1. G.R. No.

L-8018

October 26, 1955

GIL ATUN, ET AL., plaintiffs-appellants, vs. EUSEBIO NUEZ, ET AL., defendants-appellees. Doroteo L. Serrano for appellants. Alfredo S. Rebueno for appellees. REYES, J.B.L., J.: Appeal from an order of the Court of First Instance of Albay dismissing the complaint for recovery of a parcel of registered land upon a motion to dismiss filed by defendants after plaintiffs had closed their evidence. The land in question is located in Legaspi City and registered in the name of Estefania Atun, deceased aunt of plaintiffs, under Original Certificate of Title No. 11696 of the Registry of Property of Albay. The complaint was filed on August 7, 1950. The evidence for the plaintiffs-appellants shows that they inherited the land in question from their widowed aunt Estefania Atun (sister of their deceased father Nicolas Atun), who died without any issue; that they had possessed the land from 1927 to 1930, when plaintiff Gil Atun delivered the same to Silvestra Nuez (sister of defendant-appellee Eusebio Nuez) for cultivation, for which Silvestra paid the Atuns a part of the harvest as rental; that in 1940, Silvestra turned over the land to defendant Eusebio Nuez, who thereafter refused to recognize plaintiffs' ownership or to deliver their share of the produce; and that defendant Eusebio Nuez in turn sold the land to his co-defendant Diego Belga, who took the property with the knowledge that it belonged, not to Nuez, but to plaintiffs. Upon a demurrer to the evidence, filed by defendants after plaintiffs had rested their case, the lower Court dismissed the complaint on the ground that the period of ten years within which plaintiffs could have filed an action for recovery thereof under section 40 of Act 190 (computed from the time plaintiffs lost possession of the land in 1940), had already elapsed, hence their action had prescribed; and that furthermore, plaintiffs failed to prove their alleged ownership of the land in question, so that the presumption that defendants, being possessors, are the lawful owners thereof, had not been overcome. Plaintiffs' motion for reconsideration of the order of dismissal of the complaint having been denied, they appealed to the Court of Appeals, which forwarded the case to us because the appeal raises question of law. The sole issue herein is whether the trial court erred in dismissing plaintiffs-appellants' complaint on the ground of prescription of action. The dismissal is erroneous. The land in question is admittedly covered by a Torrens title in the name of Estefania Atun, deceased aunt of plaintiffs. Section 40 of Act 496 expressly provides that no title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession. And this Court has repeatedly held that the right of the registered owner to recover possession of the registered property is equally imprescriptible, since possession is a mere consequence of ownership. (Manlapas vs. Llorente, 48 Phil., 298, 308; Eugenio vs. Perdido, supra, p. 41; J. M. Tuason & Co., Inc. vs. Bolaos, 95 Phil., 106.)

We are aware, of course, that title by adverse possession (acquisitive prescription) is distinct from the statute of limitations (extinctive prescription) and the operation and effects of such distinction has been explored during the discussions of this petition for review. But we have finally agreed that, as to the lands registered under the Torrens system, ten years' adverse possession may not be permitted to defeat the owners' right to possessionwhich is the necessary incident of ownership. Otherwise loss of the land by prescription would be indirectly approved, in violation of sec. 46 of the Land Registration Act. This statute, being a later enactment, may be said to have partially amended the Statute of Limitations established in Act No. 190 in so far as the registered lands are concerned. (Juan Eugenio, et al. vs. Silvina Perdido, et al., L-7083, May 19, 1955.) And if prescription is unavailing against the registered owner, it must be equally unavailing against the latter's hereditary successors, because they merely step into the shoes of the decedent by operation of law (new Civil Code, Art. 777; Art. 657, old), the title or right undergoing no change by its transmission mortis causa. The lower Court also erred in ruling that plaintiffs-appellants have failed to show a better title than that of defendants who are presumed to possess with just title. As the land in question still stands registered in the name of Estefania Atun, now deceased, the present owners thereof would be her legal heirs. It is of record that Estefania Atun died without any issue or ascendants and left as her only surviving heirs the children of her brother Nicolas, plaintiffs herein; and the rule is settled that the legal heirs of a deceased may file an action arising out of a right belonging to their ancestor, without a separate judicial declaration of their status as such, provided there is no pending special proceeding for the settlement of the decedent's estate (Mendoza Vda. de Bonnevie vs. Cecilia Vda. de Pardo, 59 Phil., 486; Gov't. of P.I. vs. Serafica, 61 Phil., 93; Uy Coque vs. Sioca, 45 Phil., 430). Pursuant to the rule that reversal on appeal of a ruling upholding a defendant's demurrer to the evidence imports in civil cases loss of his right to submit evidence in his behalf, in order to discourage prolonged litigations (Arroyo vs. Azur, 76 Phil., 493, and cases therein cited), judgment must be rendered according to plaintiffs' evidence, which supports their claim of ownership of the land in question, and for damages in the amount of P500 (t. s. n., p. 21). Wherefore, the order appealed from is reversed; plaintiffs-appellants Gil Atun, Camila Atun, and Dorotea Atun are declared the lawful owners in common of the lot in question; and defendantsappellees Eusebio Nuez and Diego Belga are ordered to surrender possession thereof to the plaintiffs, and to indemnify the latter in the amount of P500 by way of damages. Costs against defendants-appellees in both instances.So ordered.

2. G.R. No. L-44837

November 23, 1938

SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-appellees, vs. CONCHITA MCLACHLIN, ET AL., defendants-appellants. Adriano T. de la Cruz for appellants. Simeon Bitanga for appellees.

VILLA-REAL, J.: This case is before us by virtue of an appeal taken by the defendants Conchita McLachlin, Lorenzo Quitco, Jr., Sabina Quitco, Rafael Quitco and Marcela Quitco, from the decision of the Court of First Instance of Occidental Negros, the dispositive part of which reads: For the foregoing considerations, the court renders judgment in this case declaring Ana Quitco Ledesma an acknowledged natural daughter of the deceased Lorenzo M. Quitco, for legal purposes, but absolving the defendants as to the prayer in the first cause of action that the said Ana Quitco Ledesma be declared entitled to share in the properties left by the deceased Eusebio Quitco. As to the second cause of action, the said defendants are ordered to pay to the plaintiff Socorro Ledesma, jointly and severally, only the sum of one thousand five hundred pesos(P1,500), with legal interest thereon from the filing of this complaint until fully paid. No pronouncement is made as to the costs. So ordered. In support of their appeal, the appellants assign the following errors allegedly committed by the trial court in its aforesaid decision: 1. That the trial court erred in holding, that the action for the recovery of the sum of P1,500, representing the last installment of the note Exhibit C has not yet prescribed. 2. That the trial court erred in holding that the property inherited by the defendants from their deceased grandfather by the right of representation is subject to the debts and obligations of their deceased father who died without any property whatsoever.lawphi1.net 3. That the trial court erred in condemning the defendants to pay jointly and severally the plaintiff Socorro Ledesma the sum of P1,500. The only facts to be considered in the determination of the legal questions raised in this appeal are those set out in the appealed decision, which have been established at the trial, namely: In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M. Quitco, while the latter was still single, of which relation, lasting until the year 1921, was born a daughter who is the other plaintiff Ana Quitco Ledesma. In 1921, it seems hat the relation between Socorro Ledesma and Lorenzo M. Quitco came to an end, but the latter executed a deed (Exhibit A), acknowledging the plaintiff Ana Quitco Ledesma as his natural daughter and on January 21, 1922, he issued in favor of the plaintiff Socorro Ledesma a promissory note (Exhibit C), of the following tenor:

P2,000. For value received I promise to pay Miss Socorro Ledesma the sum of two thousand pesos (P2,000). Philippine currency under the following terms: Two hundred and fifty pesos (P250) to be paid on the first day of March 1922; another two hundred and fifty pesos (P250)to be paid on the first day of November 1922; the remaining one thousand and five hundred (P1,500) to be paid two years from the date of the execution of this note. San Enrique, Occ. Negros, P. I., Jan. 21, 1922. Subsequently, Lorenzo M. Quitco married the defendant Conchita McLachlin, with whom he had four children, who are the other defendants. On March 9, 1930, Lorenzo M. Quitco died (Exhibit 5), and, still later, that is, on December 15, 1932, his father Eusebio Quitco also died, and as the latter left real and personal properties upon his death, administration proceedings of said properties were instituted in this court, the said case being known as the "Intestate of the deceased Eusebio Quitco," civil case No. 6153 of this court. Upon the institution of the intestate of the deceased Eusebio Quitco and the appointment of the committee on claims and appraisal, the plaintiff Socorro Ledesma, on August 26, 1935, filed before said committee the aforequoted promissory note for payment, and the commissioners, upon receipt of said promissory note, instead of passing upon it, elevated the same to this court en consulta (Exhibit F), and as the Honorable Jose Lopez Vito, presiding over the First Branch, returned said consulta and refrained from giving his opinion thereon (Exhibit C), the aforesaid commissioners on claims and appraisal, alleging lack of jurisdiction to pass upon the claim, denied he same (Exhibit H). On November 14, 1933 (Exhibit I), the court issued an order of declaration of heirs in the intestate of the deceased Eusebio Quitco, and as Ana Quitco Ledesma was not included among the declared heirs, Socorro Ledesma, as mother of Ana Quitco Ledesma, asked for the reconsideration of said order, a petition which the court denied. From the order denying the said petition no appeal was taken, and in lieu thereof there was filed the complaint which gives rise to this case. The first question to be decided in this appeal, raised in the first assignment of alleged error, is whether or not the action to recover the sum of P1,500, representing the last installment for the payment of the promissory note Exhibit C, has prescribed. According to the promissory note Exhibit C, executed by the deceased Lorenzo M. Quitco, on January 21, 1922, the last installment of P1,500 should be paid two years from the date of the execution of said promissory note, that is, on January 21, 1924. The complaint in the present case was filed on June 26, 1934, that is, more than ten years after he expiration of the said period. The fact that the plaintiff Socorro Ledesma filed her claim, on August 26, 1933, with the committee on claims and appraisal appointed in the intestate of Eusebio Quitco, does not suspend the running of the prescriptive period of the judicial action for the recovery of said debt, because the claim for the unpaid balance of the amount of the promissory note should no have been presented in the intestate of Eusebio Quitco, the said deceased not being the one who executed the same, but in the intestate of Lorenzo M. Quitco, which should have been instituted by the said Socorro Ledesma as provided in section 642 of the Code of Civil Procedure, authorizing a creditor to institute said case through the appointment of an administrator for the purpose of collecting his credit. More than ten years having thus elapsed from the expiration of the period for the payment of said debt of P1,500, the action for its recovery has prescribed under section 43, No. 1, of the Code of Civil Procedure.

The first assignment of alleged error is, therefore, well-founded. As to the second assignment of alleged error, consisting in that the trial court erred in holding that the properties inherited by the defendants from their deceased grandfather by representation are subject to the payment of debts and obligations of their deceased father, who died without leaving any property, while it is true that under the provisions of articles 924 to 927 of the Civil Code, a children presents his father or mother who died before him in the properties of his grandfather or grandmother, this right of representation does not make the said child answerable for the obligations contracted by his deceased father or mother, because, as may be seen from the provisions of the Code of Civil Procedure referring to partition of inheritances, the inheritance is received with the benefit of inventory, that is to say, the heirs only answer with the properties received from their predecessor. The herein defendants, as heirs of Eusebio Quitco, in representation of their father Lorenzo M. Quitco, are not bound to pay the indebtedness of their said father from whom they did not inherit anything. The second assignment of alleged error is also well-founded. Being a mere sequel of the first two assignments of alleged errors, the third assignment of error is also well-founded. For the foregoing considerations, we are of the opinion and so hold: (1) That the filing of a claim before the committee on claims and appraisal, appointed in the intestate of the father, for a monetary obligation contracted by a son who died before him, does not suspend the prescriptive period of the judicial action for the recovery of said indebtedness; (2) that the claim for the payment of an indebtedness contracted by a deceased person cannot be filed for its collection before the committee on claims and appraisal, appointed in the intestate of his father, and the propertiesinherited from the latter by the children of said deceased do not answer for the payment of the indebtedness contracted during the lifetime of said person. Wherefore, the appealed judgment is reversed, and the defendants are absolved from the complaint, with the costs to the appellees. So ordered.

3. G.R. No. L-770

April 27, 1948

ANGEL T. LIMJOCO, petitioner,

vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent. Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.s Bienvenido A. Tan for respondent. HILADO, J.: Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 3334). Petitioner makes four assignments of error in his brief as follows: 1. The decision of the Public Service Commission is not in accordance with law. 2. The decision of the Public Service Commission is not reasonably supported by evidence. 3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand. 4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.) In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law. If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He

was a Filipino citizen and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death. If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience the evidence established that the public needed the ice plant was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given. Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased". Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him. In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him: Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . . It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the

decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding. Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property for juridical purposes. Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read: However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.) Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act. Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana: As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77. The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows: . . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a result to be avoided if it can be done consistent

with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, the estate and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.) In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words: . . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . . Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. ChioTaysan, 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise. The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person.

Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States. Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said: . . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made . . . . Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course. How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction is made necessary to avoid the injustice of

subjecting his estate, creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission of this Court. We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding. Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it. Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed. Decision affirmed, without costs. So ordered.

4. G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee, vs. MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants. Priscilo Evangelista for appellee. Brigido G. Estrada for appellant. BAUTISTA ANGELO, J.: This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First Instance of Pangasinan. Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their possession and enjoyment. Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced her right to inherit any other property that may be left by her husband upon his death (Exhibit 1). After trial, at which both parties presented their respective evidence, the court rendered decision ordering the defendants to restore to the plaintiff the ownership and possession of the lands in dispute without special pronouncement as to costs. Defendants interposed the present appeal. There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children, her now codefendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in question became vested. The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the

subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531). But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code which became in force in June, 1950, they are given the status and rights of natural children and are entitled to the successional rights which the law accords to the latter (article 2264 and article 287, new Civil Code), and because these successional rights were declared for the first time in the new code, they shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code). There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect. WHEREFORE, the decision appealed from is affirmed, without costs.

5. Margarito vs. Marquez 6. G.R. No. L-4170 January 31, 1952

Intestate of the late AGUSTIN MONTILLA, SR.; PEDRO LITONJUA, a movant-appellant, vs. AGUSTIN B. MONTILLA, JR., administrator-appellee; CLAUDIO MONTILLA, oppositor-appellee. Carlos Hilado and Jose V. Corua for the administrator. Jose M. Estacion for movant.Gaudencio Occeo and Jose Ur.Carbonell for oppositor. PARAS, C.J.: In Civil Case No. 868 of the court of First Instance of Negros Occidental, Pedro L. Litonjua obtained a judgment against Claudio Montilla for the payment of the sum of P4,000 with legal interest, plus costs amounting to P39.00 In due time, a writ of execution was issued, but no property of Claudio Montilla was found which could be levied upon. On June 12, 1950 Pedro L. Litonjua filed in special Proceeding No 32 of the Court of First Instance of Negros Occidental, Intestate Estate of Agustin Montilla, Sr., deceased, a motion praying that the interest, property and participation of Claudio Montilla, one of the heirs of Agustin Montilla, Sr., in the latter's intestate estate be sold and out of the proceed the judgment debt of Claudio Montilla in favor of Pedro L. Litonjua be paid. This motion was opposed by Claudio Montilla and by Agustin Montilla, Jr., administrator of the intestate estate. On August 7, 1950, the Court of First Instance of Negros Occidental issued an order denying the motion. From this order Pedro L. Litonjua appealed. In the case of Ortiga Brothers and Co. vs. Enage and Yap Tico, 18 Phil. 345, it was held that the creditor of the heirs of a deceased person is entitled to collect his claim out of the property which pertains by inheritance to said heirs, only after the debts of the testate or intestate succession have been paid and when the net assets that are divisible among the heirs are known, because the debts of the deceased must first be paid before his heirs can inherit. It was therein also held that a person who is not a creditor of a deceased, testate or intestate, has no right to intervene either in the proceedings brought in connection with the estate or in the settlement of the succession. We quote hereunder pertinent passages of the decision. A person who, having claim against a deceased person which should be considered by the committee does not, after publication of the required notice, exhibit his claim to the committee as provided by law, shall be barred from recovering such demand or from pleading the same as an offset to any action, under the provisions of section 695 of the Code of Civil Procedure, excepting the case referred to in section 701 of the same; with still less reason can one who is not a creditor of the said deceased intervene in the proceedings relative to the latter's intestate estate and to the settlement of his succession (article 1034 of the Civil Code), because such creditor has no right or interest that call for the protection of the law and the courts, except in any remainder which may be found due the heir. It is true that Yap Tico, as the creditor of the widow and heirs of the deceased Ildefonso, is entitled to collect what is due him out of the property left by the latter and which was inherited by such widow and heirs, but it is no less that only after all the debts of the said estate have been paid can it be known what net remainder will be left for division among the heirs, because the

debts of the deceased must be paid before his heirs can inherit. (Arts. 659 et seq. 1026, 1027, and 1032 of the civil Code, and secs. 734 et seq., Code of Civil Code Procedure.) An execution cannot legally be levied upon the property of an intestate succession to pay the debts of the widow and heirs of the deceased, until the credits held against the latter at the time of his death shall have been paid can the remaining property that pertains to the said debtors heirs can be attached (Art. 1034, aforecited, Civil Code.) (pp. 350-251) The foregoing pronouncements are perfectly applicable to the case at bar, because the appellant is not a creditor of the deceased Agustin Montilla, Sr. and he seeks to collect his claim out of the inheritance of Claudio Montilla, an heir, before the net assets of the intestate estate have been determined. Wherefore, the appealed order is affirmed, and it is so ordered with costs against the appellant.

7. G.R. No. L-22601

October 28, 1966

PRIMA G. CARRILLO and LORENZO LICUP, plaintiffs and appellants,

vs. FRANCISCA SALAK DE PAZ and ERNESTO BAUTISTA, defendants and appellees. Filemon Cajator for plaintiffs and appellants. Tomas Besa for defendants and appellees. BENGZON, J.P., J.: This is an appeal from an order of the Court of First Instance of Tarlac dismissing a suit to recover ownership and possession of 2/3 of 1/2 of Lot No. 221 of the Cadastral Survey of Tarlac. Severino Salak and Petra Garcia were the owners of Lot No. 221 of the Cadastral Survey of Tarlac, covered by Original Certificate of Title No. 41543, with an area of 1,334 square meters. Petra Garcia died on September 21, 1941. On August 16, 1943, Severino Salak sold to Honoria Salak for P812.00 his portion of said lot. A year later, on December 5, 1944, Severino Salak died. Sometime in January 1945, Honoria Salak and other members of her family died massacred by the Japanese. As a result, two settlement proceedings were instituted in the Court of First Instance of Tarlac: (1) Special Proceeding No. 3, to settle the estates of Severino Salak and Petra Garcia and (2) Special Proceeding No. 23, to settle the estates of the Salak family (parents Simeon Salak and Isabel Carrillo; and children Adolfo, Honoria, Consuelo and Ligaya). On September 4, 1946, a Project of Partition was submitted in Special Proceeding No. 3, which the court approved on November 19, 1946. Said project adjudicated inter alia Lot No. 221, which was given thereunder to Francisca Salak de Paz (1/4 of it in her capacity as heir, and the other 3/4 by purchase and/or exchange with her co-heirs, Rita Sahagun, Aurea Sahagun and Ernesto Bautista). From 1946 up to the present Francisca Salak has possessed all of Lot No. 221. On the other hand, in Special Proceeding No. 23, on February 26, 1948, the court a quo held that the heirs entitled to the estates of the Salak family were Agustina de Guzman Vda. de Carillo (3/4 share) and Ernesto Bautista (1/4 share), applying the survivorship presumption [Rule 123, Sec. 69(ii), now Rule 131, Sec. 5(jj) of the Rules of Court], thus: (1) Simeon Salak died first his properties went to the children Adolfo, Honoria, Consuelo and Ligaya (1/4 each); (2) Honoria, Consuelo and Ligaya died next Honoria's and Consuelo's properties went to their mother, Isabel; those of Ligaya went to her son, Ernesto Bautista;1 (3) Isabel died next her properties went to her son Adolfo; and (4) Adolfo died last his properties went to his maternal grandmother, Agustina. Agustina thereby succeeded to the properties that came by intes-state succession from Honoria Salak and Isabel Carrillo, including of Lot No. 221. On November 9, 1948, Agustina de Guzman Vda.de Carrillo filed an action in the Court of First Instance of Tarlac (docketed therein as Case No. 351) against the heirs in Special Proceeding No. 3 to recover of Lot No. 221 which as aforementioned has been possessed by Francisca Salak de Paz. On April 24, 1950, Agustina died.

On June 8, 1950 the Court of Appeals affirmed the decision of the Court of First Instance of Tarlac in Special Proceeding No. 23, and further decreed that the properties inherited by Agustina de Guzman Vda. de Carrillo were subject to reserva troncal. On November 6, 1950, Ernesto Bautista filed a petition in Special Proceeding No. 23 for the execution of the judgment therein. Said petition was heard on November 10, 1959, after a copy was served on the lawyer of Prima Carrillo, the latter being a party thereto as administratix of the estate of her deceased mother Agustina. Acting on said petition, the lower court issued its order of November 14, 1950, which reads in part: . . . the Court, in view of the death of the reservista, Doa Agustina de Guzman Vda. de Carrillo, declares all the interest of the said reservista Doa Agustina de Guzman Vda. de Carrillo as well as that of her heirs in the three-fourths share adjudged to the reservista, definitely terminated, and that the reservee, the minor Ernesto Bautista, is entitled to the immediate delivery to him of the said three-fourths share declared reserved to him in the decision of the Court of Appeals of June 8, 1950. . . . (Record on Appeals, pp. 213-214) On December 20, 1960, the lower court dismissed Civil Case No. 351. The order of dismissal reads in part: By virtue of the existence of third-degree relatives of Adolfo Salak, the portion of Lot No. 221, inherited by Agustina de Guzman was never released from the reserva, so as to convert the ownership of Agustina de Guzman into an absolute one. Upon her death on April 24, 1950, therefore, the property did not pass by inheritance to her legal heirs, but rather reverted to the family trunk of the Isabel-Adolfo line. Such being the case, the estate of Agustina de Guzman, the Present plaintiff in this case, has no cause of action against the defendants. In resume, the adjudication in Special Proceeding No. 23, Intestate Estate of the late Simeon Salak and Isabel Carrillo, which included Lot No. 221, has become res judicata which cannot be disturbed in this case. (Record on Appeal, p. 209) On April 22, 1963, Prima Carrillo and Lorenzo Licup filed the present suit for recovery of 2/3 of 1/2 of No. 221 against Francisca Salak de Paz and Ernesto Bautista.2 On June 20, 1963, defendants Francisco Salak de Paz and Ernesto Bautita filed a motion to dismiss upon the grounds that the cause of action is barred by prior judgement and by the statute of limitations. On November 19, 1963, the court a quo dismissed the complaint on the ground of res judicata, finding the suit barred by the order of delivery dated November 14, 1950 in Special Proceeding No. 23. Plaintiffs Prima Carrillo and Lorenzo Licup thereupon appealed to Us upon questions of law. Several grounds were advanced to support the motion to dismiss: that the cause of action is barred by prior judgment and by the statute of limitations. Although the action was dismissed by the lower court expressly upon the ground of res judicata, it did not totally disregard the defense of prescription. Thus, said court pointed out that: Prima Carrillo being then the administratrix of the estate of her mother, she is also deemed to have been notified of the petition for execution of judgment in Special Proceeding No. 23, and of

the order of November 14, 1950. As of then, therefore, Prima Carrillo (even though as administratrix) personally knew that Ernesto Bautista claimed to be the sole reservee of all the properties inherited by Da. Agustina from the Salak Family, among which was Lot No. 221 in question, but she did not file any opposition thereto. It was her opportunity to assert her right as reservee by opposing the petition or, failing in this, to contest or to ask to be relieved from the order of November 14, 1950. Instead, she allowed about thirteen (13) years before she commenced the present action. (Decision, Record on Appeal, pp. 214-215; emphasis supplied) At any rate, this Court can resolve this appeal on the issue of prescription. As ruled in the cases of Garcia Valdez vs. Soterana Tuazon, 40 Phil. 943 and Relativo v. Castro, 76 Phil. 563, when the trial judge decides a case in favor of a party on a certain ground, the appellate court may uphold the decision below upon some other point which was ignored or erroneously decided in favor of the appellant by the trial court. Reserva troncal in this jurisdiction is treated in Article 891 of the new Civil Code and Article 811 of the old Civil Code, which states: 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. The reserva troncal arose as had been finally decided by the Court of Appeals in Special Proceeding No. 23 when Agustina acquired by operation of law all the properties of her descendant Adolfo (grandson), who acquired them by gratuitous title from another ascendant, Isabel (Adolfo's mother). According to Manresa, the reserva is extinguished upon the death of the reservista, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right, if not exercised within the time for recovering real properties, can be lost by prescription: Pero extinguida la reserva por la muerte del reservista, cambian por completo las relaciones y condiciones juridicas de las personas y de las cosas, como ya se ha indicado. La obligacion de reservar se convierte en la de entregar los bienes a quien correspondan, obligacion que pasa a la herencia del reservista fallecido y deben complir sus herederos. Y el derecho a la reserva se convierte en el derecho al dominio pleno de esos bienes. Si a la muerte del reservista se comple la condicion resolutoria de existir parientes dentro del tercer grado que pertenezcan a la linea de donde los bienes proceden, a estos parientes pasa desde aquel momento por ministerio de la ley el dominio absoluto de aquellos bienes, y, por consiguiente, el derecho para reclamarlos, pudiendo disponer libremente de aquellos o de este, y transmitirlos a sus herederos, puesto que la ley no lo prohibe. Y si no sobrevive al reservista ninguno de dichos parientes, queda extinguida la obligacion de reservar, por no haberse complido aquella condicion resolutoria impuesta por la ley, y en su virtud vuelven los bienes al pleno dominio del ascendiente, y pertenecen a su herencia conforme al art. 651. Y como nada ordena la ley en sentido contrario, tenemos por indudable que no tiene el caracter de personalisimo ninguno de esos derechos, que nacen con la extincion de la reserva, pertenecen a la herencia y se transmiten a los herederos, aunque el causante no los hubiere ejercitado por si mismo, salvo cases de renuncia, incapacidad o prescripcion. xxx xxx xxx

C) Extincion de la reserva.Las mismas condiciones exigidas para el nacimiento de la reserva son necesarias para su existencia. Al faltar una de ellas, la reserva muerte. Tres son, por tanto, las principales causas de extincion: 1.a. Muerte del ascendiente.Sea el que quiera el destino definitivo de los bienes, en virtud de la naturaleza condicional de los derechos que crea el art. 811, es lo cierto que la reserva, como tal, una vez necida a compaa al ascendiente obligado a ella hasta su muerte. Muerto el ascendiente, cesa toda obligacion de reservar; falta el sujeto pasivo de la reserva. xxx xxx xxx

Ademas de las tres causas expresadas, pueden sealarse otras que expondremos a continuacion. xxx xxx xxx

Y 5.a La prescripcion, si se disfrutan como libres los bienes por los herederos del ascendiente durante el tiempo y con las condiciones marcadas por la ley. (Manresa, Comentarios Al Codigo Civil Espaol, Vol. 6, 1911 Ed., pp. 288-289, 316-318). Scaevola also states the view that prescription can apply against the reservatarios to cut off their right to the reservable property: f) Prescipcion.Este modo extintivo de los derechos tiene solo applicacion a los parientes del tercer grado del descendiente, porque no habiendo reserva si no acepta el ascendiente, no hay que hablar de prescripcion extintiva respecto de el. Tocante a los parientes con derecho a la reserva, es aplicable la doctrina, porque pueden no ejercer su derecho por ignorar la muerte del descendiente opor otra causa. Dada esta posibilidad, entendemos que, tratandose de un derecho real sobre bienes inmuebles, prescribira a los treinta aos (art. 1.693) (1), contados desde la aceptacion de la herencia por el ascendiente, momento determinante del derecho al ejercicio de la reserva (art. 1.969) ; transcurridos, pues, treinta aos desde la aceptacion sin que los parientes favorecidos por la ley hayan solicitado la constitucion de la reserva, se extenguira esta, y el ascendiente o sus derecho-habientes adquiriran el pleno dominio de los bienes reservables por su naturaleza, pero que no fueron objeto de reserva. (Scaevola, Codigo Civil Comentado, Vol. 14, 1944 Ed., p. 360). Plaintiffs-appellants herein, as reservatarios, had the right to claim the property 2/3 of 1/2 of Lot No. 221 from Francisca Salak de Paz, who has been possessing it in the concept of an owner, from April 24, 1950 when Agustina died. And the Court of Appeals' decision affirming the existence of reserva troncal, promulgated on June 8, 1950, rendered it all the more doubtless that such right had accrued in their favor from the time Agustina died. It is clear, therefore, that the right or cause of action accrued in favor of the plaintiffs-reservatarios herein on April 24, 1950. Section 40 of the Code of Civil Procedure fixes 10 years as the period of prescription for actions to recover real property, counted from the time the cause of action accrued. This is the applicable law because Article 1116 of the New Civil Code provides that "Prescription already

running before the effectivity of this Code [August 30, 1950] shall be governed by laws previously in force." Plaintiffs-appellants' suit herein, having been filed only on April 22, 1963, or more than ten (10) years from April 24, 1950, has prescribed. And having reached such conclusion, We deem it unnecessary to pass upon the question of whether the suit is also barred on the ground of res judicata. WHEREFORE, the order of dismissal appealed from is hereby affirmed on the ground of prescription, with costs against appellants. So ordered.

8. [G.R. No. L-8437. November 28, 1956.] ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC., claimant-Appellant.

DECISION REYES, J. B. L., J.: Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special Proceeding No. Q-293) for failure to state a cause of action. The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity agreements, or counter bonds, each subscribed by a distinct principal and by the deceased K. H. Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon Surety Co.s of having guaranteed, the various principals in favor of different creditors. The twenty counterbonds, or indemnity agreements, all contained the following stipulations:chanroblesvirtuallawlibrary Premiums. As consideration for this suretyship, the undersigned jointly and severally, agree to pay the COMPANY the sum of ________________ (P______) pesos, Philippines Currency, in advance as premium there of for every __________ months or fractions thereof, this ________ or any renewal or substitution thereof is in effect. Indemnity. The undersigned, jointly and severally, agree at all times to indemnify the COMPANY and keep it indemnified and hold and save it harmless from and against any and all damages, losses, costs, stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the COMPANY shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of them or any order executed on behalf of the undersigned or any of them; chan roblesvirtualawlibraryand to pay, reimburse and make good to the COMPANY, its successors and assigns, all sums and amount of money which it or its representatives shall pay or cause to be paid, or become liable to pay, on account of the undersigned or any of them, of whatsoever kind and nature, including 15% of the amount involved in the litigation or other matters growing out of or connected therewith for counsel or attorneys fees, but in no case less than P25. It is hereby further agreed that in case of extension or renewal of this ________ we equally bind ourselves for the payment thereof under the same terms and conditions as above mentioned without the necessity of executing another indemnity agreement for the purpose and that we hereby equally waive our right to be notified of any renewal or extension of this ________ which may be granted under this indemnity agreement. Interest on amount paid by the Company. Any and all sums of money so paid by the company shall bear interest at the rate of 12% per annum which interest, if not paid, will be accummulated and added to the capital quarterly order to earn the same interests as the capital and the total sum thereof, the capital and interest, shall be paid to the COMPANY as soon as the COMPANY shall have become liable therefore, whether it shall have paid out such sums of money or any part thereof or not. xxx xxx xxx

Waiver. It is hereby agreed upon by and between the undersigned that any question which may arise between them by reason of this document and which has to be submitted for decision to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of

Manila, waiving for this purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity agreement is hereby likewise waived. xxx xxx xxx

Our Liability Hereunder. It shall not be necessary for the COMPANY to bring suit against the principal upon his default, or to exhaust the property of the principal, but the liability hereunder of the undersigned indemnitor shall be jointly and severally, a primary one, the same as that of the principal, and shall be exigible immediately upon the occurrence of such default. (Rec. App. pp. 98- 102.) The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon. Before answer was filed, and upon motion of the administratrix of Hemadys estate, the lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two grounds:chanroblesvirtuallawlibrary (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities incurred after the execution of the counterbonds; chan roblesvirtualawlibraryand (2) that whatever losses may occur after Hemadys death, are not chargeable to his estate, because upon his death he ceased to be guarantor. Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court below ran as follows:chanroblesvirtuallawlibrary The administratrix further contends that upon the death of Hemady, his liability as a guarantor terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim cannot be considered contingent. This Court believes that there is merit in this contention and finds support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been added for a person to qualify as a guarantor, that is:chanroblesvirtuallawlibrary integrity. As correctly pointed out by the Administratrix, integrity is something purely personal and is not transmissible. Upon the death of Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may occur after Hemadys death, are not chargeable to his estate because upon his death he ceased to be a guarantor. Another clear and strong indication that the surety company has exclusively relied on the personality, character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed form of the indemnity agreement there is a paragraph entitled Security by way of first mortgage, which was expressly waived and renounced by the security company. The security company has not demanded from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in the list of properties mortgaged which appears at the back of the indemnity agreement. (Rec. App., pp. 407-408). We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889 (Article 1257), the rule is that

Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming Article 1311 already quoted. ART. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. ART. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:chanroblesvirtuallawlibrary Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased (Article 661) and cannot be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2 Phil. 44). xxx xxx xxx

The principle on which these decisions rest is not affected by the provisions of the new Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be third persons in relation to any contracts touching the real estate of their decedent which comes in to their hands by right of inheritance; chan roblesvirtualawlibrarythey take such property subject to all the obligations resting thereon in the hands of him from whom they derive their rights. (See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265). The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive. Under our law, therefore, the general rule is that a partys contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive depersonalization of patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony, with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its

performance by a specific person and by no other. The transition is marked by the disappearance of the imprisonment for debt. Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This reimbursement is a payment of a sum of money, resulting from an obligation to give; chan roblesvirtualawlibraryand to the Luzon Surety Co., it was indifferent that the reimbursement should be made by Hemady himself or by some one else in his behalf, so long as the money was paid to it. The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties. Being exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but must be expressly established, or at the very least, clearly inferable from the provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable. (b) Intransmisibilidad por pacto. Lo general es la transmisibilidad de darechos y obligaciones; chan roblesvirtualawlibraryle excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el principio de la transmision, como elemento natural a toda relacion juridica, salvo las personalisimas. Asi, para la no transmision, es menester el pacto expreso, porque si no, lo convenido entre partes trasciende a sus herederos. Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los vinculos juridicos creados por sus antecesores, y para evitarlo, si asi se quiere, es indespensable convension terminante en tal sentido. Por su esencia, el derecho y la obligacion tienden a ir ms all de las personas que les dieron vida, y a ejercer presion sobre los sucesores de esa persona; chan roblesvirtualawlibrarycuando no se quiera esto, se impone una estipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la concresion del concreto a las mismas personas que lo otorgon. (Scaevola, Codigo Civil, Tomo XX, p. 541542) (Emphasis supplied.) Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect; chan roblesvirtualawlibraryhence, his failure to do so is no sign that he intended his bargain to terminate upon his death. Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a mortgage indicates nothing more than the companys faith and confidence in the financial stability of the surety, but not that his obligation was strictly personal. The third exception to the transmissibility of obligations under Article 1311 exists when they are not transmissible by operation of law. The provision makes reference to those cases where the law expresses that the rights or obligations are extinguished by death, as is the case in legal support (Article 300), parental authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726), partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety.

The lower court sought to infer such a limitation from Art. 2056, to the effect that one who is obliged to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees. It will be noted, however, that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty. It is self-evident that once the contract has become perfected and binding, the supervening incapacity of the guarantor would not operate to exonerate him of the eventual liability he has contracted; chan roblesvirtualawlibraryand if that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality mentioned in the article alongside the capacity. The foregoing concept is confirmed follows:chanroblesvirtuallawlibrary by the next Article 2057, that runs as

ART. 2057. If the guarantor should be convicted in first instance of a crime involving dishonesty or should become insolvent, the creditor may demand another who has all the qualifications required in the preceding article. The case is excepted where the creditor has required and stipulated that a specified person should be guarantor. From this article it should be immediately apparent that the supervening dishonesty of the guarantor (that is to say, the disappearance of his integrity after he has become bound) does not terminate the contract but merely entitles the creditor to demand a replacement of the guarantor. But the step remains optional in the creditor:chanroblesvirtuallawlibrary it is his right, not his duty; chan roblesvirtualawlibraryhe may waive it if he chooses, and hold the guarantor to his bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial courts stand that the requirement of integrity in the guarantor or surety makes the latters undertaking strictly personal, so linked to his individuality that the guaranty automatically terminates upon his death. The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437; chan roblesvirtualawlibraryGaskell & Co. vs. Tan Sit, 43 Phil. 810, 814). The most common example of the contigent claim is that which arises when a person is bound as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship the surety has no claim whatever against his principal until he himself pays something by way of satisfaction upon the obligation which is secured. When he does this, there instantly arises in favor of the surety the right to compel the principal to exonerate the surety. But until the surety has contributed something to the payment of the debt, or has performed the secured obligation in whole or in part, he has no right of action against anybody no claim that could be reduced to judgment. (May vs. Vann, 15 Pla., 553; chan roblesvirtualawlibraryGibson vs. Mithell, 16 Pla., 519; chan roblesvirtualawlibraryMaxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; chan roblesvirtualawlibraryErnst vs. Nou, 63 Wis., 134.) For Defendant administratrix it is averred that the above doctrine refers to a case where the surety files claims against the estate of the principal debtor; chan roblesvirtualawlibraryand it is urged that the rule does not apply to the case before us, where the late Hemady was a surety, not a principal debtor. The argument evinces a superficial view of the relations between parties.

If under the Gaskell ruling, the Luzon Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors if the latter should die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since Hemady is a solidary codebtor of his principals. What the Luzon Surety Co. may claim from the estate of a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor. The foregoing ruling is of course without prejudice to the remedies of the administratrix against the principal debtors under Articles 2071 and 2067 of the New Civil Code. Our conclusion is that the solidary guarantors liability is not extinguished by his death, and that in such event, the Luzon Surety Co., had the right to file against the estate a contingent claim for reimbursement. It becomes unnecessary now to discuss the estates liability for premiums and stamp taxes, because irrespective of the solution to this question, the Luzon Suretys claim did state a cause of action, and its dismissal was erroneous. Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of origin, with instructions to proceed in accordance with law. Costs against the Administratrix- Appellee.SO ORDERED.

9. G.R. No. L-5064

February 27, 1953

BIENVENIDO A. IBARLE, plaintiff-appellant, vs.

ESPERANZA M. PO, defendant-appellant. Quirico del Mar for appellant. Daniel P. Tumulak and Conchita F. Miel appellee. TUASON, J.: This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant, in consideration of P1,700, one undivided half of a parcel of land which previously had been sold, along with the other half, by the same vendor to the plaintiff's grantors. judgment was against the plaintiff. The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which are thus summarized in the appealed decision: 1st. That Leonard j. Winstanley and Catalina Navarro were husband and wife, the former having died on June 6, 1946 leaving heir the surviving spouse and some minor children; 2nd. hat upon the death of L.J. Winstanley, he left a parcel of land described under Transfer Certificate of title No. 2391 of the Registry of Deeds of the Province of Cebu; 3rd. That the above mentioned property was a conjugal property; 4th. That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley sold the entire parcel of land to the spouses Maria Canoy, alleging among other things, that she needed money for the support of her children; 5th. That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same parcel of land to the plaintiff in this case named Bienvenido A. Ebarle; 6th. That the two deeds of sale referred to above were not registered and have never been registered up to the date; 7th. That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley, after her appointment as guardian of her children by this court (Special proceeding no. 212-R) sold one-half of the land mentioned above to Esperanza M. Po, defendant in the instant case, which portion belongs to the children of the above named spouses. As stated by the trial Judge, the sole question for determination is the validity of the sale to Esperanza M. Po, the last purchaser. This question in turn depends upon the validity of the prior ale to Maria Canoy and Roberto Canoy. Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from the moment of his death." in a slightly different language, this article is incorporated in the new Civil Code as article 777. Manresa, commending on article 657 of the Civil Code of Spain, says: The moment of death is the determining factor when the heirs acquire a definite right to the inheritance, whether such right be pure or contingent. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the

property of the inheritance because the right is always deemed to be retroactive from the moment of death. (5 Manresa, 317.) The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share. On the other hand, the sale to the defendant having been made by authority of the competent court was undeniably legal and effective. The fact that it has not been recorded is of no consequence. If registration were necessary, still the non-registration would not avail the plaintiff because it was due to no other cause than his own opposition. The decision will be affirmed subject to the reservation, made in said decision, of the right of the plaintitff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley as may be appropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor.

10. .R. No. L-16544 LEONARDO OSORIO, plaintiff-appellee, vs. TOMASA OSORIO, administratrix of the estate of Petrona Reyes, and THE YNCHAUSTI STEAMSHIP CO., defendants-appellants. Fernandez and Ansaldo for appellants. Carlos Ledesma for appellee.

Villamor (Ignacio), J.:

The plaintiff seeks to recover 610 shares of stock of Ynchausti Steamship Co. and the dividends corresponding to them, which were included in the inventory of the properties of the deceased Da. Maria Petrona Reyes, whose estate is administered by the defendant. The facts of this case are: D. Antonio Osorio had formed with Ynchausti & Co., a joint account association for the exploitation of the shipping business, he being the owner of the one-third of the companys capital. This capital amounted to P500,000, of which P166,666.66, that is, one-third belonged to D. Antonio Osorio. Upon his death, his heirs agreed to authorize the defendant Da. Tomasa Osorio, then administratrix of the estate of the deceased, to present a project of partition, and said administratix inserted in the project with the consent of all the heirs, among the properties which belonged to the widow Da. Petrona Reyes, the sum of P94,000 as her part in the share of the estate in the shipping business of Ynchausti & Co., that is, a little over P166,666.66, which was the share in said business of the deceased Osorio during his lifetime. The project of partition was approved on May 10, 1915, with the consent of the heirs, by the Court of First Instance of Cavite, which had cognizance of the testamentary and administration proceedings of the state of the deceased Osorio. On February 28, 1914, the widow of D. Antonio Osorio, Da. Petrona Reyes, now also deceased, executed before the notary D. Florencio Gonzales Diez a document of gift in favor of her son D. Leonardo Osorio, the plaintiff, giving to him one-half of her share in the one-third part which belonged to her husband in the shipping business of Ynchausti & Co., a donation which was duly accepted by the donee D. Leonardo Osorio, who signed said document with the plaintiff. On that date, February 28, 1914, the estate of D. Antonio Osorio was not yet distributed among his heirs, and the donor Da. Petrona Reyes in order to correct the error in said document, wherein it was stated that said half was adjudicated to her as part of her conjugal property, when the partition was yet being effected, executed another document dated July 3, 1915, maintaining said donation in effect in the sense that she ceded and donated to her son D. Leonardo Osorio, for the same reasons stated in the document of February 28, 1914, al interest or participation in said shipping business of Ynchausti & Co., which was adjudicated to her in the division of the estate of D. Antonio Osorio, which division was approved by the Court of First Instance of Cavite on May 10, 1915. After the death of D. Antonio Osorio and before the distribution of the estate, Ynchausti & Co. purchased the steamer Governor Forbes and recognized the heirs of D. Antonio Osorio as having an interest to the extent of one-third in the ownership and business of said steamer. It was agreed upon by all the interested parties that the share of Da. Petrona Reyes, widow of Osorio, in the vessel Governor Forbes, at the time of the incorporation of The Ynchausti Steamship Co. was P61,000, equivalent to 610 shares of stock of said corporation. Said sum was deposited with the Steamship Co. until the final settlement of the question that had arisen between the heirs of Da. Petrona Reyes as to the ownership thereof for, while the plaintiff alleges that, by virtue of the donation made in his favor by Da. Petrona Reyes, he is the owner of said shares and of their value which is P61,000; the defendant on the other hand contends that said shares are not included in the donation in question and belong to the heirs of Da. Petrona Reyes. Such as the facts which gave rise to this litigation. The trial court rendered judgment in the case, declaring that the 610 shares of stock in dispute and their dividends belong to the plaintiff, and ordered the defendant Da. Tomasa Osorio, administratrix of the estate of Da. Petrona Reyes, to exclude them from the inventory and her accounts, and the other defendant The Ynchausti Steamship Co. to inscribe them in the name of the plaintiff D. Leonardo Osorio, delivering to him the dividends corresponding thereto, and

denied the counterclaim for the sum of P45,000, on the ground that said sum represents the dividends corresponding to the P94,000 adjudicated to Da. Petrona Reyes, in the partition of the estate of D. Antonio Osorio, and donated by her to the defendant in the counterclaim. The case having been appealed to this court, counsel for the defendant and appellant, in summing up their arguments in support of the errors assigned in their brief, maintain the two following propositions: 1. The donation made by Da. Petrona Reyes in favor of the plaintiff was of no value and effect; and 2. That, supposing said donation valid, the 610 shares of stock, the value of which is P61,000, cannot be considered as included among them. The document of donation dated February 28, 1914, attacked by the appellant, is as follows: Know all me by these presents: That I, Petrona Reyes, of age, widow of D. Antonio Osorio and resident of the Province of Cavite, Philippine Islands, being in possession of all my senses, freely and voluntarily state: 1. That my husband, the deceased D. Antonio Osorio, was a shareholder to the extent of onethird in the joint account association Ynchausti & Co. of this place, which is engaged in the business of buying vessels and in the exploitation of six steam vessels acquired from the Compaia Maritima, the article of association of said joint account association having been executed in the city of Manila on July 3, 1906, before the notary public D. Florencio Gonzales Diez. 2. That upon the death of my husband D. Antonio Osorio and upon the partition of his estate, there was adjudicated to me as conjugal property, one-half of said one-third part in the business referred to, the other half thereof going to our four surviving children, such being the present condition of our interest in said company. 3. That in consideration of the continuous services and attention received by me from my son D. Leonardo Osorio, of age, married and a resident of Cavite also, and because of the affection he has always shown and still shows me, as well as because of the number of children that he has, I make a free and expressed donation to my said son D. Leonardo Osorio of all my interest and participation in said company Ynchausti and Co. which is neither transferred nor burdened in any manner whatever. 4. I also declare that the present donation does not in any way prejudice the right which may accrue to my other children with respect to inheriting my property and that therefore I can effect this donation, with all liberty, as I reserve for myself what is sufficient for me to live on in the manner which corresponds to my social position and needs. 5. In turn, I, Leonardo Osorio, of age, married and a resident of the Province of Cavite, state my conformity and acceptance of said donation which my dear mother makes to me, for which I am greatly thankful to her. In witness whereof we sign the present document in triplicate at Manila, Philippine Islands, this twenty-eighth day of February, nineteen hundred and fourteen.

(Sgd.)PETRONA REYES.LEONARDO OSORIO. Signed in the presence of:(Sgd.) EUSEBIO ALBA.SALVADOR BARRIOS. Acknowledged before the notary public D. Florencio Gonzales Diez on February 28, 1914. The document rectifying the ratifying the preceding is literally as follows: Know all men by these presents: That I, Petrona Reyes, of age, widow of D. Antonio Osorio and resident of the Province of Cavite, Philippine Islands, being in the full possession of my senses, freely and voluntarily declare: 1. That on February 28, 1914, before the notary public of Manila, D. Florencio Gonzales Diez, I executed a document of donation in favor of my son D. Leonardo Osorio, of one-half of the onethird part which my deceased husband had in certain shipping business of the association Ynchausti & Co. 2. That in said document I stated, through error, that said half of one-third part of the business referred to was adjudicated to me as my part of the conjugal property in the partition of the properties left by my deceased husband, when the truth was that said partition had not yet been put in proper form or finished. 3. That in order to correct said error, I so state, declaring however in any event that I make said donation subsisting in the sense that I cede and donate to my side son D. Leonardo Osorio, in consideration of the same causes mentioned in said document of February 28, 1914, all interest or share in said shipping business of Ynchausti & Co. which was adjudicated to me in the partition of the estate of my deceased husband, and approved by the Court of First Instance of Cavite, on May 10, 1915. In witness whereof I sign the present document in triplicate of Cavite on July 3, 1915. (Sgd. by): PETRONA REYES. Signed in the presence of: (Sgd.) CARLOS LEDESMA.ISAURO GABALDON. In support of the first proposition, the appellant invokes as the legal provision violated, article 635 of the Civil Code, which says: A donation can not include future property. By future property is understood that of which the donor can not dispose at the time of making the donation. Commenting on article 635 of the Civil Code, Manresa says, among other things: To close these fundamental ideas which the spirit of articles 634 and 635 develops we must fix our attention to the definition which the Code gives of future properties. They are those of which

the donor cannot dispose at the time of making the donation. This definition in reality includes all properties which belong to others at the time of the donation, although they may or may not later belong to the donor, thus connecting two ideas which, although lacking apparently in relation, are merged in reality in the subject which we examine and which gives assurance to their application. Article 635 refers to the properties of third persons but it may be said that id does so in relation to a time to come; there can be properties which may latter belong to the donor; but these properties cannot be donated, because they are not at present his properties, because he cannot dispose of them at the moment of making the donation. The usufructuary for life or for a determined number of years of a vineyard may donate said usufruct to the whole extent that it belongs to him but never the property itself. The bare owner of said vineyard may donate his right of course; but he may also donate the usufruct which corresponds to the time that it will go back to him, because the case refers to a vested right of which he may dispose at the time of the donation. It is alleged that the donation made by Da. Petrona Reyes is void because she donated on February 28, 1914, a future property, such as the share in the business of the deceased Osorio, which was adjudicated to her on May 10, 1915, and because in 1914 she did not have the right to all or part of the share which her deceased husband had in the shipping business of Ynchausti & Co. Carefully examining said article 635 of the Civil Code, in relation to the worthy opinion of the commentator Manresa, we believe that the future properties, the donation of which is prohibited by said article, are those belonging to other, which, as such, cannot be the object of the disposal by the donor; but the properties of an existing inheritance as those of the case at bar, cannot be considered as anothers property with relation to the heirs who through a fiction of law continue the personality of the owner. Nor do they have the character of future property because the died before 1912, his heirs acquired a right to succeed him from the moment of his death, because of the principle announced in article 657 and applied by article 661 of the Civil Code, according to which the heirs succeed the deceased by the mere fact of his death. More of less time may elapse before the heirs enter into the possession of the hereditary property, but this is not an obstacle, for the acquisition of said property retroacts in any event to the moment of death, according to article 989 of the Civil Code. The right is acquired although subject to the adjudication of the corresponding hereditary portion. Furthermore the Civil Code does not prohibit absolutely that future inheritance should be the object of agreement, for there are certain cases (arts. 177, 827, 831, and 1331) in which agreements may be made as to them, beside that indicated in article 1271, and it may be deduced that an inheritance already existing, which is no longer future from the moment of death of the predecessor, may legally be the object of contract. A donation being of a contractual nature, inasmuch as for its efficacy the concurrence of two wills is required, that of the donor and the donee, we believe that which may be the object of contract may also be the object of a donation. Ubi eadem est ratio, ibi est eadem legis dispositio. We conclude that the donor Da. Petrona Reyes, on February 28, 1912, and could legally dispose of her right through an act of liberality, as she had done. With respect to the point that Da. Petrona Reyes did not have in 1914 any right to all or part of the share of her deceased husband in the shipping business of Ynchausti and Co., it must be observed that in the project of partition of the property of D. Antonio Osorio the following appears:

The widow of the testator, Maria Petrona Reyes, her children Feliza, Tomasa, and Leonardo and her granddaugther Soledad Encarnacion Osorio y San Agustin are at present all living and are the only heirs of the deceased. The testator declares that all property left by him was acquired during his marriage with Petrona Reyes. The testator institutes as his only and universal heirs his said children and granddaugther, designates the parts which each of them must receive as legitime, betterment, and legacy, leaves to the disposition of his widow and amount equivalent to that set aside by him in payment of one-half part of the conjugal property and orders that the remainder should be equally distributed among his heirs. We do not have before us the will of D. Antonio Osorio but supposing that he had left no property but the share which he had in the shipping business of Ynchausti & Co., can it be denied that the donor by law had the right to half of said share as her part of the conjugal property? Clearly not. The defendant in her answer says: That Da. Maria Petrona Reyes did not donate to the plaintiff more that her share in the shipping business of the firm Ynchausti & Co. which was adjudicated to her in the partition of the property of D. Antonio Osorio and that said share amounts to P94,000. This admission of the defendant is conclusive, and makes it unnecessary for us to enter into another discussion in order to deduce that Da. Petrona Reyes had in 1914 a right to a certain part of the interest of the deceased Osorio in the shipping business of the firm Ynchausti & Co., and could donate it, as she did, to her son D. Leonardo Osorio. The allegation that the document of July 3, 1915, is void, because it does not show the acceptance of the donee, is of no importance, because of the conclusion we have reached in discussing the document of donation of February 28, 1914. In the second document, the donor only tried to correct what she believed to be an error in the first, wherein it is stated that in the partition of the property of her husband there was adjudicated to her the part of the interest in the shipping business of Ynchausti & Co. which she donated to her son Leonardo, when in fact said partition was yet pending. After its approval by the Court of First Instance of Cavite, the donor executed the document of 1915, ratifying and correcting the document of donation. She did not make a new donation. She executed a personal act which did not require the concurrence of the donee. It is the duty of the donee, in order that the donation may produce legal effect, to accept to the donation and notify the donor thereof. The acceptance is necessary because nobody is obliged to receive a benefit against his will. And all this was complied with in the document of 1914. The wills of the donor and of the donee having concurred, the donation, as a mode of transferring ownership, becomes perfect, according to article 623 of the Civil Code. We will not pass to the second proposition of the appellant, that is, that the 610 shares, which are the subject matter of the suit, cannot be considered as included in the donation made by Da. Petrona Reyes in favor of the plaintiff, supposing that said donation was valied. The reasons alleged by the appellant are: (1) That the steam vessel Governor Forbes was purchased after the death of D. Antonio Osorio, with money borrowed and furnished by the heirs individually and not by the estate, and (2) that the plaintiff appellee has recognized that the capital used in the steamer Forbes is distinct from the money used in the purchase of other vessels in which the deceased Osorio had an interest.

The question whether the streamer Governor Forbes was or was not purchased with money furnished by Ynchausti and the heirs of Osorio, indepedently of that former partnership in which the deceased Osorio had an interest, is one of the fact and must be resolved in view of the evidence adduced at the trial. D. Julio Gonzales, secretary and accountant of the firm Ynchausti, witness for the defendant, states that the Forbes was purchased with money which the shipping business of Unchaisti & Co. had. The appellant herself admits that his vessel took part in the general shipping business of Ynchausti & Co. for no new partnership was constituted for the purchase thereof, and, after its acquisition the Ynchausti firm accounted to the estate of D. Antonio Osorio for the profits obtained and the dividends to be distributed and no separate account was made of the earnings of the vessel, but only a general account, including the profits obtained in the shipping business, in which the Governor Forbes was but one of several vessels. D. Joaquin Elizalde, manager of the firm Ynchausti & Co., by agreement of the parties and with the approval of the court, made a deposition before the notary public D. Florencio Gonzales Diez, stating that when the steamer Forbes was acquired in 1912, the Ynchausti firm did not bring in any new capital, but obtained money for its purchase by mortgaging the vessel itself and other vesseles of the company; and that the heirs of D. Antonio Osorio did not bring in any new capital for the purchase of the vessel, but signed jointly with Ynchausti & Co. with the others, except Da. Soledad Osorio, the guaranty which the bank required. In our opinion the evidence shows conclusively that the vessel Governor Forbes forms part of the shipping business of Ynchausti & Co. in which D. Antonio Osorio and his estate had an interest. It is no argument against this conclusion that the heirs of Osorio signed with Ynchausti & Co. the guaranty required by the bank where the money used in the purchase of the Forbes was taken: (1) Because the guaranty is for the purpose only for securing the payment of the amount indebted and not for excluding the estate of Osorio from the result of that banking operation; (2) because, besides said guaranty, the other vessels of the joint account association of Osorio and Ynchausti & Co. were mortgage; (3) because no new partnership was formed between Ynchausti & Co. and the heirs of Osorio for the purchase of the vessel Forbes; and (4) because, when Unchausti & Co. agreed with the heirs of Osorio in that his share in the steamer Forbes was P108,333.33, this sum was distributed among said heirs, including Da. Soledad Osorio who did not sign the guaranty, the accruing to each P11, 833.33 and to the widow Da. Petrona Reyes P61,000, which is the object of this suit. All of the above shows that the estate of Osorio had a one-third part of the steamer Forbes represented by the capital which was distributed among the heirs, there accruing to the widow, by agreement of the interested parties, the sum of P61,000. And this sum being part of the onehalf of one-third of the shipping business of Ynchausti & Co., which one-half part accrued to the widow in the distribution of the properties of Osorio; and the widow Da. Petrona Reyes having disposed of this half, donating it to her son D. Leonardo Osorio, it clearly results, in our opinion, that the sum of 61,000, or the corresponding shares of the new corporation The Ynchausti Steamship Co. are included in said donation, and therefore belong to the plaintiff-appellee. The other reason alleged by the appellant in support of her contention is that the plaintiff has recognized in his letter addressed to the defendant corporation, and inserted in the answer presented by the latter that the Forbes was acquired with money different from that of the joint account association theretofore mentioned. We have carefully read the letter in question and what appears is that said plaintiff agreed that the P61,000 should be deposited with Ynchausti & Co., as trustee, to be distributed with its accumulated dividends, when the question between the

heirs of Da. Petrona Reyes had already been terminated, that is to say, according to the result of the present suit. There is nothing in said letter which indicates how the Governor Forbes was acquired. With respect to the counterclaim of P45,609,91, we are of the opinion that the evidence justifies the conclusion of the trial court that they are the profits or dividends accruing to the P94,000, which were adjudicated to the widow Da. Petrona Reyes in the distribution of the estate of the deceased Osorio and which were donated by her to the plaintiff, and as such profits they belong to the latter, upon the principle of law that ownership of property gives right by accession to all that it produces, or is united or incorporated thereto, naturally or artificially. (Art. 353 of the Civil Code.) In view of what has been said, the judgment appealed from should be, as it is hereby, affirmed, with costs against the appellant. So ordered.

11.G.R. No. L-25049

August 30, 1968

FILEMON RAMIREZ, MONICA RAMIREZ, and JOSE EGUARAS, plaintiffs-appellants, vs. ARTEMIO BALTAZAR, ET AL., defendants-appellees. Eduardo M. Peralta for plaintiffs-appellants. Tomas P. Anonuevo for defendants-appellees Artemio Baltazar and Susana Flores. Tirso Caballero for defendant-appellee Artemio Diawan.

ANGELES, J.: On appeal from an order dismissing the complaint, on motion to dismiss, in Civil Case No.SC319 of the Court of First Instance of Laguna. It appears that on 6 January 1959, Victoriana Eguaras single, made and executed a real estate mortgage over a parcel of land, owned by her in fee simple, as security for a loan of P2,170.00 in favor of the spouses Artemio Baltazar and Susana Flores. Upon the demise of the mortgagor, the mortgagees, as creditors of the deceased, on 16 September 1960 filed a petition for the intestate proceedings of her estate, in the Court of First Instance of Laguna, docketed as Civil Case No. SC-99 wherein said mortgages, as petitioners, alleged that Filemon Ramirez and Monica Ramirez are the heirs of the deceased. Filemon Ramirez was appointed administrator of the estate; however, having failed to qualify, on 16 January 1961, the court appointed Artemio Diawan, then a deputy clerk of court, administrator of the estate who, in due time, qualified for the office. On 19 April 1961, the mortgagees, Artemio Baltazar and Susana Flores, filed a complaint for foreclosure of the aforesaid mortgage, against Artemio Diawan, in his capacity as administrator of the estate, docketed as Civil Case No. SC-292 of the Court of First Instance of Laguna. The defendant-administrator was duly served with summons but he failed to answer, whereupon, on petition of the plaintiffs said defendant was declared in default. The case was referred to a commissioner to receive the evidence for the plaintiffs, and defendant-administrator, as deputy clerk of court, acted as such hearing commissioner. 1wph1.t On 16 August 1961, decision was rendered decreeing the foreclosure of the mortgaged property and the sale thereof, if, within ninety days from finality of the decision, the obligation was not fully paid. The judgment not having been satisfied, a writ of execution was issued for the sale of the mortgaged property, and after compliance with the requirements of the law regarding the sending, posting and publication of the notice of sale, the Sheriff sold the property at public auction to the highest bidder, who happened to be the plaintiffs themselves, for the sum of P2,888.50 covering the amount of the judgment, plus the expenses of the sale and the Sheriff's fees. On petition of the plaintiffs, the sale was confirmed by the court on 26 January 1962. On 6 February 1962, Filemon Ramirez, Monica Ramirez and Jose Eguaras, the first two being the heirs named in the petition for intestate proceedings, filed a complaint designated "For the Annulment of all Proceedings in said Civil Case No. SC-292 for the Foreclosure of the Mortgage", against the spouses Artemio Baltazar and Susana Flores, and Artemio Diawan, in his capacity as administrator of the estate of Victoriana Eguaras, deceased, and Silverio Talabis, in his capacity as deputy provincial sheriff of Laguna, docketed as Civil Case No. SC319 of the Court of First Instance of Laguna. The facts hereinabove narrated are, succinctly, contained in the complaint in said Civil Case No. SC-319, with the additional averments that the defendant Diawan, the deputy clerk of court appointed as administrator of the intestate estate of the deceased, acted in collusion with the other defendants Artemio Baltazar and Susana Flores, deliberately and in fraud of the plaintiffs: (a) in allowing the reglementary period within which to file an answer to lapse without notifying and/or informing the said plaintiffs of the complaint for foreclosure, as a result of which he was declared in default to the prejudice of the estate which he represents; (b) that had the plaintiffs (Monica and Filemon) been notified of the pendency of the case, the defendant administrator could have interposed a counterclaim because payment in the sum of P1,548.52 had been

made and received by the mortgagees on account of the debt; (c) in presiding as hearing officer in the ex parte hearing in Civil Case No. 292, to receive evidence for plaintiffs therein, notwithstanding the fact that there was another deputy clerk of court available who could have acted in his stead, as a result of which an anomalous situation was created whereby he was a defendant and at the same time a commissioner receiving evidence against himself as administrator; (d) in allowing judgment to become final without notifying the plaintiffs; (e) in deliberately, allowing the 90-day period within which to make payment to expire without notifying the heirs, as a result of which the said heirs were not afforded an opportunity to make payments ordered by the Court in its decision; and (f) in refusing to help the heirs seek postponement of the auction sale. It is also alleged that it was only when the property foreclosed was published for sale at public auction that the heirs came to know about the foreclosure proceedings. The defendants spouses, Artemio Baltazar and Susana Flores, filed a motion to dismiss the complaint on the ground that the plaintiffs have no legal capacity to sue; defendant Diawan likewise moved to dismiss on two grounds: that plaintiffs have no legal capacity to sue and that the complaint states no cause of action. 1wph1.t Despite vigorous opposition interposed by the plaintiffs against the aforesaid motions to dismiss, the court, on 13 March 1962, dismissed the complaint with costs against the plaintiffs, reasoning thus: that "upon consideration of the evidence, said defendant could not have offered any evidence to avoid the foreclosure of the mortgage which the Court found to be in order. Under the circumstances and with the apparent disinterestedness of Filemon and Rolando to qualify as administrator when appointed, there could not have been any connivance and/or collusion between plaintiffs in this case and Artemio Diawan as administrator"; and that plaintiffs have no legal capacity to sue since their status as legal heirs of the deceased has yet to be determined precisely in Special Proceeding No. SC-99, and until such status is so fixed by the Court, they have no cause of action against defendants. In that order of 13 March 1962, the court also denied plaintiffs' petition for the issuance of a writ of preliminary injunction to enjoin defendants from entering and taking physical possession of the land in question on the ground "that possession thereof was effected and delivered by the Provincial Sheriff to Artemio Baltazar and Susana Flores on February, 1962." Reconsideration of the aforesaid order having been denied, the plaintiffs took the present appeal where they assigned the following errors: (1) in holding that plaintiffs-appellants have no legal capacity to sue until their status as legal heirs of the deceased is determined in Special Proceeding No. SC-99; (2) in ruling that there was no collusion or connivance among the defendants-appellees, despite the fact that the issue in the motion to dismiss is purely legal, not factual; and (3) in denying the petition for a writ of preliminary injunction. At the outset, let it be remembered that the defendants-appellees, in availing themselves of the defense that the plaintiffs-appellants had not been declared to be the heirs of the deceased Victoriana Eguaras, have overlooked the fact that the (defendants-appellees) themselves in their petition for intestate proceedings (Case SC-99) have alleged that Filemon Ramirez and Monica Ramirez, two of herein plaintiffs-appellants, are the heirs of the deceased. Insofar as defendants-appellees are concerned, it is our opinion that they are estopped from questioning the heirship of these two named persons to the estate of the deceased. There is no question that the rights to succession are automatically transmitted to the heirs from the moment of the death of the decedent.1 While, as a rule, the formal declaration or recognition to such successional rights needs judicial confirmation, this Court has, under special

circumstances, protected these rights from encroachments made or attempted before the judicial declaration.2 In Pascual vs. Pascual,3 it was ruled that although heirs have no legal standing in court upon the commencement of testate or intestate proceedings, this rule admits of an exception as "when the administrator fails or refuses to act in which event the heirs may act in his place." A similar situation obtains in the case at bar. The administrator is being charged to have been in collusion and connivance with the mortgagees of a property of the deceased, allowing its foreclosure without notifying the heirs, to the prejudice of the latter. Since the ground for the present action to annul the aforesaid foreclosure proceedings is the fraud resulting from such insidious machinations and collusion in which the administrator has allegedly participated, it would be farfetched to expect the said administrator himself to file the action in behalf of the estate. And who else but the heirs, who have an interest to assert and to protect, would bring the action? Inevitably, this case should fall under the exception, rather than the general rule that pending proceedings for the settlement of the estate, the heirs have no right to commence an action arising out of the rights belonging to the deceased. On the second point raised, We fully agree with the plaintiffs-appellants that the lower court had gone too far in practically adjudicating the case on the merits when it made the observation that "there could not have been any connivance and/or collusion between plaintiffs in this case and Artemio Diawan as administrator." A thorough scrutiny of the allegations in the motions to dismiss filed by defendants-appellees does not indicate that that question was ever put at issue therein. On the other hand, the controversy on the existence or inexistence of collusion between the parties as a result of which judgment was rendered against the estate is the very core of the complaint that was dismissed. Undoubtedly, the cause of action is based on Section 30, Rule 132 of the Rules of Court. We are not, however, in accord with the third assigned error the denial of the motion for the issuance of preliminary injunction for it puts at issue the factual finding made by the lower court that the defendants had already been placed in possession of the property. At this stage of the proceeding, and considering the nature of the case before Us, such a question is, at this time, beyond the competence of the Court. PREMISES CONSIDERED, the order appealed from is hereby set aside insofar as it dismissed the complaint in Civil Case No. SC-319, and the records be remanded to the lower court for further proceedings. Costs against defendants-appellees. The Clerk of Court is directed to furnish a copy of this decision to the Department of Justice for its information. 12. G.R. No. L-20609 September 29, 1966 JUAN DE BORJA, MARCELA DE BORJA, SATURNINA DE BORJA, EUFRACIA DE BORJA, JACOBA DE BORJA and OLIMPIA DE BORJA, petitioners, vs. HON. EULOGIO MENCIAS, Judge of the Court of First Instance of Rizal, THE PROVINCIAL SHERIFF OF RIZAL, DR. CRISANTO DE BORJA, Administrator of the Intestate Estate of Marcelo de Borja (CFI-Rizal, 2414) and JOSE DE BORJA, Administrator of the Testate Estate of Josefa Tangco (CFI-Rizal-7866), respondents. Tolentino and Garcia for petitioners. Leonardo Almeda for respondents. David Guevara for respondent J. de Borja.

DIZON, J.: Original petition filed by Juan, Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all surnamed De Borja, to set aside the order of May 19, 1962 of the Hon. Eulogio Mencias, Judge of the Court of First Instance of Rizal, in Civil Case No. 2414 entitled "Intestate Estate of the Deceased Marcelo de Borja, Crisanto de Borja, Administrator, etc.", as well as his order denying their motion for reconsideration, and to compel him to cause the sale of the properties levied upon to satisfy the final judgment rendered by the Court of First Instance of Rizal in Civil Case No. 2414. The record discloses that a money judgment involving the sum of P46,210.78, plus interests, was rendered in favor of petitioners against respondent Crisanto de Borja in Civil Case No. 2414 of the Court of First lnstance of Rizal. Said decision having become final, a writ of execution was issued and pursuant thereto, the respondent Provincial Sheriff of Rizal levied on the rights, interest and participation which Crisanto de Borja had in certain real properties in the province of Rizal, as an heir of the decedents Josefa Tangco and Francisco de Borja, whose estates were then pending settlement in Special Proceedings Nos. F-7866 and 1955 of the aforementioned court, respectively. Thereafter, respondent Jose de Borja, as administrator of the estate of Josefa Tanco, filed with the respondent sheriff a third-party claim alleging that the properties levied upon were in custodia legis in connection with the settlement of the estate involved in Special Proceedings No. 7866 mentioned heretofore. Acting upon this claim, the sheriff required petitioners to post an indemnity bond in the amount of P2,500,000.00. Contending that it was not their duty to file such bond, petitioners filed a motion praying that the court order the sale of the properties levied upon, without the need of their filing such bond. On October 17, 1958 the respondent judge issued an order whose dispositive part reads as follows: WHEREFORE, this Court hereby holds that whatever interest, claim or right which Crisanto de Borja may have in the testate estate of Josefa Tangco and in the intestate estate of Francisco de Borja are subject to attachment and execution for the purpose of satisfying the money judgment rendered against the said heir; that said interest, claim or right have been legally levied upon and consequently can be sold by the Provincial Sheriff of Rizal for the satisfaction of the judgment rendered in favor of the petitioners herein, the filing of the so-called third-party claim notwithstanding. It further holds that there is no sufficient reason for requiring the judgment creditors to file an indemnity bond. As a consequence, the Court hereby directs the Provincial Sheriff of Rizal to proceed with the sale of the rights, interests and claim of Crisanto de Borja in the aforementioned estates upon compliance with the requirements of the Rules of Court. His motion for reconsideration of the above order having been denied, respondentadministrator Jose de Borja appealed to us (G.R. No. L-14851), and on August 31, 1961, We rendered judgment affirming the appealed order. Said decision having become final and executory, petitioners filed with the respondent judge a motion for the issuance of an alias writ

of execution, which motion was granted in an order dated February 26, 1962, of the following tenor: Wherefore, the Court hereby orders the Provincial Sheriff of Rizal to continue with his proceedings in the first writ of execution which had already been issued. Let another writ of execution with respect to the costs adjudged in the last decision of the Supreme Court issue.1awphl.nt Upon motions for reconsideration filed by respondents Crisanto de Borja and Jose de Borja, in their capacities as administrators of the intestate estate of the deceased Francisco de Borja (CFI-Rizal, 1955) and the testate estate of Josefa Tangco (CFI-Rizal, 7866), respectively, on the ground that the rights and interest of the judgment debtor (Crisanto de Borja) in the aforesaid estate could be sold only after final settlement of the latter, pursuant to Section 9, Rule 59 of the Rules of Court, (Section 9 of Rule 57 of the New Rules of Court), and praying that the sheriff be directed to proceed with the execution accordingly, the respondent judge issued, on May 19, 1962, the amendatory order subject-matter of this action, which reads as follows: Considering the two motions for reconsiderations dated March 23, and March 20, 1962, filed by Crisanto de Borja and Jose de Borja, respectively, to be well-taken and notwithstanding the opposition filed thereto, the same are hereby granted, and the order of the Court dated February 26, 1962, is hereby amended in the sense that the Provincial Sheriff of Rizal be ordered to garnish whatever share or interests the judgment debtor may or might have by way of share or inheritance in the estate of the deceased Jose Tangco subject of Special Proceedings No. 7866 also of this Court, and in the estate of the deceased Francisco de Borja subject of Special Proceedings No. 1955 also of this court, in accordance with the provision of Section 9, Rule 59 of the Rules of Court and in conformity with the doctrine laid down in the case of Litonjua vs. Montilla, G.R. No. L-4170, promulgated on January 31, 1962. Their motion for reconsideration of the above-quoted order having been denied, petitioners filed the present petition claiming that respondent judge's order of May 19, 1961 illegally modified the final judgment of the Supreme Court in G.R. No. L-14851 which directed the sale of the properties levied upon for the satisfaction of the judgment rendered in favor of petitioners in Civil Case No. 2414. It is a fact that whatever rights, interest and participation Crisanto de Borja has in certain real properties under judicial administration in Special Proceedings Nos. F-7866 and 1955 of the Court of First Instance of Rizal, were properly levied upon pursuant to the writ of execution issued by said court in Civil Case No. 2414. On the other hand, it is beyond question that such rights, interest and participation are subject to attachment and/or levy in execution in accordance with Section 9, Rule 57 of the Rules of Court. The question to be resolved here is whether or not, after the attachment or levy in execution, the rights, interest and participation of Crisanto de Borja in the estate left by decedents Josefa Tangco and Francisco de Borja may be sold at public auction to satisfy the money judgment rendered against him. The above question, in our opinion, must be answered in the affirmative, provided it is understood that the sale shall be only of whatever rights, interest and participation may be adjudicated to said heir as a result of the final settlement of the estates, and that delivery thereof to the judgment creditor or to the purchaser at the public sale thereof shall be made only after the final settlement of the estates and in the manner provided by the legal provision mentioned above.

WHEREFORE, modifying and/or clarifying the appealed order in the manner stated in the next preceding paragraph, judgment is hereby rendered directing the respondent court to proceed accordingly. Without costs.

13. G.R. No. L-21993

June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners, vs. HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III, ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents. Lorenzo Somulong for petitioners. Torres and Torres for respondents. REYES, J.B.L., J.:

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ of certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken cognizance of without jurisdiction. The facts and issues are succinctly narrated in the order of the respondent court, dated June 13, 1963 (Petition, Annex 0), in this wise: It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez, through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of the pendency of another action for the settlement of the estate of the deceased Rev. Fr. Celestino Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed ahead of the instant case". The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to allow them to examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a resident of Paraaque, Rizal, and died without leaving a will and praying that Maria Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Paraaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in Paraaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan. The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no jurisdiction to entertain the petition for probate, citing as authority in support thereof the case of Ongsingco Vda. de Borja vs. Tan and De Borja, G.R. No. 7792, July 27, 1955. The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has precedence over the case filed in Rizal on March 12, 1963. The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a difference of a few hours did not entitle one proceeding to preference over the other; that, as early as March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from exercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, and invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955.

SECTION 1.Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, as far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963, even if no petition for its allowance was filed until later, because upon the will being deposited the court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the old Rules): SEC. 3. Court to appoint time for proving will. Notice thereof to be published. When a will is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction, such Court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof, and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province. But no newspaper publication shall be made where the petition for probate has been filed by the testator himself. The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is incontestable.1wph1.t But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to "the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that he retained throughout some animus revertendi to the place of his birth in Paraaque, Rizal, that detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the power to settle decedents' estates is conferred by law upon all courts of first instance, and the domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco, 74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies that the late Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in the case before us.

In the Kaw Singco case (ante) this Court ruled that: "... If we consider such question of residence as one affecting the jurisdiction of the trial court over the subject-matter, the effect shall be that the whole proceedings including all decisions on the different incidents which have arisen in court will have to be annulled and the same case will have to be commenced anew before another court of the same rank in another province. That this is of mischievous effect in the prompt administration of justice is too obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942). Furthermore, section 600 of Act No. 190, providing that the estate of a deceased person shall be settled in the province where he had last resided, could not have been intended as defining the jurisdiction of the probate court over the subject matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters, and, as we have said time and again, procedure is one thing and jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction Act No. 136, Section 56, No. 5 confers upon Courts of First Instance jurisdiction over all probate cases independently of the place of residence of the deceased.1 Since, however, there are many Courts of First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or the place where each case shall be brought. Thus, the place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue. And it is upon this ground that in the new Rules of Court the province where the estate of a deceased person shall be settled is properly called "venue" (Rule 75, section 1.) Motion for reconsideration is denied. The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the same enjoins that: The Court first taking cognizance of the settlement of the estate of a decedent shall exercise jurisdiction to the exclusion of all other courts. (Sec. 1) This disposition presupposes that two or more courts have been asked to take cognizance of the settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence to that Court whose jurisdiction is first invoked, without taking venue into account. There are two other reasons that militate against the success of petitioners. One is that their commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule 75) was not designed to convert the settlement of decedent's estates into a race between applicants, with the administration of the properties as the price for the fleetest. The other reason is that, in our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will. Says Article 960 of the Civil Code of the Philippines: ART. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property in which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of preestablished action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the purported will of Father Rodriguez is pending. We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate in question, and that in refusing to dismiss the probate. proceedings, said court did not commit any abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued. Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.

14. G.R. No. L-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.

GRIO-AQUINO, J.:

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 P 450. 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. 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 partition; 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: 3. That the late Manuela Buenavista Vda. de Chavez, one of the defendants-appellees, 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 his 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:

(l) 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 legitimate 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 feature 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. .... 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. SO ORDERED.

15. G.R. No. L-47799

June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners, vs. IGNACIA AKUTIN AND HER CHILDREN, respondents. MORAN, J.: Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with Ignacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in the first marriage, died on October 2, 1923, that is, a little less than eight years before the death of said Agripino Neri y Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was admitted to probate on March 21, 1932, he willed that his children by the

first marriage shall have no longer any participation in his estate, as they had already received their corresponding shares during his lifetime. At the hearing for the declaration of heirs, the trial court found, contrary to what the testator had declared in his will, that all his children by the first and second marriages intestate heirs of the deceased without prejudice to one-half of the improvements introduced in the properties during the existence of the last conjugal partnership, which should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision with the modification that the will was "valid with respect to the two-thirds part which the testator could freely dispose of. "This judgment of the Court of Appeals is now sought to be reviewed in this petition for certiorari. The decisive question here raised is whether, upon the foregoing facts, the omission of the children of the first marriage annuls the institution of the children of the first marriage as sole heirs of the testator, or whether the will may be held valid, at least with respect to one-third of the estate which the testator may dispose of as legacy and to the other one-third which he may bequeath as betterment, to said children of the second marriage. The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as follows: Disinheritance made without a statement of the cause, or for a cause the truth of which, if contradicted, is not proven, ... shall annul the institution of the heir in so far as it prejudices the person disinherited; but the legacies, betterments, and other testamentary dispositions, in so far as they do no encroach upon the legitime, shall be valid. The appellate court thus seemed to have rested its judgment upon the impression that the testator had intended to disinherit, though ineffectively, the children of the first marriage. There is nothing in the will that supports this conclusion. True, the testator expressly denied them any share in his estate; but the denial was predicated, not upon the desire to disinherit, but upon the belief, mistaken though it was, that the children by the first marriage had already received more than their corresponding shares in his lifetime in the form of advancement. Such belief conclusively negatives all inference as to any intention to disinherit, unless his statement to that effect is prove to be deliberately fictitious, a fact not found by the Court of Appeals. The situation contemplated in the above provision is one in which the purpose to disinherit is clear, but upon a cause not stated or not proved, a situation which does not obtain in the instant case. The Court of Appeals quotes Manresa thus: En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al comentar el articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse el testamento, siendo conocida su existencia por el testador, de aquel en que, o naciese despues, o se ignorase su existencia, aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.) But it must be observed that this opinion is founded on mere principles (en el terreno de los principios) and not on the express provisions of the law. Manresa himself admits that according to law, "no existe hoy cuestion alguna en esta materia: la pretericion produce siempre los mismos efectos, ya se refiera a personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a los descendientes legitimos, siempre que ademas tengan derecho a legitima."(6 Manresa, 381.)

Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the children by the first marriage, and of involuntary preterition of the children by the deceased Getulia, also of the first marriage, and is thus governed by the provisions of article 814 of the Civil Code, which read in part as follows: The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and betterments shall be valid, in so far as they are not inofficious. Preterition consists in the omission in the 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.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first marriage were mentioned in the will, they were not accorded any share in the heriditary property, without expressly being disinherited. It is, therefore, a clear case of preterition as contended by appellants. The omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a preterition if the purpose to disinherit is not expressly made or is not at least manifest. Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814 of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate succession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the instant case, no such legacies or betterments have been made by the testator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828 of the Civil Code, and where no express provision therefor is made in the will, the law would presume that the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in question, no express betterment is made in favor of the children by the second marriage; neither is there any legacy expressly made in their behalf consisting of the third available for free disposal. The whole inheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs by the first marriage have already received their shares. Were it not for this mistake, the testator's intention, as may be clearly inferred from his will, would have been to divide his property equally among all his children. Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to the widow's legal usufruct, with costs against respondents. 16. G.R. No. 73275 May 20, 1987

FLOCERFINA BARANDA, Assisted by Husband, ELIAS FABON, HERMINIA BARANDA RECATO represented by LILIA R. TORRENTE, as Attorney-in-Fact, TEODORO BARANDA represented by JUANITA VICTORIA as Attorney-in-Fact, ALIPIO VILLARTA and SALVACION BARANDA, petitioners, vs. EVANGELINA G. BARANDA, ELISA G. BARANDA, and THE HONORABLE INTERMEDIATE APPELLATE COURT, respondents. Alarkon and Valero for petitioners. Romulo, Mabanta, Buenaventura, Sayoc and Delos Angeles for private respondents.

CRUZ, J.: We are faced once again with an all-too-familiar if distasteful controversy: an old woman dying without issue and without a will and her collaterals wrangling over her properties like the soldiers in Mount Calvary casting lots for the seamless robe of Jesus. The difference in this case is that even before the owner's death, two of the claimants had already taken over her properties by virtue of certain supposed transfers which are in fact that reason for this petition. The questioned sales were effected through three deeds denominated "Bilihan ng Lupa" and dated January 29 and February 3, 1977, 1 under which Paulina L. Baranda, a widow, sold five parcels of land to her niece, Evangelina Baranda, and a sixth parcel to her other niece, Elisa, also a daughter of Pedro Baranda, Paulina's brother. The sales were made, according to the documents, for the total consideration of P105,000.00 duly acknowledged as received by the transferor from the vendees. 2 What made these transactions suspect was a subsequent complaint filed by Paulina Baranda against her nieces on August 1, 1977, in the Court of First Instance of Rizal, in which she alleged that she had signed the said deeds of sale without knowing their contents and prayed that Evangelina and Elisa be ordered to reconvey the lands subject thereof to her. 3 This complaint was later withdrawn pursuant to an agreement dated August 2, 1977, 4 under which the defendants, in exchange for such withdrawal, obligated themselves to "execute absolute deeds of sale covering the above-mentioned properties in favor of the First Party," meaning the plaintiff. It was also stipulated in the said agreement thatc. The FIRST PARTY shall keep possession of the aforementioned deeds of sale, as wen as the Transfer Certificate of Title of the above-listed properties, which are in the hands of the SECOND PARTIES; d. That any time that the FIRST PARTY desires to sell, mortgage or otherwise dispose of or encumber the abovementioned properties, the SECOND PARTIES shall execute the proper documents in accordance with the desire and wishes of the FIRST PARTY. As it turned out, only Elisa reconveyed the lot deeded to her; Evangelina never complied with the agreement; and when Paulina died in 1982, the certificate of title over the lots in question were still in the names of Evangelina and Elisa Baranda. 5 This was the factual situation when on April 26, 1982, the herein petitioners, claiming to be the legitimate heirs of the late Paulina Baranda, filed a complaint against Evangelina and Elisa Baranda in the Court of First Instance of Rizal for the annulment of the sale and the reconveyance of the lots, with damages. Judgment was rendered in favor of the plaintiffs: * a) declaring the deeds of sale null and void; b) ordering the defendants to execute the necessary instrument to transfer the lots in question to the estate of the late Paulina Baranda; c) ordering defendants to turn over to the estate of Paulina Baranda the sum of P24,000.00 a year from February 1982 until the administrator of said estate takes over the management of said properties, with interest at 12% per annum; and d) sentencing defendants to pay, jointly and severally, the plaintiffs the sum of Twenty Five Thousand Pesos (P25,000.00) for and as attorney's fees and expenses of litigation. 6

On appeal to the Intermediate Appellate Court, ** the decision of the trial court was reversed and the deeds of sale were held valid and binding, for reasons to be discussed presently. The respondent court, in dismissing the complaint, also required the complainants to pay P50,000.00 for attorney's fees, P30,000.00 for litigation expenses, P20,000.00 as moral damages, and P20,000.00 as exemplary damages. The petitioners are now before us to challenge that decision. 7 We address ourselves first to the basic issue, to wit, the validity of the three deeds of sale allegedly signed by Paulina Baranda without knowing their contents. The respondent court, rejecting the findings of the trial court, upheld the questioned deeds, stressing that they were public documents and that their authenticity could further be sustained by the testimony of the private respondents. We disagree. While it is true that a notarized instrument is admissible in evidence without further proof of its due execution and is conclusive as to the truthfulness of its contents, 8 this rule is nonetheless not absolute but may be rebutted by clear and convincing evidence to the contrary. 9 Such evidence, as the Court sees it, has been sufficiently established in this case. The curious part about the supposed deeds of sale is the consideration allegedly agreed upon, in the amounts of P25,000.00 for lots 4 and 5, P50,000.00 for lots 9, 11 and 6, and P30,000.00 for lot 8 which Evangelina testified as having been actually paid to their aunt on February 3, 1977. Especially intriguing is the source of the said purchase price, in the total amount of P105,000.00, which by the testimony of the private respondents was paid by them in cash to their aunt in the office of Atty. Galos, who notarized the deeds of sale. 10 According to Evangeline, the sum of P100,000.00 was given to her by a "balikbayan" boy friend, and it was from this amount that she paid her share of the purchase price of P75,000.00. 11 According to Elisa, her sister Evangelina lent her P15,000.00 and she raised another P15,000.00 from her grandmother in the province to complete the P30,000.00 due from her for the lot she was buying. 12 At the time of these transactions, neither Evangelina nor Elisa was gainfully employed or had independent sources of income, both being then fresh college graduates aged 25 and 26 years old, respectively. 13 The tale of the mysterious and generous "balikbayan" is something "out of this world," in the language of the trial court, and we are inclined to agree, although not in those words. This Court is itself rather perplexed that the respondent court should have accepted this tissue of lies so readily, considering its obvious falsity. The "balikbayan" is a hazy figure, if we go by his own girl friend's testimony, without even a name at least, let alone other personal circumstances to give him bone and body. All we can glean from the record is that he is an exceedingly trusting and generous person who, presumably out of love for Evangeline, willingly delivered P100,000.00 in cold cash to her and thereafter disappeared completely. (Five years later, Evangelina was still unmarried.) 14 Strangely, this amorphous sweetheart was not even presented at the trial to corroborate his beloved, assuming their love was as strong as ever, or at least to protect his investment. Elsa's explanation of how she got her own P30,000.00 is equally imaginative and was obviously part of the fabric or fabrication woven by her sister to conjure what now appears to be a non-existent fund. As Elisa puts it, half of the P30,000.00 she paid came as a loan from Evangelina's boy friend's P100,000.00 and the other P15,000.00 was given to her by her grandmother. 15

This grandmother was another generous if also improbable figure, if we go by Elisa's testimony this time. According to her, she persuaded her grandmother to sell her lands in La Union, to give her the purchase price of P15,000.00, and to come with her husband to live with her in Manila, 16 not in her own house, significantly, but in the house of Paulina Baranda, with whom she and her sister were themselves living. Elisa did not present any document to prove that her grandmother did sell her properties to raise the P15,000.00, or, indeed, that she had any property at all to sell. There is no evidence of this whatsoever. At any rate, it is hard to believe that this old woman would agree to sell her own properties in La Union, where she was presumably making a living, and with her second husband (who was not even related to Elisa and Evangeline) to live off her granddaughters, who were themselves in a way also living off Paulina Baranda in the latter's house. Paulina Baranda and the grandmother were strangers. The sisters made another incredible claim, viz., that from the house where they and Paulina Baranda were living together they carried the amount of P105,000.00 in cold cash to the office of Atty. Galos where they delivered it to Paulina Baranda. 17 Apparently, Paulina then brought it back to the same house where it came from in the first place, in a preposterous pantomime that invites laughter, not belief, and would make them out as three silly persons from some inane nursery rhyme. Why the nieces did not pay the money in the house instead of bringing it all the way from the house and back is something that has not been sufficiently explained by the private respondents. They could have shown, for example, that Paulina Baranda intended to bring it somewhere else, say, for deposit in a bank, or for the purchase of some property, such as the ticket to the United States where she was allegedly planning to migrate. 18 There is no evidence of such deposit or purchase, however, no evidence at all of where that money went after it was supposedly received by Paulina Baranda on the date of the alleged transaction. It also simply disappeared like the "balikbayan" who never returned. Paulina Baranda herself denied under oath that she ever sold her lands to Evangelina and Elisa, alleging in her verified complaint that she "never executed any deed" conveying the title to her properties and "was surprised and shocked to learn" later that her transfer certificate of title to her lots had been cancelled and new certificates of title had been issued in favor of the private respondents.19 She withdrew this complaint only after her nieces agreed in writing to reconvey the properties to her "in order to preserve family solidarity and in order to avoid litigation among the parties." 20 The nieces explain away this complaint by saying it was merely simulated, to prevent the U.S. government from discontinuing her pension as a war widow on the ground that she had squandered her property. 21 If that was her only purpose, one might well wonder why it was necessary at all to commence litigation as a mere resale of the properties would have been sufficient and easily effected without the asperity of a civil complaint. Considering that, as the private respondents kept insisting, there was never any misunderstanding between them and their aunt, there would have been no difficulty in their acceding to her request for a resale of the properties to protect her pension. The fact that the complaint had to be filed shows they were unwilling to reconvey the properties after the aunt demanded their return following her discovery of the fake deeds of sale, an unwillingness further manifested when Evangelina refused to comply with this aforesaid agreement and never reconveyed the lots supposedly bought by her. By offering this explanation, the private respondents are in effect asking this Court to condone and approve their attempt to deceive and defraud the government of a sister state.

There is also the issue of the capacity to sue of the petitioners who, it is claimed by the private respondents, are not the proper parties to question the validity of the deed of sale. The reason given is that they are not the legitimate and compulsory heirs of Paulina Baranda nor were they parties to the challenged transactions. It is not disputed that Paulina Baranda died intestate without leaving any direct descendants or ascendants, or compulsory heirs. She was survived, however, by two brothers, namely, Pedro and Teodoro, and several nephews and nieces, including the private respondents, as well as petitioners Flocerfina Baranda, Salvacion Baranda, and Alipio Baranda Villarte, children of two deceased brothers and a sister. 22 The above- named persons, together with Pedro Baranda, who was not joined as a petitioner because he is the father of the private respondents, and the children of another deceased sister, are the legitimate intestate heirs of Paulina Baranda. The applicable provisions of the Civil Code are the following: 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. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes 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 or brothers or sisters, whether they be of the full or half blood. As heirs, the petitioners have legal standing to challenge the deeds of sale purportedly signed by Paulina Baranda for otherwise property claimed to belong to her estate will be excluded therefrom to their prejudice. Their claims are not merely contingent or expectant, as argued by the private respondents, but are deemed to have vested in them upon Paulina Baranda's death in 1982, as, under Article 777 of the Civil Code, "the rights to the succession are transmitted from the moment of the death of the decedent." While they are not compulsory heirs, they are nonetheless legitimate heirs and so, since they "stand to be benefited or injured by the judgment or suit," are entitled to protect their share of successional rights. This Court has repeatedly held that "the legal heirs of a decedent are the parties in interest to commence ordinary actions arising out of the rights belonging to the deceased, without separate judicial declaration as to their being heirs of said decedent, provided that there is no pending special proceeding for the settlement of the decedent's estate." 23 There being no pending special proceeding for the settlement of Paulina Baranda's estate, the petitioners, as her intestate heirs, had the right to sue for the reconveyance of the disputed properties, not to them, but to the estate itself of the decedent, for distribution later in accordance with law. Otherwise, no one else could question the simulated sales and the subjects thereof would remain in the name of the alleged vendees, who would thus have been permitted to benefit from their deception, In fact, even if it were assumed that those suing through attorneys-in-fact were not properly represented, the remaining petitioners would still have sufficed to impugn the validity of the deeds of sale.

Neither can it be argued that the petitioners cannot assail the said contracts on the ground that they were not parties thereto because as heirs of Paulina Baranda they are affected, and adversely at that, by the supposed sales of her properties. As this Court has held A person who is not a party obliged principally or subsidiarily in a contract may exercise an action for nullity of the contract if he is prejudiced in his rights with respect to one of the contracting parties and can show the detriment which could positively result to him from the contract in which he had no intervention. 24 The real party-in-interest in an action for annulment or contract includes a person who is not a party obliged principally or subsidiarily in the contract if he is PREJUDICED in his rights with respect to one of the contracting parties. 25 Moreover, it is expressly and specifically provided in the Civil Code that: Art. 1311. Contracts take effect only between the parties, their assigns and heirs except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. ... As Justice J.B.L. Reyes said in his concurring opinion in Armentia v. Patriarca, 26 speaking of a similar situation, "what petitioners, however, question is the validity of such transfer or disposition for if it could be established that such disposition was invalid, the property allegedly conveyed never left the patrimony of the transferor, and upon the latter's death without a testament, such property would pass to the transferor's heirs intestate and be recoverable by them or by the administrator of the transferor's estate should there be any." Assuming then that the petitioners are proper parties to challenge the validity of the private respondents title to the land in question, may it not be argued that the right to do so had nevertheless already prescribed when they filed the complaint in 1982? The Civil Code provides in Article 1391 that an action to annul a contract on the ground of vitiated consent must be filed within four years from the discovery of the vice of consent. In the instant case, however, we are dealing not with a voidable contract tainted with fraud, mistake, undue influence, violence or intimidation that can justify its nullification, but with a contract that is null and void ab initio. Paulina Baranda declared under oath in her complaint that she signed the deeds of sale without knowing what they were, which means that her consent was not merely marred by the abovestated vices, so as to make the contracts voidable, but that she had not given her consent at all. We are also satisfied that there was no valid consideration either for the alleged transfers, for reasons already discussed. Lack of consent and consideration made the deeds of sale void altogether 27 and rendered them subject to attack at any time, conformably to the rule in Article 1410 that an action to declare the inexistence of void contracts "does not prescribe." Act No. 496, which was in force at the time the complaint was filed, provided that the action to annul a registration of land under the Torrens system should be filed within one year; otherwise, the same shall be barred forever. 28 This is not an absolute rule, however, as the Torrens system is not supposed to be used as an instrument for wrongdoing or to validate an illegal acquisition of title to the prejudice of the real owner of the property registered. We have consistently ruled that when there is a showing of such illegality, the property registered is

deemed to be simply held in trust for the real owner by the person in whose name it is registered, and the former then has the right to sue for the reconveyance of the property. The action for the purpose is also imprescriptible. Public policy demands that a person guilty of fraud or at least, of breach of trust, should not be allowed to use a Torrens title as a shield against the consequences of his wrong doing. (Cabanos vs. Register of Deeds, 40 Phil. 620). An action to compel reconveyance of property with a Torrens title does not prescribe if the registered owner had obtained registration in bad faith, and the property is still in the latter's name. The reason is that the registration is in the nature of a continuing and subsisting trust. (Caladiao v. Vda. de Blas, L-19063, April 29, 1964). A holder in bad faith of a certificate of title is not entitled to the protection of the law, for the law cannot be used as a shield for frauds. (Ignacio vs. Chua Hong, 52 Phil. 940; Gustilo vs. Maravilla, 48 Phil. 442). As long as the land wrongfully registered under the Torrens system is still in the name of the person who caused such registration, an action in personam will lie to compel him to reconvey the property to the real owner. Provided only that the property has, as in this case, not passed to an innocent third person for value, such an action is permitted. We have held that the sole remedy of the landowner whose property has been wrongfully or erroneously registered in anothers' name is not to set aside the decree after one year from the date thereof. Respecting it as incontrovertible and no longer open to review, he may nevertheless bring an ordinary action for reconvevance or for darmages if the property has passed into the hands of an innocent purchaser for value. 29 It was in conformity with this doctrine, in fact, that the petitioners filed on April 26, 1982, their complaint against the private respondents for annulment of the deeds of sale and for reconveyance of the lands subject thereof which were illegally registered in the names of Evangelina and Elisa Baranda. We deal with one final matter that should be cause for serious concern as it has a direct relevance to the faith of our people in the administration of justice in this country. It is noted with disapproval that the respondent court awarded the total indemnity of P120,000.00, including attorney's fees and litigation expenses that were double the amounts claimed and exemplary damages which were not even prayed for by the private respondents. Such improvident generosity is likely to raise eyebrows, if not outright challenge to the motives of some of our courts, and should therefore be scrupulously avoided at all times, in the interest of maintaining popular confidence in the judiciary. We therefore caution against a similar recklessness in the future and call on all members of the bench to take proper heed of this admonition. WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and that of the trial court is REINSTATED, with costs against the private respondents. SOORDERED.

17. G.R. No. L-33924 March 18, 1988 MARIA BALAIS and PETRONILO ERAYA as successors in interest of JUAN BALAIS and JUANCHO BALAIS, petitioners, vs. BUENAVENTURA, ADELA, ROSITA, and TERESITA, all surnamed BALAIS, respondents. Ledesma, Guytingco & Associates for petitioners. Sergio F. Apostol for respondents.

SARMIENTO, J.: Pursuant to its Resolution of June 30, 1971, 1 the Court of Appeals 2 certified this case to the Court. The Appellate Court declined to render a ruling, it being of the opinion that the case "involve[s] purely questions of law over which [it] [has] nojuriscliction." 3 Specifically, the questions put to the Court are two-fold: (1) does the court have jurisdiction to decree a partition in an action for reconveyance? (2) may it apply the provisions of the new Civil Code in

determining the successionary rights of heirs where the decedent died during the effectivity of the old Code? 4 questions undoubtedly legal in character. In forwarding the appeal to this Court, the Court of Appeals invokes, specifically, the provisions of Section 17 of the Judiciary Act of 1948. 5 We quote pertinent parts thereof: SEC. 17. xxx xxx Jurisdiction of the Supreme Court. xxx xxx

The Supreme Court shall further have exclusive jurisdiction to review, revise, reverse, modify or affirm on certiorari as the law or rules of court may provide, final judgments and decrees of inferior courts as herein provided, in xxx (3) xxx xxx

All cases in which the jurisdiction of any inferior court is in issue;

(4) All other cases in which only errors or questions of law are involved: Provided however, That if, in addition to constitutional, tax or jurisdictional questions, the cases mentioned in the three next preceding paragraphs also involve questions of fact or mixed questions of fact and law, the aggrieved party shall appeal to the Court of Appeals; and the final judgment or decision of the latter may be reviewed, revised, reversed, modified or affirmed by the Supreme Court on writ of certiorari; xxx xxx xxx xxx

Under the Constitution then in force: 6 SEC. 2. ... [T]he Supreme Court [shall have] jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) (2) (3) (4) (5) xxx xxx xxx xxx xxx xxx

All cases in which the jurisdiction of any trial court is in issue. xxx xxx xxx

All cases in which an error or question of law is involved.

an exclusive jurisdiction of the Court since aimed under our subsequent Constitutions: Section 5. xxx xxx The Supreme Court shall have the following powers: xxx

(2) Review and revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and decrees of inferior courts in -

(a) (b) (c) (d) (e)

xxx xxx

xxx xxx

xxx xxx

All in which the jurisdiction of any inferior court is in issue. xxx xxx xxx

All cases in which only an error or question of law is involved.

Under, finally, the Judiciary Reorganization Act, 8 the Court of Appeals exercises: (3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards, or commissions except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. We turn to the facts. We quote: From the decision of the Court of First Instance of L- qqqeyte the dispositive portion of which reads as follows: IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment: (1) Dismissing the complaint with cost against the plaintiffs:

(2) Maintaining its decision in toto in Civil Case No. C811 entitled Juan Balais et al. versus Petronilo Eraya including the dispositive portion granting to the illegitimate children, namely Buenaventura, Adela, Rosita and Teresa, all surnamed Balais successional rights and adjudicating to them one-fourth (1/4) of the share of their deceased father Escolastico Balais which consists of one- half (1/2) of the conjugal partnership property; and (3) Ordering the plaintiffs to pay to the defendants the amount of P400.00 for attorney's fees and P100.00 for expenses of litigation. plaintiffs Maria Balais and Petronilo Eraya have taken an appeal to this Court. Giving rise to the present case are in their chronological sequence as follows: April 22, 1964 Juan, Maria, Buenaventura, Adela, Rosita and Teresa all surnamed Balais filed a complaint against Petronilo Eraya in the CFI of Leyte docketed therein as Civil Case No. 811 for recovery of real property and damages (p. 13, folder of Exhibits). August 5, 1965 The lower court, rendered its judgment, the dispositive portion of which reads as follows:

1. Declaring the sale of one-half (1/2) of the parcel of land more particularly described in paragraph 4 of the complaint by the widow Eutelia Masalig to the defendant Petronilo Eraya null and void and ordering the latter to execute within thirty (30) days after the judgment becomes final a deed of conveyance in favor of the plaintiffs of one-half (1/2) of the said parcel of land minus one-fourth (1/4) thereof which is hereby declared validly sold to him by the widow and, if he fails to do so within the specified period, let judgment be entered divesting the title of said Petronilo Eraya to the property and vesting it in the plaintiffs and such judgment shall have the force and effect of a conveyance executed in due form of law; 2. Ordering that the hereditary estate of the deceased Escolastico Balais consisting of onehalf (1/2) of the whole parcel of land described in paragraph 4 of the complaint be divided into two-halves, one-half (1/2) of which is hereby adjudicated to bis two legitimate children Juan Balais and Maria Balais (Article 888, new Civil Code); the share of each of the plaintiffs Buenaventura, Adela, Rosita and Teresa, all surnamed Balais shall be equal to two-fifths (,2/5) of the share of either Juan Balais or Maria Balais provided that their total shares in this particular case shall not exceed one-half (1/2) of the free portion after the share of Eutelia Masalig is fully satisfied (Article 895, paragraph 3, new Civil Code) which share of the widow shall be equal to the share of each of the legitimate children (Article 999 Civil Code); otherwise stated, the hereditary estate of the deceased which consist of one-half (1/2) of the whole parcel of land described in the complaint shall be divided into four (4) parts, two (2) parts of which shall belong to the two (2) legitimate children Juan Balais and Maria Balais one (1) part to the widow Eutelia Masalig which is hereby deemed included in the sale of the property to the defendant Petronilo Eraya and the remaining one (1) part to the illegitimate children Buenaventura, Adela, Rosita and Teresa, all surnamed Balais. 3. Ordering the defendant to render an accounting of the value of the products of the shares of the plaintiffs as above indicated from the time of the filing of the complaint, and to deliver the share to the plaintiffs together with their shares; and 4. To pay the costs of the suit.

March 28, 1966 The lower court issued an order for the issuance of a writ of execution of the aforesaid decision. May 12, 1966 Defendant Eraya filed a motion to set aside the order of execution for the reasons therein stated (pp. 16-19, folder of Exhibits),. June 27, 1966 The aforesaid motion to set aside order for the issuance of writ was denied (p. 10, RA.). It will be noted that the plaintiffs' cause in Civil, Case No. 811 was for the recovery of property-and not for partition of an estate. Despite this, however, the lower court proceeded to distribute the estate of the late Escolastico Balais. February 23, 1967 Maria and Juan Balais and Petronilo Eraya filed a complaint in the CFI of Leyte, Civil Case No. C-893 against defendants for the annulment of that portion of the judgment rendered in Civil Case No. 811 awarding to the latter who are illegitimate children of the late Escolastico Balais (1/4) of the hereditary estate of their deceased father. March 10, 1967 Buenaventura Balais and his co-defendants filed through counsel an answer with counterclaim whereby they sought for the dismissal of the aforesaid complaint.

When the case was called for trial, the parties agreed to submit the case for decision based on the pleadings inasmuch as the defendants have admitted the material allegations of plaintiffs' complaint, as well as the latter's documentary evidence. July 29, 1967 The lower court rendered a decision dismissing plaintiffs' complaint (pp. 13-26, RA.) 9 xxx xxx xxx

As we have indicated, the jurisdiction of the trial court 10 to order the partition and distribution of the estate in the course of an action for recovery of real property is contested. Apart from such a jurisdictional challenge, the trial court is held to be in error for applying the provisions of the new Civil Code, in particular, Articles 887 and 895 thereof, granting to so-called spurious children the right to a share in the estate of the deceased who perished in 1946 and consequently, prior to the effectivity of the new Code. 11 Jurisdiction, in general, is either one over the nature of the action, over the subject matter, over the person of the defendants (not incidentally, put to question here), or over the issues framed in the pleadings. There is no doubt that as far as the instant case is concerned, the Court of First Instance is vested with the jurisdiction to try either case, whether for reconveyance or partition. Under the judiciary law then in force, the Judiciary Act of 1948, the Court of First Instance exercises original jurisdiction: (b) In all civil actions which involve the title to or possession of real property or any interest therein, or the legality of any tax, impost or assessment, except actions of forcible entry into and detainer of lands or buildings, original jurisdiction of which is conferred by this Act upon city and municipal Courts; 12 What is asailed however is the competency of the lower court to distribute the estate on a simple complaint for reconveyance. In other words, what is disputed is the jurisdiction of the court to pass upon issues not raised in the pleadings. There are instances, and upon the acquiescence of the parties, when issues not in fact alleged may be heard by the court. Section 5, of Rule 10, of the Rules of Court, provides, in part, as follows: ... When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. ... 13 In such a case, amendments may be had on the pleadings: ... as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment: ... 14 But failure to amend, the Rule further tells us, "does not affect the result of the trial of these issues." 15 The court, in that event, acquires jurisdiction over such issues.

It may likewise be that although the court lacks the jurisdiction, it acquires one subsequently as when the defendant invokes it, say, by asking for affirmative relief 16 In that case, jurisdiction by estoppel arises. 17 Noteworthy is the fact that in the case at bar, in spite of the broad challenge the appellants present against the jurisdiction of the trial court to order the distribution of the property, they, in reality, question only that part of the decision awarding a one-fourth part of the property to the illegitimate children of the deceased, upon the ground that under the old Civil Code the statute in effect at the time of the death of the deceased in 1946 illegitimate children other than natural enjoyed no successionary rights. Otherwise, they do not contest the delivery of the estate to the deceased's widow or to themselves in the proportions decreed by the court. In that respect, they do not deny the court's jurisdiction to order partition. In their complaint, 18 they therefore prayed: WHEREFORE, premises considered, plaintiff;, thru their undersigned counsel to this Honorable Court respectfully pray: (a) That the plaintiffs be declared the absolute owner of the portion of 1/4 of the intestate estate of Escolastisco Balais now possessed under claim of ownership by herein defendants; That the part of the decision in Civil Case No. C-811, adjudicating one-fourth (1/4) of the intestate estate of the illegitimate children of Escolastico Balais be declared null and void for having been rendered without jurisdiction and being contrary to law, particularly Art. 2263 of the New Civil Code; (c) That defendants be sentenced to pay the amount of P200.00 for every year they remain in possession of the property subject of this suit; P 500.00 as attorney's fees and P300.00 for expenses of litigation and costs; and (d) That the plaintiffs be granted whatever remedy they may be entitled in equity and justice. 19 The appellants must therefore be considered to have accepted the lower court's jurisdiction. To reject that jurisdiction with respect to the part of the decision unfavorable to them and to accept it as regards those portions favorable to them is to assume inconsistent stances. Either the court has jurisdiction or it does not. Estoppel is a bar against any claims of lack of jurisdiction. This is not to say, however, that the trial court in both suits, the original action for reconveyance and the suit for annulment of judgment did not err in granting in favor of the appellees a share in the estate pursuant to Article 895 of the Civil Code, 20 the decedent having passed away during the regime of the Civil Code of 1889 under which bastards, in bulgar parlance, were entitled to no share in the state. In Uson v. Del Rosario, 21 we said that the rights given to the adulterous children under the new Civcil Code have no retroactive application. Thus: xxx xxx xxx

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first time shall have retroactive effect even though the event which gave rise to them may have occurred under the former legislation, but this is so only when the new rights do not prejudice any vestedor acquired of the same origin. Thus, said article provides that "if a right should be declared for the first timein this Code, it shall be effective at once, even though the act and the event which give rights thereto may have been done or may have occurred under the prior legislation, provided said new right, of the same origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the date her late husband and this is so because of the imperative provision of the law which commands that the right to succession are transmitted from the moment of death (Aricle 657, old Civil Code). The new right recognized by the new Civil Code in

favor of the illegitimate children of the deceased cannot, therefore, be asserted to the inpairment of the vested right of Maria Uson over the lands dispute. 22 xxx xxx xxx

But as we stated, the error of the court notwithstanding, the case is a closed chapter, the decision having been rendered by a court of competent jurisdiction. And, as noted by the trial court itself, it is the case that has become final and executory, and in fact, in the process of execution. 23 A decision, no matter how erroneous, becomes the law of the case between the parties upon attaining finality. 24 WHEREFORE, the appeal is hereby DISMISSED. No pronouncement as to costs.

18.G. R. No. 4275. March 23, 1909.] PAULA CONDE, Plaintiff-Appellee, vs. ROMAN ABAYA, Defendant-Appellant.

DECISION ARELLANO, C.J.: From the hearing of the appeal interposed by Roman Abaya in the special proceedings brought in the Court of First Instance of La Laguna for the settlement of the intestate estate and the distribution of the property of Casiano Abaya it appears: chanrobles virtualawlibrary I. As antecedents: chanrobles virtualawlibrary that Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabina Labadia, died on the 6th of April 1899; that Paula Conde, as the mother of the natural children Jose and Teopista Conde, whom she states she had by Casiano Abaya, on the 6th of November, 1905, moved the settlement of the said intestate succession; that an administrator having been appointed for the said estate on the 25th of November, 1905, Roman Abaya, a son of the said Romualdo Abaya and Sabina Labadia, the parents of the late Casiano Abaya, came forward and opposed said appointment and claimed it for himself as being the nearest relative of the deceased; that this was granted by the court below on the 9th of January, 1906; that on the 17th of November, 1906, Roman Abaya moved that, after due process of law, the court declare him to be the sole heir of Casiano Abaya, to the exclusion of all other persons, especially of Paula Conde, and to be therefore entitled to take possession of all the property of said estate, and that it be adjudicated to him; and that on November 22, 1906,

the court ordered the publication of notices for the declaration of heirs and distribution of the property of the estate. II. That on the 28th of November, 1906, Paula Conde, in reply to the foregoing motion of Roman Abaya, filed a petition wherein she stated that she acknowledged the relationship alleged by Roman Abaya, but that she considered that her right was superior to his and moved for a hearing of the matter, and, in consequence of the evidence that she intended to present she prayed that she be declared to have preferential rights to the property left by Casiano Abaya, and that the same be adjudicated to her together with the corresponding products thereof. III. That the trial was held, both parties presenting documentary and oral evidence, and the court below entered the following judgment: chanrobles virtualawlibrary That the administrator of the estate of Casiana Abaya should recognize Teopista and Jose Conde as being natural children of Casiano Abaya; that the Petitioner Paula Conde should succeed to the hereditary rights of her children with respect to the inheritance of their deceased natural father Casiano Abaya; and therefore, it is hereby declared that she is the only heir to the property of the said intestate estate, to the exclusion of the administrator, Roman Abaya. IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and presented the following statement of errors: chanrobles virtualawlibrary 1. The fact that the court below found that an ordinary action for the acknowledgment of natural children under articles 135 and 137 of the Civil Code, might be brought in special probate proceedings. 2. The finding that after the death of a person claimed to be an unacknowledged natural child, the mother of such presumed natural child, as heir to the latter, may bring an action to enforce the acknowledgment of her deceased child in accordance with articles 135 and 137 of the Civil Code. 3. The finding in the judgment that the alleged continuous possession of the deceased children of Paula Conde of the status of natural children of the late Casiano Abaya, has been fully proven in these proceedings; and 4. On the hypothesis that it was proper to adjudicate the property of this intestate estate to Paula Conde, as improperly found by the court below, the court erred in not having declared that said property should be reserved in favor of relatives of Casiano Abaya to the third degree, and in not having previously demanded securities from Paula Conde to guarantee the transmission of the property to those who might fall within the reservation. As to the first error assigned, the question is set up as to whether in special proceedings for the administration and distribution of an intestate estate, an action might be brought to enforce the acknowledgment of the natural child of the person from whom the inheritance is derived, that is to say, whether one might appear as heir on the ground that he is a recognized natural child of the deceased, not having been so recognized by the deceased either voluntarily or compulsory by reason of a preexisting judicial decision, but asking at the same time that, in the special proceeding itself, he be recognized by the presumed legitimate heirs of the deceased who claim to be entitled to the succession opened in the special proceeding.

According to section 782 of the Code of Civil Procedure If there shall be a controversy before the Court of First Instance as to who the lawful heirs of the deceased person are, or as to the distributive share to which each person is entitled under the law, the testimony as to such controversy shall be taken in writing by the judge, under oath and signed by witness. Any party in interest whose distributive share is affected by the determination of such controversy, may appeal from the judgment of the Court of First Instance determining such controversy to the Supreme Court, within the time and in the manner provided in the last preceding section. This court has decided the present question in the manner shown in the case of Juana Pimental vs. Engracio Palanca (5 Phil. Rep. 436.) cralaw The main question with regard to the second error assigned, is whether or not the mother of a natural child now deceased, but who survived the person who, it is claimed, was his natural father, also deceased, may bring an action for the acknowledgment of the natural filiation in favor of such child in order to appear in his behalf to receive the inheritance from the person who is supposed to be his natural father. In order to decide in the affirmative the court below has assigned the following as the only foundation: chanrobles virtualawlibrary In resolving a similar question Manresa says: chanrobles virtualawlibrary An acknowledgment can only be demanded by the natural child and his descendants whom it shall benefit, and should they be minors or otherwise incapacitated, such person as legally represents them; the mother may ask it in behalf of her child so long as he is under her authority. On this point no positive declaration has been made, undoubtedly because it was not considered necessary. A private action is in question and the general rule must be followed. Elsewhere the same author adds: chanrobles virtualawlibrary It may so happen that the child dies before four years have expired after attaining majority, or that the document supporting his petition for acknowledgment is discovered after his death, such death perhaps occurring after his parents had died, as is supposed by article 137, or during their lifetime. In any case such right of action shall pertain to the descendants of the child whom the acknowledgment may interest. (See Commentaries to arts. 135 and 137, Civil Code.Vol. I.)cralaw The above doctrine, advanced by one of the most eminent commentators of the Civil Code, lacks legal and doctrinal foundation. The power to transmit the right of such action by the natural child to his descendants cannot be sustained under the law, and still less to his mother. It is without any support in law because the rule laid down in the code is most positive, limiting in form, when establishing the exception for the exercise of such right of action after the death of the presumed parents, as is shown hereafter. It is not supported by any doctrine, because up to the present time no argument has been presented, upon which even an approximate conclusion could be based. Although the Civil Code considerably improved the condition of recognized natural children, granting them rights and actions that they did not possess under the former laws, they were not, however, placed upon the same plane as legitimate ones. The difference that separates these two classes of children is still great, as proven by so many articles dealing with the rights of the family and with succession in relation to the members thereof. It may be laid down as a legal maxim, that whatever the code does not grant to the legitimate children, or in connection with

their rights, must still less be understood as granted to recognized natural children or in connection with their rights. There is not a single exception in its provisions. If legitimacy is the attribute that constitutes the basis of the absolute family rights of the child, the acknowledgment of the natural child is, among illegitimate ones, that which unites him to the family of the father or the mother who recognizes him, and affords him a participation in the rights of the family, relatively advantageous according to whether they are alone or whether they concur with other individuals of the family of his purely natural father or mother. Thus, in order to consider the spirit of the Civil Code nothing is more logical than to establish a comparison between an action to claim the legitimacy, and one to enforce acknowledgment. Art. 118. The action to claim its legitimacy may be brought by the child at any time of its lifetime and shall be transmitted to its heirs, should it die during minority or in a state of insanity. In such cases the heirs shall be allowed a period of five years in which to institute the action. The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed before then. Art. 137. The actions for the acknowledgment of natural children can be instituted only during the life of the presumed parents, except in the following cases: chanrobles virtualawlibrary 1. If the father or mother died during the minority of the child, in which case the lat ter may institute the action before the expiration of the first four years of its majority. 2. If, after the death of the father or mother, some instrument, before unknown, should be discovered in which the child is expressly acknowledged. In this case the action must be instituted within the six months following the discovery of such instrument. On this supposition the first difference that results between one action and the other consists in that the right of action for legitimacy lasts during the whole lifetime of the child, that is, it can always be brought against the presumed parents or their heirs by the child itself, while the right of action for the acknowledgment of a natural child does not last his whole lifetime, and, as a general rule, it cannot be instituted against the heirs of the presumed parents, inasmuch as it can be exercised only during the life of the presumed parents. With regard to the question at issue, that is, the transmission to the heirs of the presumed parents of the obligation to admit the legitimate filiation, or to recognize the natural filiation, there exists the most radical difference in that the former continues during the life of the child who claims to be legitimate, and he may demand it either directly and primarily from the said presumed parents, or indirectly and secondarily from the heirs of the latter; while the second does not endure for life; as a general rule, it only lasts during the life of the presumed parents. Hence the other difference, derived as a consequence, that an action for legitimacy is always brought against the heirs of the presumed parents in case of the death of the latter, while the action for acknowledgment is not brought against the heirs of such parents, with the exception of the two cases prescribed by article 137 transcribed above.

So much for the passive transmission of the obligation to admit the legitimate filiation, or to acknowledge the natural filiation. As to the transmission to the heirs of the child of the latters action to claim his legitimacy, or to obtain the acknowledgment of his natural filiation, it is seen that the code grants it in the first case, but not the second. It contains provisions for the transmission of the right of action which, for the purpose of claiming his legitimacy inheres in the child, but it does not say a word with regard to the transmission of the right to obtain the acknowledgment of the natural filiation. Therefore, the respective corollary of each of the two above-cited articles is: chanrobles virtualawlibrary (1) That the right of action which devolves upon the child to claim his legitimacy under article 118, may be transmitted to his heirs in certain cases designated in the said article; (2) That the right of action for the acknowledgment of natural children to which article 137 refers, can never be transmitted, for the reason that the code makes no mention of it in any case, not even as an exception. It is most illogical and contrary to every rule of correct interpretation, that the right of action to secure acknowledgment by the natural child should be presumed to be transmitted, independently, as a rule, to his heirs, while the right of action to claim legitimacy from his predecessor is not expressly, independently, or, as a general rule, conceded to the heirs of the legitimate child, but only relatively and as an exception. Consequently, the pretension that the right of action on the part of the child to obtain the acknowledgment of his natural filiation is transmitted to his descendants is altogether unfounded. No legal provision exists to sustain such pretension, nor can an argument of presumption be based on the lesser claim when there is no basis for the greater one, and when it is only given as an exception in well-defined cases. It is placing the heirs of the natural child on a better footing than the heirs of the legitimate one, when, as a matter of fact, the position of a natural child is no better than, nor even equal to, that of a legitimate child. From the express and precise precepts of the code the following conclusions are derived: chanrobles virtualawlibrary The right of action that devolves upon the child to claim his legitimacy lasts during his whole life, while the right to claim the acknowledgment of a natural child lasts only during the life of his presumed parents. Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during his whole life, he may exercise it either against the presumed parents, or their heirs; while the right of action to secure the acknowledgment of a natural child, since it does not last during his whole life, but depends on that of the presumed parents, as a general rule can only be exercised against the latter. Usually the right of action for legitimacy devolving upon the child is of a personal character and pertains exclusively to him, only the child may exercise it at any time during his lifetime. As an exception, and in three cases only, it may be transmitted to the heirs of the child, to wit, if he died during his minority, or while insane, or after action had been already instituted. An action for the acknowledgment of a natural child may, as an exception, be exercised against the heirs of the presumed parents in two cases: chanrobles virtualawlibrary first, in the event of the death of the latter during the minority of the child, and second, upon the discovery of some

instrument of express acknowledgment of the child, executed by the father or mother, the existence of which was unknown during the life of the latter. But as such action for the acknowledgment of a natural child can only be exercised by him. It cannot be transmitted to his descendants, or to his ascendants. In support of the foregoing the following authorities may be cited: chanrobles virtualawlibrary Sanchez Roman, in his Treatise on Civil Law, propounds the question as to whether said action should be considered transmissive to the heirs or descendants of the natural child, whether he had or had not exercised it up to the time of his death, and decides it as follows; There is an entire absence of legal provisions, and at most, it might be deemed admissible as a solution, that the right of action to claim the acknowledgment of a natural child is transmitted by analogy to his heirs on the same conditions and terms that it is transmitted to the descendants of a legitimate child, to claim his legitimacy, under article 118, but nothing more; because on this point nothing warrants placing the heirs of a natural child on a better footing than those of the legitimate child, and even to compare them would not fail to be a strained and questionable matter, and one of great difficulty for decision by the courts, for the simple reason that for the heirs of the legitimate child, the said article 118 exists, while for those of the natural child, as we have said, there is no provision in the code authorizing the same, although on the other hand there is none that prohibits it. (Vol. V.) cralaw Diaz Guijarro and Martinez Ruiz in their work on The Civil Code as construed by the supreme court of Spain, commenting upon article 137, say: chanrobles virtualawlibrary Article 118, taking into account the privileges due to the legitimacy of children, grants th em the right to claim said legitimacy during their lifetime, and even authorizes the transmission of said right for the space of five years to the heirs thereof, if the child die during his minority or in a state of insanity. But as article 137 is based on the consideration that in the case of a natural child, ties are less strong and sacred in the eyes of the law, it does not fix such a long and indefinite period for the exercise of the action; it limits it to the life of the parents, excepting in the two cases mentioned in said article; and it does not allow, as does article 118, the action to pass on to the heirs, inasmuch as, although it does not prohibit it, and for that reason it might be deemed on general principles of law to consent to it, such a supposition is inadmissible for the reason that a comparison of both articles shows that the silence of the law in the latter case is not, nor can it be, an omission, but a deliberate intent to establish a wide difference between the advantages granted to a legitimate child and to a natural one. (Ibid., Vol. II, 171.) cralaw Navarro Amandi (Cuestionario del Codigo Civil) raises the question: chanrobles virtualawlibrary Can the heirs of a natural child claim the acknowledgment in those cases wherein the f ather or mother are under obligation to acknowledge? And says: chanrobles virtualawlibrary Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of investigation forms a part of the estate of the child, and along with his patrimony is transmitted to his heirs. The affirmation is altogether too categorical to be admissible. If it were correct the same thing would happen as when the legitimacy of a child is claimed, and as already seen, the right of action to demand the legitimacy is not transmitted to the heirs in every case and as an absolute right, but under certain limitations and circumstances. Now, were we to admit the

doctrine of the court of Rennes, the result would be that the claim for natural filiation would be more favored than one for legitimate filiation. This would be absurd, because it cannot be conceived that the legislator should have granted a right of action to the heirs of the natural child, which is only granted under great limitations and in very few cases to those of a legitimate one. Some persons insist that the same rules that govern legitimate filiation apply by analogy to natural filiation, and that in this conception the heirs of the natural child are entitled to claim it in the cases prescribed by article 118. The majority, however, are inclined to consider the right to claim acknowledgment as a personal right, and consequently, not transmissive to the heirs. Really there are not legal grounds to warrant the transmission. (Vol. 2, 229.)cralaw In a decision like the present one it is impossible to bring forward the argument of analogy for the purpose of considering that the heirs of the natural child are entitled to the right of action which article 118 concedes to the heirs of the legitimate child. The existence of a provision for the one case and the absence thereof for the other is a conclusive argument that inclusio unius est exclusio alterius, and it cannot be understood that the provision of law should be the same when the same reason does not hold in the one case as in the other. The theory of the law of transmission is also entirely inapplicable in this case. This theory, which in the Roman Law expressed the general rule that an heir who did not accept an inheritance during his lifetime was incapacitated from transmitting it to his own heirs, included at the same time the idea that if the inheritance was not transmitted because the heir did not possess it, there were, however, certain things which the heir held and could transmit. Such was the law and the right to accept the inheritance, for the existing reason that all rights, both real and personal, shall pass to the heir; quia haeres representat defunctum in omnibus et per omnia. According to article 659 of the Civil Code, the inheritance includes all the property, rights, and obligations of a person, which are not extinguished by his death. If the mother is the heir of her natural child, and the latter, among other rights during his lifetime was entitled to exercise an action for his acknowledgment against his father, during the life of the latter, or after his death in some of the excepting cases of article 137, such right, which is a portion of his inheritance, is transmitted to his mother as being his heir, and it was so understood by the court of Rennes when it considered the right in question, not as a personal and exclusive right of the child which is extinguished by his death, but as any other right which might be transmitted after his death. This right of supposed transmission is even less tenable than that sought to be sustained by the argument of analogy. The right of action pertaining to the child to claim his legitimacy is in all respects superior to that of the child who claims acknowledgment as a natural child. And it is evident that the right of action to claim his legitimacy is not one of those rights which the legitimate child may transmit by inheritance to his heirs; it forms no part of the component rights of his inheritance. If it were so, there would have been no necessity to establish its transmissibility to heirs as an exception in the terms and conditions of article 118 of the code. So that, in order that it may constitute a portion of the childs inheritance, it is necessary that the conditions and the terms contained in article 118 shall be present, since without them, the right that the child held during his lifetime, being personal and exclusive in principle, and therefore, as a general rule not susceptible of transmission, would and should have been extinguished by his death. Therefore, where no express provision like that of article 118 exists, the right of action for the acknowledgment of a natural child is, in principle and without exception, extinguished by his death, and cannot be transmitted as a portion of the inheritance of the deceased child. On the other hand, it said right of action formed a part of the childs inheritance, it would be necessary to establish the doctrine that the right to claim such an acknowledgment from the

presumed natural father and from his heirs is an absolute right of the heirs of the child, not limited by certain circumstances as in the case of the heirs of a legitimate child; and if it is unreasonable to compare a natural child with a legitimate one to place the heirs of a natural child and his inheritance on a better footing than those of a legitimate child would not only be unreasonable, but, as stated in one of the above citations, most absurd and illegal in the present state of the law and in accordance with the general principles thereof. For all of the foregoing reasons we hereby reverse the judgment appealed from in all its parts, without any special ruling as to the costs of this instance.

19.September 13, 1919 G.R. No. 14851 ANTONIA RIERA Y BOTELLAS, petitioner, vs. VICENTE PALMAROLI, Consul General for Spain, VICENTE PALMAROLI, Administrator of the Estate of Juan Pons y Coll, and the Honorable Pedro Concepcion, Judge of the Court of First Instance of the city of Manila, respondents. Wolfson and Wolfson for petitioner. Antonio V. Herrero for respondents. Street, J.: This is an original petition filed in the Supreme Court under section 513 of the Code of Civil Procedure by Antonio Riera y Botellas, the purpose of which is to vacate an order of the Court of First Instance of the city of Manila admitting to probate the will of Juan Pons y Coll, and to cause the application for probate to be set for rehearing in the Court of First Instance. The respondents having been required to answer, the cause is now here heard on petition and answer, no formal proof having been as yet submitted. For the purpose of the solution of the questions arising in this case, the facts may be taken to be as follows: Juan Pons y Coll, a Spanish subject resident in the Philippine Islands, died on April 16, 1918, in the city of Manila. The petitioner is the widow of the deceased and was at the time of her husbands death residing in Palma de Mallorca in the Balearic Islands. On April 19, 1918, the respondent Vicente Palmaroli, Consul General for Spain in the Philippine Islands, produced in the Court of First Instance in the city of Manila a document dated on March 16, 1918, purporting to be the will of Juan Pons y Coll, and asked that it be admitted to probate.

Publication was accordingly made, and on May 20, 1918, order was entered admitting the will to probate. Owing to the great distance between Palma de Mallorca and the city of Manila and to the lack of adequate means of communication between the two places a difficulty then greatly exaggerated by conditions incident to the European War the petitioner received no information of the probate proceedings until after November 14, 1918. She had, however, received information of the fact of her husbands death on or before June 19, 1918, for upon that date an attorney employed by her in Palma de Mallorca addressed a letter to Wolfson & Wolfson, attorneys in the city of Manila, requesting them to look after the interests of the petitioner in the estate of her deceased husband. Said communication was not received by the attorneys mentioned until November 11, 1918, when promptly began the investigations necessary to enable them to act in the matter; and on November 29, 1918, they appeared in the Court of First Instance in behalf of the petitioner and moved that the order of probate of May 20, 1918, be set aside in order to allow the petitioner to enter opposition. This application was made under section 113 of the Code of Civil Procedure and was denied by the Court of First Instance on the ground that more than six months had elapsed since the date of the order of probate and prior to the filing of the motion. The present application was thereupon made to the Supreme Court on December 21, 1918, under section 513 of the Code of Civil Procedure, as already stated. The will to which reference has been made purports, for reasons stated therein, to deprive the petitioner of participation in the testators estate a step which the test at or says he was authorized to take under the foral regimen prevailing in the Balearic Islands. It is therefore, apparent that the probate of the will was in fact prejudicial to the petitioner, as alleged; and the petitioner claims that, as a party interested in the estate, she is entitled to be heard in the matter of the probate of the will, having been prevented from appearing and contesting the original application by circumstances over which she had no control. The order of the Court of First Instance of May 20, 1918, against which relief is sought, is attacked by the petitioner on grounds having relation chiefly to the formalities incident to the execution of the will. In the first place it is said that if the will be considered with reference to our statutes generally applicable to wills, it is void for failure to comply with the requirements of Act No. 2645 of the Philippine Legislature. In this connection attention is directed to the fact that the will is not signed on the left margin of each page by the attesting witnesses and the pages are not numbered as Act No. 2645 requires. In the second place it is said that if the will in question be considered as the will of a Spanish subject, provable under the special provisions of section 636 of the Code of Civil Procedure, then it must be treated as void, for failure to comply with various requirements unnecessary to be here stated in detail of the Spanish laws in respect to the manner of execution of wills. As will be at once apparent from an examination of section 636 of the Code of Civil Procedure, if the will was in fact provable as the will of a Spanish subject, under that section, and was admitted to probate as such, compliance with the requirements of our local laws relative to the execution of wills was not necessary. In such case the provisions governing the execution of the will are to be sought in the laws of the country of which the testator was a subject. Another irregularity in the admission of the will in question to probate, as stated in the petition, is that the document produced in court and actually proved as the will of the decedent was not the original but a copy certified by the Spanish Consul General in this city from the records of his

own office, the will having been executed before him on April 16, 1918, pursuant to authority contained in the Treaty between the United States and Spain proclaimed on April 20, 1903. The question here presented in therefore this: Can a party who is interested in the estate of a deceased person, and who has been prevented by inevitable conditions from opposing the probate of the will, obtain from the Supreme Court, under section 513 of the Code of Civil Procedure, an order for a rehearing in the Court of First Instance, it being alleged that she will was not executed with the formalities required by law and hence was improperly admitted to probate? In the case of the Estate of Johnson (39 Phil. Rep., 156),we held that a Court of First Instance has the power, under section 113 of the Code of Civil Procedure, to set aside an order admitting a will to probate and to grant a rehearing of the application to admit the will, upon a showing from a person interested in the estate to the effect that the order of probate was erroneous and that the applicant had been prevented by conditions over which he had no control from appearing at the original hearing and opposing the probate of the will. It was also suggested in Banco Espaol-Filipino vs. Palanca (37 Phil. Rep., 921) that the remedy conceded in section 513 of the Code of Civil Procedure is supplementary to that conceded in section 113 of the same Code; and it was added that apart from these remedies there is no other means recognized in our procedure whereby a defeated party can, by a proceeding in the same cause, procure a judgment to be set aside with a view to the renewal of the litigation. We shall now proceed to consider somewhat more closely the effect of the two sections of the Code of Civil Procedure above cited, in relation to each other and with special reference to the facts now before us. To this end it is desirable to confront the text of the provisions in question: SEC. 113. Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect: Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. SEC. 513. When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly deprived of a hearing by fraud, accident, mistake, or excusable negligence, and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party so deprived of a hearing may present his petition to the Supreme Court within sixty days after he first learns of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have such judgment set aside. . . . By comparing these two provisions it will be seen that the operative equity which is contemplated as the basis of relief is similar, if not identical, in both cases, inasmuch as the mistake, inadvertence, surprise or excusable neglect, contemplated in section 113, is substantially the same as the fraud, accident, mistake or excusable negligence of section 513. It is true that fraud is not mentioned as aground of relief in section 113; but as was indicated in Mortera and Eceiza vs. West of Scotland Insurance Office, Ltd. (36 Phil. Rep., 994), if a judgment is procured by concealed fraudulent practices the party injured may sometimes at least be relieved on the ground that there was an excusable neglect on his part in failing to discover and defeat such practice. With this prefatory observation we proceed to consider the restrictions placed upon the use of the remedy conceded in section 513.

The first point to which we direct our comment has reference to the lack of an adequate remedy in the Court of First Instance. It is expressly declared in section 513 that the remedy granted thereby is available only in case the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court. A moments in spection of the entire section is sufficient to show that the quoted words are not homogeneous with the remainder of the section, and moreover they are not well adjusted to the sense and effect of section 113. The inference is plain that they were inserted in section 513 probably by way of amendment and by a person other than the original author. The person who wrote these words evidently supposed that by the mere fact of adjournment a Court of First Instance loses the power to entertain an application for relief of the character here contemplated. It is quite obvious, however, that the power granted in section 113 continues for six months regardless of the adjournment of the court. In our judicial system a Court of First Instance exists in each province, and a clerk is maintained at the place appointed for the holding of court, whose duty it is to receive and file applications, petitions, and complaints of all sorts. Consequently when an application for relief against any judgment is properly made under section 113, and filed in the court, the matter is before the judge for action upon the convening of the next session. The mere fact of adjournment cannot really have the effect of shortening the period of six months allowed in section 113. In many American jurisdictions, however, the ending of the term of court terminates absolutely the power of the court over its judgments. To a person whose mind is imbued with this idea, the words When . . . the Court of First Instance which rendered the judgment has finally adjourned can only be understood as referring loosely to cases where the Court of First Instance has by the affluxion of time lost all power to set aside or modify its judgment; and this we consider to be its true meaning. The consequence is that the remedy conceded in section 513 is available, other conditions concurring, whenever the Court of First Instance is powerless to grant relief, without regard to the six months limitation fixed in section 113. The sense of this construction may perhaps be further elucidated by saying that the controlling idea is the want of adequate remedy in the Court of First Instance; and the reference to final adjournment in section 513 is to be taken merely as explanatory of the want of remedy in that court and not as embodying any absolute restriction upon the remedy conceded in section 513. It may be argued that the words and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court were intended to be applicable exclusively to the case where the Court of First Instance might, if not already adjourned, grant relief under section 113, but is prevented from so doing solely by reason of the fact of adjournment. This would seem at first blush to be the literal sense of the words used, but it gives to the provision an application so narrow as to defeat the manifest purpose of the legislator; for under section 113 the power of the Court of First Instance to grant relief is limited to applications made within six months after entry of the judgment against which relief is sought. If the meaning be as here suggested, the relief grantable by the Supreme Court under section 513 would also be necessarily limited to applications made within six months, or at most, within sixty days after the expiration of six months, and then only when it should appear that the lower court had finally adjourned before the six months within which it could have granted relief had expired. In this view the sole function served by section 513 is to make sure that a person may obtain relief in the Supreme Court whenever the Court of First Instance had adjourned before six months after judgment entered; and no relief could be granted by the Supreme Court upon applications made after the expiration of eight months from the date of the judgment. We consider this interpretation incorrect. It can hardly be supposed that section 513 would have been incorporated in the Code if the only idea was to enable a party having a right to relief in the Court of First Instance under section 113 to direct his petition to the Supreme Court only when

the Court of First Instance has adjourned prior to the end of six months after judgment entered. If such were the idea, the provision in question is, as we have already seen, superfluous. The real purpose of section 513 in our opinion is to enable an injured party under the conditions stated to apply to the Supreme Court without reference to the six months limitation expressed in section 113; and the expression when the Court of First Instance . . . has finally adjourned, as used in section 513, must not be understood as referring exclusively to adjournment within six months after judgment entered. It is generally recognized that if a statute is ambiguous and capable of more than one construction, the literal meaning of the words used may be rejected if the result of adopting such meaning would be to defeat the purpose of the legislature had in view. It is declared in article 1281 of the Civil Code that if the words of a contract appear to be contrary to the evident intention of the contracting parties, the intention shall prevail. This rule is there stated with respect to the interpretation of contracts; but the same idea may be accepted, though guardedly, as applicable in the interpretation of statutes, and more especially those of a remedial nature. Statutes of this kind are liberally construed to promote the object which the legislature may be supposed to have had in view. From what has been said it will be seen that the jurisdiction of the Supreme Court to entertain a petition of the character of that now before us begins in point of time when the period has passed within which it was competent for the Court of First Instance to entertain an application under section 113; and apart from the requirement that the application must be made to the Supreme Court within two months after the petitioner first learns of the rendition of judgment against which relief is sought, there is no absolute limit to the period within which the application may be made. But of course if relief from a judgment is sought by timely application in the Court of First Instance, and the application is there denied, no petition based on the same ground will thereafter be entertained in the Supreme Court under section 513, as the proper remedy in that case would be to appeal from the action of the Court of First Instance. (Rabajante vs. Moir and Rances, 28 Phil. Rep., 161.) Proceeding now to a further comparison of sections 113 and 513, it is noteworthy that while the power of the Court of First Instance to grant relief under section 113 extends to the setting aside of any judgment, order or proceeding whatever, the power of the Supreme Court under section 513 is limited to granting a new trial upon judgments rendered upon default. Now what is the meaning of judgment rendered upon default, as used in section 513? The reference is of course to the default mentioned in section 128 of the Code of Civil Procedure. (Simon vs. Castro and Castro, 6 Phil. Rep., 335,337.) A default, such as is there intended, can only arise in contentious litigation where a party who has been impleaded as a defendant and served with process fails to appear at the time required in the summons or to answer at the time provided by the rules of the court. The proceeding to probate a will is not a contentious litigation in any sense, because nobody is impleaded or served with process. It is a special proceeding, and although notice of the application is published, nobody is bound to appear and no order for judgment by default, is ever entered. If the application is not opposed, the court may allow the will on the testimony of one of the subscribing witnesses only (sec. 631, Code Civ. Proc.), provided none of the reasons specified in section 634 of the Code of Civil Procedure for disallowing the will are found to exist. If any interested person opposes the probate, the court hears the testimony and allows or disallows the will accordingly. From such judgment any interested person may appeal to the Supreme Court within twenty days. (Sec. 781, Code Civ Proc.) Though the action taken by a Court of First Instance in thus allowing or disallowing a will

is properly denominated a judgment, it is not a judgment rendered upon default even though no person appears to oppose the probate. It is manifest from this that the remedy given in section 513 can have no application to the order of May 20, 1918, legalizing the will of Juan Pons y Coll; and this is necessarily fatal to the petition before us. This consequence follows regardless of any irregularities that may have occurred in the Court of First Instance in admitting the will to probate and regardless of any error which that court may have committed in the action taken upon the proof submitted at the hearing. It is not alleged that any fraud has been attempted or committed, or that the document probated is any other than a testamentary memorial in which the decedent actually gave expression to his desires with regard to the disposition of his property. But if fraud had been charged as, for instance, if it were alleged that the purported will is forged document the remedy, if any exists, would not be found in a proceeding under section 513, but in an original action in the Court of First Instance. It thus becomes unneccessary to inquire whether the will in question was in fact executed in conformity with the requirements of law either of these Islands or of Spain. As a result of this decision it cannot be denied that, without any fault on the part of the petitioner or her attorneys, she has been deprived not only of the opportunity of opposing the will and appealing from the order of probate but also of the opportunity of applying to the Court of First Instance for relief under section 113. Even assuming that she could have procured the disallowance of the will by either of those methods a point upon which no pronouncement can here be made it is obvious that the impossibility of her thus obtaining relief was due to circumstances peculiar to this case; and the possibility of occassional hardship cannot affect the validity of our procedure for the probate of wills (Estate of Johnson, supra.) A will is nothing more than a species of conveyance whereby a person is permitted, with the formalities prescribed by law, to control in a certain degree the disposition of his property after his death. Out of consideration for the important interests involved the execution and proof of wills has been surrounded by numerous safeguards, among which is the provisions that after death of the testator his will may be judicially established in court. The action of the court in admitting a will to probate has all the effect of a judgment; and as such is entitled to full faith and credit in other courts. The proceeding by which this is accomplished is considered to be in the nature of a proceeding in rem, and upon this idea the decree of probate is held binding on all persons in interest, whether they appear to contest the probate or not. The proceeding is not a contentious litigation; and though the persons in interest are given an opportunity to appear and reasonable precautions are taken for publicity, they are not impleaded or required to answer. As has been repeatedly stated in the decisions of this court, the probate of a will, while conclusive as to its due execution, in no wise involves the intrinsic validity of its provisions. If, therefore, upon the distribution of the estate of Juan Pons y Coll, it should appear that any provision of his will is contrary to the law applicable to his case, the will must necessarily yield upon that point and the disposition made by law must prevail. The petitioner is therefore free to appear in the Court of First Instance at the proper juncture and discuss the questions of the validity of such provisions of the will as affect her interests adversely; and so far as we can see, on the facts before us, this is her only recourse. But if the will in question was in fact proved as the will of a Spanish subject under section 636 of the Code of Civil Procedure, the intrinsic validity of its provisions must be determined under the Spanish law applicable to this testator. After the resolution embodied in the preceding opinion had been adopted by the court, but before the decision had been promulgated, the attorneys for the petitioner moved that an order

be entered for the submission of evidence and that the clerk of this court be appointed commissioner to take the same, upon designation by him of the time and place therefor. The step indicated would be proper if the facts stated in the petition had been found sufficient to entitle the petitioner to relief, but inasmuch as the petition is in our opinion insufficient, the making of the order suggested becomes unneccessary. In this connection it may be well to estate that when a petition for relief in the exercise of our original jurisdiction is presented to this court, we are accustomed to consider the case as being at all times before us for the purpose of determining the legal sufficiency of the petition; and when it is found at any stage of the proceeding that the allegations of the complaint are insufficient to entitle the petitioner to relief of any sort, it is our practice to enter an order upon our own motion dismissing the petition. Where the defect apparent in the petition is of a sort that might be cured by amendment, the order of dismissal is made conditional upon the failure of the petitioner to amend within a period stated. On the other hand where the defect is manifestly incurable it is proper to make the order of dismissal absolute, and such appears to be the correct practice. In the course of the preceding discussion we have, for the purpose of explaining the situation more clearly, permitted ourselves to refer to at least one detail not stated in the petition, as where we state that the will purports to disinherit the petitioner. This fact, however, if not admitted, is incontrovertible and apparent from the copy of the will exhibited with the answer. Moreover, the point that no decisive influence on the decision. Our opinion therefore is to be taken as an expression of our opinion upon the legal sufficiency of the petition exclusively upon the statements contained therein. As will be discovered from the opinion, the inability of this court to grant relief in the case before us is really due to the fact that the remedy conceded in section 513 admitting wills to probate. The defect from which the petition suffers is therefore not curable by amendment and cannot be aided by the taking of proof. The request for an order allowing proof to be submitted must therefore be denied, and judgment absolute will be entered dismissing the petition with costs.

20. Cotto vs. Margarito 21. G.R. No. L-4888 May 25, 1953

JOSE MERZA, petitioner, vs. PEDRO LOPEZ PORRAS, respondent. Primicias, Abad, Mencies & Castillo for petitioner. Moises Ma. Buhain for respondent. TUAZON , J.: This is an appeal from the Court of Appeals which affirmed an order of the Court of First Instance of Zambales denying the probate of the last will and testament and so-called codicil, identified as Exhibits A and B, of Pilar Montealegre, deceased. The testatrix was survived by the husband and collateral relatives, some of whom, along with the husband, were disinherited in Exhibit B for the reasons set forth therein. The opposition to Exhibit A was predicated on alleged defects of the attestation clause. Written in the local dialect known to the testatrix, the attestation clause, as translated into English in the record on appeal, reads: The foregoing instrument consisting of three pages, on the date above-mentioned, was executed, signed and published by testatrix Pilar Montealegre and she declared that the said instrument is her last will and testament; that in our presence and also in the very presence of the said testatrix as likewise in the presence of two witnesses and the testatrix each of us three witnesses signed this a testament.

The opponent objected that this clause did not estate that the tetratrix and the witnesses had signed each and every page of the will or that she had signed the instrument in the presence of the witnesses. The Appellate Court dismissed the first objection, finding that "failure to estate in the attestation clause in question that the testatrix and/or the witnesses had signed each and every page of Exhibit A were cured by the fact that each one of the page of the instrument appears to be signed by the testatrix and the three attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs. Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off.Gaz., 4938, 4940)." But granting the correctness of the premise, the court held the second objection well taken and thus concluded: "The question whether the testatrix had signed in the presence of said witnesses can not be verified upon physical examination of the instrument. Hence, the absence of the require statement in said clause may not, pursuant to the decisions of the Supreme Court, be offset by proof aliunde even if admitted without any objection." The premise of the conclusion is, in our opinion, incorrect. It must be admitted that the attestation clause was very poor drawn, its language exceedingly ungrammatical to the point of being difficult to understand; but from a close examination of the whole context in relation to its purpose the implication seems clear that the testatrix signed in the presence of the witnesses. Considering that the witnesses' only business at hand was to sign and attest to the testatrix's signing of the document, and that the only actors of the proceeding were the maker and the witnesses acting and speaking collectively and in the first person, the phrase "in our presence," used as it was in connection with the process of signing, can not imply anything but the testatrix signed before them. No other inference is possible. The prepositional phrase "in our presence" denotes an active verb and the verb a subject. The verb could not be other than signed and the subject no other than the testatrix. The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses sign in the presence of the testatrix and of one another, so the testatrix sign in similar or like manner in their presence. In consonance with the principle of the liberal interpretation, adhered to in numerous later decision of this Court and affirmed and translated into inactment in the new Civil Code (Article 827), we are constrained to hold the attestation clause under consideration sufficient and valid. "Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative that a parrot-like copy of the word of the statue be made. It is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it." (Ticson vs. Gorostiza, supra.) "It could have been the intention of the legislature in providing for the essential safeguards in the execution of a will to shackle the very right of the testamentary disposition which the law recognizes and holds sacred." (Leynes vs. Leynes, supra.) With reference of Exhibit B the Court of Appeal agreed with the trial court that the document having been executed one day before Exhibit A could not be considered as a codicil "because a codicil, as the word implies, is only an addition to, or modification of, the will." The Court of Appeals added that "the content of Exhibit B are couched in the language of ordinarily used in a simple affidavit and as such, may not have the legal effect and force to a testamentary disposition." Furthermore, the Court of Appeals observed, disinheritance "may not be made in any instrument other than the will of Exhibit A, as expressly provided for in article 849 of the

Civil Code," and, "there being no disposition as to the disinheritance of the oppositor, Pedro Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that he can not be disinherited in any other instrument including Exhibit B, which is, as above stated, a simple affidavit." Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil code of Spain as "the act by which a persons dispose of all his property or a portion of it," and in article 783 of the new Civil Code as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. Exhibit B comes within this definition. Being of testamentary character and having been made with all the formalities of law, Exhibit B is entitled to probate as an independent testementary desposition. In the absence of any legal provision to the contrary and there is none in this jurisdiction it is the general, wellestablished rule that two separate and distinct wills may be probated if one does not revoke the other (68 C.J., 885) and provided that the statutory requirements relative to the execution of wills have been complied with (Id. 881). As seen, Exhibit B embodied all the requisites of a will, even free of such formal of literary imperfections as are found in Exhibit A. It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from testate or intestate succession. Article 849 of the Civil Code of Spain does not, as the appealed decision seems to insinuate, require that the disinheritance should be accomplished in the same instrument by which the maker provides the disposition of his or her property after his or death. This article merely provides that "disinheritance can be affected only by a will (any will) in which the legal cause upon which it is based is expressly stated." It is our judgment therefore that the instruments Exhibit A and B admitted to probate, subject of courts to the right of the disinherited person under particle 850 to contest the disinheritance, and it is so ordered, with costs against the appellee.

22. March 19, 1904 G.R. No. 1439 ANTONIO CASTAEDA, plaintiff-appellee, vs. JOSE E. ALEMANY, defendant-appellant. Ledesma, Sumulong and Quintos for appellant. The court erred in holding that all legal formalities had been complied with in the execution of the will of Doa Juana Moreno, as the proof shows that the said will was not written in the presence of under the express direction of the testratrix as required by section 618 of the Code of Civil Procedure. Antonio V. Herrero for appellee. The grounds upon which a will may be disallowed are limited to those mentioned in section 634 of the Code of Civil Procedure. WILLARD, J.: (1) The evidence in this case shows to our satisfaction that the will of Doa Juana Moreno was duly signed by herself in the presence of three witnesses, who signed it as witnesses in the presence of the testratrix and of each other. It was therefore executed in conformity with law. There is nothing in the language of section 618 of the Code of Civil Procedure which supports the claim of the appellants that the will must be written by the testator himself or by someone else in his presence and under his express direction. That section requires (1) that the will be in writing and (2) either that the testator sign it himself or, if he does sign it, that it be signed by some one in his presence and by his express direction. Who does the mechanical work of writing the will is a matter of indifference. The fact, therefore, that in this case the will was typewritten in the office of the lawyer for the testratrix is of no consequence. The English text of section 618 is very plain. The mistakes in translation found in the first Spanish edition of the code have been corrected in the second.

(2) 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. It could not in this case make any decision upon the question whether the testratrix had the power to appoint by will a guardian for the property of her children by her first husband, or whether the person so appointed was or was not a suitable person to discharge such trust. All such questions must be decided in some other proceeding. The grounds on which a will may be disallowed are stated the section 634. Unless one of those grounds appears the will must be allowed. They all have to do with the personal condition of the testator at the time of its execution and the formalities connected therewith. It follows that neither this court nor the court below has any jurisdiction in his proceedings to pass upon the questions raised by the appellants by the assignment of error relating to the appointment of a guardian for the children of the deceased. It is claimed by the appellants that there was no testimony in the court below to show that the will executed by the deceased was the same will presented to the court and concerning which this hearing was had. It is true that the evidence does not show that the document in court was presented to the witnesses and identified by them, as should have been done. But we think that we are justified in saying that it was assumed by all the parties during the trial in the court below that the will about which the witnesses were testifying was the document then in court. No suggestion of any kind was then made by the counsel for the appellants that it was not the same instrument. In the last question put to the witness Gonzales the phrase this will is used by the counsel for the appellants. In their argument in that court, found on page 15 of the record, they treat the testimony of the witnesses as referring to the will probate they were then opposing. The judgment of the court below is affirmed, eliminating therefrom, however, the clause el cual debera ejecutarse fiel y exactamente en todas sus partes. The costs of this instance will be charged against the appellants.

23. G.R. No. L-22595

November 1, 1927

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

ROMUALDEZ, J.: The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions,

shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. lawphil.net Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following:

Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs.

24.G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J.: This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.t The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even

mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art.17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art.10 of the old Civil Code as Art.16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the

intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

25. G.R. No. 4445

September 18, 1909

CATALINA BUGNAO, proponent-appellee, vs. FRANCISCO UBAG, ET AL., contestants-appellants. Rodriguez and Del Rosario for appellants. Fernando Salas for appellee. CARSON, J.: This is an appeal from an order of the Court of First Instance of Oriental Negros, admitting to probate a document purporting to be the last will and testament of Domingo Ubag, deceased. The instrument was propounded by his widow, Catalina Bugnao, the sole beneficiary thereunder, and probate was contested by the appellants, who are brothers and sisters of the deceased, and who would be entitled to share in the distribution of his estate, if probate were denied, as it appears that the deceased left no heirs in the direct ascending or descending line. Appellants contend that the evidence of record is not sufficient to establish the execution of the alleged will in the manner and form prescribed in section 618 of the Code of Civil Procedure; and that at the time when it is alleged that the will was executed, Ubag was not of sound mind and memory, and was physically and mentally incapable of making a will. The instrument propounded for probate purports to be the last will and testament of Domingo Ubag, signed by him in the presence of three subscribing and attesting witnesses, and appears upon its face to have been duly executed in accordance with the provisions of the Code of Civil Procedure touching the making of wills. Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mario, testified in support of the will, the latter being the justice of the peace of the municipality wherein it was executed; and their testimony was corroborated in all important details by the testimony of the proponent herself, who was present when the will was made. It does not appear from the record why the third subscribing witness was not called; but since counsel for the contestants makes no comment upon his absence, we think it may safely be inferred that there was some good and sufficient reason therefore. In passing, however, it may be well to observe that, when because of death, sickness, absence, or for any other reason, it is not practicable to call to the witness stand all the subscribing witnesses to a will offered for probate, the reason for the absence of any of these witnesses should be made to appear of record, and this especially in cases such as the one at bar, wherein there is a contests.

The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that the testator, at the time of its execution, was of sound mind and memory, and in their presence attached his signature thereto as his last will and testament, and that in his presence and in the presence of each other, they as well as the third subscribing witness. Despite the searching and exhaustive cross-examination to which they were subjected, counsel for appellants could point to no flaw in their testimony save an alleged contradiction as to a single incident which occurred at or about the time when the will was executed a contradiction, however, which we think is more apparent than real. One of the witnesses stated that the deceased sat up in bed and signed his name to the will, and that after its execution food was given him by his wife; while the other testified that he was assisted into a sitting position, and was given something to eat before he signed his name. We think the evidence discloses that his wife aided the sick man to sit up in bed at the time when he signed his name to the instrument, and that he was given nourishment while he was in that position, but it is not quite clear whether this was immediately before or after, or both before and after he attached his signature to the will. To say that the sick man sat up or raised himself up in bed is not necessarily in conflict with the fact that he received assistance in doing so; and it is not at all improbable or impossible that nourishment might have been given to him both before and after signing the will, and that one witness might remember the former occasion and the other witness might recall the latter, although neither witness could recall both. But, however this may have been, we do not think that a slight lapse of memory on the part of one or the other witness, as to the precise details of an unimportant incident, to which his attention may not have been particularly directed, is sufficient to raise a doubt as to the veracity of these witnesses, or as to the truth and accuracy of their recollection of the fact of the execution of the instrument. Of course, a number of contradictions in the testimony of alleged subscribing witnesses to a will as to the circumstances under which it was executed, or even a single contradiction as to a particular incident, where the incident was of such a nature that the intention of any person who was present must have been directed to it, and where the contradictory statements in regard to it are so clear and explicit as to negative the possibility or probability of mistake, might well be sufficient to justify the conclusion that the witnesses could not possibly have been present, together, at the time when it is alleged the will was executed; but the apparent contradictions in the testimony of the witnesses in the case at bar fall far short of raising a doubt a to their veracity, and on the other hand their testimony as a whole gives such clear, explicit, and detailed account of all that occurred, and is so convincing and altogether satisfactory that we have no doubt that the trial judge who heard them testify properly accepted their testimony as worthy of entire confidence and belief. The contestants put upon the stand four witnesses for the purpose of proving that at the time and on the occasion when the subscribing witnesses testified that the will was executed, these witnesses were not in the house with the testator, and that the alleged testator was at that time in such physical and mental condition that it was impossible for him to have made a will. Two of these witnesses, upon cross-examination, admitted that they were not in the house at or between the hours of four and six in the afternoon of the day on which the will is alleged to have been made, this being the time at which the witnesses in support of the will testified that it was executed. Of the other witnesses, one is a contestant of the will, Macario Ubag, a brother of the testator, and the other, Canuto Sinoy, his close relative. These witnesses swore that they were in the house of the deceased, where he was lying ill, at or about the time when it is alleged that the will was executed, and that at that time the alleged subscribing witnesses were not in the house, and the alleged testator was so sick that he was unable to speak, to understand, or to make himself understood, and that he was wholly incapacitated to make a will. But the testimony of Macario Ubag is in our opinion wholly unworthy of credence. In addition to his

manifest interest in the result of the investigation, it clearly discloses a fixed and settled purpose to overthrow the will at all costs, and to that end an utter disregard of the truth, and readiness to swear to any fact which he imagined would aid in securing his object. An admittedly genuine and authentic signature of the deceased was introduced in evidence for comparison with the signature attached to the will, but this witness in his anxiety to deny the genuineness of the signature of his brother to the will, promptly and positively swore that the admittedly genuine signature was not his brother's signature, and only corrected his erroneous statement in response to a somewhat suggestive question by his attorney which evidently gave him to understand that his former answer was likely to prejudice his own cause. On cross-examination, he was forced to admit that because his brother and his brother's wife (in those favor the will was made) were Aglipayanos, he and his other brothers and sisters had not visited them for many months prior to the one particular occasion as to which testified; and he admitted further, that, although he lived near at hand, at no time thereafter did he or any of the other members of his family visit their dying brother, and that they did not even attend the funeral. If the testimony of this witness could be accepted as true, it would be a remarkable coincidence indeed, that the subscribing witnesses to the alleged will should have falsely pretended to have joined in its execution on the very day, and at the precise hour, when this interested witness happened to pay his only visit to his brother during his last illness, so that the testimony of this witness would furnish conclusive evidence in support of the allegations of the contestants that the alleged will was not executed at the time and place or in the manner and form alleged by the subscribing witnesses. We do not think that the testimony of this witness nor any of the other witnesses for the contestants is sufficient to raise even a doubt as to the truth of the testimony of the subscribing witnesses as to the fact of the execution of the will, or as to the manner and from in which it was executed. In the course of the proceedings, an admittedly genuine signature of the deceased was introduced in evidence, and upon a comparison of this signature with the signature attached to the instrument in question, we are wholly of the opinion of the trial judge, who held in this connection as follows: No expert evidence has been adduced with regard to these two signatures, and the presiding judge of this court does not claim to possess any special expert knowledge in the matter of signatures; nevertheless, the court has compared these two signatures, and does not find that any material differences exists between the same. It is true that the signature which appears in the document offered for authentication discloses that at the time of writing the subscriber was more deliberate in his movements, but two facts must be acknowledge: First, that the testator was seriously ill, and the other fact, that for some reason which is not stated the testator was unable to see, and was a person who was not in the habit of signing his name every day. These facts should sufficiently explain whatever difference may exist between the two signatures, but the court finds that the principal strokes in the two signatures are identical. That the testator was mentally capable of making the will is in our opinion fully established by the testimony of the subscribing witnesses who swore positively that, at the time of its execution, he was of sound mind and memory. It is true that their testimony discloses the fact that he was at that time extremely ill, in an advanced stage of tuberculosis complicated with severe intermittent attacks of asthma; that he was too sick to rise unaided from his bed; that he needed assistance even to rise himself to a sitting position; and that during the paroxysms of asthma to which he was subject he could not speak; but all this evidence of physical weakness in no wise establishes his mental incapacity or a lack of testamentary capacity, and indeed the evidence of the subscribing witnesses as to the aid furnished them by the testator in preparing

the will, and his clear recollection of the boundaries and physical description of the various parcels of land set out therein, taken together with the fact that he was able to give to the person who wrote the will clear and explicit instructions as to his desires touching the disposition of his property, is strong evidence of his testamentary capacity. Counsel for appellant suggests that the fact that the alleged will leaves all the property of the testator to his widow, and wholly fails to make any provision for his brothers or sisters, indicates a lack of testamentary capacity and undue influence; and because of the inherent improbability that a man would make so unnatural and unreasonable a will, they contend that this fact indirectly corroborates their contention that the deceased never did in fact execute the will. But when it is considered that the deceased at the time of his death had no heirs in the ascending or descending line; that a bitter family quarrel had long separated him from his brothers and sisters, who declined to have any relations with the testator because he and his wife were adherents of the Aglipayano Church; and that this quarrel was so bitter that none of his brothers or sisters, although some of them lived in the vicinity, were present at the time of his death or attended his funeral; we think the fact that the deceased desired to leave and did leave all of his property to his widow and made no provision for his brothers and sisters, who themselves were grown men and women, by no means tends to disclose either an unsound mind or the presence of undue influence on the part of his wife, or in any wise corroborates contestants' allegation that the will never was executed. It has been said that "the difficulty of stating standards or tests by which to determine the degree of mental capacity of a particular person has been everywhere recognized, and grows out of the inherent impossibility of measuring mental capacity, or its impairment by disease or other causes" (Greene vs. Greene, 145 III., 264, 276); and that "it is probable that no court has ever attempted to lay down any definite rule in respect to the exact amount of mental capacity requisite for the making of a valid will, without appreciating the difficulty of the undertaking" (Trish vs. Newell, 62 III., 196, 203). Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degree 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 the disease of body, or from age, will not render a person incapable of making a will, a weak or feeble minded person may make a valid will, provided he has understanding memory sufficient to enable him to know what he is about, and how or to whom he is disposing of his property" (Lodge vs. Lodge, 2 Houst. (Del.), 418); that, "To constitute a sound and disposing mind, it is not necessary that the mind should be unbroken or unimpaired, unshattered by disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it has not been understood that a testator must possess these qualities (of sound and disposing mind and memory) in the highest degree. . . . Few indeed would be the wills confirmed, if this is correct. Pain, sickness, debility of body, from age or infirmity, would, according to its violence or duration, in a greater or less degree, break in upon, weaken, or derange the mind, but the derangement must be such as deprives him of the rational faculties common to man" (Den. vs. Vancleve, 5 N. J. L.,680); and, that "Sound mind does not mean a perfectly balanced mind. The question of soundness is one of degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P., 25); on the other hand, it has been held that "testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age from disease, or great bodily infirmities or suffering, or from all these combined, may render the testator incapable of making a valid will, providing such weakness really disqualifies her from

knowing or appreciating the nature, effects, or consequences of the act she is engaged in" (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302). But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of testamentary capacity which will cover all possible cases which may present themselves, because, as will be seen from what has already been said, the testator was, at the time of making the instrument under consideration, endowed with all the elements of mental capacity set out in the following definition of testamentary capacity which has been frequently announced in courts of last resort in England and the United States; and while is some cases testamentary capacity has been held to exist in the absence of proof of some of these elements, there can be no question that, in the absence of proof of very exceptional circumstances, proof of the existence of all these elements in sufficient to establish the existence of testamentary capacity. Testamentary capacity is the capacity to comprehend the nature of the transaction which the testator is engaged at the time, to recollect the property to be disposed of and the person who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. (Cf. large array of cases cited in support of this definition in the Encyclopedia of Law, vol. 23, p. 71, second edition.) In our opinion, the evidence of record establishes in a strikingly conclusive manner the execution of the instrument propounded as the last will and testament of the deceased; that it was made in strict conformity with the requisites prescribed by law; and that, at the time of its execution, the deceased was of sound mind and memory, and executed the instrument of his own free will and accord. The order probating the will should be land is hereby affirmed, with the cost of this instance against the appellants.

26. C.A. No. 8075

March 25, 1946

TRINIDAD NEYRA, plaintiff-appellant, vs. ENCARNACION NEYRA, defendant-appellee. Alejandro M. Panis for appellant. Lucio Javillonar for appellee. DE JOYA, J.: On October 25, 1939, Trinidad Neyra filed a complaint against her sister, Encarnacion Neyra, in the Court of First Instance of the City of Manila, for the recovery of one-half () of the property mentioned and described therein, which had been left by their deceased father, Severo Neyra, and which had been previously divided equally between the two extrajudicially, demanding at the same time one-half () of the rents collected on the said property by the defendant Encarnacion Neyra. The defendant filed an answer admitting that the property mentioned and described therein was community property, and at the same time set up counterclaims amounting to over P1,000, for money spent, during the last illness of their father, and for money loaned to the plaintiff. After the trial of the case, the court found that the plaintiff was really entitled to one-half () of the said property, adjudicating the same to her, but at the same time ordered said plaintiff to pay to the defendant the sum of P727.77, plus interests, by virtue of said counterclaims. Plaintiff Trinidad Neyra appealed from the said decision, to the Court of Appeals for Manila, alleging several errors, attacking the execution and validity of said agreement; and on November 10, 1942, said appeal was dismissed, pursuant to the to an agreement or compromise entered into by the parties, as shown by the corresponding document, dated November 3, 1942, which was filed in the case the following day, November 4, 1942. In the meanwhile, Encarnacion Neyra, who had been sickly for about two years, unexpectedly died, on November 4, 1942 at the age of 48, allegedly from heart attack, as a consequence of Addison's disease from which, it was claimed, she had been suffering for sometime. In view of the decision of the Court of Appeals, dated November 10, 1942, dismissing the appeal, by virtue of said agreement or compromise, Atty. Lucio Javillonar, claiming to represent Encarnacion Neyra, who had died since November 4, 1942, and other relatives of hers, filed a petition, dated November 23, 1942, asking for the reconsideration of said decision of the Court of Appeals, dismissing the appeal, claiming that the alleged compromise or agreement, dated

November 3, 1942, could not have been understood by Encarnacion Neyra, as she was already then at the threshold of death, and that as a matter of fact she died the following day; and that if it had been signed at all by said Encarnacion Neyra, her thumbmark appearing on said document must have been affixed thereto by Trinidad Neyra's attorney, against Encarnacion's will; and that the court had no more jurisdiction over the case, when the alleged agreement was filed on November 4, 1942, at the instance of Trinidad Neyra, as Encarnacion was already dead at the time. The principal question to be decided, in connection with said petition for reconsideration, is whether or not said compromise or agreement had been legally executed and signed by Encarnacion Neyra, on November 3, 1942. Trinidad Neyra maintains the affirmative. The voluminous evidence, testimonial and documentary, adduced by the parties, in this case, has fully established the following facts: That Severo Nayra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and other children by his second marriage; That after the death of Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had serious misunderstandings, in connection with the properties left by their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance of Manila, concerning said properties. In the first case, filed in March 31, 1939, Trinidad Neyra and others demanded by Encarnacion Neyra and others the annulment of the sale of the property located at No. 366 Raon Street, Manila which was finally decided in favor of the defendants, in the court of first instance, and in the Court of Appeals, on December 21, 1943 (G.R. No. 8162); and the second is the instance case. That Encarnacion Neyra, who had remained single, and who had no longer any ascendants, executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de Religiosas de la Virgen Maria" and her other relatives, named Teodora Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will, in favor of her only sister of the whole blood, Trinidad Neyra, who had become her bitter enemy; that when the said will was brought to the attention of the authorities of said Congregation, after due deliberation and consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and said decision of the Congregation was duly communicated to her; that in order to overcome the difficulties encountered by said religious organization in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that purpose, about one week before her death, sent for Atty. Ricardo Sikat, and gave him instructions for the preparation of a new will; that Atty. Sikat, instead of preparing a new will, merely prepared a draft of a codicil, amending said will, dated September 14, 1939, again naming said religious organization, among others as beneficiary, and said draft of a codicil was also forwarded to the authorities of religious organization, for their consideration and acceptance; but it was also rejected. In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease, and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo Church to make confession, after which she requested that holy mass be celebrated in her house at No. 366 Raon Street, City of Manila, so that she might take holy communion; that Mons. Fernandez caused the necessary arrangements to be made, and, as a matter of fact, on November 1, 1942, holy mass was solemnized in her house by Father Teodoro Garcia, also of the Quiapo Church, on which occasion, Encarnacion Neyra, who

remained in bed, took holy communion; that after the mass, Father Garcia talked to Encarnacion Neyra and advised reconciliation between the two sisters, Encarnacion and Trinidad Neyra. Encarnacion accepted said advise and, at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch her sister Trinidad, who came at about 2:30 that same afternoon; that the two sisters greeted each other in most affectionate manner, and became reconciled and two had a long and cordial conversation, in the course of which they also talked about the properties left by their father and their litigations which had reached the Court of Appeals for the City of Manila, the instant case being the second, and they agreed to have the latter dismissed, on the condition that the property involved therein should be given exclusively to Trinidad Neyra, that the latter should waive her share in the rents of said property collected by Encarnacion, and the Trinidad had no more indebtedness to Encarnacion. They also agreed to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said agreement, but Attorney Panis could come only in the afternoon of the following day, November 2, 1942, when Encarnacion gave him instructions for the preparation of the document embodying their agreement, and other instructions for the preparation of her last will and testament; that Attorney Panis prepared said document of compromise as well as the new will and testament, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to Encarnacion's express instructions, and the two documents were prepared, in duplicate, and were ready for signature, since the morning of November 3, 1942; that in the afternoon of that day, of compromise and last will and testament to Encarnacion Neyra, slowly and in a loud voice, in the presence of Father Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, Trinidad Neyra, and others, after which he asked her if their terms were in accordance with her wishes, or if she wanted any change made in said documents; that Encarnacion Neyra did not suggest any change, and asked for the pad and the two documents, and, with the help of a son of Trinidad, placed her thumbmark at the foot of each one of the two documents, in duplicate, on her bed in the sala, in the presence of attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa and Atty. Alejandro M. Panis, after which said witnesses signed at the foot of the will, in the presence of Encarnacion Neyra, and of each other. The agreement was also signed by Trinidad Neyra, as party, and by Dr. M. B. Abad and Eustaquio Mendoza, a protege, as witnesses. Father Teodoro Garcia was also present at the signing of the two documents, at the request of Encarnacion Neyra. The foregoing facts have been established by the witnesses presented by Trinidad Neyra, who are all trustworthy men, and who had absolutely no interest in the final outcome of this case. Two of them are ministers of the Gospel, while three of the attesting witnesses are professional men of irreproachable character, who had known and seen and actually talked to the testatrix. Petitioner Teodora Neyra, half sister of Encarnacion, and her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter of petitioner Maria Jacobo Vda. de Blanco, substantially corroborated the testimony of the witnesses presented by Trinidad Neyra, with reference to the signing of documents, in the bedroom of Encarnacion Neyra, in the afternoon of November 3, 1942. Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz testified, however, that when the thumbmark of Encarnacion Neyra was affixed to the agreement in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as they were in the caida.

But Ceferina de la Cruz also stated that the attesting witnesses signed the documents thumbmarked by Encarnacion Neyra, in the sala near her bed, thus contradicting herself and Teodora Neyra and Presentacion Blanco. Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion Neyra's, thumbmark was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and one Ildefonso del Barrio, when Encarnacion was already dead. The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature of effects of Addison's disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra. According to medical authorities, persons suffering from Addison's disease often live as long as ten (10) years, while others die after a few weeks only, and that as the disease progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients develop tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 12501253; McCrae, Osler's Modern Medicine, 3d ed., Vol. V, pp. 272-279.) And it has been conclusively shown that Encarnacion Neyra died on November 4, 1942, due to a heart attack, at the age of 48, after an illness of about two (2) years. In connection with mental capacity, in several cases, this court has considered the testimony of witnesses, who had known and talked to the testators, more trustworthy than the testimony of the alleged medical experts. Insomnia, in spite of the testimony of two doctors, who testified for the opponents to the probate of a will, to the effect that it tended to destroy mental capacity, was held not to effect the full possession of mental faculties deemed necessary and sufficient for its execution. (Caguioa vs. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, in spite of the physician's testimony to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what was said to him and to communicate his desires. (Samson vs. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will (Amata and Almojuela vs. Tablizo, 48 Phil., 485.) Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental condition at the time of the execution of the will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.) Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning and also at about 6 o'clock in he afternoon of November 3, 1942, Encarnacion Neyra talked to her that they understood each other clearly, thus showing that the testatrix was really of sound mind, at the time of signing and execution of the agreement and will in question.

It may, therefore, be reasonably concluded that the mental faculties of persons suffering from Addison's disease, like the testatrix in this case, remain unimpaired, partly due to the fact that, on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death. Judging by the authorities above cited, the logical conclusion is that Encarnacion Neyra was of sound mind and possessed the necessary testamentary and mental capacity, at the time of the execution of the agreement and will, dated November 3, 1942. The contention that the attesting witnesses were not present, at the time Encarnacion Neyra thumbmarked the agreement and will in question, on her bed, in the sala of the house, as they were allegedly in the caida, is untenable. It has been fully shown that said witnesses were present, at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other at the time of the signing of the documents, but whether they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it all in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the agreement and will in question is equivalent to her signature. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) Teodora Neyra and her principal witnesses are all interested parties, as they are children of legatees named in the will, dated September 14, 1939, but eliminated from the will, dated November 3, 1942. Furthermore, the testimony of Teodora Neyra and her witnesses, to the effect that there could have been no reconciliation between the two sisters, and that the thumbmark of Encarnacion Neyra was affixed to the documents embodying the agreement, while she was sleeping, on November 3, 1942, in their presence; and that her thumbmark was affixed to the will in question, when she was already dead, in the morning of November 4, 1942, within their view, is absolutely devoid of any semblance of truth. Said testimony is contrary to common sense. It violates all sense of proportion. Teodora Neyra and her witnesses could not have told the truth; they have testified to deliberate falsefoods; and they are, therefore, absolutely unworthy of belief. And to the evidence of the petitioners is completely applicable the legal aphorism falsus in uno, falsus in omnibus. (Gonzales vs. Mauricio, 53 Phil., 728, 735.) To show the alleged improbability of reconciliation, and the execution of the two documents, dated November 3, 1942, petitioners have erroneously placed great emphasis on the fact that, up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter enemies. They were banking evidently on the common belief that the hatred of relatives is the most violent. Terrible indeed are the feuds of relatives and difficult the reconciliation; and yet not impossible. They had forgotten that Encarnacion Neyra was a religious woman instructed in the ancient virtues of the Christian faith, and hope and charity, and that to forgive is a divine attribute. They had also forgotten that there could be no more sublime love than that embalmed in tears, as in the case of a reconciliation. It was most natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole blood. The approach of imminent death must have evoked in her the tenderest recollections of family life. And believing perhaps that her little triumphs had not always brought her happiness, and that she had always been just to her sister, who had been

demanding insistently what was her due, Encarnacion finally decided upon reconciliation, as she did not want to go to her eternal rest, with hatred in her heart or wrath upon her head. It was, therefore, most logical that Encarnacion should make Trinidad the benificiary of her generosity, under her last will and testament, and end all her troubles with her, by executing said agreement, and thus depart in perfect peace from the scenes of her earthly labors. It having been shown that the said compromise or agreement had been legally signed and executed by Encarnacion Neyra on November 3, 1942, in the presence of credible and trustworthy witnesses, and that she was compos mentis and possessed the necessary testamentary and mental capacity of the time; the petition for the reconsideration filed by Atty. Lucio Javillonar, on November 23, 1942, on behalf of a client, Encarnacion Neyra, who had been dead since November 4, 1942, and some of her relatives, who have appeared, in accordance with the provisions of section 17 of Rule 3 of the Rules of Court, is hereby denied; and the decision of the Court of Appeals for Manila, dated November 10, 1942, dismissing the appeal, is hereby re-affirmed, without costs. So ordered.

27.G.R. No. L-25966

November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator, and LUZ LOPEZ DE BUENO, heir, appellee, vs. MARGARITA LOPEZ, opponent-appellant. Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant. Araneta and Zaragoza for appellee.

STREET, J.: This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The appellant, Margarita Lopez, claims said half by the intestate succession as next of kin and nearest heir; while the appellee, Luz Lopez de Bueno, claims the same by accredition and in the character of universal heir the will of the decedent. The trial court decided the point of controversy in favor of Luz Lopez de Bueno, and Margariat Lopez appealed. The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed his last will and testament, in the second clause of which he declared: I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno. Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made Vicente F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented by him at the time of his death. Margariat Lopez was a cousin and nearest relative of the decedent. The will referred to, and after having been contested, has been admitted to probate by judicial determination (Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772). Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in effect declares that, with certain exceptions in favor of near relatives, no testamentary provision shall be valid when made by a ward in favor of his guardian before the final accounts of the latter have been approved. This provision is of undoubted application to the situation before us; and the provision made in the will of Tomas Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part, but a special incapacity due to the accidental relation of guardian and ward existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that accretion take place in a testamentary succession, first when the two or more persons are called to the same inheritance or the same portion thereof without special designation of shares; and secondly, when one of the persons so called dies before the testator or renounces the inheritance or is disqualifying to receive it. In the case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same inheritance without special designation of shares. In addition to this, one of the persons named as heir has predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at the time of the testator's death. This article (982) is therefore also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have received in conjunction with her father if he had been alive and qualified to take, but also the half which pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno entitled to the whole estate. The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection attention is directed to article 764 of the Civil Code wherein it is declared, among other things, that a will may be valid even though the person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it is declared, among other things, that legal succession takes place if the heir dies before the testator and also when the heir instituted is disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the share of said disqualified heir. We are the opinion that this contention is untenable and that the appellee clearly has the better right. In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible, giving due effect to all; and in case of conflict between two provisions the more general is to be considered as being limited by the more specific. As between articles 912 and 983, it is obvious that the former is the more general of the two, dealing, as it does, with the general topic of intestate succession while the latter is more specific, defining the particular conditions under which accretion takes place. In case of conflict, therefore, the provisions of the former article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to intestate succession is expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It is true that the same express qualification is not found in subsection 4 of article 912, yet it must be so understood, in view of the rule of interpretation above referred to, by which the more specific is held to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to a vacant portion can only occur when accretion is impossible. The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912, intestate succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder), while, under the last provision in paragraph 2 of article 982, accretion occurs when one of the persons called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn between incapacity to succeed and incapacity to take, and it is contended that the disability of Vicente F. Lopez was such as to bring the case under article 912 rather than 982. We are of the opinion that the case cannot be

made to turn upon so refined an interpretation of the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was not a general disability to succeed but an accidental incapacity to receive the legacy, a consideration which makes a case for accretion rather than for intestate succession. The opinions of the commentators, so far as they have expressed themselves on the subject, tend to the conclusion that the right of accretion with regard to portions of an inheritance left vacant by the death or disqualification of one of the heirs or his renunciation of the inheritance is governed by article 912, without being limited, to the extent supposed in appellant's brief, by provisions of the Code relative to intestate succession (Manresa, Comentarios al Codigo Civil Espaol, 4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if nonexistent at the time of the making of the will, or he renounces the inheritance or legacy, if he dies before the testator, if the condition be not fulfilled, or if he becomes otherwise incapacitated. . . . (Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.)lawphil.net In conclusion it may be worth observing that there has always existed both in the civil and in the common law a certain legal intendment, amounting to a mild presumption, against partial intestacy. In Roman law, as is well known, partial testacy systems a presumption against it, a presumption which has its basis in the supposed intention of the testator. The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.

28. G.R. No. L-56249 May 29, 1987 IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED REV. FATHER TEODORO ARANAS, RAMONA B. VDA. DE ARANAS, ADELIA B. ARANAS-FERNANDEZ, HEIRS OF THE LATE RODULFO B. ARANAS, ETC., ET AL., petitioners, vs. VICENTE B. ARANAS AND HON. LUIS B. MANTA, respondents.

PARAS, J.: This is a petition for certiorari which seeks to declare the orders of respondent Judge dated July 16, 1980 and September 23, 1980 as an exercise of a gross abuse of discretion amounting to lack of jurisdiction, by ruling that the properties under Group C of the testate estate of the late Fr.Teodoro Aranas are subject to remunerative legacies. The antecedent facts of the case are as follows: Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953. He had executed on June 6, 1946 his Last Will and Testament which was admitted to probate on August 31, 1956. In said Last Will and Testament, Fr. Teodoro Aranas stipulated the following: A. The return to Aniceto Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Aniceto Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents. B. The return to Carmelo Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Carmelo Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents. C. The special administration of the remainder of the estate of the testator by Vicente Aranas, a faithful and serviceable nephew and designating him also as recipient of 1/2 of the produce of said properties after deducting the expenses for the administration and the other 1/2 of the produce to be given to the Catholic Church for the eternal repose of the testator's soul. Said pertinent provision 1 reads as follows: Fourth. It is my will that the lands I had bought from other persons should be converged and placed under a "special administrator." The special administrator of these lands, for his office, should receive one half of all the produce from which shall be deducted the expenses for the administration, and the other half of the produce should be received by the Roman Catholic Church and should be spent for my soul, Vicente B. Aranas (Tingting), because he is a faithful and serviceable nephew, should be the first special administrator of said properties, without bond, until his death or until he should not want to hold the said office anymore. Anyone of the sons of my brother Carmelo Aranas can hold the said office of special administrator, and none other than they. Their father, my brother Carmelo Aranas shall be the one to decide who among them shall hold the said office, but upon the death of my said brother Carmelo Aranas, his said

sons will have power to select the one among them ourselves. The special administration is perpetual. The lower court in its Order 2 dated November 17, 1977 ruled, upon petitioners' (in Sp. Proc. No. 303) "Motion for the Declaration of Heirs and Partition; and for Removal of the Administrator (Vicente Aranas) and/or for his Permission to Resign, and appointment of His Successor" that the "perpetual inalienability and administration of the portion of the estate of the late Rev. Fr. Teodoro Aranas, administered by Vicente Aranas, is nun and void after twenty years from January 19, 1954 ... " and declared in the same order the heirs of the late Fr. Teodoro Aranas. It also declared that "the removal of Vicente Aranas will, therefore, not serve the ends of justice and for the best interest of all the heirs, particularly with respect to the portion of the estate taken by the heirs of Aniceto Aranas, represented by the petitioners herein and the rest of the heirs of Carmelo, represented by the intervenors, coheirs of Administrator Vicente Aranas." 3 However, the abovesaid Order was subsequently set aside upon the "Urgent Motion for Reconsideration and to Declare Testate and Intestate Heirs of the late Fr. Teodoro Aranas," filed by the administrator Vicente Aranas on the allegation that said order was violative of due process and without legal and factual basis because only the issue for the removal of the administrator was heard and not the matter of the declaration of heirs. Thus, the lower court declared in its Order, 4 dated July 16, 1980 that the Order dated November 17, 1977 is "set aside and in the interest of justice, reopened in order that other heirs, successors-in-interest of Felino Aranas, 5 could likewise assert their claims, as in the case of the heirs of Aniceto Aranas and Carmelo Aranas." 6 Their Motion for Reconsideration having been denied by the lower court in its order dated September 23, 1980, petitioners now come before Us by certiorari raising the issue that the lower court erred in setting aside its order dated November 17, 1977 and in not applying the provisions on Usufruct of the New Civil Code with respect to the properties referred to as Group "C" in the Last Will and Testament. The court ruled in its questioned order that this particular group of properties (Group "C") is subject to the following: 1. Remunerative legacy by way of usufruct of the net proceeds of 1/2 of the estate after deducting expenses for administration in favor of Vicente Aranas, during his lifetime and shall continue an administrator of the estate, and, who, upon his death or refusal to continue such usufruct, may be succeeded by any of the brothers of the administrator as selected by their father, Carmelo Aranas, if still alive or one selected by his sons if, he, Carmelo, is dead; Pursuant to the Will. (Article 562, 563, 564 and 603 of the New Civil Code). 2. Legacy in favor of the Roman Catholic Church, particularly the Archbishop diocese of Cagayan de Oro City Represented by the Reverend Archbishop Patrick H. Cronin over one-half of the proceeds of the properties under Group "C." (Article 603, New Civil Code) and to last for a period of Fifty years from the effective date of the legacy, Article 605, New Civil Code). (Annex "L-14," p. 87, Rollo) Assailing the aforementioned ruling, petitioners rely heavily on the doctrine laid down in Art. 870 of the New Civil Code to wit: Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.

A cursory reading of the English translation of the Last Will and Testament shows that it was the sincere intention and desire of the testator to reward his nephew Vicente Aranas for his faithful and unselfish services by allowing him to enjoy one-half of the fruits of the testator's third group of properties until Vicente's death and/or refusal to act as administrator in which case, the administration shall pass to anyone chosen by Carmelo Aranas among his sons and upon Carmelo's death, his sons will have the power to select one among themselves. Vicente Aranas therefore as a usufructuary has the right to enjoy the property of his uncle with all the benefits which result from the normal enjoyment (or exploitation) of another's property, with the obligation to return, at the designated time, either the same thing, or in special cases its equivalent. This right of Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as there is a limitation namely his death or his refusal. Likewise his designation as administrator of these properties is limited by his refusal and/or death and therefore it does not run counter to Art. 870 of the Civil Code relied upon by the petitioners. Be it noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising from the usufruct. Neither are the naked owners (the other heirs) of the properties, the usufruct of which has been given to Vicente Aranas prohibited from disposing of said naked ownership without prejudice of course to Vicente's continuing usufruct. To void the designation of Vicente Aranas as usufructuary and/or administrator is to defeat the desire and the dying wish of the testator to reward him for his faithful and unselfish services rendered during the time when said testator was seriously ill or bed-ridden. The proviso must be respected and be given effect until the death or until the refusal to act as such of the instituted usufructuary/administrator, after which period, the property can be properly disposed of, subject to the limitations provided in Art. 863 of the Civil Code concerning a fideicommissary substitution, said Article says: 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 the 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 the time of the death of the testator. It is contended by petitioners that the ruling made by respondent court dated November 17, 1977 was already final and not subject to correction as what was set aside and to be reheard was only regarding the determination of additional heirs. Such contention is not worthy of credence. Respondents in their Memorandum allege and it is not disputed by petitioners that the order of November 17, 1977 has not yet become final because it was received only on January 12, 1978 by the counsel for respondent Vicente Aranas and the Motion for Reconsideration and to declare testamentary and intestate heirs dated January 17, 1978 was filed by the said respondent within the reglementary period. Besides the validity or invalidity of the usufructuary dispositions would affect the determination of heirs. As to petitioners' allegation that the order of July 16, 1980 is without basis, the record shows that during the hearing of the urgent motion for reconsideration and to declare testamentary and intestate heirs, it was proven conclusively by the said respondent Vicente B. Aranas that he was instituted as a remunerative legatee per mandate of the Last Will and Testament by way of usufructuary. Likewise the right of the Roman Catholic Church as the other usufructuary legatee for the duration of the statutory lifetime of a corporation, that is, 50 years from the date of the effectivity of said legacy, was also established. 7 WHEREFORE, the instant petition is hereby dismissed.

29. G.R. No. L-2200

August 2, 1950

In re Will of Victor Bilbao. RAMON N. BILBAO, petitioner-appellant, vs. DALMACIO BILBAO, CLEOFAS BILBAO, EUSEBIA BILBAO, CATALINA BILBAO, FILEMON ABRINGE and FRANCISCO ACADEMIA, oppositors-appellee. Pedro Basa, Lamberto Macias and Francisco R. Capistrano for appellant. Perpetuo A. Sandiong and Quinciano Vailoces for appellees. MONTEMAYOR, J.: This is an appeal from a decision of the Court of First Instance of Negros Oriental denying the petition for admission to probate of the last will and testament of Victor S. Bilbao who died on July 13, 1943, which petition was filed by his widow and cotestator Ramona M. Navarro. The will in question was executed on October 6, 1931, on a single page or sheet by the deceased Victor Bilbao jointly with his wife Ramona M. Navarro. The two testators in their testament directed that "all of our respective private properties both real and personal, and all of our conjugal properties, and any other property belonging to either or both of us, be given and transmitted to anyone or either of us, who may survive the other, or who may remain the surviving spouse of the other." The petition for probate was opposed by one Filemon Abringe, a near relative of the deceased, among other grounds, that the alleged will was executed by the husband and wife for their reciprocal benefit and therefore not valid, and that it was not executed and attested to as required by law. After hearing, the trial court found the will to have been executed conjointly by the deceased husband and wife for their reciprocal benefit, and that a will of that kind is neither contemplated by Act No. 190, known as the Code of Civil Procedure nor permitted by article 669 of the Civil Code which provides: Two or more persons cannot make a will conjointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. The only assignment of error made in the appeal is that "the lower court erred in not finding that a joint and reciprocal will particularly between husband and wife is valid under the present law." The thesis of the appellant is, that "Chapter XXXI, particularly sections 614, 618, Act 190, appears to be a complete enactment on the subject of execution of wills and may thus be regarded as the expression of the whole law thereon, and that it must be deemed to have impliedly repealed the provision of the Civil Code (Title III, Chapter I) on the matter ;" that inasmuch as the present law on wills as embodied in the Code of Civil Procedure has been taken from American law, it should be interpreted in accordance with the said law, and because joint and reciprocal wills are neither regarded as invalid nor on the contrary they are allowed, then article 669 of the Civil Code prohibiting the execution of joint wills whether reciprocal or for the benefit of a third party should be considered as having been repealed and superseded by the new law. We have made a rather extensive study of the cases decided by our Supreme Court covering the field of wills, with particular attention to any reference to or ruling on article 669 of the Civil Code but we have failed to find any case wherein that particular codal provision has been discussed or applied, declaring it either repealed or still in force. The sole question and issue

squarely raised in this appeal is, therefore one of first impression and naturally we are constrained to act and to proceed with care and caution, realizing the importance and farreaching effects of any doctrine to be laid down by us in the present case. We cannot agree to the contention of the appellant that the provisions of the Code of Civil Procedure on wills have completely superseded Chapter I, Title III of the Civil Code on the same subject matter, resulting in the complete repeal of said Civil Code provisions. In the study we have made of this subject, we have found a number of cases decided by this court wherein several articles of the Civil Code regarding wills have not only been referred to but have also been applied side by side with the provisions of the Code of Civil Procedure. In the case of in the matter of the will Kabigting (14 Phil., 463), where the will was executed in the year 1908, articles 662 and 663 of the Civil Code regarding capacity and incapacity of persons to dispose by will, have been cited and applied together with section 618 of the Code of Civil Procedure regarding requisites of wills. In the case of Torres and Lopez De Bueno vs. Lopez (48 Phil., 772), article 666 of the Civil Code regarding mental capacity of the testator has been cited and applied together with section 614 and 634 of the Code of Civil Procedure regarding a will executed in 1924. In the case of Marin vs. Nacianceno (19 Phil., 238), article 667 of the Civil Code was cited in the dissenting opinion of Mr. Justice Torres. In the cases of Postigo vs. Borjal (13 Phil., 240); In re Estate of Calderon (26 Phil., 333); Natividad vs. Gabino (36 Phil., 663) wherein the wills involved had been executed after the enactment of the Code of Civil Procedure, particularly the sections regarding wills, article 675 of the Civil Code regarding interpretation of wills was cited and applied. In the case of Samson vs. Naval (41 Phil., 838), article 739 of the Civil Code regarding revocation of wills has been applied in harmony with section 623 of the Code of Civil Procedure. The will involved was executed in 1915 when the Code of Civil Procedure was already in force. The above-cited authorities all go to show that it is not exactly correct to say that the provisions of the Code of Civil Procedure regarding wills completely cover the subject matter and therefore have superseded the provisions of the Civil Code on the point. It is also contended that in the case of Macrohon Ong Ham vs. Saavedra (51 Phil., 267) a will executed in the year 1923, which was made jointly by husband and wife in the same instrument, was admitted to probate by the Court of First Instance of Zamboanga and the decision was affirmed by this court, thereby proving that this tribunal has disregarded the prohibition regarding the execution of wills conjointly under article 669 of the Civil Code, meaning that said article has already been repealed. After examining said case we find the contention untenable. It is true that the will already described was allowed probate by the trial court, but there was no appeal from the order approving the will on the ground of its validity, but only on the manner the properties involved were to be distributed or otherwise disposed of. The Supreme Court never touched this point of invalidity nor the applicability of article 669 of the Civil Code, but merely ruled that a testator may die both testate and intestate, depending upon the properties sought to be disposed of by him and those to be inherited by his heirs on intestate succession when not covered by the will. As a rule this Tribunal does not pass upon the legality, enforceability, or applicability of a law unless that the point is raised and put in issue, and it is necessary to rule upon it in order to determine the case.

The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is not against public policy. The reason for this provision, especially as regards husbands and wife is that when a will is made jointly or in the same instrument, the spouse who is more aggressive, stronger in will or character and dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or she desires to favor. And, where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless, or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other. Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed, at least not expressly, as well as the consideration that its provisions are not incompatible with those of the Code of Civil Procedure on the subject of wills, we believe and rule that said article 669 of the Civil Code is still in force. And we are not alone in this opinion. Mr. Justice Willard as shown by his notes on the Civil Code, on page 18 believes that this article 669 is still in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33, favorably cite Justice Willard's opinion that this article is still in force. Judge Camus in his book on the Civil Code does not include this article among those he considers repealed. Lastly, we find that this article 669 has been reproduced word for word in article 818 of the New Civil Code (Republic Act No. 386). The implication is that the Philippine Legislature that passed this Act and approved the New Civil Code, including the members of the Code Commission who prepared it, are of the opinion that the provisions of article 669 of the old Civil Code are not incompatible with those of the Code of Civil Procedure. In the case of Testate estate of the late Bernabe Rodriguez (CA-G.R. No. 1627 -R, July 1, 1948; 46 Off. Gaz., reference to this article 669 of the Civil Code, though indirectly. In the will involved therein, the testator Rodriguez instituted his wife his universal heir and the latter in her separate will equally instituted her husband Rodriguez as her universal heir; in other words they were reciprocal beneficiaries in their respective separate wills. Opposition to the probate of the will of Rodriguez was base on the prohibition contained in article 669 of the Civil Code. The Court of Appeals said that what the law prohibits under said article is two or more persons making a will conjointly or in the same instrument and not reciprocity in separate wills. In conclusion, we believe and hold that the provision of the Code of Civil procedure regarding wills have not repealed all the articles of the old Civil Code on the same subject matter, and that article 669 of the Civil Code is not incompatible or inconsistent with said provision of the Article 669 of the Civil Code is still in force. In view of the foregoing, the decision appealed form, is hereby affirmed, with costs.

30. G.R. No. L-2862

April 21, 1952

TESTATE ESTATE OF MARIA ZUIGA VDA. DE PANDO, deceased. JUAN REYES, petitioner-administrator-appellant,

vs. DOLORES ZUIGA VDA. DE VIDAL, oppositor-appellee. Jose Sotelo Mati and Agustin Alvarez Salazar for appellant. Jose Perez Cardenas for appellee. BAUTISTA ANGELO, J.: This concerns the admission to probate of a document claimed to be the last will and testament of Maria Zuiga Vda. de Pando who died in the City of Manila on October 29, 1945. On November 6, 1945, a petition for the probate of said will was filed in the Court of First Instance of Manila. On December 21, 1945, Dolores Zuiga Vda.de Vidal, sister of the deceased, filed an opposition based on several grounds. And, after several days of trial, at which both parties presented their respective evidence, the court rendered its decision disallowing the will on the ground that the signatures of the deceased appearing therein are not genuine, that it was not proven that the deceased knew the Spanish language in which it was written, and that even if the signatures are genuine, the same reveal that the deceased was not of sound mind when she signed the will. From this decision petitioner appealed to this Court. While petitioner imputes nine errors to the lower court, we believe, however, that for purposes of this appeal of discussion of some would be sufficient. Thus, the issues may be boiled down as follows: 1) Whether or not the signatures of the deceased appearing in the will (Exhibit "C") are genuine; 2) whether or not there is evidence to show that the testatrix knew the language in which the will was written; and 3) whether or not the testatrix was of sound and disposing mind when she signed the will. 1. To prove that the will was signed by the testatrix in accordance with law, petitioner presented as witnesses the three persons who attested to the execution of the will. These witnesses are: Cornelia Gonzales de Romero, Quintin Ulpindo and Consuelo B. de Catindig. The first used to provide the deceased with ice every day, and in one of those occasions she went to her house to bring ice, she requested to act witness to the execution of the will. The second was a laborer whose job was is to fix bed made of rattan, and in one of those days he went to the house of the deceased to work, he was asked also to witness the signing of the will. And the third was a neighbor of the deceased for many years who was also requested to act as an instrumental witness. These witnesses testified in their own simple and natural way that the deceased signed the will seated on her bed but over a small table placed near the bed in their presence, and after she had signed it in the places where her signatures appear, they in turn signed it in the presence and in the presence of each other. This is the substance of what they have testified and from an examination of their testimony to the court entertains no doubt that they had told the truth. There is nothing in their testimony which may in any way reflect against their credibility nor has the oppositor proven fact or circumstance which may give rise to the suspicion that they testified out of personal interest or pecuniary consideration. They have impressed the court as simple persons who had intervened in the execution of the will out merely of deference to the testatrix whom they had served for sometime and had known to be a good and respectable woman. What evidence has the oppositor presented to contradict the testimony of these instrumental witnesses? only one expert witness, Jose G. Villanueva, who made a comparative analysis of the signatures appearing in the will in relation to some genuine signatures of the deceased, and in fact testified on the analysis and study he has made of said signatures and submitted a

memorandum on the study and comparison he has made. And in his testimony as well as in his memorandum, this witness has reached the conclusion that the hand that wrote the signatures of the deceased appearing in the will is not the same hand that wrote the genuine signatures he had examined and which he used as basis of his analytical study, thereby concluding that said signatures are not genuine. The lower court gave full faith and credit to the opinion of this expert witness, and decreed as a result that the will cannot be admitted to probate. There are, however, certain important facts and circumstances which make us differ from this opinion of the lower court. In the first place, we find that the opinion of this expert witness has been rebutted by another expert witness Jose C. Espinosa, whose opinion, to our mind, deserves more weight and credence. And our reason for reaching this conclusion is the fact that the standards of the comparison used by Espinosa are more reliable than those used by Villanueva in the comparison are two signatures appearing in two documents executed on November 10, 1942, one signature in an identification card affixed in April 1940, a half signature appearing in a letter written on October 8, 1943, one signature appearing in a letter written on July 16, 1945, and one signature appearing in a letter written on January, 1945, whereas the disputed signatures appearing in the will were affixed on October 29, 1945. On the other hand, the standards used by Espinosa in making his comparative study bear dates much closer to that of the disputed signatures. Thus, he examined four genuine signatures that were affixed on October 16, 1945, other four signatures that were affixed in October 1945, one on January 2, 1945, on January 24, 1945, and one on September 24 1945, He also examined one affixed on March 12, 1941, only for emphasis. The closeness or proximity of the time in which the standards used had been written to that of the suspected signature or document is very important to bring about an accurate analysis and conclusion. the selection of the proper standards of comparison is of paramount importance especially if we consider the age and the state of the health of the author of the questioned signatures. a signature affixed in 1941 may involved characteristics different from those borne by a signature affixed in 1945. And this is because the passing of time and the increase in age may have a decisive influence in the writing characteristics of a person. It for this reasons that the authorities of the opinion that in order to bring about an accurate comparison and analysis, the standard of comparison must be as close as possible in point of time to the suspected signature. Such was not followed in the study made by Villanueva. But such was observed in the study made by Espinosa. He followed the standard practice in handwriting analysis. It is for this reason that we hold that Espinosa's opinion deserves more weight and consideration. The standards should, if possible, have been made by the same time as the suspected document. It is preferable that the standards embraced the time of the origin of the document, so that one part comes from the time after the origin. (Page 423 "Modern Criminal Investigation" by Soderman and O' Connell, 1936, Funk and Wagnalls Company, New York and London.) If possible less than five or six signatures should always be examined and preferably double that number." (Page 139, Forensic Chemistry and Scientific Criminal Investigation by Lucas, 1935, Edward Arnold & Co., London.) 2. Another ground on which the lower court base the disallowance of the will is the failure of the petitioner to prove that the testratrix knew and spoke the language in which the will in question appears to have been written. According to the lower court, the law requires that the will should be written in the dialect or language known to the testator and this fact having been proven, the probate of the will must fail. And the wall was disallowed.

There is indeed nothing in the testimony of the witnesses presented by the petitioner which would indicate that the testatrix knew and spoke the Spanish language used in the preparation of the will in question. But, in our opinion, this failure alone does not in itself suffice to conclude that this important requirement of the law has not been complied with, it appearing that there is enough evidence on record which supplies this technical omission. In the first place, we have the undisputed fact that the deceased was a mestiza espaola, was married to a Spaniard, Recaredo Pando, and made several trips to Spain. In the second place, we have the very letters submitted as evidence by the oppositor written in Spanish by the deceased possessed the Spanish language, oppositor cannot now be allowed to allege the contrary. These facts give rise to the presumption that the testatrix knew the language in which the testament has been written, which presumption should stand unless the contrary is proven (Abangan vs. Abangan, 40 Phil., 476; Gonzales vs. Laurel, 46 Phil. 750). And this presumption has not been overcome. And finally, we have the very attestation clause of the will which states that the testatrix knew and possessed the Spanish language. It is true that this matter is not required to be stated in the attestation clause, but its inclusion can only mean that the instrumental witnesses wanted to make it of record that the deceased knew the language in which the will was written. There is, therefore, no valid reason why the will should be avoided on this ground. 3. The remaining ground which the lower court has considered in disallowing the will is the fact that the deceased was not of sound and disposing mind when she signed the will, and it reached this conclusion, not because of any direct evidence on the matter, but simply because the deceased signed the will in a somewhat varied form. On this point the lower court said: El Juzgado es de opinion que aunque se admita que las firmas arriba indicadas feuran de Maria Zuiga Vda.de Pando, las mismas revelan que ella no estabe en el pleno de sus facultades mentales cuando la hicieron firmar el documento, Exhibit C, pues el hecho de que en una sola ocasion la repetida Maria Zuiga Vda. de Pando firmo dos veces, sin escribir su verdadero nombre, demuestra que ella no se daba cuenta de sus actos por no hallarse mentalmente sana. Si esto es asi, no se debe legalizar como testamento y ultima voluntad de la finada Maria Zuiga Vda. de Pando el documento, Exhibit C, porque el Articulo 614 de la Ley 190 y el Articulo 12, Reglamentos de los Tribunales, disponen que solamente pueden otorgar testamento las personas que al tiempo de su otorgamiento estaban en el pleno goce de sus facultades mentales. The above conclusion is contrary to what the instrumental witnesses have said on this point. Cornelio Gonzales de Romero stated that she spoke to the deceased before the signing of the will, and judging from the way she spoke she was of the impression that the deceased was of sound mind at the time. To the same effect is the testimony of Consuelo B. de Catindig. She said that her impression when the deceased signed the will was that she could still talk and read, only that she was weak. In fact she read the will before signing it. These statements had not been contradicted. They give an idea of the mental had not contradicted. They give an idea of mental condition of the deceased in the will differ from each other in certain respects, this is only due to her age and state of health rather than to a defective mental condition. They do not reveal a condition of forgery or lack of genuineness. These differences or irregularities are common in the writings of old people and, far from showing lack of genuineness, are indicative of the age, sickness, or weak condition of the writer. A comparison of the three disputed signatures in the will readily give this impression. Abbreviated, distorted and illegible, forms, which are sufficiently free and rapid, often actually indicate genuineness rather than forgery even though they are very unusual and not exactly like those in the standard writing. Those who write of difficulty or hesitation through some physical

infirmity may sometimes produced broken and unfinished signatures and these results, which in themselves are distinctly divergent as compared with signatures produced under conditions of strength and health, may forcefully indicate genuineness . Under conditions of weakness due to diseased or age, parts of a genuine signature may be clumsily written over a second time not at just the same place and in a way when clearly shows that the writer either could not see or was so week and inattentive as not to care what the result might be. This careless, perfectly evident repetition (figure 184), unlike the painstaking and delicate retouching of the forger, often indicates genuineness. (Page 365, Questioned Documents by Osborne, 2nd Edition, 1927.) We are, therefore, of the opinion that the lower court erred in disallowing the will Exhibit C. Wherefore, the decision appealed from is hereby reversed. The Court admits the will Exhibit C to probate, and remands these case to the lower court for further proceedings, with costs against the appellee.