes. The reason for this rule was explained in the recent case of Diaz v. Intermediate Appellate Court, 21 thus:

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 purpose of Article 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 ground of resentment." 22 Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for there would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed out by Dr. Arturo M. Tolentino: If the adopting parent should die before the adopted child, the latter cannot represent the former in the inheritance from the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because the filiation created by fiction of law is exclusively between the adopter and the adopted. "By adoption, the adopters can make for themselves an heir, but they cannot thus make one for their kindred." 23 The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should therefore be filed in the proceedings for the settlement of her own father's estate 24 and cannot be considered in the probate of Dominga Revuelta's will. WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with costs against the private respondent. It is so ordered. llcd Suntay v Cojuangco, 621 SCRA 142 SECOND DIVISION [G.R. No. 183053. June 16, 2010.] IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-SUNTAY; EMILIO A.M. SUNTAY III, petitioner, vs. ISABEL COJUANGCO-SUNTAY, respondent. DECISION NACHURA, J p: Unlike Pope Alexander VI 1 who, faced with the impasse between Spain and Portugal, deftly and literally divided the exploration, or more appropriately, the

riches of the New World by issuing the Inter Caetera, 2 we are confronted with the difficult, albeit, all too familiar tale of another family imbroglio over the estate of a decedent. 3 IcTCHD This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 74949, 4 reversing the decision of the Regional Trial Court (RTC), Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. 5 Before anything else, we disentangle the facts. On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death, Cristina was survived by her husband, Federico, and several grandchildren, including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio I's marriage to Isabel Cojuangco was subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Taedo (Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively. Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old, by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged natural child of Emilio I and was likewise brought up by the spouses Federico and Cristina. EIDaAH As previously adverted to, the marriage between Emilio I and Isabel was annulled. 6 Consequently, respondent and her siblings Margarita and Emilio II, lived with their mother on Balete Drive, Quezon City, separately from their father and paternal grandparents. Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights over his grandchildren: respondent Isabel, Margarita, and Emilio II. Although the Juvenile and Domestic Relations Court in Quezon City granted the petition and allowed Federico one hour of visitation monthly, initially reduced to thirty minutes, it was altogether stopped because of a manifestation filed by respondent Isabel, articulating her sentiments on the unwanted visits of her grandparents. Significantly, Federico, after the death of his spouse, Cristina, or on September 27, 1993, adopted their illegitimate grandchildren, Emilio III and Nenita. 7 On October 26, 1995, respondent filed a petition for the issuance of letters of administration in her favor, containing the following allegations:

[A]t the time of [the decedent's] death, [she] was a resident of the Municipality of Hagonoy, Province of Bulacan; that the [decedent] left an estate of real and personal properties, with a probable gross value of P29,000,000.00; that the names, ages and residences of the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89 years old, surviving spouse and a resident of . . .; (2) Isabel CojuangcoSuntay, 36 years old, legitimate granddaughter and a resident of . . .; (3) Margarita Cojuangco-Suntay, 39 years old, legitimate granddaughter and a resident of . . .; and (4) Emilio Cojuangco-Suntay, 35 years old, legitimate grandson and a resident of . . .; and that as far as [respondent] knew, the decedent left no debts or obligation at the time of her death. 8 AaDSEC Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico filed his opposition on December 21, 1995, alleging, among others, that: [B]eing the surviving spouse of Cristina, he is capable of administering her estate and he should be the one appointed as its administrator; that as part owner of the mass of conjugal properties left by Cristina, he must be accorded legal preference in the administration thereof; that Isabel and her family had been alienated from their grandparents for more than thirty (30) years; that the enumeration of heirs in the petition was incomplete as it did not mention the other children of his son[,] namely: Emilio III and Nenita S. Taedo; that he is better situated to protect the integrity of the estate of Cristina as even before the death of his wife[,] he was already the one who managed their conjugal properties; that the probable value of the estate as stated in the petition was grossly overstated (sic); and that Isabel's allegation that some of the properties are in the hands of usurpers is untrue. 9 Meanwhile, after a failed attempt by the parties to settle the proceedings amicably, Federico filed a Manifestation dated March 13, 1999, nominating his adopted son, Emilio III, as administrator of the decedent's estate on his behalf, in the event he would be adjudged as the one with a better right to the letters of administration. HcDaAI Subsequently, the trial court granted Emilio III's Motion for Leave to Intervene considering his interest in the outcome of the case. Emilio III filed his OppositionIn-Intervention, which essentially echoed 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. Additionally, Emilio III averred his own qualifications that: "[he] is presently engaged in aquaculture and banking; he was trained by the decedent to work in his early age by involving him in the activities of the Emilio Aguinaldo Foundation which was established in 1979 in memory of her grandmother's father; the significant work experiences outside the family group are included in his curriculum vitae; he was employed by the oppositor [Federico] after his graduation

in college with management degree at F.C.E. Corporations and Hagonoy Rural Bank; . . . ." 10 In the course of the proceedings, on November 13, 2000, Federico died. After the testimonies of both parties' witnesses were heard and evidence on their respective allegations were adduced, the trial court rendered a decision on November 9, 2001, appointing herein petitioner, Emilio III, as administrator of decedent Cristina's intestate estate, to wit: WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the Opposition[-]in[-]Intervention is GRANTED. Accordingly, the Intervenor, Emilio A.M. Suntay, III 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 P200,000.00, conditioned as follows: TSIEAD (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. SO ORDERED. 11 Aggrieved, respondent filed an appeal before the CA, which 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 intestate estate of the decedent, Cristina, to wit: 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. 117M-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 (P200,000.00) Pesos. cDAISC No pronouncement as to costs. SO ORDERED. 12 The motion for reconsideration of Emilio III having been denied, he appeals by certiorari to this Court, raising the following issues:

A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF RULE 78 OF THE RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE DECEDENT AND HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF THE DECEDENT'S ESTATE. 13 In ruling against the petition of herein respondent, the RTC ratiocinated, thus: Evidence objectively assessed and carefully evaluated, both testimonial and documentary, the court opines that it is to the best interest of the estate of the decedent and all claimants thereto, that the Intervenor, Emilio A.M. Suntay III, be appointed administrator of the estate in the above-entitled special proceedings. HEacDA Based on the evidence and demeanor of the parties in court, [respondent's immediate] family and that of the decedent are apparently estranged. The root cause of which, is not for this court to ascertain nor is this the right time and the proper forum to dwell upon. What matters most at this time is the welfare of the estate of the decedent in the light of such unfortunate and bitter estrangement. The Court honestly believes that to appoint the petitioner would go against the wishes of the decedent who raised [Emilio III] from infancy in her home in Baguio City as her own child. Certainly, it would go against the wishes of the surviving spouse . . . who nominated [Emilio III] for appointment as administrator. As between [respondent] and the oppositor [Federico], the latter is accorded preference as the surviving spouse under Sec 6(a), Rule 78, Rules of Court. On the basis of such preference, he vigorously opposed the appointment of the petitioner and instead nominated [Emilio III], his grandchild and adopted child. Such nomination, absent any valid and justifiable reason, should not be imperiously set aside and insouciantly ignored, even after the oppositor [Federico] has passed away, in order to give effect to the order of preference mandated by law. Moreover, from the viewpoint of the estate, the nomination of [Emilio III] appear[s] intrinsically meritorious. For the benefit of the estate and its claimants, creditors, as well as heirs, the administrator should be one who is prepared, academically and by experience, for the demands and responsibilities of the position. While [respondent], a practicing physician, is not unqualified, it is clear to the court that when it comes to management of real estate and the processing and payment of debts, [Emilio III], a businessman with an established track record as a manager has a decided edge and therefore, is in a position to better handle the preservation of the estate. 14 AEIcSa

In marked contrast, the CA zeroed in on Emilio III's status as an illegitimate child of Emilio I and, thus, barred from representing his deceased father in the estate of the latter's legitimate mother, the decedent. On the whole, the CA pronounced that Emilio III, who was merely nominated by Federico, and which nomination hinged upon the latter's appointment as administrator of the decedent's estate, cannot be appointed as the administrator of the decedent's estate for the following reasons: 15 1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federico's appointment as administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico before his appointment as administrator of Cristina's estate rendered his nomination of Emilio III inoperative; 2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedent's son, Emilio I, respondent is preferred, being the "next of kin" referred to by Section 6, Rule 78 of the Rules of Court, and entitled to share in the distribution of Cristina's estate as an heir; 3. Jurisprudence has consistently held that Article 992 16 of the Civil Code bars the illegitimate child from inheriting ab intestato from the legitimate children and relatives of his father or mother. Thus, Emilio III, who is barred from inheriting from his grandmother, cannot be preferred over respondent in the administration of the estate of their grandmother, the decedent; and THIcCA 4. Contrary to the RTC's finding, respondent is as much competent as Emilio III to administer and manage the subject estate for she possesses none of the disqualifications specified in Section 1, 17 Rule 78 of the Rules of Court. The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to act as administrator of the decedent's estate. We cannot subscribe to the appellate court's ruling excluding Emilio III in the administration of the decedent's undivided estate. Mistakenly, the CA glosses over several undisputed facts and circumstances: 1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and presumed will of the decedent, absent a valid and effective will; 2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule, 18 is quite the opposite scenario in the facts obtaining herein for the actual relationship between Federico and Cristina, on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate relatives; 3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both acknowledged him as their grandchild; aTEAHc 4. 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;

5. Cristina's properties forming part of her estate are still commingled with that of her husband, Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains undetermined and unliquidated; and 6. 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, not simply representing his deceased illegitimate father, Emilio I. From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration of the decedent's estate. As Federico's adopted son, Emilio III's interest in the estate of Cristina is as much apparent to this Court as the interest therein of respondent, considering that the CA even declared that "under the law, [Federico], being the surviving spouse, would have the right of succession over a portion of the exclusive property of the decedent, aside from his share in the conjugal partnership." Thus, we are puzzled why the CA resorted to a strained legal reasoning Emilio III's nomination was subject to a suspensive condition and rendered inoperative by reason of Federico's death wholly inapplicable to the case at bar. HIAEcT Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an estate: 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 no such creditor competent and willing to serve, it may be granted to such other person as the court may select. However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each case. 19 Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial court. 20 In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration by both respondent and Emilio III of their grandmother's, Cristina's, estate. DHITcS In the case of Uy v. Court of Appeals, 21 we upheld the appointment by the trial court of a co-administration between the decedent's son and the decedent's brother,

who was likewise a creditor of the decedent's estate. In the same vein, we declared in Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian 22 that: [i]n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. Similarly, the subject estate in this case calls to the succession other putative heirs, including another illegitimate grandchild of Cristina and Federico, Nenita Taedo, but who was likewise adopted by Federico, and the two (2) siblings of respondent Isabel, Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs, and the unliquidated conjugal partnership of Cristina and Federico which forms part of their respective estates, we are impelled to move in only one direction, i.e., joint administration of the subject estate. One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the successional bar between the legitimate and illegitimate relatives of a decedent, does not apply in this instance where facts indubitably demonstrate the contrary Emilio III, an illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by decedent's husband, the original oppositor to respondent's petition for letters of administration. ESTDcC We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the bone of contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes: 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 not 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--vis illegitimate children. 23 Manresa explains the basis for the rules on intestate succession: TcADCI The law [of intestacy] is founded . . . on the presumed will of the deceased . . . Love, it is said, first descends, then ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased would have done so had he manifested his last will . . . Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or educational institutions, and thus contribute to the welfare of humanity. 24 Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e., love first descends, for the decedent, Cristina, did not distinguish between her legitimate and illegitimate grandchildren. Neither did her husband, Federico, who, in fact, legally raised the status of Emilio III from an illegitimate grandchild to that of a legitimate child. The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between legitimate and illegitimate descendants of a deceased. 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. aTEADI Our holding in Capistrano v. Nadurata 25 on the same issue remains good law: [T]he 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. . . . . 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. 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. cDCSTA SO ORDERED. SPECIAL SECOND DIVISION [G.R. No. 183053. October 10, 2012.] EMILIO A.M. SUNTAY III, petitioner, vs. ISABEL COJUANGCO-SUNTAY, respondent. RESOLUTION PEREZ, J p: 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. cEaCTS Before us is a Motion for Reconsideration filed by respondent Isabel CojuangcoSuntay (respondent Isabel) of our Decision 2 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. TAcCDI 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: cEaSHC 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: ICHDca Art. 95. (sic) A marriage may be annulled for any of the following causes after (sic) existing at the time of the marriage: xxx xxx xxx (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. CHcTIA 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. aITDAE 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. AScHCD 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 P200,000.00, conditioned as follows: (1) To make and return within three (3) months, a true and complete inventory; ISTDAH (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. 117M-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 (P200,000.00) 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: TaHIDS 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. caTIDE 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. HSIaAT 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; THaDAE

(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. aTSEcA 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 decedent 12 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 coadministrators 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 ". . . [w]hen an executor or administrator dies, resigns, or is removed, the remaining executor or administrator may administer the trust alone, . . . ." 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. Ventura 21 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: IADCES 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. Garcia 24 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. EHSADc 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 estate in 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. DHSACT 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." caHASI 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: IcDHaT 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 pass[ed] 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 coadministration thereof. We are led to a review of such position by the foregoing survey of cases. cDIaAS 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 Court 32 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. cECaHA 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: AHDaET 1. Emilio III, despite several orders from the probate court for a complete inventory, omitted in the partial inventories 34 he filed therewith properties of the estate 35 including several parcels of land, cash, bank deposits, jewelry, shares of stock, motor vehicles, and other personal properties, contrary to Section 1, 36 paragraph 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; DTISaH 2. [T]he inventory [Emilio III] submitted did not include several properties of the decedent; 3. [T]hat properties belonging to the decedent have found their way to different individuals or persons; several properties to Federico Suntay himself; and

4. [W]hile 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 "[t]he 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 STIHaE 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 . . . 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. HESCcA 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. 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: ECDAcS xxx xxx xxx 4. Section 6 40 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 10 41 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. AEIDTc 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: [T]he 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. aSTcCE 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. . . . . 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 Comment 46 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: DEIHSa 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. AaEcHC 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. SDHacT SO ORDERED. B. Surviving Spouse 995-1002 Santillon v Miranda, 14 SCRA 563 EN BANC [G.R. No. L-19281. June 30, 1965.] IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO SATILLON, CLARO SANTILLON, petitioner-appellant, vs. PERFECTA MIRANDA, BENITO U. MIRANDA and ROSARIO CORRALES, oppositors-appellees. Clodualdo P. Surio and Claro Santillon (in his own behalf) for petitioner-appellant. Patricio M. Patajo for oppositors-appellees. SYLLABUS 1. APPEALS IN SPECIAL PROCEEDINGS; ORDER OF COURT DETERMINING DISTRIBUTIVE SHARE OF HEIRS APPEALABLE. An order of the Court of First Instance which determines the distributive shares of the heirs of a deceased person is appealable. 2. SUCCESSION; SURVIVING SPOUSE CONCURRING WITH A LEGITIMATE CHILD ENTITLED TO ONE-HALF OF THE INTESTATE ESTATE. When intestacy occurs, a surviving spouse concurring with only one legitimate child of the deceased is entitled to one-half of the estate of the deceased spouse under Article 996 of the Civil Code. DECISION BENGZON, J p: This is an appeal from the order of the Court of First Instance of Pangasinan, specifying the respective shares of the principal parties herein in the intestate estate of Pedro Santillon.

On November 21, 1953, Santillon died without testament in Tayug, Pangasinan, his residence, leaving one son Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired several parcels of land located in that province. About four years after his death, Claro Santillon filed a petition for letters of administration. Opposition to said petition was entered by the widow Perfecta Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following grounds: (a) that the properties enumerated in the petition were all conjugal, except three parcels which Perfecta Miranda claimed to be her exclusive properties; (b) that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided share in most of the properties enumerated in the petition to said spouses Benito and Rosario; (c) that administration of the estate was not necessary, there being a case for partition pending; and (d) that if administration was necessary at all, the oppositor Perfecta Miranda and not the petitioner was better qualified for the post. It appears that subsequently, oppositor Perfecta Miranda was appointed administratrix of the estate. On March 22, 1961, the court appointed commissioners to draft within sixty days, a project of partition and distribution of all the properties of the deceased Pedro Santillon. On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs" and to resolve the conflicting claims of the parties with respect to their respective rights in the estate. Invoking Art. 892 of the New Civil Code, he insisted that after deducting 1/2 from the conjugal properties as the conjugal share of Perfecta, the remaining 1/2 must be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta, on the other hand, claimed that besides her conjugal half, she was entitled under Art. 996 of the New Civil Code, to another 1/2 of the remaining half. In other words, Claro claimed 3/4 of Pedro's inheritance, while Perfecta claimed 1/2. After due notice and hearing, the court, on June 28, 1961, issued an order, the dispositive portion of which reads: "IN VIEW OF THE FOREGOING CONSIDERATIONS it is hereby ruled and ordered that in the intestate succession of the deceased Pedro Santillon, the surviving spouse Perfecta Miranda shall inherit ONE-HALF (1/2) share and the remaining ONE-HALF (1/2) share for the only son, Atty. Claro Santillon. This is after deducting the share of the widow as co-owner of the conjugal properties. . . ." From this order, petitioner Claro Santillon has appealed to this Court. Two questions of law are involved. The first, raised in Perfecta's Motion to Dismiss Appeal, is whether the order of the lower court is appealable. And the second, raised in appellant's lone assignment of error, is: How shall the estate of a person who dies intestate be divided when the only survivors are the spouse and one legitimate child?

The First Issue: It is clear that the order of the lower court is final and therefore appealable to this Court. Under Rule 109, sec. 1, a person may appeal in special proceedings from an order of the Court of First Instance where such order determines . . ."the distributive share of the estate to which such person is entitled." The Second Issue: Petitioner rests his claim to 3/4 of his father's estate on Art. 892, of the New Civil Code which provides that: "If only the legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. . . .' As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand, cites Art. 996 which provides: "If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children." Replying to Perfecta's claim, Claro says the article is unjust and inequitable to the extent that it grants the widow the same share as that of the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the plural word "children" includes the singular, "child". Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Such being the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art. 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of shares that such child and spouse are entitled to when intestacy occurs. Because if the latter happens, the pertinent provision on intestate succession shall apply; i. e. Art. 996. Some commentators of our New Civil Code seem to support Claro's contention; at least, his objection to fifty-fifty sharing. But others confirm the half and half idea of the Pangasinan court. This is, remember, intestate proceedings. In the New Civil Code's chapter in legal or intestate succession, the only article applicable is Art. 996. Our colleague Mr. Justice J. B. L. Reyes, professor of Civil Law, is quoted as having expressed the opinion that under this article, when the widow survives with only one legitimate

child, they share the estate in equal parts. 1 Senator Tolentino in his commentaries writes as follows: "One child Surviving. If there is only one legitimate child surviving with the spouse, since they share equally, one-half of the estate goes to the child and the other half goes to the surviving spouse. Although the law refers to "children or descendants," the rule in statutory construction that the plural can be understood to include the singular is applicable in his case." (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.) The theory of those holding otherwise, seems to be premised on these propositions: (a) Art. 996 speaks of "children," therefore it does not apply when there is only one "child"; consequently Art. 892 (and Art. 888) should be applied, thru a process of judicial construction and analogy; (b) Art. 996 is unjust or unfair because whereas in testate succession, the widow is assigned one-fourth only (Art. 892), she would get 1/2 in intestate. A. Children: It is a maxim of statutory construction that words in plural include the singular. 2 So Art. 996 could or should be read (and so applied): "if the widow or widower and a legitimate child are left, the surviving spouse has the same share as that of the child." Indeed, if we refuse to apply the article to this case on the ground that "child" is not included in "children", the consequences would be tremendous, because "children" will not include "child" in the following articles: Art. 887. The following are compulsory heirs: (1) legitimate children and descendants . . . ART. 888. The legitime of legitimate children and descendants consists of onehalf of the hereditary estate . . . ART. 896. Illegitimate children who may survive . . . are entitled to one-fourth of the hereditary estate . . . (See also Art. 901.) In fact, those who say, "children" in Art. 996 does not include "child" seem to be inconsistent when they argue from the premise that "in testate succession the only legitimate child gets one-half and the widow, one-fourth." The inconsistency is clear, because the only legitimate child gets one-half under Art. 888, which speaks of "children", not "child". So if "children" in Art. 888 includes "child", the same meaning should be given to Art. 996. B. Unfairness of Art. 996. Such position, more clearly stated is this: In testate succession, where there is only one child of the marriage, the child gets onehalf, and the widow or widower one-fourth. But in intestate, if Art. 996 is applied now, the child gets one-half, and the widow or widower one-half. Unfair or inequitable, they insist. On this point, it is not correct to assume that in testate succession the widow or widower "gets only one-fourth." She or he may get one-half if the testator so

wishes. So, the law virtually leaves it to each of the spouses to decide (by testament) whether his or her only child shall get more than his or her survivor. Our conclusion (equal shares) seems a logical inference from the circumstance that whereas Article 834 of the Spanish Civil Code, from which Art. 996 was taken, contained two paragraphs governing two contingencies, the first, where the widow or widower survives with legitimate children (general rule), and the second, where the widow or widower survives with only one child (exception), Art. 996 omitted to provide for the second situation, thereby indicating the legislator's desire to promulgate just one general rule applicable to both situations. The resultant division may be unfair as some writers explain, and this we are not called upon to discuss but it is the clear mandate of the statute, which we are bound to enforce. The appealed decision is affirmed. No costs in this instance. C. Ascending direct line 1. Legitimate parents and ascendants 985-987 2. Illegitimate parents 993 D. Collateral line 1003-1010 Bicomong v Almanza, 80 SCRA 421 FIRST DIVISION [G.R. No. L-37365. November 29, 1977.] 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. DECISION GUERRERO, J p: 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 in 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. LexLib 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 1Manese) and her father Geronimo Almanza." (Rollo, pp. 2-3) The subject matter of the complaint in Civil Case No. SP-265 concerns the onehalf 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 Bernandino 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. sq. m. Bounded on the N. by Jacinto Alvero, Anacleto Glorioso and Bernandino Alina; on the E. by Bernandino Alina; 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) Francisca 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: cdll "Art. 975. When children of one or more brothers or sisters of the 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 descendants, 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. In Abellana-Bacayo vs. Ferraris-Borromeo, L-19382, August 31, 1965, 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 nieces of half blood. The only difference in their right of succession is provided in Art. 1008, N.C.C., 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. Melania 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). prcd 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, N.C.C., 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. Abellana v Borromeo, 14 SCRA 986 EN BANC [G.R. No. L-19382. August 31, 1965.]

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELOIDA FARRARIS. FILOMENA ABELLANA DE BACAYO, petitioner-appellant, vs. GAUDENCIA FERRARIS DE BORROMEO, CATALINA FERRARIS DE VILLEGAS, JUANITO FERRARIS and CONCHITA FERRARIS, oppositors-appellees. Mateo C. Bacalso and Cesar A. Kintanar for petitioner-appellant. Gaudioso Sosmea and C. Tomakin for oppositors-appellees. SYLLABUS 1. SUCCESSION; INTESTACY; COLLATERAL RELATIVES EXCLUDED BY NEPHEWS AND NIECES. A decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. 2. ID.; ID.; WHEN COLLATERALS ENTITLED TO SUCCESSION. The absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. (Art. 1009 Civil Code.) 3. ID.; ID.; DEGREE OF RELATIONSHIP OF COLLATERAL RELATIVES TO THE DECEASED. An aunt of the deceased is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong, degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code Art. 966). 4. ID.; ID.; WHEN NEPHEWS AND NIECES INHERIT BY RIGHT OF REPRESENTATION. Nephews and nieces alone do not inherit by right of representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased. DECISION REYES, J.B.L., J p: This is a pauper's appeal, directly brought to this Court on points of law, from a resolution, dated September 20, 1961, excluding petitioner-appellant herein, Filomena Abellana de Bacayo, as heir in the summary settlement of the estate of Melodia Ferraris, Special Proceeding No. 2177-R of the Court of First Instance of Cebu, Third Branch, as well as from the order, dated October 16, 1961, denying a motion to reconsider said resolution. The facts of this case are not disputed by the parties. Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to Intramuros, Manila. She was known to have resided there continuously until 1944. Thereafter, up to the filing on December 22, 1960 of the petition for the summary settlement of her estate, she has not been heard of and her whereabouts are still unknown. More than ten (10) years having elapsed since the last time she was

known to be alive, she was declared presumptively dead for purposes of opening her succession and distributing her estate among her heirs. Melodia Ferraris left properties in Cebu City, consisting of one third (1/3) share in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and which was adjudicated to her in Special Proceeding No. 13-V of the same court. The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or spouse, but was survived only by collateral relatives, namely, Filomena Abellana de Bacayo, an aunt, and half- sister of decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces and nephew, who were the children of Melodia's only brother of full blood, Arturo Ferraris, who pre-deceased her (the decedent). These two classes of heirs claim to be the nearest intestate heirs and seek to participate in the estate of said Melodia Ferraris. The following diagram will help illustrate the degree of relationship of the contending parties to said Melodia Ferraris: The sole issue to be resolved in this case is: Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit: an aunt and the children of a brother who predeceased him or her? Otherwise, will the aunt concur with the children of the decedent's brother in the inheritance or will the former be excluded by the latter? The trial court ruled that the oppositors-appellees, as children of the only predeceased brother of the decedent, exclude the aunt (petitioner-appellant) of the same decedent, reasoning out that the former are nearer in degree (two degrees) than the latter since nieces and nephew succeed by right of representation, while petitioner- appellant is three degrees distant from the decedent, and that other collateral relatives are excluded by brothers or sisters, or children of brothers or sisters of the decedent in accordance with article 1009 of the New Civil Code. Against the above ruling, petitioner-appellant contends in the present appeal that she is of the same or equal degree of relationship as the oppositors-appellees, three degrees removed from the decedent; and that under article 975 of the New Civil Code no right or representation could take place when the nieces and nephew of the decedent do not concur with an uncle or aunt, as in the case at bar, but rather the former succeed in their own right. We agree with appellants that as an aunt of the deceased, she is as far distant as the nephews from the decedent (three degrees) since in the collateral line to which both kinds of relatives belong degrees are counted by first ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966). Appellant is likewise right in her contention that nephews and nieces alone do not inherit by

right of representation (i.e., per stirpes) unless concurring with brothers or sisters of the deceased, as provided expressly by Article 975: "ART. 975. When children of one or more brothers or sisters of the 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." Nevertheless, the trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines, that provided as follows: "ART. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half." "ART. 1004. Should the only survivors be, brothers and sisters of the full blood, they shall inherit in equal shares." "ART. 1005. Should brothers and sisters survive together with nephews and nieces who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes." "ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate." "The latter shall succeed without distinction of lines or preference among by reason of relationship by the whole blood." Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R. A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows: "ART. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce shall succeed to the entire estate of the deceased." "ART. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased. The latter shall succeed without distinction of lines or preference among them by reason of the whole blood." It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of

the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals. Appellants quote paragraph 2 of Tolentino's commentaries to Article 1009 of the present Civil Code as declaring that Article 1009 does not establish a rule of preference. Which is true as to "other collaterals", since preference among them is according to their proximity to the decedent, as established by Article 962, paragraph 1. "ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place." But Tolentino does not state that nephews and nieces concur with other collaterals of equal degree. On the contrary, in the first paragraph of his commentaries to Article 1009 (Vol. II, p. 439) (which counsel for appellants had unethically omitted to quote), Tolentino expressly states: "Other Collaterals. The last of the relatives of the decedent to succeed in intestate succession are the collaterals other than brothers or sisters or children of brothers or sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we can safely say, there is hardly any affection to merit the succession of collaterals. Under the law, therefore, persons beyond the fifth degree are no longer considered as relatives, for successional purposes. "Article 1009 does not state any order of preference. However, this article should be understood in connection with the general rule that the nearest relatives exclude the farther. Collaterals of the same degree inherit in equal parts, there being no right of representation. They succeed without distinction of lines or preference among them on account of the whole blood relationship." (Italics supplied) We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. The decision appealed from, in so far as it conforms to this rule, is hereby affirmed. No costs. E. The State 1011-1014

PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION XXI. Right of Accretion A. Concept - 1015-1017, 1019-1020 B. In legal succession 1018

C. Testamentary - 1022-1023

XXII. PARTITION AND DISTRIBUTION OF THE ESTATE A. Partition 1078-1090 [exclude NCC 1058-1060] Legasto v Verzosa, G.R. No. L-32344, March 31, 1930 EN BANC [G.R. No. 32344. March 31, 1930.] VIVENCIO LEGASTO, special administrator of the Intestate estate of Sabina Almadin, plaintiff-appellee, vs. MARIA VERZOSA, ET AL., defendantsappellants. Felipe Agoncillo, for appellants. Guevara, Francisco & Recto, for appellee. SYLLABUS 1. PARTITION "INTER VIVOS;" WHERE WILL VOID. The partition made by a testator inter vivos in pursuance of a will which has been disallowed is null and void. 2. DONATION OF REALTY, NULL AND VOID. The gift of realty made in a public instrument is null and void when the deed fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of gift and in the separate acceptance. DECISION VILLA-REAL, J p: This is an appeal taken by the defendants, Maria Verzosa et al., from the judgment of the Court of First Instance of Laguna, the dispositive part whereof is as follows:

"Wherefore, the court hereby orders the defendants to deliver to the plaintiff, as administrator of the estate of Sabina Almadin, the parcels of land described in paragraph 7 of his amended complaint (reply) dated January 5, 1929, as said paragraph is amended on pages 4 and 5 of the transcript of the stenographic notes, excluding the lots described in certificates of title Nos. 6557, 6558, and 6559 of the Laguna registry of deeds, which are hereby declared to be the absolute property of Victoria Verzosa, wife to Jose Carasco. Without express pronouncement as to costs." In support of their appeal, the appellants assign the following alleged as committed by the court below in its decision, to wit: "1. The court below erred in ordering the defendants to make delivery of the property in litigation to the plaintiff as special administrator of the decedent Sabina Almadin's intestate estate. "2. The court below erred in holding that public instruments 2, 31, 42, and 73, are deeds of gift of the property in litigation made by Sabina Almadin to the defendants. "3. The court below erred in holding that said donation is void per se, inasmuch as it does not appear upon said documents that the defendants accepted and acknowledged its acceptance to the donor, Sabina Almadin. "4. The court below erred in denying the defendants' motion for a new trial. "5. The court below erred in failing to hold that the defendants are the sole and lawful owners of the property in litigation." The relevant facts proved at the trial which are essential to the solution of the questions raised by the instant appeal are as follows: On May 13, 1925, Sabina Almadin executed a will (Exhibit A-2), devising certain parcels of land belonging to her, to her four nieces, Maria Verzosa, Oliva Verzosa, Toribia Verzosa, and Ruperta Palma, daughters of her sister Catalina Almadin, designating the parcels to be given to each. On August 8, 1925, Sabina Almadin partitioned her property among her aforesaid sister and nieces, executing a deed to her niece, Maria Verzosa, assigning and making over to her three parcels of her land therein described (Exhibit 2). On September 23, 1925, Maria Verzosa and Sabina Almadin

appeared before the deputy provincial assessor and municipal secretary of Bian, Laguna, and made two sworn statements, Exhibits 3 and 5, wherein the former stated that she had purchased the parcels of land described in the assignment Exhibit 2, from Sabina Almadin, and the latter in turn declared that she had sold them to Maria Verzosa, and that said vendee had already claimed them as her property for the payment of the land tax. On the same day, August 8, 1925, Sabina Almadin executed a deed (Exhibit 31) in favor of her niece Oliva Verzosa, assigning to her two parcels of land described in said instrument, and on October 14, 1925, assignor and assignee appeared before the aforesaid deputy provincial assessor and municipal secretary of Bian, Laguna, and subscribed two sworn statements (Exhibits 32 and 34), the former stating that she had sold the two parcels of land described in the deed of assignment, Exhibit 31, to the latter, and the latter in turn stating that she had purchased of the former the same parcels of land, the ownership of which had already been claimed by Oliva Verzosa by a tax declaration in her own name on September 25, and October 13, 1925, respectively. On the said day August 8, 1925, Sabina Almadin executed a deed, Exhibit 45, in favor of her niece Toribia Verzosa, assigning to her the four parcels of land therein described; and on September 23, 1925, assignor and assignee appeared before the aforesaid deputy provincial assessor and municipal secretary of Bian Laguna, and subscribed a sworn statement, Exhibit 48, the former stating that she had sold to Toribia Verzosa the parcel of land described therein (Exhibit 45), bearing tax registry No. 9765, and the latter stating that she had purchased said parcel of the former and declared it to be her own property for the payment of the land tax. Again on the said day, August 8, 1925, Sabina Almadin executed a deed (Exhibit 73) to her niece Ruperta Palma assigning to her three parcels of land described therein; and on September 23, 1925, assignor and assignee appeared before the deputy provincial assessor and municipal secretary of Bian, Laguna, and subscribed two sworn statements (Exhibits 74 and 76) wherein the former stated that she had sold to the latter the parcels of land described in the deed of assignment (Exhibit 73) and the latter stated that she had purchased said parcels of the former, and had declared them to be her own property for the payment of the land tax (Exhibits 75 and 77). The assignees, Maria Verzosa, Toribia Verzosa, Oliva Verzosa, and Ruperta Palma, took possession of their respective parcels thus ceded by Sabina

Almadin, and have to this day been cultivating them as exclusive owners thereof. Sabina Almadin passed away on February 22, 1926 and on March 12th of the same year, her sister, Catalina Almadin , represented by Attorney Federico Mario, propounded her will, Exhibit A-2, mentioned above, for probate. By virtue of the decision rendered by the Court of First Instance of Laguna on December 22, 1926 (Exhibit A-4), affirmed by this court on appeal (Exhibit D), said will was not admitted to probate. 1 Vivencio Legasto, then, the special administrator appointed by said Court of First Instance of Laguna to take charge of Sabina Almadin's estate, filed the complaint which originated this case, claiming the delivery of the parcels of land described in paragraph 7 of his aforesaid complaint as amended. The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces, the defendants and appellants herein, was valid and enforceable. Article 1056 of the Civil Code provides: "ART. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs." The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine: "Considering that the language of article 1056 cannot be interpreted to mean that a person may, be acts inter vivos, partition his property referred to in the section wherein said article is found, without the authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to their children the whole or a part of their property; "Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be entered into with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is

evident that said difference likewise leads to the conclusion that a partition thus made should be on the basis of a testamentary or legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would have to be done upon the death of the testator in order to carry into effect the partition of the estate among the persons interested." Manresa comments on the same article as follows: "A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will, must be understood in accordance with this distinction. The idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the properties to take effect after his death, and said act must necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to be effects thereof, which means that, for purposes of partition the formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special formalities required in case of donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of." It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely

donates his property in life and one who disposes of it by will to take effect after his death. Sabina Almadin must have been aware of the necessity of a prior will, since before making the partition of her property among her nieces, the defendants herein, she executed a will giving to each of them the same parcels of land which she later transferred to them gratuitously. Now, then, section 625 of the Code of Civil Procedure provides: "SEC. 625. Allowances 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." As Sabina Almadin's will was disallowed for the reason that it did not contain all the essential requisites provided by law for its validity, can the aforesaid partition of her estate made by said testatrix among her nieces be deemed valid? Certainly not; for it is an indispensable condition precedent to a testator partitioning his estate inter vivos that he have made a valid will disposing of said estate among his heirs; and if this will be declared null and void, the partition made by the testator in pursuance of its provisions is likewise null and void, for where these provisions cease to exist, the partition made in conformity therewith also becomes null and void, as the cessation of the cause implies the cessation of the effect. And since Sabina, Almadin's will is null and void for lack of the legal requisites, consequently, the partition which she made of her estate among her nieces the defendants-appellants herein, during her lifetime is likewise null and void. The second question to be decided is whether or not the conveyances made by Sabina Almadin of the parcels of land in litigation, in favor of her nieces, respectively, by virtue of the instruments Exhibits 2, 31, 47 and 73 can be considered valid and enforceable. Article 633 of the Civil Code provides that in order that a donation of real property be valid, it must be made by public instrument, in which the property donated must be specifically described, and that the acceptance may be made in the same deed of gift or in a separate instrument, but in the latter case notice

thereof should be given the donor in due form, and a note to that effect inserted in both instruments. There is no question that the documents Exhibits 2, 31, 42, and 73 contain all the requisites for public instruments. However, they do not show the acceptance of the respective donees. It is contended that the sworn statements Exhibits 3, 5, 32, 34, 48, 74, and 76 signed by Sabina Almadin in which it appears that she has assigned to each of her nieces, respectively, the parcels of land in litigation, and wherein each of said nieces states that she has purchased the same parcels of land from her aunt Sabina Almadin, constitute a gift and an acceptance at the same time. But it appears that said sworn statements refer to a sale and not to a gift and cannot, therefore, be considered as public instruments of gifts showing the acceptance of the donees. It is also contended that said sworn statements constitute separate deeds of acceptance; but even if that were so, there is still lacking the legal requisite of notification in due form to the donor of the donee's acceptance, and the annotation thereof in the deed of gift and in the instrument of acceptance. The formal notice calls for the agency of the same notary who authenticated the acceptance and he should under his authority make the annotation of said notice, as indicated (5 Manresa, pp. 120, 121). Furthermore, the aforesaid sworn statements are not deeds transferring title but mere acknowledgments made under oath of the fact of the transfer, required by the law in order that the provincial assessor may make the proper transfer of the tax declarations of the vendor to the vendee, where the transfer has not been recorded in the registry of deeds. In view of all the foregoing, we are of opinion and so hold: (1) That the partition made by a testator inter vivos in pursuance of a will which has been disallowed is null and void; and (2) that the gift of realty made in a public instrument which fails to show the acceptance, or wherein the formal notice of the acceptance is either not given to the donor or else not noted in the deed of gift and in the separate acceptance, is null and void. Wherefore, finding no error in the judgment appealed against the appellants. So ordered. Fajardov Fajardo,G.R. No. L-32195, August 19, 1930

EN BANC [G.R. No. 32195. August 19, 1930.] Intestate estate of the deceased spouses Magdaleno Fajardo and Candelaria Firmalino. PETRONILA FAJARDO, petitioner-appellee, vs. MELCHOR FAJARDO, opponent--appellant. Jose Altavas, for appellant. Arsenio R. Frial, for appellee. SYLLABUS 1. PARTITION OF PROPERTY; ACT "INTER VIVOS," AND LAST WILL AND TESTAMENT. If the partition in the instant case was made by an act inter vivos, it should have been reduced in writing (sec. 335, No. 5, Code of Civ. Proc.) in a public instrument (article 1280, Civil Code) because it was a conveyance of real estate; if by last will and testament, the legal requisites should have been observed. Neither appears in the record to have been done; therefore, no application can be made of the doctrines laid down in Fule vs. Fule (46 Phil., 317); Fule vs. Fule (52 Phil., 750); and Garcia vs. Tolentino (25 Phil., 102). Since in those cases neither the existence nor the formalities of the partition were raised, this court was under the necessity of holding that the partition was enforceable. DECISION ROMUALDEZ, J p: This is an appeal from the order of the Court of First Instance of Capiz dated May 15, 1929, granting the petition for judicial administration of the estate of the spouses Magdaleno Fajardo and Candelaria Firmalino, and appointing Juana Firmalino as administratrix of the estate. The questions raised by the appeal are found in the appellant's assignments of error following: "1. In overruling Melchor Fajardo's objection to the institution of intestate proceedings in connection with the estate of his deceased parents, Magdaleno

Fajardo and Candelaria Firmalino, and in not denying the application for administration and in not dismissing the proceedings. "2. In not permitting the opponent Melchor Fajardo to adduce evidence that each of the two heirs, Melchor Fajardo and Petronila Fajardo, had been in possession of realty formerly belonging to their parents, Magdaleno Fajardo and Candelaria Firmalino, for a prescriptive period. "3. In not permitting the opponent to adduce evidence that the distribution of their real estate made by the deceased parents of the applicant and the opponent between said two heirs, and of which each is in possession, was just and equitable." Appellant and appellee are brother and sister, and the sole heirs of the decedent spouses whose succession now engages our attention. While the appellant alleges that his father had long before death divided his estate between his children, the parties herein, the latter entering upon the possession and enjoyment thereof, the appellee denies any such partition. The evidence shows that the appellant took possession of certain lands belonging to his deceased father before the latter's death, paying the land tax and appropriating the fruits thereof for his own personal use. While the appellee, too, now holds certain land from the same predecessor, it has not been shown that such tenure dates back to her father's lifetime. And both she and her husband have testified that they took possession thereof only after her father's death. The record, then, does not bear out the allegation that the late Magdaleno Fajardo divided his estate between his two children who are the parties herein. At any rate, it does not appear that if such a partition was made, it was made in accordance with law and is therefore enforceable. There are only two ways in which said partition could have been made: By an act inter vivos, or by will. In either case there were formalities which must be followed. Manresa thus comments on articles 1056 et seq. of the Civil Code: "A testator may therefore partition his estate either by an act inter vivos or by will; that is, following the proper formalities of one, or the other of these acts." (Commentaries on the Spanish Civil Code, vol. VII, p. 694, 5th edition.)

If the partition was made by an act inter vivos, it should have been reduced in writing (sec. 335, No. 5, Code of Civ. Proc.) in a public instrument (article 1280, Civil Code) because it was a conveyance of real estate. If by last will and testament, the legal requisites should have been observed. Neither appears in the record to have been done. No application can therefore be made of the doctrines laid down in Fule vs. Fule (46 Phil., 317); Fule vs. Fule (52 Phil., 750); and Garcia vs. Tolentino (25 Phil., 102), where, neither the existence nor the formalities of the partition being in issue, the court was under the necessity of holding that the partition was enforceable. Finding no error in the judgment appealed from, the same is hereby affirmed, with costs against the appellant. So ordered. Tuason v Tuason, GR L-3404, April 2, 1951 EN BANC [G.R. No. L-3404. April 2, 1951.] ANGELA I. TUASON, plaintiff-appellant, vs. ANTONIO TUASON, JR., and GREGORIO ARANETA, INC., defendants-appellees. Alcuaz & Eiguren, for appellant. Araneta & Araneta, for appellees. SYLLABUS 1. COMMUNITY PROPERTY; PARTITION; RESCISSION. A contract among land co-owners wherein they agreed to fill their property, contract roads therein and then subdivide in into small lots for sale, the proceeds to be later divide among them, and to this end one of them was to finance the whole development and subdivision, to prepare a schedule of prices and conditions of sale subject to the approval of the other two co-owners, to sell the subdivided lots and execute the corresponding contracts with buyers, and to receive 50 per cent of the gross selling price of the lots and the rents that may be collected from the property while in the process of sale, the remaining 50 per cent to be divided in equal portions among the three co-owners, does not violate article 400 of the Civil Code. Far from violating the prohibition against a co-owner being obliged to remain a party to the community, the contract precisely has for its purpose and object the dissolution of the co-ownership and of the community by selling the parcel held in common and dividing the proceeds of the sale among the co-owners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been sold is a mere incident to the main object of dissolving the co-ownership. DECISION MONTEMAYOR, J p:

In 1941 the sisters Angela I. Tuason and Nieves Tuason de Barreto and their brother Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m. covered by Certificate of Title No. 60911 in Sampaloc, Manila, in common, each owning an undivided 1/3 portion. Nieves wanted and asked for a partition of the common property, but failing in this, she offered to sell her 1/3 portion. It seems that the objection to dividing the property was that it would lose in value by the proposed partition. The share of Nieves was offered for sale to her sister and her brother but both declined to buy it. The offer was later made to their mother but the old lady also declined to buy, saying that if the property later increased in value, she might be suspected of having taken advantage of her daughter. Finally, the share of Nieves was sold to Gregorio Araneta Inc., a domestic corporation, and a new Certificate of Title No. 61721 was issued in lieu of the old title No. 60911 covering the same property. The three co-owners agreed to have the whole parcel subdivided into small lots and then sold, the proceeds of the sale to be later divided among them. This agreement is embodied in a document (Exh. 6) entitled "Memorandum of Agreement" consisting of ten pages, dated June 30, 1941. Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio Araneta was acting as the attorney-in-fact and lawyer of the two co-owners, Angela I. Tuason and her brother Antonio Tuason Jr. At the same time he was a member of the Board of Directors of the third co-owner, Araneta, Inc. The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The three co-owners agreed to improve the property by filling it and constructing roads and curbs on the same and then subdivide it into small lots for sale. Araneta Inc. was to finance the whole development and subdivision; it was to prepare a schedule of prices and conditions of sale, subject to the approval of the two other co-owners; it was invested with authority to sell the lots into which the property was to be subdivided, and execute the corresponding contracts and deeds of sale; it was also to pay the real estate taxes due on the property or of any portion thereof that remained unsold, the expenses of surveying, improvements, etc., all advertising expenses, salaries of personnel, commissions, office and legal expenses, including expenses in instituting all actions to eject all tenants or occupants on the property; and it undertook the duty to furnish each of the two coowners, Angela and Antonio Tuason, copies of the subdivision plans and the monthly sales and rents and collections made thereon. In return for all this undertaking and obligation assumed by Araneta Inc., particularly the financial burden, it was to receive 50 per cent of the gross selling price of the lots, and any rents that may be collected from the property, while in the process of sale, the remaining 50 per cent to be divided in equal portions among the three co-owners so that each will receive 16.33 per cent of the gross receipts.

Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for purposes of reference we are reproducing them below: "(9) This contract shall remain in full force and effect during all the time that it may be necessary for the PARTY OF THE SECOND PART to fully sell the said property in small and subdivided lots and to fully collect the purchase prices due thereon; it being understood and agreed that said lots may be rented while there are no purchasers thereof; "(11) The PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby given full power and authority to sign for and in behalf of all the said co-owners of said property all contracts of sale and deeds of sale of the lots into which this property might be subdivided; the powers herein vested to the PARTY OF SECOND PART may not be revoked until the purposes of this contract have been fulfilled and carried out, and the PARTY OF THE SECOND PART may, under its own responsibility and risk, delegate any of its powers under this contract to any of its officers, employees or to third persons; "(15) No co-owner of the property subject-matter of this contract shall sell, alienate or dispose of his ownership, interest or participation therein without first giving preference to the other co-owners to purchase and acquire the same under the same farms and conditions as those offered by any other prospective purchaser. Should none of the co-owners of the property subject-matter of this contract exercise the said preference to acquire or purchase the same, then such sale to a third party shall be made subject to all the conditions, terms, and dispositions of this contract; provided, the PARTIES OF THE FIRST PART (meaning Angela and Antonio) shall be bound by this contract as long as the PARTY OF THE SECOND PART, namely, the GREGORIO ARANETA, INC. is controlled by the members of the Araneta family, who are stockholders of the said corporation at the time of the signing of this contract and/or their lawful heirs;" On September 16, 1944, Angela I. Tuason revoked the powers conferred on her attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated October 19, 1946, Angela notified Araneta, Inc. that because of alleged breach of the terms of the "Memorandum of Agreement" (Exh. 6) and abuse of powers granted to it in the document, she had decided to rescind said contract and she asked that the property held in common be partitioned. Later, on November 20, 1946, Angela filed a complaint in the Court of First Instance of Manila asking the court to order the partition of the property in question and that she be given 1/3 of the same including rents collected during the time that Araneta Inc., administered said property. The suit was directed principally against Araneta, Inc. Plaintiff's brother, Antonio Tuason Jr., one of the co-owners evidently did not agree to the suit and its purpose, for he joined Araneta, Inc. as a co-defendant. After hearing and after considering the extensive evidence introduced, oral and documentary, the trial court presided

over by Judge Emilio Pea in a long and considered decision dismissed the complaint without pronouncement as to costs. The plaintiff appealed from that decision, and because the property is valued at more than P50,000, the appeal came directly to this Court. Some of the reasons advanced by appellant to have the memorandum contract (Exh. 6) declared null and void or rescinded are that she had been tricked into signing it; that she was given to understand by Antonio Araneta acting as her attorney-in-fact and legal adviser that said contract would be similar to another contract of subdivision of a parcel into lots and the sale thereof entered into by Gregorio Araneta Inc., and the heirs of D. Tuason, Exhibit "L", but it turned out that the two contracts widely differed from each other, the terms of contract Exh. "L" being relatively much more favorable to the owners therein and less favorable to Araneta Inc.; that Atty. Antonio Araneta was more or less disqualified to act as her legal adviser as he did because he was one of the officials of Araneta Inc., and finally, that the defendant company has violated the terms of the contract (Exh. 6) by not previously showing her the plans of the subdivision, the schedule of prices and conditions of the sale, in not introducing the necessary improvements into the land and in not delivering to her share of the proceeds of the rents and sales. We have examined Exh. "L" and compared the same with the contract (Exh. 6) and we agree with the trial court that in the main the terms of both contracts are similar and practically the same. Moreover, as correctly found by the trial court, the copies of both contracts were shown to the plaintiff Angela and her husband, a broker, and both had every opportunity to go over and compare them and decide on the advisability of or disadvantage in entering into the contract (Exh. 6); that although Atty. Antonio Araneta was an official of the Araneta Inc.; being a member of the Board of Directors of the Company at the time that Exhibit "6" was executed, he was not the party with which Angela contracted, and that he committed no breach of trust. According to the evidence Araneta, Inc. showed to her the plans of the subdivision and all the pertinent papers, and sent to her checks covering her share of the proceeds of the sale but that she refused to receive the same; and that as a matter of fact, at the time of the trial, Araneta Inc., had spent about P117,000 in improvement and had received as proceeds on the sale of the lots the respectable sum of P1,265,538.48. We quote with approval that portion of the decision appealed from on these points: "The evidence in this case points to the fact that the actuations of J. Antonio Araneta in connection with the execution of exhibit 6 by the parties, are above board. He committed nothing that is violative of the fiduciary relationship existing between him and the plaintiff. The act of J. Antonio Araneta in giving the plaintiff a copy of exhibit 6 before the same was executed, constitutes a full disclosure of the facts, for said copy contains all that appears now in exhibit 6.

"Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the terms of the contract in that the defendant corporation has failed (1) to make the necessary improvements on the property as required by paragraphs 1 and 3 of the contract; (2) to submit to the plaintiff from time to time schedule of prices and conditions under which the subdivided lots are to be sold; and to furnish the plaintiff a copy of the subdivision plans, a copy of the monthly statement of the sales and rents of the subdivided lots, and a statement of the monthly gross collections from the sale of the property. "The Court finds from the evidence that the defendant Gregorio Araneta, Incorporated has substantially complied with the obligation imposed by the contract exhibit 6 in its paragraph 1, and that for improvements alone, it has disbursed the amount of P117,167.09. It has likewise paid taxes, commissions and other expenses incidental to its obligations as defined in the agreement. "With respect to the charge that Gregorio Araneta, Incorporated has failed to submit to plaintiff a copy of the subdivision plans, list of prices and the conditions governing the sale of subdivided lots, and monthly statement of collections from the sale of the lots, the Court is of the opinion that it has no basis. The evidence shows that the defendant corporation submitted to the plaintiff periodically all the data relative to prices and conditions of the sale of the subdivided lots, together with the amount corresponding to her. But without any justifiable reason, she refused to accept them. With the indifferent attitude adopted by the plaintiff, it was thought useless for Gregorio Araneta, Incorporated to continue sending her statement of accounts, checks and other things. She had shown on various occasions that she did not went to have any further dealings with the said corporation. So, if the defendant corporation proceeded with the sale of the subdivided lots without the approval of the plaintiff, it was because it was under the correct impression that under the contract exhibit 6 the decision of the majority co-owners is binding upon all the three. "The Court feels that rescission of the contract exhibit 6 is not in order. Even granting that the defendant corporation committed minor violations of the terms of the agreement, the general rule is that 'rescission will not be permitted for a slight or casual breach of the contract, but only for such breaches as are so substantial and fundamental as to defeat the object of the parties in making the agreement' (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil. 821)." As regards improvements, the evidence shows that during the Japanese occupation from 1942 and up to 1946, the Araneta Inc. although willing to fill the land, was unable to obtain the equipment and gasoline necessary for filling the low places within the parcel. As to sales, the evidence shows that Araneta Inc. purposely stopped selling the lots during the Japanese occupation, knowing that the purchase price would be paid in Japanese military notes; and Atty. Araneta claims that for

this, plaintiff should be thankful because otherwise she would have received these notes as her share of the receipts, which currency later became valueless. But the main contention of the appellant is that the contract (Exh. 6) should be declared null and void because its terms, particularly paragraphs 9, 11 and 15 which we have reproduced, violate the provisions of Art. 400 of the Civil Code, which for the purposes of reference we quote below: "ART. 400. No co-owner shall be obliged to remain a party to the community. Each may, at any time, demand the partition of the thing held in common. "Nevertheless, an agreement to keep the thing undivided for a specified length of time, not exceeding ten years, shall be valid. This period may be a new agreement." We agree with the trial court that the provisions of Art. 400 of the Civil Code are not applicable. The contract (Exh. 6) far from violating the legal provision that forbids a co-owner being obliged to remain a party to the community, precisely has for its purpose and object the dissolution of the co-ownership and of the community by selling the parcel held in common and dividing the proceeds of the sale among the co-owners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been sold, is a mere incident to the main object of dissolving the co-ownership. By virtue of the document Exh. 6, the parties thereto practically and substantially entered into a contract of partnership as the best and most expedient means of eventually dissolving the co-ownership, the life of said partnership to end when the object of its creation shall have been attained. This aspect of the contract is very similar to and was perhaps based on the other agreement or contract (Exh. "L") referred to by appellant where the parties thereto in express terms entered into a partnership, although this object is not expressed in so many words in Exh. 6. We repeat that we see no violation of Art. 400 of the Civil Code in the parties entering into the contract (Exh. 6) for the very reason that Art. 400 is not applicable. Looking at the case from a practical standpoint as did the trial court, we find no valid ground for the partition insisted upon the appellant. We find from the evidence as was done by the trial court that of the 64,928.6 sq. m. which is the total area of the parcel held in common, only 1,600 sq. m. or 2.5 per cent of the entire area remained unsold at the time of the trial in the year 1947, while the great bulk of 97.5 per cent had already been sold. As well observed by the court below, the partnership is in the process of being dissolved and is about to be dissolved, and even assuming that Art. 400 of the Civil Code were applicable, under which the parties by agreement may agree to keep the thing undivided for a period not exceeding 10 years, there should be no fear that the remaining 1,600 sq. m. could

not be disposed of within the four years left of the ten-year period fixed by Art. 400. We deem it unnecessary to discuss and pass upon the other points raised in the appeal and which counsel for appellant has extensively and ably discussed, citing numerous authorities. As we have already said, we have viewed the case from a practical standpoint, brushing aside technicalities and disregarding any minor violations of the contract, and in deciding the case as we do, we are fully convinced that the trial court and this Tribunal are carrying out in a practical and expeditious way the intentions and the agreement of the parties contained in the contract (Exh. 6), namely, to dissolve the community and co-ownership, in a manner most profitable to the said parties. In view of the foregoing, the decision appealed from is hereby affirmed. There is no pronouncement as to costs. So ordered. Raquel Chavez v IAC, L-68282, Nov. 8, 1990 FIRST DIVISION [G.R. No. 68282. November 8, 1990.] RAQUEL CHAVEZ, GERARDO GIMENEZ and MANUELA BUENAVISTA VDA. DE CHAVEZ, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT (4th Civil Cases Division), ANTONIO CHAVEZ, ROSARIO CHAVEZ and CONCEPCION CHAVEZ, respondents. Edmundo A. Narra for petitioners. Jose L. Lapak for respondents. SYLLABUS 1. CIVIL LAW; WILLS AND SUCCESSION; PARTITION OF ESTATE EITHER BY ACT INTER VIVOS OR BY WILL, RESPECTED FOR AS LONG AS IT DOES NOT PREJUDICE THE LEGITIMATE OF COMPULSORY HEIRS. Article 1080 of the New Civil Code allows a person to make a partition of his estate either by an act inter vivos or by will and such partition shall be respected insofar as it does not prejudice the legitime of the compulsory heirs. While the law prohibits contracts upon future inheritance, the partition by the parent, as provided in Art. 1080, is a case expressly authorized by law (Art. 1347, par. 2, Civil Code of the Phil. by Padilla, 1987 Edition, p. 744.) Art. 1080 of the Civil Code clearly gives a person two options in making a partition of his estate; either by an act inter vivos or by WILL. When a person makes a partition by will, it is imperative that such partition must be executed in accordance with the provisions of the law on wills; however, when a person makes the partition of his estate by an act inter vivos, such partition may even be oral or written, and need not be in the

form of a will, provided that the partition does not prejudice the legitime of compulsory heirs. 2. ID.; ID.; PAROL PARTITION, MAY BE SUSTAINED ON TWO GROUNDS. "In numerous cases it has been held or stated that parol partitions may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. "A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition." (Hernandez vs. Andal, et al., 78 Phil. 196, 203.) 3. ID.; ID.; PARTITION INTER VIVOS, VALID WHEN EXECUTED BY THE PROPERTY OWNER. In the instant case, the respondent appellate court declared the Deeds of Sale executed by Presentacion, Floserfina and Raquel, all surnamed Chavez (Exhs. A, B, and C) in favor of Concepcion Chavez as evidence of a valid partition of the land in question by and between Manuela Buenavista and her children as she not only gave her authority thereto but also signed the sales. The Deeds of Sale (Exhs. A, B, and C) are not contracts entered into with respect to future inheritance but a contract perfected and consummated during the lifetime of Manuela Buenavista who signed the same and gave her consent thereto. Such partition inter vivos, executed by the property owner herself, is valid. DECISION GRIO-AQUINO, J p: This is a petition for review on certiorari of the decision dated March 26, 1984 of the Intermediate Appellate Court in AC-G.R. No. CV-64708 which (1) annulled the sale made by Manuela Buenavista of her property in favor of the spouses Raquel Chavez and Gerardo Gimenez (Exh. 2) and the subsequent sale by said spouses of the same property to Pepito Ferrer, and (2) declared that the earlier deeds of sale (Exhs. A, B, C and D) signed by Manuela and her children constituted a valid partition of the land, subject to her lifetime usufruct. The Court of Appeals thereby reversed the decision dated December 21, 1971 of the Court of First Instance of Camarines Norte, Branch 1. The land in question is the paraphernal property of petitioner Manuel Buenavista (defendant in Civil Case No. 1934 of the Court of First Instance of Camarines Norte) who had six (6) children, named Antonio, Rosario, Concepcion, Raquel, Presentacion and Floserpina. The first three were the

plaintiffs and the last three, with their mother, were the defendants in Civil Case No. 1934. On July 11, 1958, Presentacion Chavez, with the conformity of her mother, Manuela Buenavista, executed a deed of sale whereby she sold her 1/6 undivided share of the land in question to her sister, Concepcion Chavez, for P450. Two years later, on May 2, 1960, Floserpina Chavez, with the conformity of her mother, also sold her 1/6 undivided share of the same land to her sister, Concepcion, for the same price of P450. On May 19, 1960, Raquel, with the conformity of her mother, likewise sold her undivided 1/6 share of the same property to Concepcion Chavez for P600. Having acquired the shares of Presentacion, Floserpina and Raquel, Concepcion thereby became the owner of a total undivided 4/6 share of the land in question with Antonio and Rosario as owners of the remaining 2/6 shares. LexLib In all the documents, the following stipulation appears: "Na ang nasabing lupa o pag-aari ay ipinamana na sa amin ng aming ina, ang nasabing Manuela Buenavista, kung kaya ito ay hatiin naming anim (6) na mga magkakapatid, bagama't hindi pa namin naisasagawa ang paghihiwatig o particion; ako bilang isa sa anim na magkakapatid ay may karapatan sa isang ikaanim (1/6) na bahagi ng nasabing lupa, gayon pa man ang kasunduan sa nasabing pagkamana namin ay samantalang nabubuhay pa ang aming ina, siya ang magkakandili at makikinabang sa nasabing pag-aari." (p 14, Rollo.) meaning that the owner, Manuela Buenavista, had assigned or distributed to her children, in equal pro-indiviso shares, her paraphernal property situated at Sitio Langas, Barrio Calangcawan Norte, Vinzons, Camarines Norte, with an area of 4.1163 hectares more or less under Tax Declaration No. 9303 and assessed at P1,630.00. The owner, however, reserved for herself the possession of the land and the enjoyment of the fruits during her lifetime. Despite the transfers or assignments her children had executed with her conformity ten years earlier, Manuela Buenavista, on August 27, 1968, signed a "Bilihang Patuluyan ng Lupa" of the entire property in favor of her daughter, Raquel Chavez, and her husband, Gerardo Jimenez. On October 7, 1968, Antonio, Rosario and Concepcion filed Civil Case No. 1934 against their mother Manuela and their sister Raquel. Thereupon, Manuela sold the entire property to Pepito Ferrer, on February 4, 1969 (Exh. F) with right to repurchase. Ferrer was later sued as an additional defendant in Civil Case No. 1934. After the trial, judgment was rendered by the trial court dismissing the complaint, dissolving the preliminary injunction it had previously issued, and ordering the plaintiffs to pay the costs. The court did not award damages.

The plaintiffs, Antonio, Rosario and Concepcion, appealed to the Court of Appeals (CA-G.R. No. 64708-R). On March 26, 1984, the Court of Appeals reversed the trial court. The dispositive portion of its decision reads: "WHEREFORE, we reverse and set aside the appealed decision and render another one declaring the deeds of sale in favor of Raquel Chavez and Gerardo Jimenez (Exh. 2) and the sale in favor of defendant-appellee Pepito Ferrer as null and void ab initio, and declaring further that the documents (Exhs. A, B, C and D) are evidence of a valid partition of the land in question by and between Manuela Buenavista and her children, subject to her right of usufruct during her lifetime, without pronouncement as to damages and costs." (p. 17, Rollo.) On April 5, 1984, the petitioners filed a motion for reconsideration alleging among others: prLL "3. That the late Manuela Buenavista Vda. de Chavez, one of the defendantsappellees, was found lately to have executed during her lifetime a LAST WILL AND TESTAMENT . . . and there is now a pending petition for probate of said last will and testament before the Municipal Trial Court of Vinzons, Camarines Norte; "xxx xxx xxx "6. In the case at bar, even granting that the late Manuela Buenavista's execution of the documents referred to as Exhibits A, B, C and D are valid, nevertheless its validity ceases from the time that she executed the Last Will and Testament . . . because the execution of the Last Will invalidates the former act of the said Manuela Buenavista; "7. That the Last Will and Testament . . . which is now pending probate in the Municipal Trial Court of Vinzons, Camarines Norte, will finally affect the property hence, there is a ground for this motion for reconsideration and/or to suspend the decision pending final outcome of the probate of the last will and testament of the late Manuela Buenavista." (pp 88-89, Rollo.) Private respondents opposed the Motion for Reconsideration asserting that the partition inter vivos which had been implemented long before the execution of the said Last Will and Testament could not be revoked by the later instrument; that the supposed Last Will and Testament was executed on December 11, 1969, more than one year after the filing of the complaint for annulment on October 9, 1968, when said Manuela Buenavista was already senile and not of disposing mind; that while Manuela Buenavista was able to sign with her own hand the several Deeds of Sale, the supposed Last Will and Testament bears her thumbmark only; that Manuela Buenavista had no more property to dispose of by will on December 11, 1969, when she supposedly executed her Last Will and Testament.

On June 28, 1984, the Appellate Court denied the Motion for Reconsideration. In their petition for review of the decision of the Court of Appeals, the petitioners allege: prcd "(1) That the Intermediate Appellate Court (now Court of Appeals) erred in declaring valid the deeds of sale (Exhs. A, B, C and D) as a partition by an act inter vivos considering that examining the said exhibits will reveal that it is not a testament amounting to a will of Manuela Buenavista; "(2) That the Intermediate Appellate Court erred in ruling against Article 1347 of the New Civil Code." (p. 126, Rollo.) We find those contentions not well-taken. Article 1080 of the New Civil Code allows a person to make a partition of his estate either by an act inter vivos or by will and such partition shall be respected insofar as it does not prejudice the legitime of the compulsory heirs. While the law prohibits contracts upon future inheritance, the partition by the parent, as provided in Art. 1080, is a case expressly authorized by law (Art. 1347, par. 2, Civil Code of the Phil. by Padilla, 1987 Edition, p. 744.) Art. 1080 of the Civil Code clearly gives a person two options in making a partition of his estate; either by an act inter vivos or by WILL. When a person makes a partition by will, it is imperative that such partition must be executed in accordance with the provisions of the law on wills; however, when a person makes the partition of his estate by an act inter vivos, such partition may even be oral or written, and need not be in the form of a will, provided that the partition does not prejudice the legitime of compulsory heirs. "In numerous cases it has been held or stated that parol partitions may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. "A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition." (Hernandez vs. Andal, et al., 78 Phil. 196, 203.) In the instant case, the respondent appellate court declared the Deeds of Sale executed by Presentacion, Floserfina and Raquel, all surnamed Chavez (Exhs. A, B, and C) in favor of Concepcion Chavez as evidence of a valid partition of the land in question by and between Manuela Buenavista and her children as she not only gave her authority thereto but also signed the sales. The Deeds of Sale (Exhs. A, B, and C) are not contracts entered into with respect to future

inheritance but a contract perfected and consummated during the lifetime of Manuela Buenavista who signed the same and gave her consent thereto. Such partition inter vivos, executed by the property owner herself, is valid. LexLib ". . . As the defendants freely participated in the partition, they are now estopped from denying and repudiating the consequences of their own voluntary acts. It is a general principle of law that no one may be permitted to disavow and go back upon his own acts, or to proceed contrary thereto." (Joaquin vs. Mitsumine, 34 Phil. 858.) "Where a piece of land has been included in a partition, and there is no allegation that the inclusion was effected through improper means or without the petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for proper disposition according to the tenor of the partition. . . . They cannot attack the partition collaterally . . ." (Ralla vs. Judge Untalan, 172 SCRA 858, 865, citing the case of Torres vs. Encarnacion and De Borja, No. L-4681, July 31, 1951, 89 Phil. 678.) As well argued by counsel for the respondents in their memorandum, it would be unjust and inequitable to allow Manuela Buenavista Vda. de Chavez to revoke the sales she herself authorized as well as the sale she herself executed in favor of her son only to execute a simulated sale in favor of her daughter Raquel who had already profited from the sale she made of the property she had received in the partition inter vivos; it would run counter to the doctrine that "no person should be allowed to unjustly enrich herself at the expense of another." WHEREFORE, finding no reversible error in the decision of the Court of Appeals in AC-G.R. No. CV-64708, the same is affirmed in toto. The petition for review is dismissed for lack of merit, with costs against the petitioners. cdphil SO ORDERED. Alsua Betts v CA, 92 SCRA 332 FIRST DIVISION [G.R. Nos. L-46430-31. July 30, 1979.] FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners, vs. COURT OF APPEALS, AMPARO ALSUABUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents. Rafael Triumfante for petitioners. Sabido-Sabido & Associates and Madrid Law Office for private respondents. DECISION GUERRERO, J p:

This is an appeal by certiorari from the decision of the Court of Appeals in CAG.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate of the will of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate of the will, declared null and void the two sales subject of the complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the properties in their possession and to reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of the filing of the complaint up to complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs. cdll The antecedent events leading to the filing of these two consolidated actions are the following: On November 25, 1949, Don Jesus Alsua and his wife, Doa Florentina Ralla, both of Ligao, Albay, together with all their living children, Francisca AlsuaBetts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Doa Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit: "(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all of them signed by the spouses and all the abovenamed heirs in the left margin of every page (parafo primero). (2) An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with the exception of five parcels of land identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal properties of the late Doa Tinay (segundo parafo). (3) An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro). (4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid possible misunderstanding among their children concerning the inheritance they are entitled to in the event of death of one of them they have decided to effectuate an extrajudicial partition of all the properties described in Annex "A" thereto under the following terms and conditions: (Parafo quinto):

To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically described from pages 1 12 of said inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00. To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from pages 12 20 of said inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00. To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically described from pages 20 33 of said inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00. To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically described from pages 33 47 of said inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00. (a) Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the heirs as described in the preceding paragraph, constitute one-half of the properties described in Annex "A", including any amount of cash deposited. (b) That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-half not only of the conjugal properties but includes the paraphernal properties waiving now and forever any complaint or claim they have or they may have concerning the amount, value, extension and location of the properties that are allotted to each and everyone. They also waive any claim they have or they may have over the remaining portion of the properties, which spouses reserved for themselves. (c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in the possession of the surviving spouse, including any amount in cash, are even less than the one-half that should correspond in absolute ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they have or may have over said portion of said properties or any amount in cash during the lifetime of the surviving spouse, including any right or claim they have or they may have over the paraphernal properties of Doa Tinay in the event the surviving spouse is Don Jesus. (d) The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have over the properties assigned or adjudicated to the heirs under and by virtue of this deed. The properties which were reserved for them (the spouses) should be considered as his or her

legitimate participation in the conjugal properties and the fair compensation of his or her usufruct on the properties that the surviving spouse reserved for himself or herself which shall be distributed in equal shares among the heirs upon his or her death unless said properties of some of them have been disposed of during the lifetime of the surviving spouse. (e) Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to pay to the other heirs, in the concept of damages and prejudice, the sum of P5,000.00 plus attorney's fees. (f) The provisions of this deed shall bind the successors of the herein heirs. (g) In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall be considered as his share or participation in the estate or as his inheritance left by the deceased and each heir shall become the absolute owner of the properties adjudicated to him under this deed. On January 5, 1955, Don Jesus and Doa Florentina, also known as Doa Tinay separately executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation of the extrajudicial partition of November 25, 1949. Their holographic wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half of the conjugal assets having been partitioned to constitute their legitime among their four living children in the Extrajudicial Partition of 1949. The wills also declared that in the event of future acquisitions of other properties by either of them, one-half thereof would belong to the other spouse, and the other half shall be divided equally among the four children. The holographic will of Doa Tinay written in Spanish reads, as translated: "TESTAMENT I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being in the full possession of my mental and physical faculties freely and spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish language which I speak, write and understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide: "First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom are still living and they are Francisca Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5) died during their minority, single and without children. "Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and industry, we were able to

acquire conjugal properties consisting of abaca (abales) and cacao lands and urban lands registered in the office of the Registry of Property of the Province of Albay and in the City of Manila. "Third: That I institute as my heirs with right to inherit the following: my spouse Don Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my children Francisca Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however, that the other half that corresponds as legitime to my above named children have already been given to them, pursuant to a document dated November 25, 1949 and ratified on the same day. month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15; Lib. II; Series of 1949) enjoining each and everyone of them to respect and faithfully comply with each and every clause contained in the said document. "Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is, one-half (1 1/2) to my spouse; and the other half to my children in equal parts. "Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond. IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines. (SGD.) FLORENTINA R. DE ALSUA" (Joint Record on Appeal, pp. 420-423, CA-G.R. No. 54492-R) As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife. On May 21, 1956, the spouses Don Jesus and Doa Tinay filed before the Court of First Instance of Albay their respective petitions for the probate of their respective holographic wills which were docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485 (Doa Florentina Ralla de Alsua, Petitioner). On August 14, 1956, the spouses Don Jesus and Doa Tinay executed their mutual and reciprocal codicils amending and supplementing their respective holographic wills. Again, the codicils similarly acknowledged and provided that one-half of all the properties of the spouses, conjugal and paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de Particion" of November 25, 1949, but that they reserved for

themselves (the spouses Don Jesus and Doa Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of partition, and that they mutually and reciprocally bequeathed unto each other their participation therein as well as in all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated mutually and reciprocally as the executor or administrator of all the properties reserved for themselves. cdrep The codicil executed by Doa Tinay written in Spanish reads, as translated: "CODICIL This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would correspond to me covers all the properties that I have partitioned among my children in the Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. II; Series of 1949) (and) even as the properties which by reason of this testament I leave to my husband as his share and the other half that corresponds to my husband constitutes all the properties that up to now have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of Manila, with the exception of that portion that I bequeath to my husband as his inheritance and his legitimate. That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisca Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave to my aforecited children all the properties described in the above mentioned Document of Partition dated November 25, 1949 which correspond to each one of them and in the profits (fruits) expressed in the same, and in the event that the properties granted to one or any of my children should exceed in quantity or value those corresponding to another or others, I hereby declare that it is my will that the same be divided among my children as their inheritance from the free portion of my property. I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document. In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or would pertain

to me, which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death. Ligao, Albay, Philippines, August 14, 1956. (SGD.) FLORENTINA RALLA DE ALSUA" (Joint Record on Appeal, pp. 423-425, CA-G.R. No. 54492-R) And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don Jesus and Doa Tinay both filed their respective supplemental petitions for the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957, their respective holographic wills and the codicils thereto were duly admitted to probate. Upon the death of Doa Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by the probate court on October 13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his oath of office and performed his duties as such until July 1, 1960. Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio Imperial, Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at his home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his four living children by virtue of the "Escritura de Particion Extrajudicial" of 1949, and that such properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as legatees/devisees of certain specific properties, and as to the rest of the properties and whatever may be subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francisca as executrix to serve without a bond. LLpr After all debts, funeral charges and other expenses of the estate of Doa Tinay had been paid, all her heirs including Don Jesus, submitted to the probate court for approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the partition of 1949, the holographic will and codicil of Doa Tinay. On July 6, 1960, the court

approved the partition of 1959 and on January 6, 1961 declared the termination of the proceedings on the estate of Doa Tinay. On May 6, 1964, Don Jesus Alsua died. On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the execution of the alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was procured by undue and improper pressure and influence on the part of the main beneficiaries and of person or persons in collusion with them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his deceased spouse, Doa Tinay, and all his children, Francisca, Pablo, Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which had already been partially executed by all the signatories thereto in the partition of the estate of Doa Tinay in December, 1959. LLphil On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus. According to the oppositors, these properties consist of thirty-three (33) premium agricultural lots with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of P238,000,00 at only P2,000.00 per hectare, and four (4) commercial urban lots ideally located in the business section of Legazpi City including the lot and the building presently occupied by the well-known "Mayon Hotel" with an assessed value of approximately P117,260.00 or a probable market value at the time of P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and Francisca Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to Francisca, the oppositors also

raised in issue the non-inclusion of said properties in the inventory of the estate of their late father. In answer, Francisca claimed ownership over the same, alleging that she bought the properties from their father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural land to Francisca by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with Special Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus executed on November 14, 1959. After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15, 1973, the dispositive portion of which states: "WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit: 1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the basis for division and distribution of the estate of said testator; 2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068, are ordered jointly and severally to pay to the defendant, Francisca Alsua Betts Fifty Thousand Pesos (P50,000 00) as damages and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs." On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus "IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed from in the following manner: (1) in Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and void, ordering the appellees Francisca Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in their possession and to reimburse the plaintiffs the net gain, in the proportion that appertains to them in the properties subject of litigation in Civil Case No.

3068 from the date of the filing of this complaint, up to the complete restoration of the properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs." Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit: I. The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that private respondents, oppositors to the probate of the will, are in estoppel to question the competence of testator Don Jesus Alsua. II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will. III. The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross misapprehension of facts. IV. The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W). On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his will cannot be determined by acts of the herein private respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings No. 485, Testate Estate of Doa Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua. The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late Procopia Apostol. Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when he was still in the Court of Appeals, and We quote: "Finally, probate proceedings involve public interest, and the application therein of the rule of estoppel, when it will block the ascertainment of the truth as to the circumstances surrounding the execution of a testament, would seem inimical to public policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if, and only if, executed conformably to law. The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502:

"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; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 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, 298, N.Y.S., 219.'" The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based on speculations, surmises or conjectures, disregarding the facts as found by the trial court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed under Article 839 which provides as follows: "Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto." The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court on the due execution of the questioned will and testament of Don Jesus, declaring: ". . . and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A. was executed in accordance with Arts. 805-809 of the New Civil Code, this Tribunal from the very beginning accepts the findings of the inferior court concerning the question,

On October 2, 1959, Doa Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every page of said page he wrote on each page the word "cancelado", and affixed his signature thereon (Exh. V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to make a list of all his properties with their corresponding descriptions. Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S. Imperial, who, incidentally, is now a judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as to how he wanted to divide his properties among his four children. He handed to them a list and on the left he indicated the name of the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his conversations with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus said that it was as directed by him, and after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the will in final form. He further told Atty. Jorge Imperial that the signing of the will should be at his home in Ligao, in the morning of November 14 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus. Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed the latter that Don Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya and the latter requested them to be seated at the usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in conversation. Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don

Jesus. Mr. Madarieta was already informed by Don Jesus himself about the fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial, Atty. Jorge S. Imperial, Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that Don Jesus was in bright and lively conversation which ran from problems of farming and the merits of French-made wines. At 11:00 o'clock, Don Gregorio made a remark that it is about time to do what they were there for, and this was followed by a more or less statement from Jesus, who said: 'Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultimo voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.' (pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte'. On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing because there were chairs all around this table. The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three sets, the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times, one on the margin of each of the nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set, one on the margin of each of the nine pages, one at the end of the instrument proper and one below the attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) Imperial. It was also clearly established that when Don Jesus signed the will, Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing, Don Jesus and the two other attesting witnesses were present and witnessing said signing. The

signing by the testator and the attesting witnesses having been completed, Atty. Jorge S. Imperial, as Notary Public with commission for the entire province of Albay, notarized the will, and sealed it with his notarial seal, which seal he brought along that morning. After all the three sets were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of them. (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R). which findings are supported by the evidence, it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804-806 of the New Civil Code. . . ." (CA Decision, pp. 13-16, as translated). This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as having been executed with all the formal requirements of a valid will, are supported by the evidence. This finding is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent appellate court have declared that these are the facts and such facts are fully borne and supported by the records. We find no error in the conclusion arrived at that the contested will was duly executed in accordance with law. We rule that the questioned last will and testament of Don Jesus Alsua fully complied with the formal requirements of the law. LLphil Respondent court, however, denied probate of the will after "noting certain details which were a little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and Doa Tinay together with their four children Francisca, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between the spouses themselves and the children under the terms and conditions and dispositions hereinbefore stated and to implement its provisions, Don Jesus and Doa Tinay subsequently executed separately their respective holographic wills both dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and upon the death of Doa Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Doa Tinay was approved by the probate court on July 6, 1960. llcd The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition agreement, barring him from revoking his holographic will of January 5, 1955 and his codicil of August 14, 1956, and further barring him from executing his new will and

testament of November 14, 1959, now the subject of the probate proceedings elevated to this Court. We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code which are applicable hereto. These Articles provide as follows: "Art 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. . . ." "Art. 1271. All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts. Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of an estate, in accordance with Article 1056. All services not contrary to law or to good morals may also be the subjectmatter of contract." Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one who has made a prior will or testament. In other words, Article 1056 being an exception cannot be given a wider scope as to include in the exception any person whether he has made a will or not. Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the partition presupposes the execution of the will that it ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956. Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the necessity of a prior will before the testator can partition his properties among his heirs, and We quote the pertinent portions of the decision: "The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces the defendants and appellants herein, was valid and enforceable. Article 1056 of the Civil Code provides:

'Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine: 'Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his property referred to in the section wherein said article is found, without the authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by parents during their lifetime, whereby they give to their children the whole or a part of their property; 'Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be entered into with respect to future inheritances except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise leads to the conclusion that a partition thus made should be on the basis of a testamentary or legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would have to be done upon the death of the testator in order to carry into effect the partition of the estate among the persons interested.' Manresa comments on the same article as follows: 'A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will, must be understood in accordance with this distinction. The idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the properties to take effect after his death, and said act must necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to the effects thereof, which means that, for purposes of

partition the formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special formalities required in case of donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of.' It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death." We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by the parents. cdll Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties allotted to each child, We rule that there was substantial compliance with the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Doa Tinay which, as stated in the deed, was to be

divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633 which provides as follows: "Art. 633. In order that a donation or real property be valid it must be made by public instrument in which the property donated must be specifically described and in the amount of the encumbrances to be assumed by the donee expressed. The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made during the lifetime of the donor. If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding shall be noted in both instruments. This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner that either of the spouses would like in regards to his or her share in such portion, unencumbered by the provision enjoining the last surviving spouse to give equally to the children what belongs or would pertain to him or her. The end result, therefore, is that Don Jesus and Doa Tinay, in the Deed of 1949, made to their children valid donations of only one-half of their combined properties which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to their respective shares. Upon the death of Doa Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed here that the distribution of her properties was subject to her holographic will and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Doa Tinay, only her estate was being settled, and not that of Don Jesus. We have carefully examined the provisions of the holographic will and codicil of Doa Tinay and We find no indication whatsoever that Doa Tinay expressly or impliedly instituted both the husband and her children as heirs to her free portion of her share in the conjugal assets. In her holographic will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit: "Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado ests mi testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para mis esposa; y la otra mitad (1/2) para mis hijos en partes iguales."

For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above par. 3 in the same proportion, that is, one-half (1/2) to my spouse; and the other half to my children in equal parts." From the abovequoted provision, the children would only inherit together with Don Jesus whatever new properties Doa Tinay would acquire after the execution of her will. LLpr Likewise, the codicil of Doa Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets, and We quote that part of the codicil: "Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de mi cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de gananciales que le corresponde tal como arriba declaro, incluyendo todos aquellos bienes que se adquiriesen por nosotros despues de otorgado por mi este testamento. "Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos mencionados despues de mi muerte." Again for purposes of clarity and convenience, the above portion states: "I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution of this document. In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or would pertain to me which have not been disposed of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death." The children, therefore, would only receive equal shares in the remaining estate of Doa Tinay in the event that she should be the surviving spouse. To stress the point, Doa Tinay did not oblige her husband to give equally to the children, upon his death, all such properties she was bequeathing him. Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Doa Tinay's will and codicil did not stipulate that Don Jesus will bestow the properties equally to the children, it follows that all the properties of Doa Tinay bequeathed to Don

Jesus under her holographic will and codicil became part of Don Jesus' estate unburdened by any condition, obligation or proviso. Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said partition by making a holographic will and codicil with exactly the same provisions as those of Doa Tinay, which respondent court sustained. We rule, however, that Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at bar already been probated. (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested. prcd After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Doa Tinay in her holographic will and codicil resulting in all such properties becoming the properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his previous holographic will and codicil, by making another will expressly cancelling and revoking the former, the next issue for the Court's resolution is the validity of the provisions of the contested will. Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will may be entertained by the probate court, the Court had, on more than one occasion, passed upon the intrinsic validity of a will even before it had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499: "The parties shunted aside the question of whether or not the will should be allowed to 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. . . . ". . . 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 ought 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. . . ." The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic will of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francisca; and a statement naming Francisca as executrix without bond. Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the former had in fact been included in the latter. This being so, it must be presumed that the intention of Don Jesus in his last will was not to revoke the donations already made in the Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Doa Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be disposed of by him to whomsoever he may choose. LLpr If he now favored Francisca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit: ". . . nevertheless it would be venturesome for the court to advance its own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the latter will. . . . It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only functions of the courts in these cases is to carry out the intention of the deceased as manifested in the will. Once that intention has been determined through a careful reading of the will or wills, and provided the law on legitimes has not been violated, it is beyond the place of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. The court should not sit in judgment upon the motives and sentiments of the testatrix, first, because as already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because

there are no adequate means of ascertaining the inward process of her conscience. She was the sole judge of her own attitude toward those who expected her bounty. . . ." Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and honor and would not allow himself to violate the previous agreement, and the other as one whose mental faculties or his possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual administration of his properties had been left to his assistant Madarieta who, for his part received instructions from Francisca and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the New Civil Code which provides as follows: "Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act," The test of testamentary capacity is at the time of the making of the will. Mere weakness of mind or partial imbecility from disease of body or from age does not render a person incapable of making a will. "Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind." (Bugnao vs. Ubag, 14 Phil. 163) The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at the time of its execution, and under Article 800, the law presumes that every person is of sound mind in the

absence of proof to the contrary. In the case at bar, the acceptance by the respondent court of the findings of fact of the trial court on the due execution of the last will and testament of Don Jesus has foreclosed any and all claim to the contrary that the will was not executed in accordance with the requirements of the law. But more than that, gleaned from the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a mentally incapacitated person nor one suffering from "senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave detailed instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his properties should pertain; (b) the semi-final draft of the contested will prepared by his lawyer was even corrected by Don Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits . . ., leading in the conversation which ran from problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to wit: "Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui con migo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos." Clearly then, Don Jesus knew exactly what his actions were and the full implications thereof. In rejecting probate of the will, respondent court further pointed out other details which, in the words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of life" such as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking the probate thereof during his lifetime, the alleged redundant and unnecessary proceedings undertaken by Don Jesus in selling the properties under question to petitioner Francisca Alsua-Betts when the same properties had already been bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more sympathetic to Francisca so as to disregard or forget the former depriving them of benefits already given to them and rewarding the latter with disproportionate advantages or benefits, to such an

extreme as to violate his previous disposition consecrated in the previous extrajudicial partition, Exh. 8." We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are mere conjectures, surmises or speculations which, however, do not warrant or justify disallowance of the probate of the will of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic will and codicil were duly probated when he was still alive is a mere speculation which depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will be probated during the lifetime of the testator and for not doing so there cannot arise any favorable or unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal ground to reject allowance or disallowance of the will. The same thing can be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he had already assigned the same properties to her in his will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation or speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it can never be admitted as evidence. LLpr Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and between Don Jesus and petitioner Francisca is their validity or nullity. Private respondents mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two sales were valid. It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive; and this same principle applies even if the Court of Appeals was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The

general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact made by the Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the findings of fact of the Court of Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are: 1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257); 2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15); 3. Where there is a grave abuse of discretion (Buyco vs. People, 51 OG 2927); 4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953); 5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and 6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista vs. Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289). In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not supported by the evidence on record and adduced during the trial. Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on November 26, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also bears the signature of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisca under the same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of P32,644.71, drawn and signed by Francisca, payable to Don Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980) also dated November 26, 1962 in the amount of P47,355.29, drawn by Francisca and

payable to Don Jesus. (6) Exhibit "X-3 " and "X-5", endorsements on the back of the last two checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D-6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array of documentary evidence that in fact, Don Jesus sold the subject properties to his daughter, Francisca for the total consideration of P150,000.00. prcd The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on the basis that there was no need for funds in Don Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francisca and discriminate against the other children. The two contracts of sale executed by Don Jesus in favor of Francisca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time during this long drawn-out litigation of 15 years standing. That the consideration stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of the consideration. And even if he now allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3" and "X-5", which show that the checks of Francisca made payable to Don Jesus were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case, which proved that Don Jesus actually used Exhibit "X-1" to complete payment on the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue. Cdpr Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not vitiate a contract unless it is proven, which in the case at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil Code). We do not find the stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much higher than the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must be taken into account. WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First Instance of Albay in

Special Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs against respondents. SO ORDERED. Doromal v CA, L-36083, Sept. 2, 1975 EN BANC [G.R. No. L-36083. September 5, 1975.] Spouses RAMON DOROMAL, SR., and ROSARIO SALAS, and Spouses RAMON DOROMAL, JR., and GAUDELIA VEGA, petitioners, vs. HON. COURT OF APPEALS and FILOMENA JAVELLANA, respondents. Salonga, Ordonez, Yap, Parlade & Associates and Marvin J . Mirasol for petitioners. Arturo H . Villanueva, Jr. for private respondent. SYNOPSIS The co-owners of a parcel of land sold their 6/7 share thereof to petitioners for P115,250. The deed of sale, however, stated that the purchase price was only P30,000. The lower court found that the "consideration of P30,000 only was placed in the deed of sale to minimize the payment of registration fees, stamps and sales tax." Private respondent, who was admittedly, a 1/7 co-owner of the property, was informed of her co-owner's proposal to sell the land in question, but was "never notified, least of all, in writing, of the actual execution and registration of the deed of sale." When private respondent, in the exercise of her right as legal redemptioner, sought to redeem the property, and tendered the sum of P30,000 in cash, petitioners refused to accept the payment. Hence, private respondent filed the instant case. The trial court dismissed the complaint and further condemned private respondent to pay attorney's fees, and moral and exemplary damages. The Court of Appeals reversed the judgment. On petition for review, the Supreme Court sustained the Court of Appeals. SYLLABUS 1. PURCHASE AND SALE; LEGAL REDEMPTION; NOTICE IN WRITING SHOULD BE NOTICE OF ACTUAL EXECUTION AND DELIVERY OF DEED OF SALE. For purposes of the co-owner's right to redemption granted by Article 1620 of the Civil Code, the notice in writing which Article 1623 requires to be made to the other co-owners and from receipt of which the 30-day period to redeem should be counted is a notice not only of a perfected sale but of the actual execution and delivery of the deed of sale. This is implied from the latter portion of Article 1623 which requires that before a register of deeds can record a sale by a co-owner, there must be presented to him an affidavit to the effect that the notice of sale had been sent in writing to the other co-owners. A sale may not be presented to the registrar of deeds for registration unless it be in the form of a duly executed public

instrument. Moreover, the law prefers that all the terms and conditions of the sale should be definite and in writing. 2. ID.; ID.; ID.; PERIOD FOR REDEMPTION DOES NOT COMMENCE UNLESS NOTICE OF DISPOSITION IS MADE AFTER FORMAL DEED OF SALE HAS BEEN DULY EXECUTED. Article 1619 of the Civil Code bestows unto a co-owner the right to redeem and "to be surrogated under the same terms and conditions stipulated in the contract," and to avoid any controversy as to the terms and condition under which the right to redeem may be exercised, it is the best that the period therefor should not be deemed to have commenced unless the notice of disposition is made after the formal deed of disposal has been duly executed. Where it is beyond dispute that the legal redemptioner has never been notified in writing of the execution of the deed of sale by which the buyers acquired the subject property and has never been shown a copy of the deed through a written communication by either any of the purchasers or any of her co-owners-vendees, it is immaterial when the legal redemptioner might have actually come to know about said deed. 3. ID.; ID.; LEGAL REDEMPTIONER HAS RIGHT TO BE SUBROGATED UPON THE SAME TERMS AND CONDITIONS STIPULATED IN THE CONTRACT. Where the price actually paid for a parcel of land is P115,250, but "the consideration of P30,000 only was placed in the deed of sale minimize the payment of registration fees, stamps and sale tax," the redemption price should be that stated in the deed of sale. The Supreme Court will not sanction the buyers' pragmatic posture that the redemption price should be the price actually paid. Being patently violative of public policy and injurious to public interest, the seemingly widespread practice of understanding consideration of transactions for the purpose of evading taxes and fees due to the government must be condemned and all parties guilty thereof must be made to suffer the consequences of their ill-advised agreement to defraud the state. 4. ID.; PARI DELICTO; UNDERSTATING PURCHASE OF PRICE TO EVADE PAYMENT OF TAXES. Where the vendors and purchasers understate the purchase price of the things sold to minimize the payment of registration fees, stamps and sale tax. They are in pari delicto in committing tax evasion and should not receive any consideration from any court in respect to the money paid for the sale. Their situation is similar to that of parties to an illegal contract. TEEHANKEE, J., concurring: 1. PURCHASE AND SALES; LEGAL REDEMPTION; PURCHASER BOUND BY THE PRICE STATED IN THE CONTRACT OF SALE. Where it is admitted in the record that the buyers and sellers had criminally understated and falsified the contractual price in the deed of sale as registered

with the Register of Deeds to be P30,000 instead of P115,250 as "actually paid" by the buyers, admittedly for the illegal and criminal purpose "to minimize the payment the registration fees, stamp and sales tax," the legal (and moral) right of the pro-indiviso co-owner to exercise the right of legal redemption granted by the Civil Code is unassailable. 2. ID.; ID.; RIGHT OF LEGAL REDEMPTIONER TO BE SUBROGATED UPON THE SAME TERMS AND CONDITIONS STIPULATED IN THE CONTRACT. The criminal and illegal conduct of the buyers and sellers in understating the purchase price in no way entitles the buyers to claim callously against the legal redemptioner who is merely exercising her legal right of redemption "to be subrogated, upon the same terms and condition stipulated in the contract, in the place" of the third-person buyers (Article 1619 and 1620, Civil Code) that she may redeem the property from them by paying the larger amount that they had actually paid the co-owners for their 6/7 share of the property. Such criminal tax evasion can, in no way, be abated if the courts and the law would yet pay heed to the plea of tax evaders that they had falsely understated the contract price and the courts should order the redemptioner to pay them not the contract price but the larger amount they had actually paid but illegally understated in order to evade the taxes justly due to the government. A party to an illegal contract cannot come to court and ask it to help carry out his illegal objects. 3. ID.; ID.; COURTS WILL NOT SANCTION TAX EVASION. For the tax evaders to invoke in the court their very act of tax evasion and to ask the courts to sanction the same by declaring that the understated stipulated price was only for purposes of tax evasion but for the exercise of legal redemption, the redemptioner must be ordered by the courts to pay them the larger amount they had actually paid, but falsely understated in the deed would be to put a premium on criminal conduct and rank cynicism in gross derogation to the law, morals, good custom and public policy. 4. ID.; ID.; PURCHASER TAKES THE RISK OF UNDERSTATING PURCHASE PRICE. Where the buyers falsely understated the contractual price of their purchase from the legal redemptioner's co-owners, they did so at their own risk and with full knowledge of redemptioner's right to redeem the property for the price stated in the contract. 5. ID.; ID; ID.; PARI DELICTO. By virtue of the rule of in pari delicto, the buyers cannot even seek recourse against the co-owners-buyers to refund to them the difference between the redemption price and the much larger amount that they actually paid to the co-owners. If, say, there were no question or redemption but that they had a valid cause for rescission of their purchase and brought suit therefor (so that the suit were strictly between the buyers and their

sellers), the courts would order the return of only the price as officially stated in the deed and not the larger amount that they had actually paid (but understated for tax evasion purpose) since the law will not aid either party in pari delicto but will leave the parties where it finds them, or more accurately, where they have placed themselves. Manifestly, the law will not aid the buyers as against the redemptioners who had no part in their illegal and criminal conduct. DECISION BARREDO, J p : Petition for review of the decision of the Court of Appeals in CA-G.R. No. 47945-R entitled Filomena Javellana vs. Spouses Ramon Doromal, Sr., et al. which reversed the decision of the Court of First Instance of Iloilo that had in turn dismissed herein private respondent Filomena Javellana's action for redemption of a certain property sold by her co-owners to herein petitioners for having been made out of time. aisa dc The factual background found by the Court of Appeals and which is binding on this Court, the same not being assailed by petitioners as being capricious, is as follows: "IT RESULTING: That the facts are quite simple; Lot 3504 of the cadastral survey of Iloilo, situated in the poblacion of La Paz, one of its districts, with an area of a little more than 2-1/2 hectares was originally decreed in the name of the late Justice Antonio Horilleno, in 1916, under Original Certificate of Title No. 1314, Exh. A; but before he died, on a date not particularized in the record, he executed a last will and testament attesting to the fact that it was a coownership between himself and his brothers and sisters, Exh. C; so that the truth was that the owners or better stated, the co-owners were; beside Justice Horilleno, 'Luis, Soledad, Fe, Rosita, Carlos and Esperanza,' all surnamed Horilleno, and since Esperanza had already died, she was succeeded by her only daughter and heir herein plaintiff. Filomena Javellana, in the proportion of 1/7 undivided ownership each; now then, even though their right had not as yet been annotated in the title, the co-owners led by Carlos, and as to deceased Justice Antonio Horilleno, his daughter Mary, sometime since early 1967, had wanted to sell their shares, or if possible if Filomena Javellana were agreeable, to sell the entire property, and they hired an acquaintance Cresencia Harder, to look for buyers, and the latter came to interest defendants, the father and son, named Ramon Doromal, Sr. and Jr., and in preparation for the execution of the sale, since the brothers and sisters Horilleno were scattered in various parts of the country, Carlos in Ilocos Sur, Mary in Baguio, Soledad and Fe, in Mandaluyong, Rizal, and Rosita in Basilan City, they all executed various powers of attorney in favor of their niece, Mary H. Jimenez Exh. 1-8,

they also caused preparation of a power of attorney of identical tenor for signature by plaintiff, Filomena Javellana, Exh. M, and sent it with a letter of Carlos, Exh. 7 dated 18 January, 1968 unto her thru Mrs. Harder, and here, Carlos informed her that the price was P4.00 a square meter, although it now turns out according to Exh. 3 that as early as 22 October, 1967, Carlos had received in check as earnest money from defendant Ramon Doromal, Jr., the sum of P5,000.00 and the price therein agreed upon was five (P5.00) pesos a square meter, as indeed in another letter also of Carlos to Plaintiff in 5 November, 1967, Exh. 6, he had told her that the Doromals had given the earnest money of P5,000.00 at P5.00 a square meter, at any rate, plaintiff not being agreeable, did not sign the power of attorney, and the rest of the coowners went ahead with their sale of their 6/7, Carlos first seeing to it that the deed of sale by their common attorney in fact, Mary H. Jimenez be signed and ratified as it was signed and ratified in Candon, Ilocos Sur, on 15 January, 1968, Exh. 2, then brought to Iloilo by Carlos in the same month, and because the Register of Deeds of Iloilo refused to register right away, since the original registered owner, Justice Antonio Horilleno was already dead, Carlos had to ask as he did, hire Atty. Teotimo Arandela to file a petition within the cadastral case, on 26 February, 1968, for the purpose, Exh. C, after which Carlos returned to Luzon, and after compliance with the requisites of publication, hearing and notice, the petition was approved, and we now see that on 29 April, 1968, Carlos already back in Iloilo went to the Register of Deeds and caused the registration of the order of the cadastral court approving the issuance of a new title in the name of the co-owners, as well as of the deed of sale to the Doromals, as a result of which on that same date, a new title was issued TCT No. 23152, in the name of the Horillenos to 6/7 and plaintiff Filomena Javellana to 1/7, Exh. D, only to be cancelled on the same day under TCT No. 23153, Exh. 2, already in the names of the vendees Doromals for 6/7 and to herein plaintiff, Filomena Javellana, 1/7, and the next day 30 April, 1968, the Doromals paid unto Carlos by check, the sum of P97,000.00 Exh. 1, of Chartered Bank which was later substituted by check of Phil. National Bank, because there was no Chartered Bank Branch in Ilocos Sur, but besides this amount paid in check, the Doromals according to their evidence still paid an additional amount in cash of P18,250.00 since the agreed price was P5.00 a square meter; and thus was consummated the transaction, but it is here where complications set in. cdta On 10 June, 1968, there came to the residence of the Doromals in Dumangas, Iloilo, plaintiff's lawyer, Atty. Arturo H. Villanueva, bringing with him her letter of that date, reading. 'P.O. Box 189, Bacolod City

June 10, 1968 Mr. & Mrs. Ramon Doromal, Sr. and Mr. and Mrs. Ramon Doromal, Jr. 'Dumangas, Iloilo Dear Mr. and Mrs. Doromal: The bearer of this letter is my nephew, Atty. Arturo H. Villanueva, Jr., of this City. Through him, I am making a formal offer to repurchase or redeem from you the 6/7 undivided share in Lot No. 3504, of the Iloilo Cadastre, which you bought from my erstwhile co-owners, the Horillenos, for the sum of P30,000.00, Atty. Villanueva has with him the sum of P30,000.00 in cash, which he will deliver to you as soon as you execute the contract of sale in my favor. Thank you very much for whatever favorable consideration you can give this request. Very truly yours, (SIGNED) Mrs. FILOMENA JAVELLANA' p. 26, Exh, 'J', Manual of Exhibits. and then and there said lawyer manifested to the Doromals that he had the P30,000.00 with him in cash, and tendered it to them, for the exercise of the legal redemption, the Doromals were aghast, and refused, and the very next day, as has been said, 11 June, 1968, plaintiff filed this case, and in the trial, thru oral and documentary proofs, sought to show that as co-owner, she had the right to redeem at the price stated in the deed of sale, Exh. 2, namely P30,000.00 of the same; but defendants in answer, and in their evidence, oral and documentary sought to show that plaintiff had no more right to redeem, and that if ever she should have, that it should be at the true and real price by them paid, namely, the total sum of P115,250.00, and trial judge, after hearing the evidence, believed defendants, that plaintiff had no more right, to redeem, because, 'Plaintiff was informed of the intended sale of the 6/7 share belonging to the Horillenos.' and that, 'The plaintiff have every reason to be grateful to Atty. Carlos Horilleno because in the petition for declaration of heirs of her late uncle Antonio Horilleno in whose name only the Original Certificate of Title covering the Lot in question was issued, her uncle Atty. Carlos Horilleno included her as one of the heirs of said Antonio Horilleno. Instead, she filed this case to redeem the 6/7 share sold to the Doromals for the simple reason that the consideration in the deed of sale is the sum of P30,000.00 only instead of P115,250.00 approximately which was

actually paid by the defendants to her co-owners, thus she wants to enrich herself at the expense of her own blood relatives who are her aunts, uncles and cousins. The consideration of P30,000.00 only was placed in the deed of sale to minimize the payment of the registration fees, stamps, and sales tax.' pp. 77-78, R.A., and dismissed and further condemned plaintiff to pay attorney's fees, and moral and exemplary damages as set forth in few pages back, it is because of this that plaintiff has come here and contends, that Lower Court erred: 'I. . . . in denying plaintiff-appellant, as a co-owner of Lot No. 3504, of the Iloilo Cadastre, the right of legal redemption under Art. 1620, of the Civil Code. II. . . . as a consequence of the above error, in refusing to order the defendantsappellees, the vendees of a portion of the aforesaid Lot No. 3504. which they bought from the co-owners of the plaintiff-appellant, to reconvey the portion they purchased to the herein plaintiff-appellant. III. . . . in admitting extrinsic evidence in the determination of the consideration of the sale, instead of simply adhering to the purchase price of 'P30,000.00, set forth in the pertinent Deed of Sale executed by the vendors and co-owners of the plaintiff-appellant in favor of the defendants-appellees. IV. . . . in dismissing the complaint filed in this case.' pp. 1-3, Appellant's Brief, which can be reduced to the simple question of whether or not on the basis of the evidence and the law, the judgment appealed from should be maintained;" (Pp. 16-22, Record.) Upon these facts, the Court of Appeals reversed the trial court's decision and held that although respondent Javellana was informed of her co-owners' proposal to sell the land in question to petitioners she was, however, "never notified . . . least of all, in writing", of the actual execution and registration of the corresponding deed of sale, hence, said respondent's right to redeem had not yet expired at the time she made her offer for that purpose thru her letter of June 10, 1968 delivered to petitioners on even date. The intermediate court further held that the redemption price to be paid by respondent should be that stated in the deed of sale which is P30,000 notwithstanding that the preponderance of the evidence proves that the actual price paid by petitioners was P115,250. Thus, in their brief, petitioners assign the following alleged errors: I "IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE NOTICE IN WRITING OF THE SALE CONTEMPLATED IN ARTICLE 1623 OF THE CIVIL CODE REFERS TO A NOTICE IN WRITING AFTER THE EXECUTION AND REGISTRATION OF THE INSTRUMENT OF SALE, HENCE, OF THE DOCUMENT OF SALE.

II THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE INSCRIPTION OF THE SALE IN THE REGISTRY OF PROPERTY TAKES EFFECT AS AGAINST THIRD PERSONS INCLUDING CLAIMS OF POSSIBLE REDEMPTIONERS. ASSUMING, ARGUENDO, THAT PRIVATE RESPONDENT HAS THE RIGHT TO REDEEM, THE COURT OF APPEALS ERRED IN HOLDING THAT THE REDEMPTION PRICE SHOULD BE THAT STATED IN THE DEED OF SALE." (Pp. 1-2, Brief for Petitioner, page 74-Rec.) We cannot agree with petitioners. Petitioners do not question respondent's right to redeem, she being admittedly a 1/7 co-owner of the property in dispute. The thrust of their first assignment of error is that for purposes of Article 1623 of the Civil Code which provides that: "ART. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners. The right of redemption of co-owners excludes that of adjoining owners." the letters sent by Carlos Horilleno to respondent and dated January 18, 1968, Exhibit 7, and November 5, 1967, Exhibit 6, constituted the required notice in writing from which the 30-day period fixed in said provision should be computed. But to start with, there is no showing that said letters were in fact received by respondent and when they were actually received. Besides, petitioners do not pinpoint which of these two letters, their dates being more than two months apart, is the required notice. In any event, as found by the appellate court, neither of said letters referred to a consummated sale. As may be observed, it was Carlos Horilleno alone who signed them, and as of January 18, 1968, powers of attorney from the various co-owners were still to be secured. Indeed, the later letter of January 18, 1968 mentioned that the price was P4.00 per square meter whereas in the earlier letter of November 5, 1967 it was P5.00, as in fact, on that basis, as early as October 21, 1967, Carlos had already received P5,000 from petitioners supposedly as earnest money, of which, however, mention was made by him to his niece only in the later letter of January 18, 1968, the explanation being that "at later negotiation it was increased to P5.00 per square meter." (p. 4 of petitioners' brief as appellees in the Court of Appeals quoting from the decision of the trial court.) In other words, while the letters relied upon by petitioners could convey the idea that more or less some kind of consensus had been arrived at among the other coowners to sell the property in dispute to petitioners, it cannot be said definitely

that such a sale had even been actually perfected. The fact alone that in the later letter of January 18, 1968 the price indicated was P4.00 per square meter while in that of November 5, 1967, what was stated was P5.00 per square meter negatives the possibility that a "price definite" had already been agreed upon. While P5,000 might have indeed been paid to Carlos in October, 1967, there is nothing to show that the same was in the concept of the earnest money contemplated in Article 1482 of the Civil Code, invoked by petitioner, as signifying perfection of the sale. Viewed in the backdrop of the factual milieu thereof extant in the record, We are more inclined to believe that the said P5,000 were paid in the concept of earnest money as the term was understood under the Old Civil Code, that is, as a guarantee that the buyer would not back out, considering that it is not clear that there was already a definite agreement as to the price then and that petitioners were decided to buy 6/7 only of the property should respondent Javellana refuse to agree to part with her 1/7 share. In the light of these considerations, it cannot be said that the Court of Appeals erred in holding that the letters aforementioned sufficed to comply with the requirement of notice of a sale by co-owners under Article 1623 of the Civil Code. We are of the considered opinion and so hold that for purposes of the coowner's right of redemption granted by Article 1620 of the Civil Code, the notice in writing which Article 1623 requires to be made to the other co-owners and from receipt of which the 30-day period to redeem should be counted is a notice not only of a perfected sale but of the actual execution and delivery of the deed of sale. This is implied from the latter portion of Article 1623 which requires that before a register of deeds can record a sale by a co-owner, there must be presented to him, an affidavit to the effect that the notice of the sale had been sent in writing to the other co-owners. A sale may not be presented to the register of deeds for registration unless it be in the form of a duly executed public instrument. Moreover, the law prefers that all the terms and conditions of the sale should be definite and in writing. As aptly observed by Justice Gatmaitan in the decision under review, Article 1619 of the Civil Code bestows unto a co-owner the right to redeem and "to be subrogated under the same terms and conditions stipulated in the contract", and to avoid any controversy as to the terms and conditions under which the right to redeem may be exercised, it is best that the period therefor should not be deemed to have commenced unless the notice of the disposition is made after the formal deed of disposal has been duly executed. And it being beyond dispute that respondent herein has never been notified in writing of the execution of the deed of sale by which petitioners acquired the subject property, it necessarily follows that her tender to redeem the same made on June 10, 1968 was well within the period prescribed by law. Indeed, it is immaterial when she might have actually come to know about said

deed, it appearing she has never been shown a copy thereof through a written communication by either any of the petitioners-purchasers or any of her coowners-vendees. (Cornejo et al. vs. CA et al., 16 SCRA 775.) cd The only other pivotal issue raised by petitioners relates to the price which respondent offered for the redemption in question. In this connection, from the decision of the Court of Appeals, We gather that there is "decisive preponderance of evidence" establishing "that the price paid by defendants was not that stated in the document, Exhibit 2, of P30,000 but much more, at least P97,000, according to the check, Exhibit 1, if not a total of P115,250.00 because another amount in cash of P18,250 was paid afterwards." It is, therefore, the contention of petitioners here that considering said finding of fact of the intermediate court, it erred in holding nevertheless that "the redemption price should be that stated in the deed of sale." Again, petitioners' contention cannot be sustained. As stated in the decision under review, the trial court found that "the consideration of P30,000 only was placed in the deed of sale to minimize the payment of the registration fees, stamps and sales tax." With this undisputed fact in mind, it is impossible for the Supreme Court to sanction petitioners' pragmatic but immoral posture. Being patently violative of public policy and injurious to public interest, the seemingly wide practice of understating considerations of transactions for the purpose of evading taxes and fees due to the government must be condemned and all parties guilty thereof must be made to suffer the consequences of their illadvised agreement to defraud the state. Verily, the trial court fell short of its devotion and loyalty to the Republic in officially giving its stamp of approval to the stand of petitioners and even berating respondent Javellana as wanting to enrich herself "at the expense of her own blood relatives who are her aunts, uncles and cousins." On the contrary, said "blood relatives" should have been sternly told, as We here hold, that they are in pari-delicto with petitioners in committing tax evasion and should not receive any consideration from any court in respect to the money paid for the sale in dispute. Their situation is similar to that of parties to an illegal contract. 1 Of course, the Court of Appeals was also eminently correct in its considerations supporting the conclusion that the redemption in controversy should be only for the price stipulated in the deed, regardless of what might have been actually paid by petitioners. In that style inimitable and all his own, Justice Gatmaitan states those considerations thus: "CONSIDERING: As to this that the evidence has established with decisive preponderance that the price paid by defendants was not that stated in the document, Exh. 2 of P30,000.00 but much more, at least P97,000.00 according to the check, Exh. 1 if not a total of P115,250.00 because another amount in

cash of P18,250.00 was paid afterwards, perhaps it would be neither correct nor just that plaintiff should be permitted to redeem at only P30,000.00, that at first glance would practically enrich her by the difference, on the other hand, after some reflection, this Court can not but have to bear in mind certain definite points. 1st According to Art. 1619 'Legal redemption is the right to be subrogated, upon the same terms and conditions stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment, or by any other transaction whereby ownership is transmitted by onerous title.' pp. 471-472, New Civil Code, and note that redemptioner right is to be subrogated 'upon the same terms and conditions stipulated in the contract.' and here, the stipulation in the public evidence of the contract, made public by both vendors and vendees is that the price was P30,000.00; 2nd According to Art. 1620, 'A co-owner of a thing may exercise the right of redemption in case the share of all the other co-owners or any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.' p. 472, New Civil Code, from which it is seen that if the price paid is 'grossly excessive' redemptioner is required to pay only a reasonable one; not that actually paid by the vendee, going to show that the law seeks to protect redemptioner and converts his position into one not that of a contractually but of a legally subrogated creditor as to the right of redemption, if the price is not 'grossly excessive', what the law had intended redemptioner to pay can be read in Art. 1623. 'The right of a legal pre-emption or redemption shall not be exercised except within thirty (30) days from the notice in writing by the prospective vendor, or by the vendor as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof of all possible redemptioners.' p. 473, New Civil Code, if that be so that affidavit must have been intended by the lawmakers for a definite purpose, to argue that this affidavit has no purpose is to go against all canons of statutory construction, no law mandatory in character and worse, prohibitive should be understood to have no purpose at all, that would be an absurdity, that purpose could not but have been to give a clear and unmistakable guide to redemptioner, on how much he should pay and when he should redeem; from this must follow that notice must have been intended to state the truth and if vendor and vendee should have instead, decided to state an untruth therein, it is they who should bear the consequences of having thereby misled

the redemptioner who had the right to rely and act thereon and on nothing else; stated otherwise, all the elements of equitable estoppel are here since the requirement of the law is to submit the affidavit of notice to all possible redemptioners, that affidavit to be a condition precedent to registration of the sale therefore, the law must have intended that it be by the parties understood that they were there asking a solemn representation to all possible redemptioners, who upon faith of that are thus induced to act, and here worse for the parties to the sale, they sought to avoid compliance with the law and certainly refusal to comply cannot be rewarded with exception and acceptance of the plea that they cannot be now estopped by their own representation, and this Court notes that in the trial and to this appeal, plaintiff earnestly insisted and insists on their estoppel; 3rd If therefore, here vendors had only attempted to comply with the law, they would have been obligated to send a copy of the deed of sale unto Filomena Javellana, and from that copy, Filomena would have been notified that she should if she had wanted to redeem, offered no more, no less, than P30,000.00, within 30 days, it would have been impossible for vendors and vendees to have inserted in the affidavit that the price was truly P97,000.00 plus P18,250.00 or a total of P115,250.00; in other words, if defendants had only complied with the law, they would have been obligated to accept the redemption money of only P30,000.00; 4th If it be argued that foregoing solution would mean unjust enrichment for plaintiff, it need only be remembered that plaintiff's right is not contractual, but a mere legal one, the exercise of a right granted by the law, and the law is definite that she can subrogate herself in place of the buyer, 'upon the same terms and conditions stipulated in the contract,' in the words of Art. 1619, and here the price. 'stipulated in the contract' was P30,000.00, in other words, if this be possible enrichment on the part of Filomena, it was not unjust but just enrichment because permitted by the law; if it still be argued that plaintiff would thus be enabled to abuse her right, the answer simply is that what she is seeking to enforce is not an abuse but a mere exercise of a right; if it he stated that just the same, the effect of sustaining plaintiff would be to promote not justice but injustice, the answer again simply is that this solution is not unjust because it only binds the parties to make good their solemn representation to possible redemptioners on the price of the sale, to what they had solemnly averred in a public document required by the law to be the only basis for that exercise of redemption;" (Pp. 24-27, Record.) WHEREFORE, the decision of the Court of Appeals is affirmed, with costs against petitioners.

Alonzo v IAC, 150 SCRA 517 EN BANC [G.R. No. 72873. May 28, 1987.] CARLOS ALONZO and CASIMIRA ALONZO, petitioners, vs. INTERMEDIATE APPELLATE COURT and TECLA PADUA, respondents. Perpetuo L.B. Alonzo for petitioners. Luis R. Reyes for private respondent. SYLLABUS 1. REMEDIAL LAW; STATUTORY CONSTRUCTION; STATUTES; INTERPRETED AND APPLIED IN CONSONANCE WITH JUSTICE. As has been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice. Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. So we have done in this case. 2. ID.; ID.; ID.; MUST BE READ ACCORDING TO ITS SPIRIT AND INTENT. While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the lawmaker's will. "The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read according to its spirit or intent. For what is within the spirit is within the statute although it is not within the letter thereof, and that which is within the letter but not within the spirit is not within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which

is within the letter of the statute is not within the statute unless within the intent of the lawmakers." 3. CIVIL LAW; CONTRACTS; PACTO DE RETRO SALE; EXCEPTION TO THE GENERAL RULE ADOPTED IN CASE AT BAR. In arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in view of the peculiar circumstances of this case. The co-heirs in this case were undeniably informed of the sales although no notice in writing was given them. And there is no doubt either that the 30-day period began and ended during the 14 years between the sales in question and the filing of the complaint for redemption in 1977, without the co-heirs exercising their right of redemption. These are the justifications for this exception. DECISION CRUZ, J p: The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a court both of law and of justice. We apply the law with justice for that is our mission and purpose in the scheme of our Republic. This case is an illustration. Five brothers and sisters inherited in equal pro indiviso shares a parcel of land registered in the mane of their deceased parents under OCT No. 10977 of the Registry of Deeds of Tarlac. 1 On March 15, 1963, one of them, Celestino Padua, transferred his undivided share of the herein petitioners for the sum of P550.00 by way of absolute sale. 2 One year later, on April 22, 1964, Eustaquia Padua, his sister, sold her own share to the same vendees, in an instrument denominated "Con Pacto de Retro Sale," for the sum of P440.00. 3 By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to two-fifths of the said lot, representing the portions sold to them. The vendees subsequently enclosed the same with a fence. In 1975, with their consent, their son Eduardo Alonzo and his wife built a semi-concrete house on a part of the enclosed area. 4 On February 25, 1976, Mariano Padua, one of the five co-heirs, sought to redeem the area sold to the spouses Alonzo, but his complaint was dismissed when it appeared that he was an American citizen. 5 On May 27, 1977,

however, Tecla Padua, another co-heir, filed her own complaint invoking the same right of redemption claimed by her brother. 6 The trial court * also dismisses this complaint, now on the ground that the right had lapsed, not having been exercised within thirty days from notice of the sales in 1963 and 1964. Although there was no written notice, it was held that actual knowledge of the sales by the co-heirs satisfied the requirement of the law. 7 In truth, such actual notice as acquired by the co-heirs cannot be plausibly denied. The other co-heirs, including Tecla Padua, lived on the same lot, which consisted of only 604 square meters, including the portions sold to the petitioners. 8 Eustaquia herself, who had sold her portion, was staying in the same house with her sister Tecla, who later claimed redemption. 9 Moreover, the petitioners and the private respondents were close friends and neighbors whose children went to school together. 10 It is highly improbable that the other co-heirs were unaware of the sales and that they thought, as they alleged, that the area occupied by the petitioners had merely been mortgaged by Celestino and Eustaquia. In the circumstances just narrated, it was impossible for Tecla not to know that the area occupied by the petitioners had been purchased by them from the other co-heirs. Especially significant was the erection thereon of the permanent semi-concrete structure by the petitioners' son, which was done without objection on her part or of any of the other co-heirs. The only real question in this case, therefore, is the correct interpretation and application of the pertinent law as invoked, interestingly enough, by both the petitioners and the private respondents. This is Article 1088 of the Civil Code, providing as follows: "Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor." In reversing the trial court, the respondent court ** declared that the notice required by the said article was written notice and that actual notice would not suffice as a substitute. Citing the same case of De Conejero v. Court of Appeals 11 applied by the trial court, the respondent court held that that decision, interpreting a like rule in Article 1623, stressed the need for written notice although no particular form was required. Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with a copy of the deed of sale of the property subject to redemption would satisfy the requirement for written notice. "So long, therefore, as the latter (i.e., the redemptioner) is informed in writing of the sale

and the particulars thereof," he declared, "the thirty days for redemption start running." In the earlier decision of Butte v. Uy, 12 the Court, speaking through the same learned jurist, emphasized that the written notice should be given by the vendor and not the vendees, conformably to a similar requirement under Article 1623, reading as follows: "Art. 1623. The right of legal predemption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendors, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners. "The right of redemption of co-owners excludes that of the adjoining owners." As "it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving notice, and that notice must be deemed exclusive," the Court held that notice given by the vendees and not the vendor would not toll the running of the 30-day period. Cdpr The petition before us appears to be an illustration of the Holmes dictum that "hard cases make bad laws" as the petitioners obviously cannot argue against the fact that there was really no written notice given by the vendors to their coheirs. Strictly applied and interpreted, Article 1088 can lead to only one conclusion, to wit, that in view of such deficiency, the 30-day period for redemption had not begun to run, much less expired in 1977. But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice. Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed. As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too

closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." 13 While we admittedly may not legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature. While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to give effect to the lawmaker's will. "The spirit, rather than the letter of a statute determines its construction, hence, a statute must be read according to its spirit or intent. For what is within the spirit is within the statute although it is not within the letter thereof, and that which is within the letter but not within the spirit is not within the statute. Stated differently, a thing which is within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which is within the letter of the statute is not within the statute unless within the intent of the lawmakers." 14 In requiring written notice, Article 1088 seeks to ensure that the redemptioner is properly notified of the sale and to indicate the date of such notice as the starting time of the 30-day period of redemption. Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise date it is supposed to begin, to obviate any problem of alleged delays, sometimes consisting of only a day or two. prcd The instant case presents no such problem because the right of redemption was invoked not days but years after the sales were made in 1963 and 1964. The complaint was filed by Tecla Padua in 1977, thirteen years after the first sale and fourteen years after the second sale. The delay invoked by the petitioners extends to more than a decade, assuming of course that there was a valid notice that tolled the running of the period of redemption. Was there a valid notice? Granting that the law requires the notice to be written, would such notice be necessary in this case? Assuming there was a valid notice although it was not in writing, would there be any question that the 30-day period for redemption had expired long before the complaint was filed in 1977? In the face of the established facts, we cannot accept the private respondents' pretense that they were unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make sure that the redemptioners are duly notified. We are satisfied that in this case the other brothers and sisters were actually informed, although not in writing, of the sales made in 1963 and 1964, and that such notice was sufficient.

Now, when did the 30-day period of redemption begin? While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we do say that sometime between those years and 1976, when the first complaint for redemption was filed, the other co-heirs were actually informed of the sale and that thereafter the 30-day period started running and ultimately expired. This could have happened any time during the interval of thirteen years, when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when Tecla Padua filed her complaint, the right of redemption had already been extinguished because the period for its exercise had already expired. The following doctrine is also worth noting: "While the general rule is, that to charge a party with laches in the assertion of an alleged right it is essential that he should have knowledge of the facts upon which he bases his claim, yet if the circumstances were such as should have induced inquiry, and the means of ascertaining the truth were readily available upon inquiry, but the party neglects to make it, he will be chargeable with laches, the same as if he had known the facts." 15 It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not among them, should enclose a portion of the inherited lot and build thereon a house of strong materials. This definitely was not the act of a temporary possessor or a mere mortgagee. This certainly looked like an act of ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to object or at least inquire, to ascertain the facts, which were readily available. It took all of thirteen years before one of them chose to claim the right of redemption, but then it was already too late. llcd We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero and Butte doctrines. What we are doing simply is adopting an exception to the general rule, in view of the peculiar circumstances of this case. The co-heirs in this case were undeniably informed of the sales although no notice in writing was given them. And there is no doubt either that the 30-day period began and ended during the 14 years between the sales in question and the filing of the complaint for redemption in 1977, without the co-heirs exercising their right of redemption. These are the justifications for this exception.

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his due." 16 That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. So we have done in this case. WHEREFORE, the petition is granted. The decision of the respondent court is REVERSED and that of the trial court is reinstated, without any pronouncement as to costs. It is so ordered. Bautista v Grio-Aquino, 166 SCRA 760 FIRST DIVISION [G.R. No. 79958. October 28, 1988.] EMILIANA BAUTISTA, as Heir of the late MANUEL BAUTISTA and EVANGELINE BAUTISTA, petitioners, vs. HON. JUSTICES CAROLINA C. GRIO-AQUINO, MANUEL T. REYES, AND JAIME M. LANTIN, in their capacity as Justices of the Special First Division of the Court of Appeals, HON. PEDRO JL. BAUTISTA, in his capacity as Presiding Judge of the Court of First Instance of Rizal, Branch III, Pasay City, MANOLITO BAUTISTA, BENJAMIN DE GUZMAN, BETTY N. BAUTISTA, alias BEATRIZ BAUTISTA, NELIA N. BAUTISTA, GLORIA N. BAUTISTA, CLARITA N. BAUTISTA and ROSALINA BAUTISTA, respondents. Roberto M. Mendoza for petitioners. Florante R. Mendoza for respondents. SYLLABUS 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; EXTRAJUDICIAL SETTLEMENT OF ESTATE (SECTION 1, RULE 74, RULES OF COURT); APPLIES ONLY TO THE ESTATE LEFT BY DECEDENT. Under Section 1, Rule 74 of the Rules of Court an extrajudicial settlement of the Estate applies only to the estate left by the decedent who died without a will, and with no creditors, and the heirs are all of age or the minors are represented by their judicial or legal representatives. If the property does not belong to the estate of the decedent certainly it cannot be the subject matter of an extrajudicial partition. 2. ID.; ID.; ID.; ID.; DEED OF EXTRAJUDICIAL PARTITION THAT INCLUDES PROPERTY NOT BELONGING TO THE ESTATE IS VOID AB INITIO. As the subject property does not belong to the estate of Juliana Nojadera, the Deed of Extrajudicial Partition, is void ab initio being contrary to law. To include in an extrajudicial partition property which does not pertain to the estate of the deceased would be to deprive the lawful owner thereof of his

property without due process of law. Only property of the estate of the decedent which is transmitted by succession can be the lawful subject matter of an extrajudicial partition. In this case, the said partition obviously prejudices the right of Manuel Bautista as exclusive owner of the property. 3. ID.; ID.; ID.; ID.; ID.; PARTITION RESULTING IN THE PRETERITION OF THE RIGHT OF A COMPULSORY HEIR MUST BE RESCINDED. The said partition also effectively resulted in the preterition of the right of Evangeline Bautista as a compulsory heir of Manuel Bautista, daughter of the latter by his second marriage. It is difficult to believe that Manuel Bautista would wittingly overlook and ignore the right of her daughter Evangeline to share in the said property. It is not surprising that he denied signing the said document. Moreover, private respondents knew Evangeline Bautista who is their half-sister to be a compulsory heir. The court finds that her preterition was attended with bad faith hence the said partition must be rescinded. 4. ID.; ID.; ID.; PARTITION OF FUTURE INHERITANCE PROHIBITED. Moreover, such extrajudicial partition cannot constitute a partition of the property during the lifetime of its owner, Manuel Bautista. Partition of future inheritance is prohibited by law. 5. CIVIL LAW; SUCCESSION; PARTITION OF ESTATE; ACTION FOR PARTITIONING AMONG CO-OWNERS IMPRESCRIPTIBLE. Prescription cannot be invoked in this case as the petitioners' right to sue their co-owners for partition of the property is imprescriptible. And even assuming that the present action may prescribe as ruled by the respondent court, petitioners Emiliana Bautista and Evangeline Bautista who are not parties to the said instrument asserted that they discovered the same only soon before they filed the complaint in court. Certainly the action has not prescribed. DECISION GANCAYCO, J p: Can the property of the surviving husband be the subject of an extrajudicial partition of the estate of the deceased wife? This is the singular issue in this petition. LLpr In Civil Case No. 4033-P, petitioners instituted an action in the Court of First Instance of Rizal to declare the deed of extrajudicial partition, deed of absolute sale, Transfer Certificates of Title Nos. 14182, 14186 and 15665 all of Registry of Deeds of Pasay City and Tax Declaration No. 5147, null and void. On January 6, 1976, the parties submitted an Agreed Stipulation of Facts dated December 15, 1975: 1. That both parties admit that the land in question was registered in the name of petitioner Manuel Bautista under T.C.T No. 2210, and the latter inherited this land from his father, Mariano Bautista;

2. Both petitioners and private respondents admit that on Dec. 22, 1966, a Deed of Extrajudicial Partition was executed. Private respondents were signatories to the deed, and the signature of petitioner Manuel Bautista was supposed to appear in that document, although petitioner Manuel Bautista denied having signed that Extrajudicial Partition; 3. Both parties admit that upon registration of the Deed of Extrajudicial Partition, T.C.T. No. 2210 was cancelled and in lieu thereof, T.C.T.-T-14182 was issued; 4. The parties admit that the private respondents, with the exception of Manolito Bautista, executed a Deed of Absolute Sale in favor of Manolito Bautista of that property; 5. Upon registration of the Deed of Sale, T.C.T.-T-14182 was cancelled and in lieu thereof, T.C.T. No. T-14186 was issued to Manolito Bautista; 6. On August 7, 1969, Manolito Bautista executed a Deed of Sale in favor of the other private respondents and upon registration of said Deed of Sale, T.C.T. Nos. T-15665, T-15666, T-15667, T-15668, T-15669, T-15670, T-15671, were issued to private respondents; 7. Parties admit that petitioner Manuel Bautista married his second wife Emiliana Tamayo; 8. Parties admit that Manuel Bautista and his second wife, Emiliana Tamayo, had only a child, Evangeline Bautista, born on April 29, 1949; 9. That the property in question was the subject matter of extrajudicial partition of property on December 22, 1966, among the heirs of the late Juliana Nojadera, the first wife of Manuel Bautista; 10.Manuel Bautista denied participation in the Extrajudicial Partition of Property; 11.On August 1, 1974, all the parties agreed to submit to the NBI the questioned signature of Manuel Bautista; 12.That the NBI concluded that the questioned document was authentic. (Pp. 37-38, rollo; pp. 2-3 of decision of respondent court). In a decision of January 14, 1983, the trial court dismissed the complaint with costs against plaintiffs. On appeal, a decision was rendered in due course by the Court of Appeals on August 3, 1987, affirming the decision of the trial court. 1 Petitioner now seeks a review of said decision alleging the following errors committed by the respondent court "A. THE FINDINGS OF FACTS OF PUBLIC RESPONDENTS ARE MANIFESTLY ABSURD AND MISTAKEN; "B. PUBLIC RESPONDENTS AUTHORIZED THE EXTRAJUDICIAL PARTITION OF FUTURE INHERITANCE IN CLEAR VIOLATION OF ARTICLE 1347 OF THE NEW CIVIL CODE;

"C. PUBLIC RESPONDENTS AUTHORIZED THE PRETERITION OF PETITIONER EVANGELINE BAUTISTA IN VIOLATION OF THE LAW ON SUCCESSION." (P. 7, petition for review; p. 8, rollo) The petition is impressed with merit. The findings of facts of both the trial court and the respondent Appellate Court that the signature of Manuel Bautista in the questioned Deed of Extrajudicial Partition is authentic, as examined by the NBI, can no longer be questioned in this proceeding. Nevertheless, even granting that the signature of Manuel Bautista in the questioned Extrajudicial Deed of Partition is genuine, an examination of the document based on admitted and proven facts renders the document fatally defective. The extrajudicial partition was supposed to be a partition without court intervention of the estate of the late Juliana Nojadera, first wife of Manuel Bautista, constituting the subject property. In the same document Manuel Bautista appears to have waived his right or share in the property in favor of private respondents. LLjur However, the property subject matter of said extrajudicial partition does not belong to the estate of Juliana Nojadera. It is the exclusive property of Manuel Bautista who inherited the same from his father Mariano Bautista, which was registered in his name under T.C.T. No. 2210. Under Section 1, Rule 74 of the Rules of Court an extrajudicial settlement of the Estate applies only to the estate left by the decedent who died without a will, and with no creditors, and the heirs are all of age or the minors are represented by their judicial or legal representatives. If the property does not belong to the estate of the decedent certainly it cannot be the subject matter of an extrajudicial partition. As the subject property does not belong to the estate of Juliana Nojadera, the Deed of Extrajudicial Partition, is void ab initio being contrary to law. To include in an extrajudicial partition property which does not pertain to the estate of the deceased would be to deprive the lawful owner thereof of his property without due process of law. Only property of the estate of the decedent which is transmitted by succession can be the lawful subject matter of an extrajudicial partition. In this case, the said partition obviously prejudices the right of Manuel Bautista as exclusive owner of the property. The said partition also effectively resulted in the preterition of the right of Evangeline Bautista as a compulsory heir of Manuel Bautista, daughter of the latter by his second marriage. It is difficult to believe that Manuel Bautista would wittingly overlook and ignore the right of her daughter Evangeline to share in the said property. It is not surprising that he denied signing the said document. Moreover, private respondents knew Evangeline Bautista who is

their half-sister to be a compulsory heir. The court finds that her preterition was attended with bad faith hence the said partition must be rescinded. 2 The Court observes that after the execution of said extrajudicial partition and issuance of the title in their names, private respondents except Manolito Bautista in turn executed a deed of absolute sale of the property in favor of the latter in whose name the title was also issued. And yet soon thereafter another deed of sale was executed this time by Manolito Bautista selling back the same property to private respondents in whose names the respective titles were thus subsequently issued. This series of transactions between and among private respondents is an indication of a clever scheme to place the property beyond the reach of those lawfully entitled thereto. cdrep Moreover, such extrajudicial partition cannot constitute a partition of the property during the lifetime of its owner, Manuel Bautista. Partition of future inheritance is prohibited by law. 3 As said Extrajudicial Partition dated December 22, 1966, of property belonging exclusively to petitioner Manuel Bautista, is null and void ab initio it follows that all subsequent transactions involving the same property between and among the private respondents are also null and void. Prescription cannot be invoked in this case as the petitioners' right to sue their co-owners for partition of the property is imprescriptible. 4 And even assuming that the present action may prescribe as ruled by the respondent court, petitioners Emiliana Bautista and Evangeline Bautista who are not parties to the said instrument asserted that they discovered the same only soon before they filed the complaint in court. Certainly the action has not prescribed. LLpr WHEREFORE, AND IN CONSIDERATION OF THE FOREGOING, the Decision dated August 3, 1987, of respondent Court of Appeals in CA-G.R. CV No. 03631 and the Resolution of September 11, 1987, in the same case, are hereby reversed and set aside; and a new one is rendered declaring the Deed of Extrajudicial Partition dated December 22, 1966, as null and void ab initio, nullifying and cancelling T.C.T. Nos. T-14182, T-14186, T-15665, T-15666, T15667, T-15668, T-15669, T-15670, T-15671, and Tax Declaration No. 5147, restoring and reviving T.C.T. No. 2210, in the name of Manuel Bautista, with costs against private respondents. Let a copy of this decision be furnished to the Registry of Deeds of Pasay City for implementation. This decision is immediately executory. SO ORDERED. De los Santos v De la Cruz, 37 SCRA 555 EN BANC [G.R. No. L-29192. February 22, 1971.]

GERTRUDES DE LOS SANTOS, plaintiff-appellee, vs. MAXIMO DE LA CRUZ, defendant-appellant. Benjamin Pineda for plaintiff-appellee. Ceasar R. Monteclaros for defendant-appellant. DECISION VILLAMOR, J p: Direct appeal to this Court on questions of law from the judgment of the Court of First Instance of Rizal, Branch IX, in its Civil Case No. Q-8792. From the record of this case, we cull the following salient facts: On May 21, 1965, Gertrudes de los Santos filed a complaint for specific performance against Maximo de la Cruz, alleging, among others, that on August 24, 1963, she and several co-heirs, including the defendant, executed an extrajudicial partition agreement (a copy of which was attached to the complaint) over a certain portion of land with an area of around 20,000 sq. m.; that the parties thereto had agreed to adjudicate three (3) lots to the defendant, in addition to his corresponding share, on condition that the latter would undertake the development and subdivision of the estate which was the subject matter of the agreement, all expenses in connection therewith to be defrayed from the proceeds of the sale of the aforementioned three (3) lots; that in spite of demands by the plaintiff, by the other co-heirs, and by the residents of the subdivision, the defendant refused to perform his aforesaid obligation although he had already sold the aforesaid lots. The plaintiff prayed the court to order the defendant to comply with his obligation under the extra-judicial partition agreement and to pay the sum of P1,000.00 as attorney's fees and costs. In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, but set up the affirmative defenses that the plaintiff had no cause of action against him because the said agreement was void with respect to her, for the reason that the plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the property, and was included in the extrajudicial partition agreement by mistake; and that although he had disposed of the three lots adjudicated to him, nevertheless the proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. The answer contained a counterclaim wherein the defendant alleged that the plaintiff had likewise sold her share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of reversion. The defendant prayed that the complaint be dismissed; that the extrajudicial partition agreement be declared void with respect to the plaintiff; and, on his counterclaim, that the plaintiff be ordered to pay him the sum of P2,500.00.

On motion of the defendant, the court below entered an order on July 19, 1965, declaring the plaintiff in default for not having answered the counterclaim. On July 6, 1966, the case was submitted for decision on the following stipulation of facts: "1. That the parties admit the existence and execution of the 'Extra-Judicial Partition Agreement' dated August 24, 1963, which we marked as Exhibit 'A' for the plaintiff, and Exhibit "1" for the defendant, which partition agreement was marked as Annex 'A' in the complaint; "2. That the parties agree that the original purpose of the above-mentioned Extra-Judicial Partition Agreement was for the distribution of the lard in question for the heirs of Pelagia de al Cruz; however the parties further agree that several lots in the said land have been sold by some of the co-heirs, and there are now several houses constructed therein and residents therein; "3. That the parties agree that the defendant is the appointed Administrator and In-charge of the development and subdivision of the land in question, as provided for in the aforementioned extrajudicial partition agreement; "4. That parties agree that Lots 1, 2 and 3 as described on page 3, 3rd paragraph to the last of said partition agreement have been sold by the defendant herein; and parties further agree that there are no properly constructed roads, nor proper light and water facilities; "5. That the parties agree that the defendant is the nephew of the deceased Pelagia de la Cruz aforementioned, who was the owner and predecessor in interest of the land which was the subject matter of the extrajudicial partition agreement; "6. That the parties agree that the plaintiff is the grandniece of the said Pelagia de la Cruz; "7. That Pelagia de la Cruz died intestate and without issue on October 16, 1962, as evidenced by a death certificate, which is marked as Exhibit '2' for the defendant; and "8. That Marciana de la Cruz is the mother of the plaintiff and the niece of the said Pelagia de la Cruz, and that the said Marciana de la Cruz died on September 22, 1935, as evidenced by Exhibit '3' for the defendant." In its decision dated November 3, 1966, the court a quo held that the defendant, being a party to the extrajudicial partition agreement, was estopped from raising in issue the right of the plaintiff to inherit from the decedent Pelagia de la Cruz; hence, he must abide by the terms of the agreement. The court ordered the defendant "to perform his obligations to develop Lots 1, 2 and 3 of (LRC) Psd29561 as described on page 2 of the Extrajudicial Partition Agreement" (meaning, apparently, that the defendant should develop the subdivision because said Lots 1, 2 and 3 were intended to be sold for this purpose), and to

pay the plaintiff the sum of P2,000.00 as actual damages, the sum of P500.00 as attorney's fees, and the costs. No disposition was made of defendant's counterclaim. The defendant filed a "Motion for New Trial' but the same was denied. Hence, this appeal. The seven (7) errors assigned by defendant-appellant in his brief boil down to the following: 1. The court a quo erred in not holding that the extrajudicial partition agreement is null and void with respect to plaintiff-appellee, and, consequently, that plaintiff-appellee has no cause of action against defendant-appellant. 2. The court a quo erred in holding that defendant-appellant is estopped from questioning plaintiff-appellee's right to have the agreement enforced. 3. The court a quo erred in ordering defendant-appellant to pay actual damages to plaintiff-appellee, and, on the other hand, in not granting the relief prayed for by defendant-appellant in his counterclaim. We shall discuss seriatim these errors as thus condensed. 1. In the stipulation of facts submitted to the court below, the parties admit that the owner of the estate, subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died intestate on October 16, 1962 that defendantappellant is a nephew of the said decedent; that plaintiff-appellee is a grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a niece of the said Pelagia de la Cruz; that plaintiff-appellee's mother died on September 22, 1935, thus pre-deceasing Pelagia de la Cruz; and that the purpose of the extrajudicial partition agreement was to divide and distribute the estate among the heirs of Pelagia de la Cruz. The pivotal question is whether, in the premises, plaintiff-appellee is an heir of the decedent. We are convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she could not inherit from the latter by right of representation. "ART. 972. The right of representation takes place in the direct descending line, but never in the ascending. "In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood." Much less could plaintiff-appellee inherit in her own right. "ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place . . ." Applying these two (2) provisions, this Court, in Linart y Pavia vs. Ugarte y Iturralde, 5 Phil., 176 (1905), said: ". . . [I]n an intestate succession a grandniece of the deceased can not participate with a niece in the inheritance, because the latter being a nearer relative, the

more distant grandniece is excluded. In the collateral line the right of representation does not obtain beyond sons and daughters of the brothers and sisters, which would have been the case if Pablo Linart, the father of the plaintiff, had survived his deceased uncle." In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces, one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece, is excluded by law from the inheritance. But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial partition agreement insofar as her right to bring the present action is concerned? They did not confer upon her the right to institute this action. The express purpose of the extrajudicial partition agreement, as admitted by the parties in the stipulation of facts, was to divide the estate among the heirs of Pelagia de la Cruz. Indeed, the said agreement itself states that plaintiffappellee was participating therein in representation of her deceased mother. The pertinent portion of the agreement is herein quoted, thus: "NOW, THEREFORE, we . . . and Diego delos Santos, married to Anastacia dela Cruz, Mariano delos Santos married to Andrea Ramoy: Gertrudes delos Santos, married to Pascual Acuna; Alejo delos Santos, married to Leonila David; and Sotera delos Santos, married to Narciso Ramota; all in representation of our mother, MARCIANA DELA CRUZ, . . ., do hereby by these presents, mutually, voluntarily and amicably agree among ourselves to equitably divide the property left by the deceased PELAGIA DELA CRUZ, and adjudicate unto ourselves definite and independent portions of the estate in the following manner . . ." It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code, which reads: "ART. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person." Partition of property affected between a person entitled to inherit from the deceased owner thereof and another person who thought he was an heir, when he was not really and lawfully such, to the prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori, plaintiff-appellee could hardly derive from the agreement the right to have its terms enforced. 2. The extrajudicial partition agreement being void with respect to plaintiffappellee, she may not be heard to assert estoppel against defendant-appellant. Estoppel cannot be predicated on a void contract (17 Am. Jur. 605), or on acts

which are prohibited by law or are against public policy (Baltazar vs. Lingayen Gulf Electric Power Co., et al., G.R. Nos. 16236-38, June 30, 1965 [14 SCRA 522]). In Ramiro vs. Grao, et al., 54 Phil., 744 (1930), this Court held: "No estoppel arises where the representation or conduct of the party sought to be estopped is due to ignorance founded upon a mistake. And while there is authority to the contrary, the weight of authority is that the acts and declarations of a party based upon an innocent mistake as to his legal rights will not estop him to assert the same, especially where every fact known to the party sought to be estopped is equally well known to the party setting up the estoppel. (21 C.J., 1125, 1126.)" And in Capili, et al. vs. Court of Appeals, et al., G.R. No. L-18148, February 28, 1963 (7 SCRA 367), this Court said: "Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extrajudicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be apprised of his rights at the time he performs the act constituting estoppel, because silence without knowledge works no estoppel . . ." 3. The award of actual damages in favor of plaintiff-appellee cannot be sustained in view of the conclusion we have arrived at above. Furthermore, actual or compensatory damages must be duly proved (Article 2199, Civil Code). Here, no proof of such damages was presented inasmuch as the case was decided on a stipulation of facts and no evidence was adduced before the trial court. We now come to defendant-appellant's counterclaim, in which he alleged that plaintiff-appellee sold her share to a certain person for the price of P10,000.00, and claims that he is entitled to one-fourth (1/4) of the proceeds by right of reversion. It will be noted that plaintiff-appellee had been declared in default on defendant-appellant's counterclaim; but the latter did not present any evidence to prove the material allegation therein more specifically, the alleged sale of the former's share for the sum of P10,000.00. That no such evidence had been adduced is understandable, for the parties expressly submitted the case for the resolution of the court upon their stipulation of facts which, unfortunately, did not make any mention of the alleged sale; and neither had defendant made any offer or move to introduce the necessary evidence to that effect for the consideration and evaluation by the trial court.

Defendant-appellant contends, however, that in view of plaintiff-appellee's having been declared in default, the latter must be deemed to have admitted all the allegations in his counterclaim, so that the court a quo should have granted the relief prayed for by him. We find no merit in this contention. Section 1, Rule 18 of the Revised Rules of Court, reads: "SECTION 1. Judgment by default. If the defendant fails to answer within the time specified in these rules, the court shall, upon motion of the plaintiff and proof of such failure, declare the defendant in default. Thereupon the court shall proceed to receive the plaintiff's evidence and render judgment granting him such relief as the complaint and the fact proven may warrant. This provision applies where no answer is made to a counterclaim, crossclaim, or third-party complaint within the period provided in this rule." The abovequoted rule was taken from Sections 128 and 129 of the Code of Civil Procedure. In Macondray & Co. vs. Eustaquio, 64 Phil., 446 (1937), this Court said: "Under section 128 of our Code of Civil Procedure, the judgment by default against a defendant who has neither appeared nor filed his answer does not imply a waiver of rights except that of being heard and of presenting evidence in his favor. It does not imply admission by the defendant of the facts and causes of action of the plaintiff, because the codal section requires the latter to adduce his evidence in support of his allegations as an indispensable condition before final judgment could be given in his favor. Nor could it be interpreted as an admission by the defendant that the plaintiff's causes of action find support in the law or that the latter is entitled to the relief prayed for . . ." Nevertheless, the basic fact appears in the stipulation submitted by the parties that said plaintiff-appellee admitted having received a portion of the estate by virtue of the extrajudicial partition agreement dated August 24, 1963, to wit: "(9). Lot 9, (LRC) Psd-29561, containing an area of 1,691 sq. m. as described in the Technical Description to be adjudicated to Diego delos Santos, married to Anastacia dela Cruz; Mariano delos Santos, married to Regina Baluyot; Hilario delos Santos, married to Andrea Ramoy; Gertrudes delos Santos, married to Pascual Acuna; Alejo delos Santos, married to Leonila David; and Sotera delos Santos, married to Narciso Ramota, in co-ownership, share and share alike." Such being the case, defendant-appellant is apparently correct in his contention that the lower court erred in not passing on his counterclaim and, consequently, in not sentencing appellee to turn over to him his corresponding share of said portion received by appellee under the void partition. Remote relatives or unrelated persons who unduly received and took possession of the property of a deceased person without any right, by virtue of a null and void partition, must

restore it to the legitimate successor in the inheritance (De Torres vs. De Torres, et al., supra). Of course, if such share has already been disposed of by appellee to a bona fide purchaser, as seems to be indicated in the unproven allegations of the counterclaim, We cannot render judgment awarding any specific amount to defendant-appellant as his proportionate share of the proceeds of such sale for the reason that, as already stated above, this aspect of the counterclaim has not been touched upon in the stipulation of facts nor has it been supported by evidence which appellant should have presented in the lower court but did not. IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is hereby reversed and set aside; the defendant-appellant is absolved from any liability to and in favor of plaintiff-appellee; and, on appellant's counterclaim, appellee is hereby sentenced to restore or reconvey to him his corresponding share of the property she has received under the extrajudicial partition hereinbefore mentioned if the same has not already been disposed of as alleged. Costs in both instance against plaintiff-appellee. Ureta v Ureta, Sept. 14, 2011 Notarte v Notarte, G.R. No. 180614, Aug. 9, 2012 FIRST DIVISION [G.R. No. 180614. August 29, 2012.] LEONARDO NOTARTE, GUILLERMO NOTARTE, REGALADO NOTARTE AND HEIRS OF FELIPE NOTARTE, petitioners, vs. GODOFREDO NOTARTE, respondent. DECISION VILLARAMA, JR., J p: Before us is a petition for review on certiorari filed under Rule 45 which seeks to set aside the Decision 1 dated August 10, 2007 and Resolution 2 dated November 14, 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 92591 and to reinstate the Decision 3 dated September 1, 2004 of the Municipal Trial Court (MTC) of Bani, Pangasinan dismissing respondent's complaint for recovery of possession and damages. The CA affirmed the Decision 4 dated March 21, 2005 of the Regional Trial Court (RTC) of Alaminos City, Pangasinan, Branch 54 reversing the MTC judgment. As culled from the records, the facts of this case follow: The properties subject of controversy form part of a 263,233-square meter land situated in Barrio Quinaoayanan, Municipality of Bani, Province of Pangasinan, and covered by Original Certificate of Title (OCT) No. 48098 issued on November 6, 1931. The original registered owners with 1/7 share each are Vicenta Notarte, the wife of Hilario Hortaleza; Paulino Notarte, married to Maria Camba; Juan Notarte, married to Gregoria Castillo; Bernardo Notarte, married to Dorotea Orasa; Cirila Notarte, the wife of Luis Castelo; Fausto

Notarte, married to Martina Natino; and spouses Ricardo Namoca and Eusebia Ortaleza. Vicenta, Paulino, Juan, Bernardo, Cirila and Fausto, all surnamed Notarte, are brothers and sisters, while Ricardo Namoca is their cousin. 5 DEcSaI The parties in this case are close relatives. Petitioner Felipe Notarte is the uncle of respondent Godofredo Notarte whose father, Alejandro Notarte, is the brother of Felipe. Felipe and Alejandro are the sons of Juan Notarte. Petitioner Guillermo Notarte is the brother of Godofredo while petitioner Leonardo Notarte is their cousin, being the son of Felipe. Petitioner Regalado Notarte is the son of Leonardo. 6 On October 15, 1984, Godofredo bought from Patrocenia Nebril-Gamboa a parcel of land, as evidenced by the Deed of Absolute Sale 7 she executed in his favor and describing the property sold as follows: A parcel of land, situated in Quinaoayanan, Bani, Pangasinan, consisting of pasture and unirrigated riceland, containing an area of 29,482 sq.m., more or less. Bounded on the N. by Leonardo Notarte; on the NE. by Nenita Notarte; on the SE. by Jose Nano; on the S. by Guillermo Notarte; and on the W. by Leonardo Notarte, which limits are indicated by fences on all sides. Declared under Tax Declaration No. 255 and 256 still in the name of Emiliano Gamboa who donated it to Procopio Gamboa and Desiderio Gamboa and in turn Desiderio and Procopio sold it to Antonio Gamboa and Patrocenia Nebril who has adjudicated the entire parcel of land unto herself, the herein vendor; assessed in toto at P1,120.00. This is part of the land covered by Original Certificate of Title No. 48098, Pangasinan. (Emphases supplied.) ISADET On the same date, Godofredo filed his Affidavit of Adverse Claim in the Registry of Deeds to protect his rights on the land he acquired from Patrocenia "pending the completion of all proper documents for the segregation of separate portions of the whole parcel of land under aforesaid title [OCT No. 48098]." Thereafter, Godofredo declared the land in his name under Tax Declaration No. 982 for the year 1985, indicating its area as 29,482 sq.m. 8 Godofredo initially filed in the MTC a complaint for "Partition, Subdivision Survey and Recovery of Possession With Damages" against Felipe and Guillermo (Civil Case No. 36). An Amended Complaint for "Recovery of Possession With Damages" was admitted by the said court on January 10, 1997, whereby the prayer for subdivision survey of the adjoining lots respectively occupied by the parties was abandoned. The Second Amended Complaint which included as additional defendants Leonardo and Regalado, was likewise admitted on September 16, 1997. 9 TDCAHE In his Second Amended Complaint, Godofredo described the property he acquired from Patrocenia, as follows:

A parcel of unirrigated riceland and pasture land situated in Quinaoayanan, Bani, Pangasinan, containing an area of 27,604.714 sq.m., more or less. Bounded on the North and West by Felipe Notarte; on the East by Jose Nano; and on the South by Guillermo Notarte and Leonardo Notarte. Assessed at P6,900 under tax declaration No. 8341 in the name of the plaintiff. This was part of Bernardo Notarte's 1/7 share of the land covered by Original Certificate of Title No. 48098. 10 (Emphases supplied.) Godofredo claimed that his land was acquired by Patrocenia from Procopio Gamboa and Desiderio Gamboa who acquired the same from Emiliano Gamboa who in turn acquired it from Bernardo Notarte in separate transactions and conveyances in writing. He likewise averred that the heirs of Bernardo have executed pertinent documents renouncing their interest, action and participation over the subject land in favor of Godofredo and/or his predecessors-in-interest. HCITcA Godofredo alleged that the above-described land used to be intact but the petitioners, taking advantage of his absence, took possession of portions of his land thereby reducing it to barely 13,000 sq.m., with Guillermo occupying 6,333 sq.m. more or less on the southern side, while Leonardo and Regalado jointly encroached over 8,272 sq.m. more or less on the western side. Godofredo claimed that all demands upon the petitioners to return the aforesaid portions and conciliations before the Barangay authorities failed. In their Answer with Counterclaim, 11 petitioners denied having encroached on respondent's land, contending that respondent instituted this complaint to increase the actual size of his land at the expense of the adjoining owners. Petitioners asserted that they have been in actual, notorious, public and exclusive possession of their respective parcels for a very long time even before respondent bought his property from Patrocenia Gamboa. They claimed that their common ascendant, Felipe, owned 10 hectares of the property covered by OCT No. 48098 which he acquired by purchase as early as 1951 and the latest in 1967. The 37,604-sq. m. portion of Felipe's land being occupied by petitioners, which area adjoins respondent's property on the west, was acquired by Felipe from James Turner by virtue of a Quitclaim Deed dated April 2, 1951. Petitioners also alleged that there are other co-owners of the whole undivided land covered by OCT No. 48098 who are indispensable for the final and complete determination of this case. caCTHI In his Reply, 12 respondent pointed out that he had purchased a portion with a definite area of 27,604.714 sq.m. which is within the 1/7 share of Bernardo Notarte. Petitioners knew about this because one of them (Leonardo) bought only one hectare of the said share. Being a registered land, their possession of the encroached portion they do not own is illegal, no matter how long. As to the

property of Felipe, respondent argued that its alleged area is immaterial even if it were true that he acquired 10 hectares because the fact is that he had not acquired any portion of Bernardo's 1/7 share; why then did Felipe take possession of a western portion of Bernardo's 1/7 share which belongs to respondent? Respondent also claimed that what Felipe acquired from Turner was the 1/7 share of Juan Notarte, which is situated north of Bernardo's 1/7 share, one hectare of which was bought by Leonardo. Thus, petitioners are occupying not only the 37,604 sq.m. acquired from Turner but also the western portion of respondent's land measuring almost one hectare north of and adjacent to Leonardo's one hectare. Respondent further averred that the land covered by OCT No. 48098 is no longer undivided as it had been physically segregated into the designated shares of the registered owners, and various transfer certificates of title have been issued. Since Bernardo's 1/7 share was segregated in metes and bounds, the controversy lies in the boundaries of said share minus the one hectare of Leonardo. Since petitioners are illegally possessing portions of that share which respondent as present owner wants to recover, there are no indispensable parties other than those who have taken possession of the encroached portion. Respondent added that a survey to determine the extent of his land based on the documents he would present will certainly solve the case with finality. HSIADc Respondent filed a motion for the conduct of survey on the disputed lands "to correct and remove overlapping of boundaries of the parties' adjacent lots" which was opposed by the petitioners. The MTC denied the motion stating that this would pre-empt the issues under contention because of the ongoing trial to determine the boundaries of the subject properties which are in dispute. 13 At the trial, respondent testified that he had known the land covered by OCT No. 48098 since 1951. The shares of Juan and Paulino Notarte were foreclosed by Turner, and were later redeemed by Felipe and Manuel Urbano, respectively. Manuel Urbano also bought the share of Fausto Notarte. The shares of Paulino and Fausto were already transferred in the name of Urbano (TCT Nos. 4927 and 4928). Cornelio Gamboa acquired a portion of the share of Ricardo Namoca while another portion thereof went to Godofredo Namoca. Vicenta Notarte's share went to Juan, Felipe and Virgilio Tugas. The present owners of the portion representing Cirila Notarte's share are petitioner Guillermo and Lopercio Orilla. As to Bernardo Notarte's share, respondent testified that one hectare was sold to petitioner Leonardo while the remaining 27,604 sq.m. was bought by him. Respondent likewise presented a Deed of Extrajudicial Partition with Quitclaim and Confirmation of Sale dated April 28, 1995 executed in his favor by the heirs of Bernardo. Respondent presented other documents evidencing the transfer from the original registered owner Bernardo to him as

the present owner, and thereafter proceeded to draw a sketch on yellow paper and described to the court the limits of his land, including the areas encroached by the respondents. On May 8, 1985, he had the land surveyed but Felipe and Guillermo did not agree. Respondent stated that Guillermo encroached 6,233 sq.m. on the southern portion of his land, a riceland which produces 15 sacks of palay a year valued at P5,000.00 while Leonardo and Regalado are occupying 8,272 sq. m. of forest land on the western side of his land which are planted with madre cacao and tamarind trees that yields P3,000 harvest per year since 1985. 14 EDSHcT On cross-examination, respondent admitted that the signatories to the Deed of Extrajudicial Partition With Quitclaim and Confirmation of Sale were some of the alleged heirs of Bernardo, and that OCT No. 48098 is still existing. He saw the land for the first time in 1951 when he was 15 years old. The whole land had been partitioned among the original owners even prior to 1951; their respective shares have been pointed to them by their father, Eriberto Notarte. The share of Vicenta on the west is presently owned by Felipe and Nely Mendoza; Paulino's share on the east was acquired by Manuel Urbano; however, as to the portion now owned by Jose Doctor, he does not know who was the original owner. It was in 1985 that he found out about the encroachment on his land by Guillermo and Leonardo. At the time he bought the land in October 1984, it was Patrocenia Gamboa who was in possession. When he occupied the land in 1985, there was no fence yet but upon returning from Pampanga, the encroached areas were already fenced. Respondent affirmed that he had resided in Pampanga for more than 20 years from 1961 to 1985. In 1984, his brother Guillermo convinced him to buy the land that adjoins the riceland occupied by him (Guillermo) as a tenant of Patrocenia. On the other hand, Leonardo's house was built on his father's land and it is Leonardo's son Regalado who is residing on the encroached portion. Respondent admitted that when he bought the land from Patrocenia, she did not point to him the boundaries of his land and just handed him the document; he was the one who tried to locate the boundaries of the land. 15 He knew that the whole property covered by OCT No. 48098 had already been partitioned because his grandparents have been in possession of their share and they sold it, and because there were dispositions already made. The land under his possession pertains to the share of Bernardo. He affirmed that the well is situated about 100 meters west from the house of Guillermo and that one hectare of Bernardo's share is already owned by Leonardo. However, Leonardo encroached on his land, in excess of the said one hectare by removing the fence. Leonardo through his son Regalado is also in possession of the land of Felipe on the western side. 16 SAHIDc

Respondent presented as witness Leila P. Pamo, an employee of the Municipal Assessor's Office. She testified on the status of the property covered by OCT No. 48098, verified as Lot 1 PSU-25967, Cad. Lot 6035. This property had already been subdivided as per the Certification issued by the Municipal Assessor listing several tax declarations obtained by the present owners. She identified the said certification as well as 15 tax declarations covering various parcels of the land under OCT No. 48098 in the names of various individuals. However, she admitted on cross-examination that she did not secure a subdivision plan of Lot No. 6035 as there was none on file with their office and neither did she verify if there was such document on file with the Registry of Deeds. 17 Petitioners' first witness was Patrocenia Nebril Gamboa who testified that Guillermo is the son of her cousin, and has been working as her tenant since 1968. She claimed that she has already donated to Guillermo the land he had been farming and presented a Deed of Donation dated February 21, 1997. This 450-sq. m. land she donated to Guillermo lies on the western side near the property of Felipe. Previously, she donated two parcels to Guillermo in 1977 and 1983. She then clarified that the transaction in 1983 was a Deed of Absolute Sale. These two parcels (1 1/2 or 2 hectares) which she conveyed to Guillermo adjoin each other and are separated by a fence from that parcel she sold to Godofredo; the boundaries between these properties are also marked by coconuts (east) and bamboos (west). There is a well that was dug up by Guillermo who uses it as a source of water; Guillermo's house was erected about five meters away from this well. She described the metes and bounds of her property as follows: North Felipe, West Felipe, East pathway, South she forgot. The western and northern sides of her land that adjoins the property of Felipe are ricelands with bamboos as boundary on the west. She also stated that there are many who erected their houses on the property and their respective areas were just pointed to them. Her own parcel still has no separate title from the mother title (OCT No. 48098). However, she maintained that there is no clear partition. As to the precise area, it may be that she had occupied less than what is stated in her documents but she did not complain; they cannot resolve the matter because of several owners and she had no time. 18 aADSIc On cross-examination, Patrocenia confirmed that in 1984 she sold a parcel of land to Godofredo which is the same land she bought from Procopio and Desiderio Gamboa. She likewise confirmed her signature in the Deed of Absolute Sale in favor of Godofredo but not as to the area stated. She remembered having sold her land separately to Godofredo and Guillermo. The land she sold to Guillermo was acquired by her from Bienvenido Cortez who in

turn bought the same from Cirila Notarte. As to the land she sold to Godofredo, it came from Bernardo Notarte. When Guillermo became her tenant on her land which she subsequently donated to him, he constructed his house thereon (1968), which house still remains in the same place. 19 The second witness for petitioners was Epefanio C. Camba, Jr., Municipal Assessor of Bani, Pangasinan. When presented with the Certification dated October 1, 1999 regarding OCT No. 48098, he said he could not recall having issued the same although it may have indeed been issued by him. He does not know who are the present owners of the land covered by said title, nor if the same was already subdivided. The basis of the aforesaid certification are the tax declarations issued but he could not remember if there was proof of subdivision or partition on file with their office. He explained that when a property is subdivided, it means there is already a tax declaration on file but without reference to a subdivision plan or instrument of partition. 20 SCaEcD Petitioner Leonardo Notarte testified that he knows the boundaries of the land bought by Godofredo from Patrocenia which adjoins his own property. The boundaries of Godofredo's land are: North Leonardo, East Jose Nano, South Guillermo, and West Leonardo. Leonardo claimed that the land west of Godofredo's land was given to him by his parents as "sab-ong"; he also owns another lot southwest which he bought from Bernardo Notarte. He described the boundaries of the lot sold to him by Bernardo as follows: North Felipe, East Guillermo, South Godofredo Namoca, and West Narcisa Oblanca (now Mely Mendoza). Said land is covered by a tax declaration in his name. As to his property adjoining that of Godofredo Notarte, Leonardo said it is bounded on the west by "bayog," fence and bamboos. This property was acquired by his father from James Turner as evidenced by a Deed of Quitclaim executed by Turner dated April 2, 1951. His father acquired the southwestern portion of the 2/7 parcel from Turner while the northern portion went to Celestino Ortaleza. He maintained that the original land covered by OCT No. 48098 was never partitioned; their respective areas of possession were just pointed to them. There was no extrajudicial or judicial partition executed. On the land of Guillermo, Leonardo testified that he knows it was bought by Guillermo from Patrocenia but he does not know how Guillermo was able to buy it. The boundary of the lands of Guillermo and Godofredo consists of bamboo, coconut and star apple trees. Leonardo further claimed that his son Regalado had a dispute with Godofredo's wife a long time ago about the cutting of the fence. 21 cIHCST On cross-examination, Leonardo said that after buying one hectare from Bernardo in 1964, he immediately took possession and declared it in his name. As to the other land he had acquired from his father which is north of

Godofredo's property, he admitted that they have not yet executed a document. Four years after acquiring the parcel of land from James Turner, his father Felipe and Celestino divided the same between themselves. His father declared it for tax purposes before but he cannot locate it. The portion that went to Celestino is now occupied by Manuel Urbano. Leonardo further claimed that Guillermo twice bought land from Patrocenia; the sale to Godofredo of his parcel came first. The land acquired from Cirila Notarte was exclusively possessed by Patrocenia. He admitted that Bernardo originally owned the parcel of land that was eventually bought by Godofredo, although such portion presently owned by Godofredo used to be occupied by Feliciano Gamboa to whom Bernardo mortgaged the same. However, Leonardo claimed he does not know who else acquired the remaining portion of Bernardo's land aside from the 10,000 sq.m. he bought from Bernardo whose lots are not in one place. He insisted that the 1/7 share of Juan Notarte which was acquired by his father Felipe is not yet partitioned. While admitting that he was in possession thereof and already given to him by his father, Leonardo said he does not know the exact area occupied by him, only the specific location because his house was constructed on the western part. As to the boundaries of Godofredo's property surrounded by a fence, Leonardo described it as follows: North Felipe, East Nano, South Guillermo and West Felipe. 22 AIHaCc Petitioner Guillermo Notarte testified that her aunt Patrocenia was his former landlord. Patrocenia donated one hectare of her land to him as his homelot before he accepted the tenancy in 1968. He identified his signature in the Deed of Confirmation of Donation in his favor dated February 21, 1997. He also bought from Patrocenia more than one hectare of land in 1977, and another parcel in 1983. When Godofredo returned from Pampanga looking for land to buy, he told Godofredo to buy the remaining part of the land being tenanted by him (Guillermo), which is more than one and a half hectares 3 meters from his land on the north. He and Godofredo went around the land before the latter bought it. The boundaries of the land purchased by Godofredo are as follows: North Felipe, West Felipe, South Guillermo, and East Nano. Their lands are separated by bamboo and "bayog" (west), fence (made by their "ancestors"), madre cacao (in-between), coconut (east), star apple tree and dike (north). He further claimed that he does not know the actual area of the property bought by Godofredo from Patrocenia; its western side adjoining Felipe's property is a riceland. He insisted that the whole 263,000 was never partitioned; his neighbors just told him about the boundaries of his land. He believes that Godofredo wanted to get their land. 23 CaAIES On cross-examination, Guillermo said that of the two parcels owned by Patrocenia, the one she bought from Emiliano Gamboa was acquired first.

These two parcels are adjoined on the north and south. The parcel on the north was the one given to him in 1968 where he constructed his house, dug the well and planted coconut and star apple trees. Almost a year after, Patrocenia again instituted him as tenant on her second parcel of land. He does not know from whom Patrocenia acquired the first parcel, but he knows the second parcel to have been acquired by her from Cortez. The first lot he acquired from Patrocenia is covered by a tax declaration stating the area as 4,227 sq.m. while the second lot he bought has an area of 5,773 sq.m. However, he does not know the actual area of the land he is presently occupying, and its metes and bounds. 24 The last witness was petitioner Regalado Notarte who testified that the land he is occupying belongs to his grandfather Felipe which lies northwest of Godofredo's land. Before Godofredo acquired the said land, it was Guillermo who was cultivating the same. He described the then visible boundary limits of the property as follows: North and South dike, bamboo, "bayog," and madre cacao; West fence made of bamboo, madre cacao and aludig; and East pathway for carabao carts. He constructed his house in 1990 on this land owned by Felipe and nobody then prevented him from doing so. 25 HACaSc On cross-examination, Regalado admitted that it was his father Leonardo who told him to build his house on the land which he said is owned by Felipe. 26 Respondent made the following formal offer of evidence: [Exhibit] "A" [TCT] No. 4927 in the name of Manuel C. Urbano [II] covering a segregated portion of 33,737 sq.m. of the parcel of land under OCT No. 48098. [Exhibit] "B" [TCT] No. 4928 in the name of Manuel C. Urbano [II] covering a segregated portion of 30,650 sq.m. of the parcel of land under OCT No. 48098. [Exhibit] "C" [TCT] No. 3517 in the name of Cornelio Gamboa covering a segregated portion of 15,684 sq.m. of the parcel of land under OCT No. 48098. ISDHEa [Exhibit] "D" Escritura de Compra-venta, dated July 1, 1929 executed by Bernardo Notarte in favor of Emiliano Gamboa covering the land that was ultimately sold to [Godofredo Notarte]. [Exhibit] "E" Escritura de Donacion Esponsalicia, dated January 21, 1948 executed by Emiliano Gamboa in favor of his son Procopio Gamboa covering 14,741 sq.m. of the land under Exhibit "D." [Exhibit] "F" Deed of Donation Propter Nuptias dated April 17, 1957 executed by Emiliano Gamboa in favor of his

son Desiderio Gamboa covering 13[,]586 sq.m. of the land under Exhibit "D". [Exhibit] "G" Deed of Sale of Realty dated April 2, 1963 executed by Desiderio Gamboa and Procopio Gamboa in favor of Antonio Gamboa, married to Patrocenia NebrilGamboa covering the lands under Exhibits "E" and "F." [Exhibit] "H" Affidavit of Quitclaim dated April 30, 1973 executed by Primitivo Notarte, surviving child of Bernardo Notarte, in favor of Patrocenia Nebril, wife of Antonio Gamboa over the parcels of land covered by Exhibit "D". [Exhibit] "I" Affidavit of Adjudication dated May 10, 1983 executed by Patrocenia N. Gamboa covering the land under Exhibit "G". [Exhibit] "J" Affidavit of Adverse Claim dated March 10, 1983 executed by Patrocenia Nebril, then widow of Antonio Gamboa stating antecedent facts leading to their acquisition of Bernardo Notarte's land under OCT No. 48098 of which she has an adverse claim, and registered it on March 23, 1983. AcICHD [Exhibit] "K" Deed of Absolute Sale dated October 15, 1984 executed by Patrocenia N. Gamboa in favor of the plaintiff Godofredo Notarte covering the land that is the subject of Exhibits "D" to "J." xxx xxx xxx [Exhibit] "L" Affidavit of Adverse Claim dated October 15, 1984 executed by Godofredo Notarte stating that he bought the portion of 29,483 sq.m. of the land under OCT No. 48098. The affidavit was registered on October 15, 1984. [Exhibit] "M" Extrajudicial Settlement With [Q]uitclaim and Confirmation of Sale dated April 28, 1995 executed by heirs of Bernardo Notarte whereby they confirmed the sale executed by Bernardo Notarte to Emiliano Gamboa, and so on and so forth up to the sale in favor of . . . Godofredo Notarte. cADSCT [Exhibit] "N" [TD] No. 18884, effective 2000 in the name of Godofredo Notarte covering the land he bought from Patrocenia Nebril. [Exhibit] "N-1" [TD] No. 3449, effective 1952 in the name of Emiliano Gamboa covering the land he bought from

Bernardo Notarte. (Exh. "D") [Exhibit] "N-2" [TD] No. 98, effective 1985 in the name of Godofredo Notarte, . . . covering the same land under Exhibit "N". [Exhibit] "N-3" [TD] No. 237, effective 1983 in the name of Emiliano Gamboa covering the land under Exh. N-1. [Exhibit] "N-4" [TD] No. 255, effective 1980 in the name of Emiliano Gamboa covering the same land under Exh. N-3. [Exhibit] "N-5" [TD] No. 2981, effective 1974 in the name of Emiliano Gamboa covering the same land under Exh. N-4. TaCDAH [Exhibit] "N-6" [TD] No. 3953, effective 1966 in the name of Emiliano Gamboa covering the same land under Exh. N-5. [Exhibit] "O" Co-owner's Duplicate copy of OCT No. 48098 issued to Godofredo Notarte. [Exhibit] "P" Sketch made by Godofredo Notarte on the witness stand showing his land. [Exhibit] "P-1" The visible limits of [Godofredo Notarte's] land in all to "P-6" the cardinal directions. [Exhibit] "Q" The Barangay Certification to file action. . . . [Exhibit] "R" The encircled portion in Exhibit "1" for the defendants, the land claimed by [Godofredo Notarte]. HScAEC [Exhibit] "R-1" The blue shaded portion north of Leonardo Notarte which is the portion encroached by Felipe, Leonardo and Regalado. [Exhibit] "R-2" The place marked "X" in Exh R-1 where the house of Regalado Notarte stands. [Exhibit] "R-3" The blue shaded elongated portion which is encroached by Guillermo Notarte. [Exhibit] "R-4" The dug well on the southern side of Godofredo's land. It is within the portion encroached by Guillermo Notarte. [Exhibit] "R-5" The stamps of dead madre cacao trees on the northern side of [Godofredo's] land. TcSAaH [Exhibit] "R-6" The live madre cacao trees also on the northern side of [Godofredo's] land. [Exhibit] "R-7" The trail on the western side of [Godofredo's] land. Exhibits R and series are within Exhibit "1" of the defendants . . . . [Exhibit] "S" The Certification issued by the Municipal Assessor of Bani, Pangasinan stating that Lot 1, Psu-25967 or Psd-4816 is identical to cadastral lot No. 6035 and the same had been subdivided into several lots for

various lot owners. [Exhibit] "T" [TD] No. 8181 in the name of Charles and Clark Mendoza covering a segregated portion of the land under OCT No. 48098. aICHEc [Exhibit] "T-1" [TD] No. 8347 in the name of Leonardo Notarte also covering a segregated portion[.] [Exhibit] "T-2" Patrocenia G. Castillo's [TD] No. 7928 likewise covering a segregated portion. [Exhibit] "T-3" [TD] No. 8765 in the name of Manuel Urbano II covering another segregated portion. [Exhibit] "T-4" [TD] No. 8764 in the name of Manuel Urbano covering another segregated portion. [Exhibit] "T-5" [TD] No. 8354 in the name of Nenita Notarte covering another segregated portion. [Exhibit] "T-6" [TD] No. 8254 in the name of Godofredo Nam[o]ca covering another segregated portion. aACHDS [Exhibit] "T-7" [TD] No. 8346 in the name of Helardo Notarte covering another separate portion. [Exhibit] "T-8" [TD] No. 8348 in the name of Leonardo Notarte covering another separate portion. [Exhibit] "T-9" [TD] No. 8334 in the name of Fausto Notarte covering another separate portion. [Exhibit] "T-10" [TD] No. 8335 in the name of Felipe Notarte covering a segregated portion. [Exhibit] "T-11" Godofredo Notarte's [TD] No. 8341 covering a segregated portion. [Exhibit] "T-12" [TD] No. 8343 in the name of Guillermo Notarte covering another separate portion. THaAEC [Exhibit] "T-13" [TD] No. 8526 in the name of Lupercio Orilla covering another separated portion. [Exhibit] "T-14" [TD] No. 8342 in the name of Guillermo Notarte covering another segregated portion. 27 In its Order 28 dated May 16, 2000, the MTC denied admission of the following documentary evidence and stating the reasons for its ruling: (1) Exhibits "A," "B," "C," "S," "T," "T-1" to "T-4," for lack of showing of any written formal partition entered into by the registered owners and because the memorandum of encumbrances of OCT No. 48098 does not show any previous partition to bind their transferees/assigns; (2) Exhibit "D" as there is no showing that the land subject matter thereof is the same land owned by Bernardo Notarte covered by OCT No. 48098; (3) Exhibit "E" being in Ilocano dialect and carries

no translation; (4) Exhibit "F" for lack of showing that the land donated is part of the land bought from Bernardo Notarte; (5) Exhibit "G" in the absence of proof that the two lands were the same land earlier donated and subject matter of the case; (6) Exhibits "H," "I" and "J" for being hearsay, the affiants not having testified thereto; (7) Exhibit "K" there being no proof that the land conveyed to Godofredo emanated from Bernardo Notarte and then to Emiliano Gamboa; (8) Exhibit "M" for being hearsay, the extrajudicial settlement is more of a sworn statement; (9) Exhibits "N-1," "N-3" to "N-6," there being no clear showing that these were formally identified in court and covers the land in question; these are simply photocopies with no chance for comparison in the alleged original; (10) Exhibits "D" to "M" which were already denied admission. HCEISc On September 1, 2004, the MTC rendered judgment dismissing the complaint. Citing its non-admission of Exhibits "D," "E," "F," "G," "H," "I," "J," "K" and "M," the said court ruled that respondent has not proven his claim that he acquired 27,604.714 sq.m. from the 1/7 share of Bernardo Notarte. On the other hand, it found petitioners to have established their actual possession of their respective portions even long before respondent acquired his land. On appeal by respondent, the RTC reversed the MTC. The RTC found that from the evidence it is convincingly clear that respondent owns the 27,604 sq. m. described in his second amended complaint and identified his land with the statement of its metes and bounds and the visible limits thereof. Because there is overlapping of boundaries in this case, the RTC said that the area of the adjoining parcels gains significance. The fallo of the RTC Decision reads: WHEREFORE, the appealed decision of the court a quo is Set Aside, and this Honorable Court renders judgment, to wit: aCSDIc 1. ORDERING the defendant GUILLERMO NOTARTE to vacate and surrender the southern portion containing an area of 6,333 square meters of plaintiff's land and to pay actual damages of P40,000.00; 2. ORDERING the defendants LEONARDO NOTARTE, REGALADO NOTARTE AND FELIPE NOTARTE to vacate and surrender EIGHT THOUSAND TWO HUNDRED SEVENTY TWO (8,272) square meters western portion of plaintiff's land and to pay jointly and severally actual damages of P20,000.00; 3. ORDERING the defendants jointly and severally to pay the plaintiff attorney's fees and litigation expenses of P10,000.00. IT IS SO ORDERED. 29 CHcESa Petitioners elevated the case to the CA which dismissed their appeal. The CA held that it was a palpable mistake on the part of the MTC to conclude that no partition had been made by the registered owners and their successors-in-

interest, and on the basis of that conclusion denied admission of most of the material exhibits of respondent. The CA found that as early as 1951 and even before the issuance of OCT No. 48098, the registered owners have effected an oral or informal partition of the big parcel of land, complete with the demarcation of its boundaries as pertaining to the respective owners thereof by visible boundary limits such as dike, "mojon," live trees and the like. Assessing the evidence on record, the CA made the following observations: The statement of facts as presented herein is mainly culled from the decision of the MTC. On the face of the said decision, respondent Godofredo testified clearly and graphically as to the location and physical description of the subject land, in relation to the big parcel of land covered by OCT No. 48098. The series of conveyances from the registered owner Bernardo Notarte up to Antonio and Patrocenia Gamboa were related by Godofredo in painstaking details, all supported by documentary evidence. The trial court however precipitately concluded that the land being described in the said series of conveyances is not clearly referred to as the subject land, despite the stipulation of the parties at the pre-trial that the lands being referred to by the parties in the present case all form part of the big parcel of land covered by OCT No. 48098. Certainly, by the said conclusion formed by the trial court, and thereby sweeping aside all the material exhibits of respondent, the latter stood no chance at all in proving his claim, notwithstanding the clarity of his testimony, as bolstered by his documentary evidence. 30 HACaSc Their motion for reconsideration having been denied by the CA, petitioners are now before us alleging grave error committed by said court in affirming the RTC which rendered judgment based on exhibits that were denied admission by the MTC. Petitioners reiterate that there was no legal formal partition of the whole parcel of land covered by OCT No. 48098. They cite several entries in the said title which will show that the transactions referred to therein pertain to undivided portions of the entire land. In particular, petitioners point out that Exhibit "M" (Deed of Extrajudicial Settlement With Quitclaim and Confirmation of Sale) cannot be used as basis for an adverse ruling against them as said document was correctly determined by the MTC as a mere sworn statement and hearsay evidence. Petitioners emphasize that the issue of whether the whole parcel of land covered by OCT No. 48098 has been legally partitioned is material to respondent's claim that the portions of land allegedly encroached by petitioners belong to him. They argue that a partition must be a concerted act of all the heirs and not only individual acts of each of the co-heirs. Citing a portion of respondent's appellant's brief filed before the RTC, petitioners point out that respondent

stated the reason behind the execution of Exhibit "M" which is the fact that "[t]he chain of documents covering the transactions beginning with Bernardo Notarte to Emiliano Gamboa, to Procopio Gamboa and Desiderio Gamboa, to Antonio Gamboa and to Godofredo Notarte do not clearly identify the land in question as part of [the] registered land under OCT No. 48098. . . ." 31 DETACa The issues to be resolved are: (1) whether the MTC erred in not admitting most of the documentary exhibits formally offered by the respondent as indicated in its May 16, 2000 Order; (2) whether the 263,000 sq. m. land covered by OCT No. 48098 had been partitioned by the registered owners; and (3) whether petitioners have encroached on respondent's land. On the first issue, we agree with the CA that most of the documentary exhibits not admitted by the MTC are material to respondent's claim. Evidence is admissible when it is relevant to the issue and is not excluded by the law or the rules 32 or is competent. The exclusion of previous documents of transfer executed by Patrocenia Gamboa's predecessors-in-interest, based merely on the MTC's impression that they do not clearly indicate it was the same parcel sold by her to respondent, was improper considering that the parties stipulated at the pre-trial that the lands involved in this controversy form part of the property covered by OCT No. 48098. It may be recalled that what respondent sought to establish is the previous ownership by Bernardo, one of the original registered owners, of the specific parcel (1/7 share in the property covered by OCT No. 48098) from which Patrocenia acquired a portion, as well as the actual area of such portion acquired by Patrocenia. The relevance of those documents evidencing this series of conveyances from Bernardo to Emiliano Gamboa, the latter's donation to his sons Procopio and Desiderio Gamboa, the latter's sale of the same lots to Antonio Gamboa, husband of Patrocenia who later adjudicated unto herself all properties left by her husband was thus plainly obvious. Besides, Patrocenia admitted while testifying on cross-examination, that the land she sold to respondent came from the share of Bernardo. Thus: aSTAIH Q- So there were series of transactions could you still remember, is that right? A- Yes, sir. Q- Now, but why you cannot remember anymore transactions regarding to the acquisition of a parcel of land by Godofredo Notarte? A- The land that was sold to Godofredo Notarte came from Bernardo Notarte, sir. Q- And you remember now, that Bernardo Notarte sold that land to Emeliano Gamboa?

A- What I know is that, the land I sold to Godofredo came from Bernardo Notarte, sir. 33 (Emphasis supplied.) HICATc The non-admission of copies of tax declarations in the name of Emiliano Gamboa was likewise erroneous because these were in fact presented and identified in court by respondent and his counsel during his direct testimony. 34 The MTC further said these tax declarations do not show that they cover the subject land, the same reason it cited for denying admission to the previous documents of transfer. The rest of the documentary exhibits of respondent were denied admission on the ground of absence of a formal partition of the property covered by OCT No. 48098, which is again erroneous because what respondent sought to prove is an oral partition among the registered owners that may be inferred from various transactions on certain segregated portions as evidenced by those documents. As aptly observed by the CA, respondent stood no chance of being able to establish his claim after the MTC precipitately denied admission to almost all his documentary evidence which are actually relevant and competent to prove his ownership and identity of his land. The MTC thus erred in rejecting the formal offer of documentary evidence that is clearly relevant to respondent's cause of action. DcITHE Even assuming that the MTC had reservations about the relevancy of some exhibits offered by the respondent, still, it should have admitted the same subject to judicial evaluation as to their probative value. In connection with evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, this Court has held that: [I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them. 35 On the second issue, we sustain the RTC and CA in finding that the property covered by OCT No. 48098 had already been partitioned long before respondent purchased his lot. Under Article 1082 of the Civil Code, every act which is intended to put an end to indivision among co-heirs is deemed to be a partition even though it should purport to be a sale, an exchange, or any other transaction. Partition may thus be inferred from circumstances sufficiently strong to support the presumption. 36 DcCITS In this case, the original registered owners had either mortgaged or sold their respective 1/7 shares, in whole or in part. Although the deeds of conveyances

and those early entries in OCT No. 48098 indicated the portions being mortgaged or sold as pertaining to pro indiviso shares, the said owners' successors-in-interest eventually took possession of the respective portions acquired by them beginning 1951 or thereabouts. These transferees who are mostly relatives likewise introduced improvements on their respective lots, and have also exercised acts of ownership thereon. That these respective shares of the original registered owners were merely designated orally their individual portions having been simply pointed to them, as testified to by respondent and Patrocenia is immaterial. The existence of early annotations (Spanish) on OCT No. 48098, cited by the MTC, indicating that the subject of foreclosure sale in favor of James Turner as 2/7 pro indiviso or undivided portion, do not support the petitioners' contention that the property remains un-partitioned. This is because subsequent entries clearly show that the co-owners have either mortgaged or disposed specific portions of the land, as in fact three transfer certificates of title were issued separately to Manuel Urbano II and Cornelio Gamboa covering physically segregated areas with their respective technical descriptions. 37 Patrocenia herself testified that she took possession of her lots acquired from the shares of Bernardo and Cirila, and that she had instituted Guillermo as tenant on her land in 1968. Petitioner Leonardo, on his part, testified that he has been residing on the land since he was a child, and that he bought a hectare of land from Bernardo in 1964. He likewise named the present owners of adjoining lots pertaining to the shares of the other original registered owners. Leonardo and Guillermo further testified on the visible boundaries of their respective lands which they have fenced, as well as that acquired by the respondent. Also, specific portions under possession and claim of ownership by various persons are already covered by individual tax declarations as evidenced by the Certification dated October 1, 1999 issued by the Office of the Municipal Assessor. Tax Declaration No. 8449 in the name of Emiliano Gamboa was issued in 1962. Clearly, petitioners' insistence that the whole parcel under OCT No. 48098 remains undivided and un-partitioned is contradicted by the documentary evidence and their own declarations. ScaEIT The validity of an oral partition is already well-settled. 38 It is not required, contrary to the MTC's stated reason for denying some documentary exhibits to prove partition, such as the individual TCTs obtained by Manuel Urbano II and Cornelio Gamboa over portions they have acquired, that the partition agreement be registered or annotated in OCT No. 48098 to be valid. 39 In another case, we have held that after exercising acts of ownership over their respective portions of the contested estate, petitioners are estopped from denying the existence of an oral partition. 40

Here, none of the original co-owners has disputed the fact of partition, as it is only petitioners, as present owners and successors-in-interest of Juan Notarte, who are insisting that no partition had yet taken place merely because OCT No. 48098 was only partially cancelled and many of the present owners have not yet secured their own separate transfer certificates of title. Petitioners' stance is unreasonable and seems to be more of an afterthought aimed solely at defeating respondent's claim. Notably, Leonardo categorically testified that his father Felipe Notarte acquired the 1/7 share of Juan Notarte which was redeemed from James Turner, and that he was occupying the said parcel, with his father even donating to him a portion as a wedding gift ("sab-ong") and another one hectare was bought by him from Bernardo; these portions were already declared in his name for tax purposes indicating therein the areas under their possession. It is indeed unbelievable for the registered owners' successors-in-interest, which include petitioners, to have taken possession of their respective portions for which they paid valuable consideration, introduced improvements and paid the realty taxes due thereon, if those lots have not been physically segregated. In any event, estoppel had set in as to bar petitioners as present owners from denying an oral partition in view of acquiescence thereto by their predecessorsin-interest, as well as their own acts of ownership over those portions they have been occupying. TaSEHD On this point, this Court has ruled that: On general principle, independent and in spite of the statute of frauds, courts of equity have enforced oral partition when it has been completely or partly performed. Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will in proper cases, where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty. aSCHIT In numerous cases it has been held or stated that parol partition may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and

effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to enforce such partition agreed to by the parties. 41 (Emphasis supplied.) aETADI On the third issue, we hold that respondent has established by preponderance of evidence the identity and his ownership of the subject land. The governing law is Article 434 of the Civil Code which provides: Art. 434. In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on the weakness of the defendant's claim. The first requisite: the identity of the land. In an accion reinvindicatoria, the person who claims that he has a better right to the property must first fix the identity of the land he is claiming by describing the location, area and boundaries thereof. Anent the second requisite, i.e., the claimant's title over the disputed area, the rule is that a party can claim a right of ownership only over the parcel of land that was the object of the deed. 42 To prove the identity of the land he bought from Patrocenia, respondent submitted in evidence deeds of conveyances from the original sale made by Bernardo in 1929 in favor of Emiliano Gamboa, up to the acquisition thereof by Patrocenia. As can be gleaned from the proceedings before the MTC, ownership by respondent was not disputed but only the exact area because the deeds presented by him showed only the area and location with respect to adjoining owners, but did not describe the boundaries of the land sold in metes and bounds. THADEI We note the discrepancies in the areas stated in the 1929 Escritura de CompraVenta (27,172 sq.m.), deeds of donation executed by Emiliano Gamboa (total of 28,327 sq.m.), Deed of Absolute Sale executed by Desiderio and Procopio Gamboa (27,172 sq.m.), and the Deed of Absolute Sale executed by Patrocenia (29,482 sq.m.). However, since respondent traces ownership of his land to Bernardo, the area and boundaries stated in the 1929 Escritura de CompraVenta should control. Respondent sought to recover 27,604 sq.m., a figure he arrived at by deducting the 10,000 sq.m. subsequently sold by Bernardo to

Leonardo in 1964, from the 37,604.714 sq.m. which corresponds to the actual area of Bernardo's 1/7 share under OCT No. 48098. However, any increase in the statement of the area in the subsequent deeds of conveyances executed by Bernardo's successors-in-interest should not affect the area specified by Bernardo himself in the 1929 sale to Emiliano Gamboa, which was only 27,172 sq.m. Thus, respondent is entitled to 27,172 sq.m. only, as this is the actual area acquired by Patrocenia from her predecessors-in-interest. cITaCS As to the claims of Leonardo and Guillermo over certain portions in excess of the areas lawfully acquired by them from Bernardo and Patrocenia (pertaining to the portion she bought from the share of Cirila Notarte), the RTC correctly rejected the same. Leonardo failed to show any document evidencing the supposed donation of his father and admitted he does not even know its exact area. Guillermo, on the other hand, claimed to have received 450-sq.m. from Patrocenia by virtue of an oral donation in 1968 when he was instituted as a tenant on her land. However, the Deed of Confirmation of Donation dated February 21, 1997 mentioned a previous donation made in January 1983, and not 1968. In any case, the requirement as to form for contracts of donation to be valid and enforceable, are absolute and indispensable. 43 The alleged prior oral donation by Patrocenia was thus void and ineffective; it is not binding upon third parties like respondent who purchased a definite portion of Patrocenia's land in good faith, for value and evidenced by a duly notarized deed of sale. Guillermo also supposedly bought 4,227 sq.m. from Patrocenia but the latter testified that this parcel she sold to Guillermo actually came from the 1/7 share of Cirila and different from the property she sold to respondent. ASTcaE It is settled that what really defines a piece of land is not the area mentioned in its description, but the boundaries therein laid down, as enclosing the land and indicating its limits. 44 We have held, however, that in controversial cases where there appears to be an overlapping of boundaries, the actual size of the property gains importance. 45 As already stated, the location of respondent's land is not in dispute because the adjoining owners are clearly identified. Petitioners in their Answer with Counterclaim merely contended that respondent just wants to increase the actual area of his property. And while petitioners insisted on the visible physical boundaries to mark the limits of respondent's land, petitioners Leonardo and Guillermo could not tell the exact areas under their possession. These portions, still unregistered land, were also not described in metes and bounds under their deeds of conveyances. The controversy then lies in the delineation of the physical boundaries of the subject properties by metes and bounds, notwithstanding that the documentary evidence adduced by respondent established his ownership over a portion of Bernardo's share, in an area

enclosed by specified adjoining lots/owners, to the extent of 27,172 sq.m. AaHDSI The identity of the land sought to be recovered may be established through the survey plan of the property. 46 In this case, a survey could have settled the issue of overlapping boundaries especially since the properties involved are all unregistered and, apparently unsurveyed. Even assuming that the portions occupied by petitioners have already been surveyed, the non-presentation of any approved survey plan would raise a presumption that if presented, such piece of evidence would be adverse to their claim. The MTC did not grant respondent's motion for the conduct of a survey to correct the "overlapping boundaries" of the subject lots, stating that it would "pre-empt the issues under contention. "However, the MTC in its decision ruled that respondent has not established his cause of action for the reason that most of his documentary evidence were denied admission, but upheld the claims of petitioners based on the latter's long possession and occupation of their portions. Having ruled that respondent has established the identity and ownership of the land he acquired from Patrocenia with an area of 27,172 sq.m., this Court deems it just and proper to give him the opportunity to prove the alleged encroachment by petitioners and the extent of such encroachment. For this purpose, a survey is necessary to ascertain the physical boundaries of the subject lands by metes and bounds. Hence, remand of this case to the MTC for the conduct of a survey by qualified geodetic engineers, is in order. ATcaHS As to the grant of actual damages in favor of respondent, we find no legal or factual basis for such award, being based merely on respondent's bare testimony in court. In any case, it would be premature to affirm any pronouncement on damages resulting from encroachment being claimed by the respondent pending the resolution of the factual issue of overlapping boundaries. WHEREFORE, the Decision dated August 10, 2007 of the Court of Appeals in CA-G.R. SP No. 92591 is AFFIRMED in PART. The Decision dated March 21, 2005 of the Regional Trial Court of Alaminos City, Pangasinan, Branch 54 in Civil Case No. A-2964 is MODIFIED, as follows: 1. Respondent Godofredo Notarte is hereby declared the lawful owner of 27,172 square meters of the lot which is a portion of the 1/7 share of Bernardo Notarte in the property covered by OCT No. 48098, the boundaries thereof as described in the Second Amended Complaint are as follows: North Felipe Notarte; West Felipe Notarte; East Jose Nano; South Leonardo Notarte and Guillermo Notarte. CSTcEI 2. The award of actual damages is DELETED. The order to vacate the alleged areas encroached by petitioners is likewise SET ASIDE, subject to the outcome

of the survey and resolution on the issue of overlapping boundaries, consistent with our dispositions herein. 3. This case is hereby REMANDED to the Municipal Trial Court of Bani, Pangasinan for further proceedings. Said court is directed to order the conduct of a survey of the properties involved in this case. For this purpose, the said court shall appoint commissioners and proceed in accordance with Sections 2 to 13, Rule 32 of the 1997 Rules of Civil Procedure, as amended. No pronouncement as to costs. DIESaC SO ORDERED. Neri vs Uy, GR 194366, October 10, 2012 SECOND DIVISION [G.R. No. 194366. October 10, 2012.] NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR, VISMINDA D. NERICHAMBERS, ROSA D. NERI-MILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUT-COCKINOS AND VICTORIA D. ILLUT-PIALA, petitioners, vs. HEIRS OF HADJI YUSOP UY AND JULPHA * IBRAHIM UY, respondents. DECISION PERLAS-BERNABE, J p: In this Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court, petitioners Napoleon D. Neri (Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers (Visminda), Rosa D. Neri-Millan (Rosa), Douglas D. Neri (Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria D. Illut-Piala (Victoria) seek to reverse and set aside the April 27, 2010 Decision 2 and October 18, 2010 Resolution 3 of the Court of Appeals (CA) in CA-G.R. CV No. 01031MIN which annulled the October 25, 2004 Decision 4 of the Regional Trial Court (RTC) of Panabo City, Davao del Norte and instead, entered a new one dismissing petitioners' complaint for annulment of sale, damages and attorney's fees against herein respondents heirs of spouses Hadji Yusop Uy and Julpha Ibrahim Uy (heirs of Uy). IEHSDA The Facts During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from her first marriage with Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five (5) from her second marriage with Enrique Neri (Enrique), namely: Napoleon, Alicia, Visminda, Douglas and Rosa. Throughout the marriage of spouses Enrique and Anunciacion, they acquired several homestead properties with a total area of 296,555 square meters located in Samal, Davao del Norte, embraced by Original Certificate of Title (OCT) Nos. (P-7998) P-2128, 5 (P14608) P-5153 6 and P-20551 (P-8348) 7 issued on February 15, 1957, August 27, 1962 and July 7, 1967, respectively.

On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his personal capacity and as natural guardian of his minor children Rosa and Douglas, together with Napoleon, Alicia, and Visminda executed an Extra-Judicial Settlement of the Estate with Absolute Deed of Sale 8 on July 7, 1979, adjudicating among themselves the said homestead properties, and thereafter, conveying them to the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy (spouses Uy) for a consideration of P80,000.00. On June 11, 1996, the children of Enrique filed a complaint for annulment of sale of the said homestead properties against spouses Uy (later substituted by their heirs) before the RTC, docketed as Civil Case No. 96-28, assailing the validity of the sale for having been sold within the prohibited period. The complaint was later amended to include Eutropia and Victoria as additional plaintiffs for having been excluded and deprived of their legitimes as children of Anunciacion from her first marriage. In their amended answer with counterclaim, the heirs of Uy countered that the sale took place beyond the 5-year prohibitory period from the issuance of the homestead patents. They also denied knowledge of Eutropia and Victoria's exclusion from the extrajudicial settlement and sale of the subject properties, and interposed further the defenses of prescription and laches. The RTC Ruling On October 25, 2004, the RTC rendered a decision ordering, among others, the annulment of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale. It ruled that while the sale occurred beyond the 5-year prohibitory period, the sale is still void because Eutropia and Victoria were deprived of their hereditary rights and that Enrique had no judicial authority to sell the shares of his minor children, Rosa and Douglas. Consequently, it rejected the defenses of laches and prescription raised by spouses Uy, who claimed possession of the subject properties for 17 years, holding that coownership rights are imprescriptible. HcISTE The CA Ruling On appeal, the CA reversed and set aside the ruling of the RTC in its April 27, 2010 Decision and dismissed the complaint of the petitioners. It held that, while Eutropia and Victoria had no knowledge of the extrajudicial settlement and sale of the subject properties and as such, were not bound by it, the CA found it unconscionable to permit the annulment of the sale considering spouses Uy's possession thereof for 17 years, and that Eutropia and Victoria belatedly filed their action in 1997, or more than two years from knowledge of their exclusion as heirs in 1994 when their stepfather died. It, however, did not preclude the excluded heirs from recovering their legitimes from their co-heirs.

Similarly, the CA declared the extrajudicial settlement and the subsequent sale as valid and binding with respect to Enrique and his children, holding that as coowners, they have the right to dispose of their respective shares as they consider necessary or fit. While recognizing Rosa and Douglas to be minors at that time, they were deemed to have ratified the sale when they failed to question it upon reaching the age of majority. It also found laches to have set in because of their inaction for a long period of time. The Issues In this petition, petitioners impute to the CA the following errors: I. WHEN IT UPHELD THE VALIDITY OF THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" AS FAR AS THE SHARES OF EUTROPIA AND VICTORIA WERE CONCERNED, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" WITH RESPECT TO THE SHARES OF ROSA AND DOUGLAS, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; and III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION HAS SET IN. The Ruling of the Court The petition is meritorious. It bears to stress that all the petitioners herein are indisputably legitimate children of Anunciacion from her first and second marriages with Gonzalo and Enrique, respectively, and consequently, are entitled to inherit from her in equal shares, pursuant to Articles 979 and 980 of the Civil Code which read: CcAITa ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. xxx xxx xxx ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique acquired their respective inheritances, 9 entitling them to their pro indiviso shares in her whole estate, as follows: Enrique 9/16 (1/2 of the conjugal assets + 1/16) Eutropia 1/16 Victoria 1/16 Napoleon 1/16 Alicia 1/16 Visminda 1/16 Rosa 1/16

Douglas 1/16 Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses Uy, all the heirs of Anunciacion should have participated. Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid and binding upon them and consequently, a total nullity. Section 1, Rule 74 of the Rules of Court provides: SECTION 1. Extrajudicial settlement by agreement between heirs. . . . The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extra judicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (Underscoring added) The effect of excluding the heirs in the settlement of estate was further elucidated in Segura v. Segura, 10 thus: EcATDH It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule "no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years from its execution . . . However, while the settlement of the estate is null and void, the subsequent sale of the subject properties made by Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents is valid but only with respect to their proportionate shares therein. It cannot be denied that these heirs have acquired their respective shares in the properties of Anunciacion from the moment of her death 11 and that, as owners thereof, they can very well sell their undivided share in the estate. 12 With respect to Rosa and Douglas who were minors at the time of the execution of the settlement and sale, their natural guardian and father, Enrique, represented them in the transaction. However, on the basis of the laws prevailing at that time, Enrique was merely clothed with powers of administration and bereft of any authority to dispose of their 2/16 shares in the estate of their mother, Anunciacion. Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of the settlement and sale, provide: ART. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is

worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance. ART. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the child's property, subject to the duties and obligations of guardians under the Rules of Court. Corollarily, Section 7, Rule 93 of the Rules of Court also provides: SEC. 7. Parents as Guardians. When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable persons. ESTaHC Administration includes all acts for the preservation of the property and the receipt of fruits according to the natural purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of the patrimony of child, exceeds the limits of administration. 13 Thus, a father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the ward's property and even then only with courts' prior approval secured in accordance with the proceedings set forth by the Rules of Court. 14 Consequently, the disputed sale entered into by Enrique in behalf of his minor children without the proper judicial authority, unless ratified by them upon reaching the age of majority, 15 is unenforceable in accordance with Articles 1317 and 1403 (1) of the Civil Code which provide: ART. 1317. No one may contract in the name of another without being authorized by the latter or unless he has by law a right to represent him. A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party. ART. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; xxx xxx xxx Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice, knowingly made, which amounts to a ratification of what was theretofore unauthorized, and becomes

the authorized act of the party so making the ratification. 16 Once ratified, expressly or impliedly such as when the person knowingly received benefits from it, the contract is cleansed from all its defects from the moment it was constituted, 17 as it has a retroactive effect. Records, however, show that Rosa had ratified the extrajudicial settlement of the estate with absolute deed of sale. In Napoleon and Rosa's Manifestation 18 before the RTC dated July 11, 1997, they stated: "Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred in and conformed to by us and our other two sisters and brother (the other plaintiffs), in favor of Hadji Yusop Uy and his spouse Hadja Julpa Uy on July 7, 1979, we both confirmed that the same was voluntary and freely made by all of us and therefore the sale was absolutely valid and enforceable as far as we all plaintiffs in this case are concerned;" (Underscoring supplied) DHSACT In their June 30, 1997 Joint-Affidavit, 19 Napoleon and Rosa also alleged: "That we are surprised that our names are included in this case since we do not have any intention to file a case against Hadji Yusop Uy and Julpha Ibrahim Uy and their family and we respect and acknowledge the validity of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale dated July 7, 1979;" (Underscoring supplied) Clearly, the foregoing statements constituted ratification of the settlement of the estate and the subsequent sale, thus, purging all the defects existing at the time of its execution and legitimizing the conveyance of Rosa's 1/16 share in the estate of Anunciacion to spouses Uy. The same, however, is not true with respect to Douglas for lack of evidence showing ratification. Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not binding on Eutropia, Victoria and Douglas, only the shares of Enrique, Napoleon, Alicia, Visminda and Rosa in the homestead properties have effectively been disposed in favor of spouses Uy. "A person can only sell what he owns, or is authorized to sell and the buyer can as a consequence acquire no more than what the seller can legally transfer." 20 On this score, Article 493 of the Civil Code is relevant, which provides: Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. Consequently, spouses Uy or their substituted heirs became pro indiviso co-owners of the homestead properties with Eutropia, Victoria and Douglas, who retained title to their respective 1/16 shares. They were deemed to be holding the 3/16 shares of

Eutropia, Victoria and Douglas under an implied constructive trust for the latter's benefit, conformably with Article 1456 of the Civil Code which states: "if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes." As such, it is only fair, just and equitable that the amount paid for their shares equivalent to P5,000.00 21 each or a total of P15,000.00 be returned to spouses Uy with legal interest. On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed in so far as it seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of Court reckoned from the execution of the extrajudicial settlement finds no application to petitioners Eutropia, Victoria and Douglas, who were deprived of their lawful participation in the subject estate. Besides, an "action or defense for the declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil Code. TDCcAE However, the action to recover property held in trust prescribes after 10 years from the time the cause of action accrues, 22 which is from the time of actual notice in case of unregistered deed. 23 In this case, Eutropia, Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of 10 years. WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and October 18, 2010 Resolution of the Court of Appeals are REVERSED and SET ASIDE and a new judgment is entered: 1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and VOID; 2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy as regards the 13/16 total shares of the late Enrique Neri, Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. NeriChambers and Rosa D. Neri-Millan VALID; 3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as the LAWFUL OWNERS of the 3/16 portions of the subject homestead properties, covered by Original Certificate of Title Nos. (P-7998) P-2128, (P14608) P-5153 and P-20551 (P-8348); and 4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the respondents jointly and solidarily the amount paid corresponding to the 3/16 shares of Eutropia, Victoria and Douglas in the total amount of P15,000.00, with legal interest at 6% per annum computed from the time of payment until finality of this decision and 12% per annum thereafter until fully paid.

No pronouncement as to costs. SO ORDERED. Casilang v Casilang-Dizon, GR 180269, Feb. 20, 2013

FIRST DIVISION G.R. No. 180269 February 20, 2013

JOSE Z. CASILANG, SR., substituted by his heirs, namely: FELICIDAD CUD lAMA T VDA. DE CASILANG, JOSE C. CASILANG, JR., RICARDO C. CASILANG, MARIA LOURDES C. CASILANG, CHRISTOPHER C. CASILANG, BEN C. CASILANG, DANTE C. CASILANG, GREGORIO C. CASILANG, HERALD C. CASILANG; and FELICIDAD Z. CASILANG, MARCELINA Z. CASILANG, JACINTA Z. CASILANG, BONIFACIO Z. CASILANG, LEONORA Z. CASILANG, and FLORA Z. CASILANG, Petitioners, vs. ROSARIO Z. CASILANG-DIZON, MARIO A. CASILANG, ANGELO A. CASILANG, RODOLFO A. CASILANG, and ATTY. ALICIA B. FABIA, in her capacity as Clerk of Court and Ex-Officio Sheriff of Pangasinan and/or her duly authorized representative, Respondents. DECISION REYES, J.: Before us is a petition for review of the Decision1 dated July 19, 2007 of the Court of Appeals (CA) in CA-G.R. CV No. 79619, which reversed and set aside the Decision2 dated April 21, 2003 of the Regional Trial Court (RTC) of Dagupan City, Branch 41, in Civil Case No. 98-02371-D. Antecedent Facts The late spouses Liborio Casilang (Liborio) and Francisca Zacarias (Francisca) had eight (8) children, namely: Felicidad Casilang (Felicidad), Ireneo Casilang (Ireneo), Marcelina Casilang (Marcelina), Jacinta Casilang (Jacinta), Bonifacio Casilang (Bonifacio), Leonora Casilang (Leonora), Jose Casilang (Jose) and Flora Casilang (Flora). Liborio died intestate on October 11, 1982 at the age of 83, followed not long after by his wife Francisca on December 25, 1982. Their son Bonifacio also died in 1986, survived by his child Bernabe Casilang (Bernabe), while son Ireneo died on June 11, 1992, survived by his four (4) children, namely: Mario Casilang (Mario), Angelo Casilang (Angelo), Rosario Casilang-Dizon (Rosario) and Rodolfo Casilang (Rodolfo), herein respondents. The estate of Liborio, which left no debts, consisted of three (3) parcels of land located in Barangay Talibaew, Calasiao, Pangasinan, namely: (1) Lot No. 4676, with an area of

4,164 square meters; (2) Lot No. 4704, containing 1,164 sq m; and (3) Lot No. 4618, with 897 sq m. On May 26, 1997, respondent Rosario filed with the Municipal Trial Court (MTC) of Calasiao, Pangasinan a complaint for unlawful detainer, docketed as Civil Case No. 847, to evict her uncle, petitioner Jose from Lot No. 4618. Rosario claimed that Lot No. 4618 was owned by her father Ireneo, as evidenced by Tax Declaration (TD) No. 555 issued in 1994 under her fathers name. On April 3, 1997, the respondents executed a Deed of Extrajudicial Partition with Quitclaim3 whereby they adjudicated Lot No. 4618 to themselves. In the same instrument, respondents Mario, Angelo and Rodolfo renounced their respective shares in Lot No. 4618 in favor of Rosario. In his Answer, Jose raised the defense that he was the "lawful, absolute, exclusive owner and in actual possession" of the said lot, and that he acquired the same "through intestate succession from his late father."4 For some reason, however, he and his lawyer, who was from the Public Attorneys Office, failed to appear at the scheduled pre-trial conference, and Jose was declared in default; thus, the adverse judgment against him.5 On February 18, 1998, the MTC rendered judgment finding Rosario to be the owner of Lot No. 4618, and ordering Jose to remove his house, vacate Lot No. 4618, and pay Rosario P500.00 in monthly rentals from the filing of the complaint until she was placed in possession, plus attorneys fees of P5,000.00, litigation expenses and costs. On March 23, 1998, the MTC issued a writ of execution; and on August 28, 1998, a Writ of Demolition6 was issued. On June 2, 1998, the petitioners, counting 7 of the 8 children of Liborio and Francisca,7 filed with the RTC of Dagupan City a Complaint,8 docketed as Civil Case No. 98-02371-D for "Annulment of Documents, Ownership and Peaceful Possession with Damages" against the respondents. On June 10, 1998, the petitioners moved for the issuance of a writ of preliminary injunction or temporary restraining order, which the RTC however denied on June 23, 1998. Among the documents sought to be annulled was the 1997 Deed of Extrajudicial Partition executed by Ireneos children over Lot No. 4618, as we ll as TD No. 555, and by necessary implication its derivatives, TD No. 15177 (for the lot) and TD No. 15176 (for the house), both of which were issued in 1998 in the name of Rosario CasilangDizon.9 The petitioners alleged in their complaint that all eight (8) children of Liborio entered into a verbal partition of his estate, pursuant to which Jose was allotted Lot No. 4618 as his share; that Ireneo never claimed ownership of Lot No. 4618, nor took possession of it, because his share was the southwestern 1/5 portion of Lot No. 4676, containing an area of 1,308 sq m,10 of which he took exclusive possession during his lifetime; that Jose has always resided in Lot No. 4618 since childhood, where he built his familys semi concrete house just a few steps away from his parents old bamboo hut; that he took in

and cared for his aged parents in his house until their deaths in 1982; that one of his children has also built a house on the lot.11 Jose, said to be the most educated of the Casilang siblings, worked as an insurance agent.12 The complete disposition of the intestate estate of Liborio per the parties verbal partition appears as follo ws: 1. Lot No. 4676, with 4,164 sq m, declared under TD No. 534 in Liborios name,13 was verbally partitioned among Marcelina (236 sq m), Leonora (1,965 sq m), Flora (655 sq m), and Ireneo, represented by his children, the herein respondents-defendants (1,308 sq m), as shown in a Deed of Extrajudicial Partition with Quitclaim dated January 8, 1998, subsequently executed by all the Casilang siblings and their representatives. 2. Lot No. 4704, with 1,164 sq m, declared under TD No. 276 in Liborios name,14 was divided among Jacinta and Bonifacio, who died in 1986 and is now represented by his son Bernabe; and 3. Lot No. 4618, containing 897 sq m, declared since 1994 under TD No. 555 in Ireneos name,15 is now the subject of the controversy below. Jose insists that he succeeded to it per verbal partition, and that he and his family have always occupied the same peacefully, adversely and exclusively even while their parents were alive.16 For her part, Rosario alleged in her answer with counterclaim,17 which she filed on September 15, 1998, that: a) She is the actual and lawful owner of Lot No. 4618 with an area of 897 square meters, having acquired the same by way of a Deed of Extra judicial Partition with Quitclaim dated 3 April 1997 which was duly executed among herein Appellant ROSARIO and her brothers, namely, MARIO, ANGELO and RODOLFO, all surnamed CASILANG; b) Her ownership over subject property could be traced back to her late father IR[E]NEO which the latter inherited by way of intestate succession from his deceased father LIBORIO sometime in 1992; that the residential house described in herein Appellee JOSEs complaint is an illegal structure built by him in 1997 without her (ROSARIOs) knowledge and consent; that in fact, an ejectment suit was filed against Appellee JOSE with the Municipal Trial Court in Calasiao, Pangasinan in Civil Case No. 847; c) The subject lot is never a portion of Appellee JOSEs share from the intestate of his deceased father, LIBORIO; that on the contrary, the lot is his deceased brother IR[E]NEOs share from the late LIBORIOs intestate estate; that in fact, the property has long been declared in the name of the late IRENEO as shown by Tax Declaration No. 555 long before his children ROSARIO DIZON, MARIO, ANGELO and RODOLFO, all surnamed CASILANG, executed the Deed of Partition dated 18 February 1998; that Appellee JOSE had actually consumed his

shares which he inherited from his late father, and after a series of sales and dispositions of the same made by him, he now wants to take Appellants property; d) Appellee JOSE is never the rightful owner of the lot in question and has not shown any convincing proof of his supposed ownership; that the improvements introduced by him, specifically the structures he cited are the subject of a Writ of Demolition dated 28 August 1998 pursuant to the Order dated 17 August 1998 of the MTC of Calasiao, Pangasinan; e) No protestation or objection was ever made by Appellee JOSE in Civil Case No. 847 (Unlawful Detainercase) where he was the defendant; that the truth was that his possession of the subject property was upon the tolerance and benevolence of his late brother IRENEO during the latters lifetime and that Appellant ROSARIO; f) The RTC Clerk of Court and Ex-officio Provincial Sheriff would just be doing her job if she and her deputies would implement the writ of execution/demolition issued by the MTC of Calasiao, Pangasinan since it is its ministerial duty to do so; g) The Appellees have no cause of action; not having shown in their complaint the basis, the reason and the very core of their claim as to why the questioned document should be nullified.18 (Citation omitted) In their reply19 to Rosarios aforesaid answer, the petitioners asserted that the MTC committed a grave error in failing to consider a material fact-that Jose had long been in prior possession under a claim of title which he obtained by partition. At the pre-trial conference in Civil Case No. 98-02371-D, the parties entered into the following stipulations: 1. That the late LIBORIO is the father of FELICIDAD, MARCELINA, JUANITA, LEONORA, FLORA and IRENEO, all surnamed CASILANG; 2. That the late LIBORIO died in 1982; That the late LIBORIO and his family resided on Lot [No.] 4618 up to his death in 1982; That the house of the late LIBORIO is located on Lot [No.] 4618; 3. That Plaintiff JOSE used to reside on the lot in question because there was a case for ejectment filed against him; 4. That the house which was demolished is the family house of the late LIBORIO and FRANCISCA ZACARIAS with the qualification that it was given to the defendants;

5. That the action involves members of the same family; and 6. That no earnest efforts were made prior to the institution of the case in court. 20 Ruling of the RTC After a full trial on the merits, the RTC in its Decision21 dated April 21, 2003 decreed as follows: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs and against the defendants as follows: 1. Declaring the Deed of Extrajudicial Partition with Quitclaim dated April 3, 1997 null and void; 2. Declaring plaintiff Jose Z. Casilang Sr. as the lawful owner and possessor of the subject Lot No. 4618 and as such, entitled to the peaceful possession of the same; 3. Ordering the defendants to pay to plaintiff Jose Z. Casilang Sr. attorneys fees in the amount ofP20,000.00 and litigation expenses in the amount of P5,000.00, and to pay the costs of suit. SO ORDERED.22 The RTC affirmed Joses ownership and possession of Lot No. 4618 by virtue of the oral partition of the estate of Liborio by all the siblings. In the Deed of Extrajudicial Partition with Quitclaim23 dated January 8, 1998, subsequently executed by all the eight (8) Casilang siblings and their legal representativeswith Ireneo represented by his four (4) children, and Bonifacio by his son Bernabepetitioners Jose, Felicidad, Jacinta and Bernabe, acknowledged that they had already received their respective shares of inheritance in advance,"24 and therefore, renounced their claims over Lot No. 4676 in favor of co-heirs Marcelina, Leonora, Flora and Ireneo, as follows: We hereby RENOUNCED, WAIVED AND QUITCLAIM, all our rights, interests and participations over the WHOLE parcel of land [Lot No. 4676], left by the late, LIBORIO CASILANG, in favor of our coheirs, namely: MARCELINA Z. CASILANG-PARAYNO, LEONORA Z. CASILANG-SARMIENTO, FLORA Z. CASILANG, MARIO A. CASILANG, ANGELO A. CASILANG, ROSARIO A. CASILANGDIZON AND RODOLFO A. CASILANG.25 Thus, Jose expressly renounced his share in Lot No. 4676, which has an area of 4,164 sq m, because he had already received in advance his share in his fathers estate, Lot No. 4618 with 897 sq m:

To the mind of the court, Jose Casilang could have not [sic] renounced and waived his rights and interests over Lot [No.] 4676 if he believes that Lot [No.] 4618 is not his, while the other lot, Lot [No.] 470[4], was divided between sister Jacinta Casilang and brother Bonifacio Casilang[,] Sr., who was represented by his son. In the same [way] as testified to by plaintiffs Felicidad Casilang and Jacinta Casilang, they signed the Deed of Extrajudicial Partition with Quitclaim wherein they waived and renounced their rights and interests over Lot [No.] 4676 because they have already received their share, which is Lot [No.] 470[4].26 The RTC found baseless the claim of Rosario that Lot No. 4618 was an inheritance of her father Ireneo considering that a tax declaration is not conclusive proof of ownership. The RTC even noted that the tax declaration of Ireneo started only in 1994, although he had been dead since 1992. "Such being the case, the heirs of Ir[e]neo Casilang has [sic] no basis in adjudicating unto themselves Lot No. 4618 and partitioning the same by executing the Deed of Extrajudicial Partition with Quitclaim." 27 Appeal to the CA Undeterred, Rosario appealed to the CA averring that: (1) the lower court erred in declaring the Deed of Extrajudicial Partition with Quitclaim dated April 3, 1997 as null and void; and (2) the lower court erred in declaring Jose as the lawful owner and possessor of the subject Lot No. 4618.28 In the now assailed decision, the CA reversed the RTC by relying mainly on the factual findings and conclusions of the MTC in Civil Case No. 847, viz: Per the records, the above described property was subject of Civil Case No. 847 decided by the MTC of Calasiao, First Judicial Region, Province of Pangasinan which rendered a judgment, supra, in favor of Appellant ROSARIO ordering herein Appellee JOSE and all persons claiming rights under him to vacate the land of Appellant ROSARIO. It was found by the MTC that the latter is the owner of the subject parcel of land located at Talibaew, Calasiao, Pangasinan; that the former owner of the land is the late IRENEO (who died on 11 June 1992), father of Appellant ROSARIO; that Extra Judicial Partition with Quitclaim was executed by and among the heirs of the late IRENEO; that MAURO [sic], ANGELO and RODOLFO, all surnamed CASILANG waived and quitclaimed their respective shares over the subject property in favor of Appellant ROSARIO; that Appellee JOSE was allowed by the late IRENEO during his lifetime to occupy a portion of the land without a contract of lease and no rentals being paid by the former; that Appellant ROSARIO allowed Appellee JOSE to continue occupying the land after the Extra Judicial Partition with Quitclaim was executed. 29 Moreover, noting that the decision in Civil Case No. 847 in favor of Rosario was issued on February 18, 1998 while the petitioners complaint in Civil Case No. 98 -02371-D was filed on June 2, 1998, the CA concluded that the latter case was a mere afterthought:

If the latter has really a strong and valid reason to question the validity of the Deed of Extra Judicial Partition with Quitclaim, supra, he could have done it soon after the said Deed was executed on 3 April 1997. However, curiously enough, it was only when the MTC ordered his eviction from the subject property that he decided to file the instant case against the Appellants.30 Petition for Review in the Supreme Court Now in this petition for review on certiorari, petitioners maintain that: IN UPHOLDING THE LEGALITY [OF] THE DEED OF EXTRAJUDICIAL PARTITION AND QUITCLAIM DATED APRIL 3, 1997, THE HONORABLE COURT OF APPEALS GROSSLY VIOLATED THE SUBSTANTIVE RIGHT OF JOSE Z. CASILANG, SR. AS DIRECT COMPULSORY HEIR.31 Our Ruling and Discussions There is merit in the petition. Inferior courts are empowered to rule on the question of ownership raised by the defendant in an ejectment suit, but only to resolve the issue of possession; its determination is not conclusive on the issue of ownership. It is well to be reminded of the settled distinction between a summary action of ejectment and a plenary action for recovery of possession and/or ownership of the land. What really distinguishes an action for unlawful detainer from a possessory action (accion publiciana) and from a reinvindicatory action (accion reinvindicatoria) is that the first is limited to the question of possession de facto. Unlawful detainer suits (accion interdictal) together with forcible entry are the two forms of ejectment suit that may be filed to recover possession of real property. Aside from the summary action of ejectment, accion publiciana or the plenary action to recover the right of possession and accion reinvindicatoria or the action to recover ownership which also includes recovery of possession, make up the three kinds of actions to judicially recover possession.32 Under Section 3 of Rule 70 of the Rules of Court, the Summary Procedure governs the two forms of ejectment suit, the purpose being to provide an expeditious means of protecting actual possession or right to possession of the property. They are not processes to determine the actual title to an estate. If at all, inferior courts are empowered to rule on the question of ownership raised by the defendant in such suits, only to resolve the issue of possession and its determination on the ownership issue is not conclusive.33 As thus provided in Section 16 of Rule 70: Sec. 16. Resolving defense of ownership.When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without

deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. It is apropos, then, to note that in contrast to Civil Case No. 847, which is an ejectment case, Civil Case No. 98-02371-D is for "Annulment of Documents, Ownership and Peaceful Possession;" it is an accion reinvindicatoria, or action to recover ownership, which necessarily includes recovery of possession34 as an incident thereof. Jose asserts his ownership over Lot No. 4618 under a partition agreement with his co-heirs, and seeks to invalidate Ireneos "claim" over Lot No. 4618 and to declare TD No. 555 void, and consequently, to annul the Deed of Extrajudicial Partition and Quitclaim executed by Ireneos heirs. It is imperative to review the CAs factual conclusions since they are entirely contrary to those of the RTC, they have no citation of specific supporting evidence, and are premised on the supposed absence of evidence, particularly on the parties verbal partition, but are directly contradicted by the evidence on record. It must be noted that the factual findings of the MTC, which the CA adopted without question, were obtained through Summary Procedure and were based solely on the complaint and affidavits of Rosario, after Jose had been declared in default. But since a full trial was had in Civil Case No. 98-02371-D, the CA should have pointed out the specific errors and weaknesses in the RTCs factual conclusions before it could rule that Jose was unable to present "any evidentiary support" to establish his title, and that his continued possession of Lot No. 4618 was by mere tolerance of Rosario. At most, however, the CA only opined that it was conjectural for the RTC to conclude, that Jose had already received his inheritance when he renounced his share in Lot No. 4676. It then ruled that the RTC erred in not considering the findings of the MTC in Civil Case No. 847-that Joses possession over subject property was by mere tolerance. Said the appellate court: Given the claim of the Appellee that Lot [No.] 4618 was orally given/assigned to him by his deceased father LIBORIO, or that his claim was corroborated by his sisters (his coplaintiffs-Appellees), or that their claim is indubitably tied up with the Deed of Extrajudicial Partition with Quitclaim over Lot No. 4676, still We cannot fully agree with the pronouncement of the court a quo that Appellee JOSE could not have renounced and waived his rights and interest over Lot [No.] 4676 if he believes that Lot [No.] 4618 is not his. Wanting any evidentiary support, We find this stance as conjectural being unsubstantiated by law or convincing evidence. At the most and taking the factual or legal circumstances as shown by the records, We hold that the court a quo erred in not considering the findings of the MTC in Civil Case No. 847 ruling that herein Appellee JOSEs possession over subject property was by mere tolerance. Based as it is on mere tolerance, Appellee JOSEs possession therefore could not, in any way, ripen into ownership.35 (Citations omitted)

By relying solely on the MTCs findings, the CA completely ignored the testimonial, documentary and circumstantial evidence of the petitioners, obtained by the RTC after a full trial on the merits. More importantly, the CA did not point to any evidence of Rosario that Ireneo had inherited Lot No. 4618 from Liborio. All it did was adopt the findings of the MTC. The Supreme Court is not a trier of facts, and unless the case falls under any of the well-defined exceptions, the Supreme Court will not delve once more into the findings of facts. In Sps. Sta. Maria v. CA,36 this Court stated: Settled is the rule that the jurisdiction of this Court in cases brought before it from the Court of Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law. Findings of fact of the latter are conclusive, except in the following instances: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.37 (Citation omitted) In the instant case, the factual findings of the CA and the RTC are starkly contrasting. Moreover, we find that the CA decision falls under exceptions (7), (8) and (10) above, which warrants another review of its factual findings. The evidence supporting Rosarios claim of sole ownership of Lot No. 4618 is the Deed of Extrajudicial Partition with Quitclaim, which she executed with her brothers Mario, Angelo and Rodolfo. There is no question that by itself, the said document would have fully conveyed to Rosario whatever rights her brothers might have in Lot No. 4618. But what needs to be established first is whether or not Ireneo did in fact own Lot No. 4618 through succession, as Rosario claims. And here now lies the very crux of the controversy. A review of the parties evidence shows that they entered into an oral partition, giving Lot No. 4618 to Jose as his share, whereas Rosario presented no proof whatsoever that her father inherited Lot No. 4618 from his father Liborio. Rosarios only proof of Ireneos ownership is TD No. 555, issued in his name, but she did not bother to explain why it was dated 1994, although Ireneo died on June 11, 1992. Liborios ownership of Lot No. 4618 is admitted by all the parties, but it must be asked whether in his lifetime Liborio did in fact transmit it to Ireneo, and if not, whether it was conveyed to him by Liborios heirs. It is imperative for Rosario to have presented proof

of this transfer to Ireneo, in such a form as would have vested ownership in him. We find, instead, a preponderance of contrary evidence. 1. In his testimony, Jose claimed that his parents bamboo house in Lot No. 4618 disintegrated from wear and tear; so he took them in to his semi-concrete house in the same lot, which was just a few steps away, and he cared for them until they died; shortly before Liborios death, and in the presence of all his siblings, his father Liborio assigned Lot No. 4618 to him as his inheritance; his house was demolished in 1998 as a result of the ejectment case filed against him; but his family continued to live thereat after reconstructing the house; Ireneo and his family did not live in Lot No. 4618; although Joses job as an insurance agent took him around Pangasinan, he always came home to his family in his house in Lot No. 4618, which he used as his permanent address; only Lot No. 4676 was included in the Deed of Extrajudicial Partition dated January 8, 1998 because Lot No. 4618 had already been distributed to Jose, and Lot No. 4704 had already been assigned to Jacinta and Bonifacio as their share in their fathers estate. 38 2. Joses testimony was corroborated by petitioners Felicidad,39 Jacinta,40 Leonora,41 and Flora,42 who all confirmed that their brother Jose has always resided in Lot No. 4618 from his childhood up to the present, that he took their aged parents into his house after their bamboo house was destroyed, and he attended to their needs until they died in 1982. The sisters were also one in saying that their father Liborio verbally willed Lot No. 4618 to Jose as his share in his estate, and that their actual partition affirmed their fathers dispositions. Jacinta claimed that she and Bonifacio have since taken possession of Lot No. 4704 pursuant to their partition, and have also declared their respective portions for tax purposes.43 Flora corroborated Jacinta on their taking possession of Lot No. 4704, as well as that Jose built his house on Lot No. 4618 next to his parents and they came to live with him in their old age. Flora affirmed that Exhibit "F" correctly reflects their verbal partition of Lot No. 4676, and that she was fully in accord with it. She added that Felicidad and Marcelina had since constructed their own houses on the portions of Lot No. 4676 assigned to them.44Felicidad mentioned that in their partition, Ireneo was given a portion of Lot No. 4676, while Lot No. 4704 was divided between Jacinta and Bonifacio, and Jose alone got Lot No. 4618. Leonora confirmed that they were all present when their father made his above dispositions of his estate. 3. Benjamin Lorenzo, a long-time neighbor of the Casilangs testified that Joses house stands on Lot No. 4618 and Ireneo did not live with his family on the said lot but was a tenant in another farm some distance away. 45 4. For her part, Rosario merely asserted that her father Ireneo succeeded to Lot No. 4618 from Liborio, as shown in TD No. 555 (Exhibit "1"); that she and her brothers extra-judicially settled Ireneos estate, and that they each waived their shares in her favor; and, that she has been paying taxes on Lot No. 4618. Rosario admitted, however, that Jose has lived in the lot since he was a child,

and he has reconstructed his house thereon after its court-ordered demolition.46 But Rosario on cross-examination backtracked by claiming that it was her father Ireneo and grandfather Liborio who built the old house in Lot No. 4618, where Ireneo resided until his death; he even planted various fruit trees. Yet, there is no mention whatsoever to this effect by any of the witnesses. Rosario also contradicted herself when she denied that Jose lived there because his job as insurance agent took him away often and yet admit ted that Joses house stands there, which he reconstructed after it was ordered demolished by the MTC. Inexplicably, Rosario disclaimed knowledge of Ireneos share in Lot No. 4676, although she was a signatory, along with her brothers and all the petitioners, in the deed of partition of the said lot, whereby she got 1,308 sq m. Rosario also admitted that taxes were paid on the lot only beginning in 1997, not before.47 5. Benjamin Dizon, husband of Rosario, testified that Rosario was losing appetite and sleep because of the case filed by Jose; that Ireneo died in another farm; that Ireneo had a house in Lot No. 4618 but Jose took over the house after he died in 1992.48 Respondent Angelo, brother of Rosario, claimed that when he was 13 or 14 years old, he heard his grandfather tell his father Ireneo that he would inherit Lot No. 4618. On cross-examination, Angelo insisted that his father had always lived with his family in his grandfathers house in Lot No. 4618, that Jose did not live there but was given another lot, although he could not say which lot it was; he admitted that his grandmother lived with Jose when she died, and Ireneos share was in Lot No. 4676.49 6. On rebuttal, Jose recounted that after his four children were married, Ireneo lived as a tenant in another farm; that during a period of illness he lived in Manila for some time, and later resided in Cagayan with his two married sons; and lastly on his return, worked as a tenant of the Maningding family for about 10 years in Calasiao, staying in a hut one kilometer away. Jose also claimed that Ireneo had asked Liborio for a portion of Lot No. 4676, a lot which is bigger than Lot No. 4618 by several hundreds of square meters.50 7. On sur-rebuttal, Rosario claimed that her grandparents, father and mother lived in Lot No. 4618 when she was a child until she married and left in 1976; that her uncle Jose asked permission from Liborio to be allowed to stay there with his family. She admitted that Jose built his house in 1985, three years after Liborio died, but as if to correct herself, she also claimed that Jose built his house in Lot No. 4676, and not in Lot No. 4618. (Contrarily, her aunt Leonora testified that Jose built his house in Lot No. 4618 while their parents were alive.) 51 Moreover, if such was the case, Rosario did not explain why she filed Civil Case No. 847, if she thought her uncle built his house in Lot No. 4676, and not in Lot No. 4618.52 Rosario also claimed that Ireneo always came home in the evenings to his father Liborios house from the Maningding farm, which he tenanted for 10 years, but obviously, by then Liborios house had long been gone. Again, confusedly, Rosario denied that she knew of her fathers share in Lot No. 46 76.

From the testimonies of the parties, we are convinced that the conclusion of the RTC is well-supported that there was indeed a verbal partition among the heirs of Liborio, pursuant to which each of his eight children received his or her share of his estate, and that Joses share was Lot No. 4618. The parties verbal partition is valid, and has been ratified by their taking possession of their respective shares. The validity of an oral partition is well-settled in our jurisdiction. In Vda. de Espina v. Abaya,53 this Court declared that an oral partition is valid: Anent the issue of oral partition, We sustain the validity of said partition. "An agreement of partition may be made orally or in writing. An oral agreement for the partition of the property owned in common is valid and enforceable upon the parties. The Statute of Frauds has no operation in this kind of agreements, for partition is not a conveyance of property but simply a segregation and designation of the part of the property which belong to the co-owners."54 In Maestrado v. CA,55 the Supreme Court upheld the partition after it found that it conformed to the alleged oral partition of the heirs, and that the oral partition was confirmed by the notarized quitclaims executed by the heirs subsequently.56 In Maglucot-Aw v. Maglucot,57 the Supreme Court elaborated on the validity of parol partition: On general principle, independent and in spite of the statute of frauds, courts of equity have enforce [sic] oral partition when it has been completely or partly performed. Regardless of whether a parol partition or agreement to partition is valid and enforceable at law, equity will [in] proper cases, where the parol partition has actually been consummated by the taking of possession in severalty and the exercise of ownership by the parties of the respective portions set off to each, recognize and enforce such parol partition and the rights of the parties thereunder. Thus, it has been held or stated in a number of cases involving an oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, that equity will confirm such partition and in a proper case decree title in accordance with the possession in severalty. In numerous cases it has been held or stated that parol partition may be sustained on the ground of estoppel of the parties to assert the rights of a tenant in common as to parts of land divided by parol partition as to which possession in severalty was taken and acts of individual ownership were exercised. And a court of equity will recognize the agreement and decree it to be valid and effectual for the purpose of concluding the right of the parties as between each other to hold their respective parts in severalty. A parol partition may also be sustained on the ground that the parties thereto have acquiesced in and ratified the partition by taking possession in severalty, exercising acts

of ownership with respect thereto, or otherwise recognizing the existence of the partition. A number of cases have specifically applied the doctrine of part performance, or have stated that a part performance is necessary, to take a parol partition out of the operation of the statute of frauds. It has been held that where there was a partition in fact between tenants in common, and a part performance, a court of equity would have regard to and enforce such partition agreed to by the parties.58 Joses possession of Lot No. 4618 under a claim of ownership is well borne out by the records. It is also consistent with the claimed verbal partition with his siblings, and fully corroborated by his sisters Felicidad, Jacinta, Leonora, and Flora, who further testified that they each had taken possession of their own shares and built their houses thereon. A possessor of real estate property is presumed to have title thereto unless the adverse claimant establishes a better right.59 Moreover, under Article 541 of the Civil Code, one who possesses in the concept of owner has in his favor the legal presumption that he possesses with a just title, and he cannot be obliged to show or prove it. Similarly, Article 433 of the Civil Code provides that actual possession under a claim of ownership raises a disputable presumption of ownership. Thus, actual possession and exercise of dominion over definite portions of the property in accordance with an alleged partition are considered strong proof of an oral partition60 which the Court will not hesitate to uphold. Tax declarations and tax receipts are not conclusive evidence of ownership. It is settled that tax declarations and tax receipts alone are not conclusive evidence of ownership. They are merelyindicia of a claim of ownership,61 but when coupled with proof of actual possession of the property, they can be the basis of claim of ownership through prescription.62 In the absence of actual, public and adverse possession, the declaration of the land for tax purposes does not prove ownership.63 We have seen that there is no proof that Liborio, or the Casilang siblings conveyed Lot No. 4618 to Ireneo. There is also no proof that Ireneo himself declared Lot No. 4618 for tax purposes, and even if he or his heirs did, this is not enough basis to claim ownership over the subject property. The Court notes that TO No. 555 was issued only in 1994, two years after Ireneo's death. Rosario even admitted that she began paying taxes only in 1997. 64 More impmiantly, Ireneo never claimed Lot No. 4618 nor took possession of it in the concept of owner. WHEREFORE, premises considered, the Petition is GRANTED. The Decision dated July 19, 2007 of the Court of Appeals in CA-G.R. CV No. 79619 is hereby REVERSED and SET ASIDE, and the Decision dated April 21, 2003 of the Regional Trial Court of Dagupan City, Branch 41 in Civil Case No. 98-02371-D is REINSTATED. SO ORDERED.

BIENVENIDO L. REYES