1

G.R. No. 126334 November 23, 2001

EMILIO EMNACE, petitioner,
vs.
COURT OF APPEALS, ESTATE OF VICENTE TABANAO, SHERWIN TABANAO,
VICENTE WILLIAM TABANAO, JANETTE TABANAO DEPOSOY, VICENTA MAY
TABANAO VARELA, ROSELA TABANAO and VINCENT
TABANAO,respondents.
YNARES-SANTIAGO, J.:
Petitioner Emilio Emnace, Vicente Tabanao and Jacinto Divinagracia
were partners in a business concern known as Ma. Nelma Fishing
Industry. Sometime in January of 1986, they decided to dissolve their
partnership and executed an agreement of partition and distribution of
the partnership properties among them, consequent to Jacinto
Divinagracia's withdrawal from the partnership.
1
Among the assets to be
distributed were five (5) fishing boats, six (6) vehicles, two (2) parcels of
land located at Sto. Nio and Talisay, Negros Occidental, and cash
deposits in the local branches of the Bank of the Philippine Islands and
Prudential Bank.
Throughout the existence of the partnership, and even after Vicente
Tabanao's untimely demise in 1994, petitioner failed to submit to
Tabanao's heirs any statement of assets and liabilities of the partnership,
and to render an accounting of the partnership's finances. Petitioner also
reneged on his promise to turn over to Tabanao's heirs the deceased's
1/3 share in the total assets of the partnership, amounting to
P30,000,000.00, or the sum of P10,000,000.00, despite formal demand for
payment thereof.
2

Consequently, Tabanao' s heirs, respondents herein, filed against
petitioner an action for accounting, payment of shares, division of assets
and damages.
3
In their complaint, respondents prayed as follows:
1. Defendant be ordered to render the proper accounting of
all the assets and liabilities of the partnership at bar; and
2. After due notice and hearing defendant be ordered to
pay/remit/deliver/surrender/yield to the plaintiffs the following:
A. No less than One Third (1/3) of the assets,
properties, dividends, cash, land(s), fishing vessels,
trucks, motor vehicles, and other forms and
substance of treasures which belong and/or should
belong, had accrued and/or must accrue to the
partnership;
B. No less than Two Hundred Thousand Pesos
(P200,000.00) as moral damages;
C. Attorney's fees equivalent to Thirty Percent (30%)
of the entire share/amount/award which the
Honorable Court may resolve the plaintiffs as entitled
to plus P1,000.00 for every appearance in court.
4

Petitioner filed a motion to dismiss the complaint on the grounds of
improper venue, lack of jurisdiction over the nature of the action or suit,
and lack of capacity of the estate of Tabanao to sue.
5
On August 30,
1994, the trial court denied the motion to dismiss. It held that venue was
properly laid because, while realties were involved, the action was
directed against a particular person on the basis of his personal liability;
hence, the action is not only a personal action but also an action in
personam. As regards petitioner's argument of lack of jurisdiction over
the action because the prescribed docket fee was not paid considering
the huge amount involved in the claim, the trial court noted that a
request for accounting was made in order that the exact value of the
partnership may be ascertained and, thus, the correct docket fee may
be paid. Finally, the trial court held that the heirs of Tabanao had aright
to sue in their own names, in view of the provision of Article 777 of the
Civil Code, which states that the rights to the succession are transmitted
from the moment of the death of the decedent.
6

The following day, respondents filed an amended
complaint,
7
incorporating the additional prayer that petitioner be
ordered to "sell all (the partnership's) assets and thereafter
pay/remit/deliver/surrender/yield to the plaintiffs" their corresponding
share in the proceeds thereof. In due time, petitioner filed a
manifestation and motion to dismiss,
8
arguing that the trial court did not
acquire jurisdiction over the case due to the plaintiffs' failure to pay the
proper docket fees. Further, in a supplement to his motion to
dismiss,
9
petitioner also raised prescription as an additional ground
warranting the outright dismissal of the complaint.
On June 15, 1995, the trial court issued an Order,
10
denying the motion to
dismiss inasmuch as the grounds raised therein were basically the same
as the earlier motion to dismiss which has been denied. Anent the issue
of prescription, the trial court ruled that prescription begins to run only
upon the dissolution of the partnership when the final accounting is
done. Hence, prescription has not set in the absence of a final
accounting. Moreover, an action based on a written contract prescribes
in ten years from the time the right of action accrues.
Petitioner filed a petition for certiorari before the Court of
Appeals,
11
raising the following issues:
I. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in taking
cognizance of a case despite the failure to pay the required
docket fee;
II. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in insisting to try
the case which involve (sic) a parcel of land situated outside
of its territorial jurisdiction;
III. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in allowing the
estate of the deceased to appear as party plaintiff, when
there is no intestate case and filed by one who was never
appointed by the court as administratrix of the estates; and
IV. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in not dismissing
the case on the ground of prescription.
On August 8, 1996, the Court of Appeals rendered the assailed
decision,
12
dismissing the petition for certiorari, upon a finding that no
grave abuse of discretion amounting to lack or excess of jurisdiction was
committed by the trial court in issuing the questioned orders denying
petitioner's motions to dismiss.
Not satisfied, petitioner filed the instant petition for review, raising the
same issues resolved by the Court of Appeals, namely:
I. Failure to pay the proper docket fee;
II. Parcel of land subject of the case pending before the trial
court is outside the said court's territorial jurisdiction;
III. Lack of capacity to sue on the part of plaintiff heirs of
Vicente Tabanao; and
IV. Prescription of the plaintiff heirs' cause of action.
It can be readily seen that respondents' primary and ultimate objective
in instituting the action below was to recover the decedent's 1/3 share in
the partnership' s assets. While they ask for an accounting of the
partnership' s assets and finances, what they are actually asking is for the
2

trial court to compel petitioner to pay and turn over their share, or the
equivalent value thereof, from the proceeds of the sale of the
partnership assets. They also assert that until and unless a proper
accounting is done, the exact value of the partnership' s assets, as well
as their corresponding share therein, cannot be ascertained.
Consequently, they feel justified in not having paid the commensurate
docket fee as required by the Rules of Court.1wphi1.nt
We do not agree. The trial court does not have to employ guesswork in
ascertaining the estimated value of the partnership's assets, for
respondents themselves voluntarily pegged the worth thereof at Thirty
Million Pesos (P30,000,000.00). Hence, this case is one which is really not
beyond pecuniary estimation, but rather partakes of the nature of a
simple collection case where the value of the subject assets or amount
demanded is pecuniarily determinable.
13
While it is true that the exact
value of the partnership's total assets cannot be shown with certainty at
the time of filing, respondents can and must ascertain, through informed
and practical estimation, the amount they expect to collect from the
partnership, particularly from petitioner, in order to determine the proper
amount of docket and other fees.
14
It is thus imperative for respondents
to pay the corresponding docket fees in order that the trial court may
acquire jurisdiction over the action.
15

Nevertheless, unlike in the case of Manchester Development
Corp. v. Court of Appeals,
16
where there was clearly an effort to defraud
the government in avoiding to pay the correct docket fees, we see no
attempt to cheat the courts on the part of respondents. In fact, the
lower courts have noted their expressed desire to remit to the court "any
payable balance or lien on whatever award which the Honorable Court
may grant them in this case should there be any deficiency in the
payment of the docket fees to be computed by the Clerk of
Court."
17
There is evident willingness to pay, and the fact that the docket
fee paid so far is inadequate is not an indication that they are trying to
avoid paying the required amount, but may simply be due to an inability
to pay at the time of filing. This consideration may have moved the trial
court and the Court of Appeals to declare that the unpaid docket fees
shall be considered a lien on the judgment award.
Petitioner, however, argues that the trial court and the Court of Appeals
erred in condoning the non-payment of the proper legal fees and in
allowing the same to become a lien on the monetary or property
judgment that may be rendered in favor of respondents. There is merit in
petitioner's assertion. The third paragraph of Section 16, Rule 141 of the
Rules of Court states that:
The legal fees shall be a lien on the monetary or property
judgment in favor of the pauper-litigant.
Respondents cannot invoke the above provision in their favor because it
specifically applies to pauper-litigants. Nowhere in the records does it
appear that respondents are litigating as paupers, and as such are
exempted from the payment of court fees.
18

The rule applicable to the case at bar is Section 5(a) of Rule 141 of the
Rules of Court, which defines the two kinds of claims as: (1) those which
are immediately ascertainable; and (2) those which cannot be
immediately ascertained as to the exact amount. This second class of
claims, where the exact amount still has to be finally determined by the
courts based on evidence presented, falls squarely under the third
paragraph of said Section 5(a), which provides:
In case the value of the property or estate or the sum claimed
is less or more in accordance with the appraisal of the court,
the difference of fee shall be refunded or paid as the case
may be. (Underscoring ours)
In Pilipinas Shell Petroleum Corporation v. Court of Appeals,
19
this Court
pronounced that the above-quoted provision "clearly contemplates an
Initial payment of the filing fees corresponding to the estimated amount
of the claim subject to adjustment as to what later may be
proved."
20
Moreover, we reiterated therein the principle that the
payment of filing fees cannot be made contingent or dependent on the
result of the case. Thus, an initial payment of the docket fees based on
an estimated amount must be paid simultaneous with the filing of the
complaint. Otherwise, the court would stand to lose the filing fees should
the judgment later turn out to be adverse to any claim of the respondent
heirs.
The matter of payment of docket fees is not a mere triviality. These fees
are necessary to defray court expenses in the handling of cases.
Consequently, in order to avoid tremendous losses to the judiciary, and
to the government as well, the payment of docket fees cannot be
made dependent on the outcome of the case, except when the
claimant is a pauper-litigant.
Applied to the instant case, respondents have a specific claim - 1/3 of
the value of all the partnership assets - but they did not allege a specific
amount. They did, however, estimate the partnership's total assets to be
worth Thirty Million Pesos (P30,000,000.00), in a letter
21
addressed to
petitioner. Respondents cannot now say that they are unable to make
an estimate, for the said letter and the admissions therein form part of
the records of this case. They cannot avoid paying the initial docket fees
by conveniently omitting the said amount in their amended complaint.
This estimate can be made the basis for the initial docket fees that
respondents should pay. Even if it were later established that the amount
proved was less or more than the amount alleged or estimated, Rule 141,
Section 5(a) of the Rules of Court specifically provides that the court may
refund the 'excess or exact additional fees should the initial payment be
insufficient. It is clear that it is only the difference between the amount
finally awarded and the fees paid upon filing of this complaint that is
subject to adjustment and which may be subjected to alien.
In the oft-quoted case of Sun Insurance Office, Ltd. v. Hon. Maximiano
Asuncion,
22
this Court held that when the specific claim "has been left for
the determination by the court, the additional filing fee therefor shall
constitute a lien on the judgment and it shall be the responsibility of the
Clerk of Court or his duly authorized deputy to enforce said lien and
assess and collect the additional fee." Clearly, the rules and
jurisprudence contemplate the initial payment of filing and docket fees
based on the estimated claims of the plaintiff, and it is only when there is
a deficiency that a lien may be constituted on the judgment award until
such additional fee is collected.
Based on the foregoing, the trial court erred in not dismissing the
complaint outright despite their failure to pay the proper docket fees.
Nevertheless, as in other procedural rules, it may be liberally construed in
certain cases if only to secure a just and speedy disposition of an action.
While the rule is that the payment of the docket fee in the proper
amount should be adhered to, there are certain exceptions which must
be strictly construed.
23

In recent rulings, this Court has relaxed the strict adherence to
the Manchester doctrine, allowing the plaintiff to pay the proper docket
fees within a reasonable time before the expiration of the applicable
prescriptive or reglementary period.
24

In the recent case of National Steel Corp. v. Court of Appeals,
25
this
Court held that:
The court acquires jurisdiction over the action if the filing of the
initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the filing
of the pleading, as of the time of full payment of the fees
within such reasonable time as the court may grant, unless, of
course, prescription has set in the meantime.
It does not follow, however, that the trial court should have
dismissed the complaint for failure of private respondent to
pay the correct amount of docket fees. Although the payment
of the proper docket fees is a jurisdictional requirement, the
trial court may allow the plaintiff in an action to pay the same
within a reasonable time before the expiration of the
applicable prescriptive or reglementary period. If the plaintiff
fails to comply within this requirement, the defendant should
3

timely raise the issue of jurisdiction or else he would be
considered in estoppel. In the latter case, the balance
between the appropriate docket fees and the amount
actually paid by the plaintiff will be considered a lien or any
award he may obtain in his favor. (Underscoring ours)
Accordingly, the trial court in the case at bar should determine the
proper docket fee based on the estimated amount that respondents
seek to collect from petitioner, and direct them to pay the same within a
reasonable time, provided the applicable prescriptive or reglementary
period has not yet expired, Failure to comply therewith, and upon
motion by petitioner, the immediate dismissal of the complaint shall issue
on jurisdictional grounds.
On the matter of improper venue, we find no error on the part of the trial
court and the Court of Appeals in holding that the case below is a
personal action which, under the Rules, may be commenced and tried
where the defendant resides or may be found, or where the plaintiffs
reside, at the election of the latter.
26

Petitioner, however, insists that venue was improperly laid since the
action is a real action involving a parcel of land that is located outside
the territorial jurisdiction of the court a quo. This contention is not well-
taken. The records indubitably show that respondents are asking that the
assets of the partnership be accounted for, sold and distributed
according to the agreement of the partners. The fact that two of the
assets of the partnership are parcels of land does not materially change
the nature of the action. It is an action in personam because it is an
action against a person, namely, petitioner, on the basis of his personal
liability. It is not an action in rem where the action is against the thing
itself instead of against the person.
27
Furthermore, there is no showing
that the parcels of land involved in this case are being disputed. In fact,
it is only incidental that part of the assets of the partnership under
liquidation happen to be parcels of land.
The time-tested case of Claridades v. Mercader, et al.,
28
settled this issue
thus:
The fact that plaintiff prays for the sale of the assets of the
partnership, including the fishpond in question, did not change
the nature or character of the action, such sale being merely a
necessary incident of the liquidation of the partnership, which
should precede and/or is part of its process of dissolution.
The action filed by respondents not only seeks redress against petitioner.
It also seeks the enforcement of, and petitioner's compliance with, the
contract that the partners executed to formalize the partnership's
dissolution, as well as to implement the liquidation and partition of the
partnership's assets. Clearly, it is a personal action that, in effect, claims a
debt from petitioner and seeks the performance of a personal duty on
his part.
29
In fine, respondents' complaint seeking the liquidation and
partition of the assets of the partnership with damages is a personal
action which may be filed in the proper court where any of the parties
reside.
30
Besides, venue has nothing to do with jurisdiction for venue
touches more upon the substance or merits of the case.
31
As it is, venue
in this case was properly laid and the trial court correctly ruled so.
On the third issue, petitioner asserts that the surviving spouse of Vicente
Tabanao has no legal capacity to sue since she was never appointed as
administratrix or executrix of his estate. Petitioner's objection in this regard
is misplaced. The surviving spouse does not need to be appointed as
executrix or administratrix of the estate before she can file the action.
She and her children are complainants in their own right as successors of
Vicente Tabanao. From the very moment of Vicente Tabanao' s death,
his rights insofar as the partnership was concerned were transmitted to
his heirs, for rights to the succession are transmitted from the moment of
death of the decedent.32
Whatever claims and rights Vicente Tabanao had against the
partnership and petitioner were transmitted to respondents by operation
of law, more particularly by succession, which 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.
33
Moreover,
respondents became owners of their respective hereditary shares from
the moment Vicente Tabanao died.
34

A prior settlement of the estate, or even the appointment of Salvacion
Tabanao as executrix or administratrix, is not necessary for any of the
heirs to acquire legal capacity to sue. As successors who stepped into
the shoes of their decedent upon his death, they can commence any
action originally pertaining to the decedent.
35
From the moment of his
death, his rights as a partner and to demand fulfillment of petitioner's
obligations as outlined in their dissolution agreement were transmitted to
respondents. They, therefore, had the capacity to sue and seek the
court's intervention to compel petitioner to fulfill his obligations.
Finally, petitioner contends that the trial court should have dismissed the
complaint on the ground of prescription, arguing that respondents'
action prescribed four (4) years after it accrued in 1986. The trial court
and the Court of Appeals gave scant consideration to petitioner's hollow
arguments, and rightly so.
The three (3) final stages of a partnership are: (1) dissolution; (2) winding-
up; and (3) termination.
36
The partnership, although dissolved, continues
to exist and its legal personality is retained, at which time it completes
the winding up of its affairs, including the partitioning and distribution of
the net partnership assets to the partners.
37
For as long as the partnership
exists, any of the partners may demand an accounting of the
partnership's business. Prescription of the said right starts to run only upon
the dissolution of the partnership when the final accounting is done.
38

Contrary to petitioner's protestations that respondents' right to inquire
into the business affairs of the partnership accrued in 1986, prescribing
four (4) years thereafter, prescription had not even begun to run in the
absence of a final accounting. Article 1842 of the Civil Code provides:
The right to an account of his interest shall accrue to any
partner, or his legal representative as against the winding up
partners or the surviving partners or the person or partnership
continuing the business, at the date of dissolution, in the
absence of any agreement to the contrary.
Applied in relation to Articles 1807 and 1809, which also deal with the
duty to account, the above-cited provision states that the right to
demand an accounting accrues at the date of dissolution in the
absence of any agreement to the contrary. When a final accounting is
made, it is only then that prescription begins to run. In the case at bar, no
final accounting has been made, and that is precisely what respondents
are seeking in their action before the trial court, since petitioner has
failed or refused to render an accounting of the partnership's business
and assets. Hence, the said action is not barred by prescription.
In fine, the trial court neither erred nor abused its discretion when it
denied petitioner's motions to dismiss. Likewise, the Court of Appeals did
not commit reversible error in upholding the trial court's orders. Precious
time has been lost just to settle this preliminary issue, with petitioner
resurrecting the very same arguments from the trial court all the way up
to the Supreme Court. The litigation of the merits and substantial issues of
this controversy is now long overdue and must proceed without further
delay.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED for
lack of merit, and the case is REMANDED to the Regional Trial Court of
Cadiz City, Branch 60, which is ORDERED to determine the proper docket
fee based on the estimated amount that plaintiffs therein seek to collect,
and direct said plaintiffs to pay the same within a reasonable time,
provided the applicable prescriptive or reglementary period has not yet
expired. Thereafter, the trial court is ORDERED to conduct the
appropriate proceedings in Civil Case No. 416-C.
Costs against petitioner.1wphi1.nt
SO ORDERED.
4

G.R. No. L-50261 May 31, 1982
IN THE MATTER OF GUARDIANSHIP OF THE MINORS CECILIA, REBECCA,
FLORIDA, RAPHAEL, RODOLFO, LUISITO, TEODORO, all surnamed LAVIDES,
ALBERTO C. LAVIDES, petitioner,
vs.
CITY COURT OF LUCENA, Branch I, respondent.
DE CASTRO, J.:
This is a petition for review on certiorari of the two (2) orders of
respondent City Court of Lucena, Branch I, one dated December 5, 1978
dismissing petitioner's petition for guardianship for lack of jurisdiction and
the other, dated December 27, 1978 denying petitioner's motion for
reconsideration of the order of December 5, 1978.
There is no dispute as to the following facts:
Upon the death of his wife, petitioner Alberto Lavides instituted on April 5,
1971 before respondent City Court a guardianship proceeding (Special
Proceeding No. 0609) with respect to the person and property of their
seven (7) minor children named Cecilia, Rebecca, Florida, Raphael,
Rodolfo, Luisito and Teodoro, all surnamed Lavides. Said petition alleged
that the estate left by the deceased wife of herein petitioner, mother of
the above- named minors, has a total value of thirty-five thousand pesos
(P35,000.00) or an amount of P5,000.00 pertaining to each minor.
Although there had been no previous settlement of the estate of the
deceased, petitioner was appointed and qualified as judicial guardian
on May 10, 1971.
On June 23, 1971, respondent City Court, then presided by Honorable
Judge Filemon Juntereal, upon motion, authorized petitioner to settle the
estate extrajudicially and to sell a portion thereof consisting of shares of
stocks. Pursuant to said authority, petitioner extrajudicially settled the
estate, and on August 28, 1971, sold the said shares of stocks for the sum
of P64,512.00
On November 22, 1978, petitioner filed a motion for confirmation and
approval of a Deed of Exchange Agreement dated November 18, 1978.
While this latter motion was still pending consideration, the respondent
court, now presided by Honorable Judge Jose J. Parentela, Jr., reviewed
the records of the case and finding that the undivided estate left by the
deceased was worth at least P35,000.00, dismissed the case in an Order
dated December 5, 1978, for lack of jurisdiction, revoked the
appointment of petitioner as guardian and annulled all proceedings
taken prior to the issuance of the said order of December 5, 1978.
Petitioner filed a motion for reconsideration of said order which was
denied by respondent city court in its order dated December 27, 1978.
Hence, this instant petition, petitioner raising the following issues, namely:
a. Whether or not respondent city court's jurisdiction
over a petition for general guardianship is based on
the total value of the estate or on the value of the
individual share of the minors in the estate of their
deceased mother; and
b. Whether or not the promulgation of the Revised
Rules of Court which was made effective on January
1, 1964 overruled the doctrine laid down by this
Honorable Tribunal in the case of "Delgado vs.
Gamboa," G. R. No. L-14326, February 28, 1962, 4
SCRA 505.
It appears that respondent city court dismissed the petition for
guardianship on ground of lack of jurisdiction 1) because a perusal of
the records of the case shows that the undivided estate left by the
deceased is worth P35,000.00 which is clearly outside its jurisdiction,
pursuant to Section 1, Rule 92 of the Revised Rules of Court, and 2)
because of this Court's ruling in the case of Delgado vs. Gamboa, supra,
to the effect that the concurrent jurisdiction of the Justice of the Peace
Courts with the Court of First Instance over the guardianship of the
person and properties of the minors and incompetents cannot be
exercised when the estate has a value in excess of the jurisdictional
amount for the former courts.
Petitioner, on the other hand, contends that in the case of petition for
guardianship of more than one minor, the individual share of each minor
which is then the estate of said minors determines the jurisdiction of the
court pursuant to Section 1, Rule 92 of the Revised Rules of Court; that
inasmuch as there are seven (7) minor children sought to be placed
under guardianship and that the total value of the estate is P35,000.00,
then by simple mathematical computation, the value of the property of
each minor is P5,000.00, already a determined estate, which is well within
the jurisdiction of the respondent city court; that the case of Delgado vs.
Gamboa, promulgated in 1962, invoked by respondent city court in
dismissing his petition has been overruled and abandoned by the
promulgation of the Revised Rules of Court, which took effect in 1964.
Section 1, Rule 92 of the Revised Rules of Court granting concurrent
jurisdiction to the municipal and city courts with the Court of First
Instance in the appointment of guardians, provides:
Section 1. Where to institute proceedings.
Guardianship of the person or estate of a minor or
incompetent may be instituted in the Court of First
Instance of the province, or in the justice of the
peace court of the municipality, or in the municipal
court of the chartered city where the minor or
incompetent person resides, and if he resides in a
foreign country, in the Court of First Instance of the
province wherein his property or part thereof is
situated; provided, however, that where the value of
the property of such minor or incompetent exceeds
the jurisdiction of the justice of the peace or
municipal court, the proceedings shall be instituted
in the Court of First Instance.
In the City of Manila the proceedings shall be
instituted in the Juvenile and Domestic Relations
Court.
The above section, in clear terms, grants concurrent jurisdiction between
municipal and city court and Courts of First Instance in the appointment
of guardians either with respect to the person or property of the minor or
incompetent, except that where the value of the property of such minor
or incompetent exceeds the jurisdiction of the municipal or city courts,
the guardianship proceedings shall be instituted in the Court of First
Instance. It is clear, therefore, that the value of the property of the minor
or incompetent sought to be placed in guardianship determines which
court has jurisdiction. And that property referred to is the individual
estate of the minor so much so that when there are more than one minor
or in competent sought to be placed under guardianship, what
determines which court has jurisdiction is the value of the individual
property of each minor or incompetent.
In the case at bar, it appears that respondent city court dismissed the
petition for guardianship on ground of lack of jurisdiction because a
perusal of the record of the case shows that the undivided estate left by
the deceased mother is worth P35,000.00 which amount is clearly outside
its jurisdiction. This reasoning must be rejected for it overlooks the fact
that the petition for guardianship filed by herein petitioner before the
respondent city court clearly alleged that the individual estate or share
of each of the seven minor children sought to be placed under
guardianship is P5,000.00, which amount is well within the jurisdiction of
the respondent city court (Section 88, Judiciary Act of 1948, as amended
by R.A. No. 3828). That the respondent city court has jurisdiction over the
case cannot be denied, for the rule is well-settled that jurisdiction of the
court over the subject matter is determined by the allegations of the
complaint and/or petition.
1
That each of the seven (7) minor children
became owner of a one- seventh (1/7) share or an amount of P5,000
from the estate left by the deceased mother valued at P35,000.00 upon
the death of the latter cannot also be denied for Article 777 of the New
5

Civil Code expressly provides that "the rights to the succession are
transmitted from the moment of death of the decedent," and from then
on, the heir becomes the absolute owner of the decedent's property,
subject of the rights and obligations of the decedent and he cannot be
deprived of such right except by methods provided for by law.
2

Respondent city court, however, would also base its dismissal of the case
in the light of this Court's ruling in the case of Delgado vs.
Gamboa, supra, to the effect that the concurrence of jurisdiction
between Courts of First Instance and inferior courts over guardianship of
the minors or incompetents cannot be exercised when the estate has a
value in excess of the jurisdictional amount for the latter courts. The
respondent Court, however, overlooked one vital fact. A more careful
examination of the facts of said case, decided in 1962, reveals that it
involved guardianship proceeding over the person and property of three
(3) minor children of decedent and an undivided estate valued at
P7,000.00. That would make a share of P2,333.33 for each minor child,
which amount is also in excess of the jurisdictional amount for inferior
courts.
3
In the case at bar, there are seven (7) minor children to share in
an undivided estate valued at P35,000.00 or a share of P5,000.00 for
each minor, which amount is well within the jurisdiction of the respondent
city court,
4
which, therefore, cannot validly invoke the case of Delgado
vs. Gamboa to support its dismissal of the petition for guardianship. For
what is decisive is not the total value of the estate of the decedent, but
the value of the individual share of each of the minor heirs for whom a
guardian is sought to be appointed individually not collectively.
But petitioner would contend, as raised in the second issue of this
petition, that the doctrine laid down by this Court in the aforecited case
of Delgado vs. Gamboa, has been overruled by the promulgation of the
Revised Rules of Court, particularly Section 1 of Rule 92, He argued that
the case of Delgado vs. Gamboa, promulgated on February 28, 1962,
was decided when Section 1, Rule 93 of the former Rules of Court was still
effective, which rule commands that guardianship shall be originally
cognizable by the Court of First Instance; that when the Revised Rules of
Court took effect on January 1, 1964, the institution of guardianship
proceedings is now governed by Section 1 of Rule 92 which states that
guardianship proceedings may be instituted in the Courts of First
Instance or in the municipal courts.
A perusal of the case of Delgado vs. Gamboa, decided when Section 1
of former Rule 93, as amended by R.A. No. 643, was still effective, shows
that it merely restated and confirmed the doctrine laid down in the case
of Morales vs. Marquez, G. R. No. L-7463, May 27, 1955, which in effect,
expounded the grant of concurrent jurisdiction between inferior courts
and Court of First Instance, as provided for by R.A. No. 643. And a
comparison of the provisions of Section 1 of former Rule 93, as amended,
and Section 1 of the present Rule 92 shows that the latter rule restates
the former rule. Under the former rule, municipal or city courts have
concurrent jurisdiction with the Court of First Instance in cases where the
value of the property of such minor or incompetent falls within the
jurisdiction of the former courts. Likewise, under the present rule,
concurrent jurisdiction was also granted except that "where the value of
the property of such minor or incompetent exceeds the jurisdiction of the
inferior courts, the proceedings shall, be instituted in the Court of First
Instance." The criterion, therefore, in determining in which court the
guardianship proceeding shall be instituted under the provision of both
the former Rule 93 and the present Rule 92 remains the same. Hence, it
cannot be accurately stated that the Delgado ruling has been
abandoned. In any case, the Delgado doctrine, as already
demonstrated, does not militate against petitioner's contention that the
City has jurisdiction over the instant guardianship case.
Lastly, there is still one aspect of this case which must not be overlooked.
It is not disputed that the respondent City Court has entertained and
granted petitioner's petition for guardianship in its Order as early as May
10, 1971 and has exercised its jurisdiction by granting authority to
petitioner to settle the estate extrajudicially and to sell a portion thereof
consisting of shares of stock; that after the lapse of seven (7) years or on
November 22, 1978, respondent City Court dismissed the case for lack of
jurisdiction, revoked the appointment of petitioner as guardian and
annulled all proceedings taken. Would it serve the interest of justice to
dismiss the case at this stage and let a new petition for guardianship be
filed in another court? To draw a tenuous jurisdictional line is to
undermine stability in litigations. The time to be lost, effort wasted, anxiety
augmented, additional expenses incurredthese are considerations
which weigh heavily if this situation is allowed to happen. As aptly stated
by the petitioner."To let the respondent court reverse its stand now will
pave a pattern of judicial instability which, to reason and logic, is
definitely not healthy administration of justice and not inducive of court's
veneration."
5

IN VIEW OF THE FOREGOING, the Order of respondent City Court of
December 5, 1978 dismissing the petition and the Order of December 27,
1978 denying petitioner's motion for reconsideration thereof are hereby
set aside and the case is remanded to it for further proceedings. No
costs. SO ORDERED.
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and
PONCIANO BONILLA (their father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL
BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and HON.
LEOPOLDO GIRONELLA of the Court of First Instance of Abra, respondents.
MARTIN, J:
This is a petition for review
1
of the Order of the Court of First Instance of
Abra in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena,
et al., denying the motions for reconsideration of its order dismissing the
complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla
and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil
action in the Court of First Instance of Abra, to quiet title over certain
parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the
complaint, but before the hearing of the motion to dismiss, the counsel
for the plaintiff moved to amend the complaint in order to include
certain allegations therein. The motion to amend the complaint was
granted and on July 17, 1975, plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the
complaint on the ground that Fortunata Barcena is dead and, therefore,
has no legal capacity to sue. Said motion to dismiss was heard on August
14, 1975. In said hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena, and asked for substitution by her minor children and
her husband, the petitioners herein; but the court after the hearing
immediately dismissed the case on the ground that a dead person
cannot be a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order
dismissing the complaint and on August 23, 1975, he moved to set aside
the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the
Rules of Court.
2

On August 28, 1975, the court denied the motion for reconsideration filed
by counsel for the plaintiff for lack of merit. On September 1, 1975,
counsel for deceased plaintiff filed a written manifestation praying that
the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute
their deceased mother, but the court denied the counsel's prayer for
lack of merit. From the order, counsel for the deceased plaintiff filed a
second motion for reconsideration of the order dismissing the complaint
claiming that the same is in violation of Sections 16 and 17 of Rule 3 of
the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order
dismissing the complaint in Civil Case No. 856 and its orders denying the
motion for reconsideration of said order of dismissal. While it is true that a
6

person who is dead cannot sue in court, yet he can be substituted by his
heirs in pursuing the case up to its completion. The records of this case
show that the death of Fortunata Barcena took place on July 9, 1975
while the complaint was filed on March 31, 1975. This means that when
the complaint was filed on March 31, 1975, Fortunata Barcena was still
alive, and therefore, the court had acquired jurisdiction over her person.
If thereafter she died, the Rules of Court prescribes the procedure
whereby a party who died during the pendency of the proceeding can
be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever
a party to a pending case dies ... it shall be the duty of his attorney to
inform the court promptly of such death ... and to give the name and
residence of his executor, administrator, guardian or other legal
representatives." This duty was complied with by the counsel for the
deceased plaintiff when he manifested before the respondent Court
that Fortunata Barcena died on July 9, 1975 and asked for the proper
substitution of parties in the case. The respondent Court, however,
instead of allowing the substitution, dismissed the complaint on the
ground that a dead person has no legal personality to sue. This is a grave
error. Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of the
decedent." From the moment of the death of the decedent, the heirs
become the absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law.
3
The moment of
death is the determining factor when the heirs acquire a definite right to
the inheritance whether such right be pure or contingent.
4
The right of
the heirs to the property of the deceased vests in them even before
judicial declaration of their being heirs in the testate or intestate
proceedings.
5
When Fortunata Barcena, therefore, died her claim or
right to the parcels of land in litigation in Civil Case No. 856, was not
extinguished by her death but was transmitted to her heirs upon her
death. Her heirs have thus acquired interest in the properties in litigation
and became parties in interest in the case. There is, therefore, no reason
for the respondent Court not to allow their substitution as parties in
interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the
claim is not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and be
substituted for the deceased, within such time as may be granted ... ."
The question as to whether an action survives or not depends on the
nature of the action and the damage sued for.
6
In the causes of action
which survive the wrong complained affects primarily and principally
property and property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of property
affected being incidental.
7
Following the foregoing criterion the claim of
the deceased plaintiff which is an action to quiet title over the parcels of
land in litigation affects primarily and principally property and property
rights and therefore is one that survives even after her death. It is,
therefore, the duty of the respondent Court to order the legal
representative of the deceased plaintiff to appear and to be substituted
for her. But what the respondent Court did, upon being informed by the
counsel for the deceased plaintiff that the latter was dead, was to
dismiss the complaint. This should not have been done for under the
same Section 17, Rule 3 of the Rules of Court, it is even the duty of the
court, if the legal representative fails to appear, to order the opposing
party to procure the appointment of a legal representative of the
deceased. In the instant case the respondent Court did not have to
bother ordering the opposing party to procure the appointment of a
legal representative of the deceased because her counsel has not only
asked that the minor children be substituted for her but also suggested
that their uncle be appointed as guardian ad litem for them because
their father is busy in Manila earning a living for the family. But the
respondent Court refused the request for substitution on the ground that
the children were still minors and cannot sue in court. This is another
grave error because the respondent Court ought to have known that
under the same Section 17, Rule 3 of the Rules of Court, the court is
directed to appoint a guardian ad litem for the minor heirs. Precisely in
the instant case, the counsel for the deceased plaintiff has suggested to
the respondent Court that the uncle of the minors be appointed to act
as guardian ad litem for them. Unquestionably, the respondent Court
has gravely abused its discretion in not complying with the clear
provision of the Rules of Court in dismissing the complaint of the plaintiff
in Civil Case No. 856 and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court
dismissing the complaint in Civil Case No. 856 of the Court of First
Instance of Abra and the motions for reconsideration of the order of
dismissal of said complaint are set aside and the respondent Court is
hereby directed to allow the substitution of the minor children, who are
the petitioners therein for the deceased plaintiff and to appoint a
qualified person as guardian ad litem for them. Without pronouncement
as to costs.
SO ORDERED.
G.R. No. L-41171 July 23, 1987
INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO-
HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the
Court of First Instance of Cebu, Branch II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000 July 23, 1987
IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N.
BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE
BORROMEO, CONSUELO B. MORALES, AND CANUTO V. BORROMEO,
JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895 July 23, 1987
JOSE CUENCO BORROMEO, petitioner,
vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As
presiding Judge of the (now) Regional Trial Court, Branch XV, Region VII,
RICARDO V. REYES, as Administrator of the Estate of Vito Borromeo in Sp.
Proc. No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L.
ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-63818 July 23, 1987
DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the
Intestate Estate of VITO BORROMEO, Sp. Proceedings No. 916-R, Regional
Trial Court of Cebu, joined by HON. JUDGE FRANCISCO P. BURGOS, as
Presiding Judge of Branch XV of the Regional Trial Court of Cebu, as a
formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and
NUMERIANO ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO,
and PETRA O. BORROMEO,respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995 July 23, 1987
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and
JOSE CUENCO BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV,
Regional Trial Court of Cebu; RICARDO V. REYES, Administrator of the
Estate of VITO BORROMEO in Sp. Proc. No. 916-R; and DOMINGO L.
ANTIGUA,respondents.
7

GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO. 916-R of the then
Court of First Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died
on March 13, 1952, in Paranaque, Rizal at the age of 88 years, without
forced heirs but leaving extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of
Cebu a petition for the probate of a one page document as the last will
and testament left by the said deceased, devising all his properties to
Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and
undivided shares, and designating Junquera as executor thereof. The
case was docketed as Special Proceedings No. 916-R. The document,
drafted in Spanish, was allegedly signed and thumbmarked by the
deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna,
and Felixberto Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after
due trial, the probate court held that the document presented as the will
of the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing
the probate of the will was affirmed in Testate Estate of Vito Borromeo,
Jose H. Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings.
Several parties came before the court filing claims or petitions alleging
themselves as heirs of the intestate estate of Vito Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and
Cosme Borromeo filed a petition for declaration of heirs and
determination of heirship. There was no opposition filed against
said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a
petition for declaration as heir. The heirs of Jose Ma. Borromeo
and Cosme Borromeo filed an opposition to this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita
Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo,
Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre,
Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition
for declaration of heirs and determination of shares. The
petition was opposed by the heirs of Jose and Cosme
Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz
Borromeo, Hermenegilda Borromeo Nonnenkamp, Rosario
Borromeo, and Fe Borromeo Queroz filed a claim. Jose
Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and
the heirs of Carlos Borromeo represented by Jose Talam filed
oppositions to this claim.
When the aforementioned petitions and claims were heard jointly, the
following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the
latter having predeceased the former), were survived by their eight (8)
children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any issue,
and all his brothers and sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following children:
a. Ismaela Borromeo,who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after
the death of Vito Borromeo. He was married to Remedios
Cuenco Borromeo, who died on March 28, 1968. He had an
only son-Atty. Jose Cuenco Borromeo one of the petitioners
herein.
c. Crispin Borromeo, who is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left
an only daughter, Aurora B. Ocampo, who died on Jan. 30, 1950 leaving
the following children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla (deceased), survived by
claimant Jose Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died before the
war and left the following children:
a. Marcial Borromeo
b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his
wife, Remedios Alfonso, and his only daughter, Amelinda
Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
8

6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the
war and left the following children:
a. Exequiel Borromeo,who died on December 29, 1949
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the
following children:
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.
dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo
hh. Patrocinio Borromeo Herrera
c. Maximo Borromeo, who died in July, 1948
d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by
his children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo Nonnenkamp
dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued
an order declaring the following, to the exclusion of all others, as the
intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo
8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of Vito
Borromeo shall be divided into 4/9 and 5/9 groups and distributed in
equal and equitable shares among the 9 abovenamed declared
intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties
of the deceased Vito Borromeo which was approved by the trial court,
in its order of August 15, 1969. In this same order, the trial court ordered
the administrator, Atty Jesus Gaboya, Jr., to partition the properties of
the deceased in the way and manner they are divided and partitioned
in the said Agreement of Partition and further ordered that 40% of the
market value of the 4/9 and 5/9 of the estate shall be segregated. All
attorney's fees shall be taken and paid from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier
claimed as heir under the forged will, filed a motion before the trial court
praying that he be declared as one of the heirs of the deceased Vito
Borromeo, alleging that he is an illegitimate son of the deceased and
that in the declaration of heirs made by the trial court, he was omitted,
in disregard of the law making him a forced heir entitled to receive a
legitime like all other forced heirs. As an acknowledged illegitimate child,
he stated that he was entitled to a legitime equal in every case to four-
fifths of the legitime of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already barred by
the order of the court dated April 12, 1969 declaring the persons named
therein as the legal heirs of the deceased Vito Borromeo, the court
dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for reconsideration,
Fortunato changed the basis for his claim to a portion of the estate. He
asserted and incorporated a Waiver of Hereditary Rights dated July 31,
1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose
Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio
Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V.
Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B.
Talam In the waiver, five of the nine heirs relinquished to Fortunato their
shares in the disputed estate. The motion was opposed on the ground
that the trial court, acting as a probate court, had no jurisdiction to take
cognizance of the claim; that respondent Fortunato Borromeo is
estopped from asserting the waiver agreement; that the waiver
agreement is void as it was executed before the declaration of heirs;
that the same is void having been executed before the distribution of
the estate and before the acceptance of the inheritance; and that it is
void ab initio and inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that
the five declared heirs who signed the waiver agreement assigning their
hereditary rights to Fortunato Borromeo had lost the same rights,
declared the latter as entitled to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the trial
court's order dated December 24, 1974, declaring respondent Fortunato
Borromeo entitled to 5/9 of the estate of Vito Borromeo and the July 7,
1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no jurisdiction to take
cognizance of the claim of respondent Fortunato Borromeo because it is
not a money claim against the decedent but a claim for properties, real
and personal, which constitute all of the shares of the heirs in the
decedent's estate, heirs who allegedly waived their rights in his favor. The
claim of the private respondent under the waiver agreement, according
to the petitioner, may be likened to that of a creditor of the heirs which is
improper. He alleges that the claim of the private respondent under the
waiver agreement was filed beyond the time allowed for filing of claims
as it was filed only sometime in 1973, after there had been a declaration
of heirs (April 10, 1969), an agreement of partition (April 30, 1969), the
approval of the agreement of partition and an order directing the
9

administrator to partition the estate (August 15, 1969), when in a mere
memorandum, the existence of the waiver agreement was brought out.
It is further argued by the petitioner that the document entitled " waiver
of Hereditary Rights" executed on July 31, 1967, aside from having been
cancelled and revoked on June 29, 1968, by Tomas L. Borromeo,
Fortunato Borromeo and Amelia Borromeo, is without force and effect
because there can be no effective waiver of hereditary rights before
there has been a valid acceptance of the inheritance the heirs intend to
transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance
or repudiation of inheritance valid, the person must be certain of the
death of the one from whom he is to inherit and of his right to the
inheritance. Since the petitioner and her co-heirs were not certain of
their right to the inheritance until they were declared heirs, their rights
were, therefore, uncertain. This view, according to the petitioner, is also
supported by Article 1057 of the same Code which directs heirs,
devicees, and legatees to signify their acceptance or repudiation within
thirty days after the court has issued an order for the distribution of the
estate.
Respondent Fortunato Borromeo on the other hand, contends that
under Article 1043 of the Civil Code there is no need for a person to be
first declared as heir before he can accept or repudiate an inheritance.
What is required is that he must first be certain of the death of the person
from whom he is to inherit and that he must be certain of his right to the
inheritance. He points out that at the time of the signing of the waiver
document on July 31, 1967, the signatories to the waiver document were
certain that Vito Borromeo was already dead as well as of their rights to
the inheritance as shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the
validity of the waiver of hereditary rights, respondent Borromeo asserts
that since the waiver or renunciation of hereditary rights took place after
the court assumed jurisdiction over the properties of the estate it
partakes of the nature of a partition of the properties of the estate
needing approval of the court because it was executed in the course of
the proceedings. lie further maintains that the probate court loses
jurisdiction of the estate only after the payment of all the debts of the
estate and the remaining estate is distributed to those entitled to the
same.
The prevailing jurisprudence on waiver of hereditary rights is that "the
properties included in an existing inheritance cannot be considered as
belonging to third persons with respect to the heirs, who by fiction of law
continue the personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a right to
succession from the moment of the death of the deceased, by principle
established 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
death. More or less, time may elapse from the moment of the death of
the deceased until the heirs enter into possession of the hereditary
property, but the acceptance in any event retroacts to the moment of
the death, in accordance with article 989 of the Civil Code. The right is
vested, although conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v. Osorio and Ynchausti
Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their
hereditary rights in 1967 even if the order to partition the estate was
issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot
be considered to be effective. For a waiver to exist, three elements are
essential: (1) the existence of a right; (2) the knowledge of the existence
thereof; and (3) an intention to relinquish such right. (People v. Salvador,
(CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or
advantage must be shown clearly and convincingly, and when the only
proof of intention rests in what a party does, his act should be so
manifestly consistent with, and indicative of an intent to, voluntarily
relinquish the particular right or advantage that no other reasonable
explanation of his conduct is possible (67 C.J., 311). (Fernandez v.
Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver
document did not have the clear and convincing intention to relinquish
their rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and Amelia
Borromeo filed a pleading entitled "Compliance" wherein they submitted
a proposal for the amicable settlement of the case. In that Compliance,
they proposed to concede to all the eight (8) intestate heirs of Vito
Borromeo all properties, personal and real, including all cash and sums of
money in the hands of the Special Administrator, as of October 31, 1967,
not contested or claimed by them in any action then pending in the
Court of First Instance of Cebu. In turn, the heirs would waive and
concede to them all the 14 contested lots. In this document, the
respondent recognizes and concedes that the petitioner, like the other
signatories to the waiver document, is an heir of the deceased Vito
Borromeo, entitled to share in the estate. This shows that the "Waiver of
Hereditary Rights" was never meant to be what the respondent now
purports it to be. Had the intent been otherwise, there would not be any
reason for Fortunato, Tomas, and Amelia Borromeo to mention the heirs
in the offer to settle the case amicably, and offer to concede to them
parts of the estate of the deceased; (2) On April 21 and 30, 1969, the
majority of the declared heirs executed an Agreement on how the
estate they inherited shall be distributed. This Agreement of Partition was
approved by the trial court on August 15, 1969; (3) On June 29, 1968, the
petitioner, among others, signed a document entitled Deed of
Assignment" purporting to transfer and assign in favor of the respondent
and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights,
interests, and participation as an intestate heir in the estate of the
deceased Vito Borromeo. The stated consideration for said assignment
was P100,000.00; (4) On the same date, June 29, 1968, the respondent
Tomas, and Amelia Borromeo (assignees in the aforementioned deed of
assignment) in turn executed a "Deed of Reconveyance" in favor of the
heirs-assignors named in the same deed of assignment. The stated
consideration was P50,000.00; (5) A Cancellation of Deed of Assignment
and Deed of Reconveyance was signed by Tomas Borromeo and
Amelia Borromeo on October 15, 1968, while Fortunato Borromeo signed
this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had
jurisdiction to pass upon the validity of the waiver agreement. It must be
noted that in Special Proceedings No. 916-R the lower court disallowed
the probate of the will and declared it as fake. Upon appeal, this Court
affirmed the decision of the lower court on March 30, 1967, in G.R. No. L-
18498. Subsequently, several parties came before the lower court filing
claims or petitions alleging themselves as heirs of the intestate estate of
Vito Borromeo. We see no impediment to the trial court in exercising
jurisdiction and trying the said claims or petitions. Moreover, the
jurisdiction of the trial court extends to matters incidental and collateral
to the exercise of its recognized powers in handling the settlement of the
estate.
In view of the foregoing, the questioned order of the trial court dated
December 24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order
of the Court of First Instance of Cebu, Branch 11, dated December 24,
1974, declaring the waiver document earlier discussed in G.R. No. 41171
valid. The appellate court certified this case to this Court as the questions
raised are all of law.
The appellants not only assail the validity of the waiver agreement but
they also question the jurisdiction of the lower court to hear and decide
the action filed by claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was
executed on July 31, 1967, Pilar Borromeo and her children did not yet
possess or own any hereditary right in the intestate estate of the
deceased Vito Borromeo because said hereditary right was only
acquired and owned by them on April 10, 1969, when the estate was
ordered distributed.
They further argue that in contemplation of law, there is no such
contract of waiver of hereditary right in the present case because there
was no object, which is hereditary right, that could be the subject matter
10

of said waiver, and, therefore, said waiver of hereditary right was not
only null and void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that
without any formal pleading filed by the lawyers of Fortunato Borromeo
for the approval of the waiver agreement and without notice to the
parties concerned, two things which are necessary so that the lower
court would be vested with authority and jurisdiction to hear and decide
the validity of said waiver agreement, nevertheless, the lower court set
the hearing on September 25, 1973 and without asking for the requisite
pleading. This resulted in the issuance of the appealed order of
December 24, 1974, which approved the validity of the waiver
agreement. The appellants contend that this constitutes an error in the
exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their
hereditary rights in favor of Fortunato Borromeo, the signatories to the
waiver document tacitly and irrevocably accepted the inheritance and
by virtue of the same act, they lost their rights because the rights from
that moment on became vested in Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code
there is no need for a person to be declared as heir first before he can
accept or repudiate an inheritance. What is required is that he is certain
of the death of the person from whom he is to inherit, and of his right to
the inheritance. At the time of the signing of the waiver document on
July 31, 1967, the signatories to the waiver document were certain that
Vito Borromeo was already dead and they were also certain of their right
to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire
jurisdiction over the claim because of the alleged lack of a pleading
invoking its jurisdiction to decide the claim, the appellee asserts that on
August 23, 1973, the lower court issued an order specifically calling on all
oppositors to the waiver document to submit their comments within ten
days from notice and setting the same for hearing on September 25,
1973. The appellee also avers that the claim as to a 5/9 share in the
inheritance involves no question of title to property and, therefore, the
probate court can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The
appellants in this case, who are all declared heirs of the late Vito
Borromeo are contesting the validity of the trial court's order dated
December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the
estate of Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can
not be validated. The essential elements of a waiver, especially the clear
and convincing intention to relinquish hereditary rights, are not found in
this case.
The October 27, 1967 proposal for an amicable settlement conceding to
all the eight (8) intestate heirs various properties in consideration for the
heirs giving to the respondent and to Tomas, and Amelia Borromeo the
fourteen (14) contested lots was filed inspite of the fact that on July 31,
1967, some of the heirs had allegedly already waived or sold their
hereditary rights to the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968
deed of assignment, the deed of reconveyance, and the subsequent
cancellation of the deed of assignment and deed of reconveyance all
argue against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No.
41171 that the trial court acquired jurisdiction to pass upon the validity of
the waiver agreement because the trial court's jurisdiction extends to
matters incidental and collateral to the exercise of its recognized powers
in handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno,
representative of some of the heirs-distributees, praying for the
immediate closure of Special Proceeding No. 916-R. A similar motion
dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions were
grounded on the fact that there was nothing more to be done after the
payment of all the obligations of the estate since the order of partition
and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to
resolve the aforesaid motions, petitioner Jose Cuenco Borromeo-filed a
petition for mandamus before the Court of Appeals to compel the
respondent judge to terminate and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending
motions to compel the petitioner, as co-administrator, to submit an
inventory of the real properties of the estate and an accounting of the
cash in his hands, pending claims for attorney's fees, and that
mandamus will not lie to compel the performance of a discretionary
function, the appellate court denied the petition on May 14, 1982. The
petitioner's motion for reconsideration was likewise denied for lack of
merit. Hence, this petition.
The petitioner's stand is that the inaction of the respondent judge on the
motion filed on April 28, 1972 for the closure of the administration
proceeding cannot be justified by the filing of the motion for inventory
and accounting because the latter motion was filed only on March 2,
1979. He claimed that under the then Constitution, it is the duty of the
respondent judge to decide or resolve a case or matter within three
months from the date of its submission.
The respondents contend that the motion to close the administration
had already been resolved when the respondent judge cancelled all
settings of all incidents previously set in his court in an order dated June
4, 1979, pursuant to the resolution and restraining order issued by the
Court of Appeals enjoining him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs,
with the exception of Patrocinio B. Herrera, signed an agreement of
partition of the properties of the deceased Vito Borromeo which was
approved by the trial court, in its order dated August 15, 1969. In this
same order, the trial court ordered the administrator, Atty. Jesus
Gaboya, Jr., to partition the properties of the deceased in the way and
manner they are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market value of the 4/9 and
5/9 of the estate shall be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5,
1982, (p. 197, Rollo, G. R. No. 41171) his court has not finally distributed to
the nine (9) declared heirs the properties due to the following
circumstances:
1. The court's determination of the market value of the estate
in order to segregate the 40% reserved for attorney's fees;
2. The order of December 24, 1974, declaring Fortunato
Borromeo as beneficiary of the 5/9 of the estate because of
the waiver agreement signed by the heirs representing the 5/9
group which is still pending resolution by this Court (G.R. No.
4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to render
his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing
annotations of notices of lis pendens on the different titles of
the properties of the estate.
11

Since there are still real properties of the estate that were not vet
distributed to some of the declared heirs, particularly the 5/9 group of
heirs due to the pending resolution of the waiver agreement, this Court in
its resolution of June 15, 1983, required the judge of the Court of First
Instance of Cebu, Branch 11, to expedite the determination of Special
Proceedings No. 916-R and ordered the co-administrator Jose Cuenco
Borromeo to submit an inventory of real properties of the estate and to
render an accounting of cash and bank deposits realized from rents of
several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of
the trial court dated December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to
modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito Borromeo and
ordering the remand of the case to the Executive,Judge of the
Regional trial Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the
respondents from further acting on any and all incidents in
Special proceedings No. 916-11 because of the affirmation of
the decision of the Intermediate Appellate Court in G.R. No.
63818.
the trial court may now terminate and close Special Proceedings No.
916-R, subject to the submission of an inventory of the real properties of
the estate and an accounting of the call and bank deposits of the
petitioner, as co-administrator of the estate, if he has not vet done so, as
required by this Court in its Resolution dated June 15, 1983. This must be
effected with all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0.
Borromeo filed a motion for inhibition in the Court of First Instance of
Cebu, Branch 11, presided over by Judge Francisco P. Burgos to inhibit
the judge from further acting in Special Proceedings No. 916-R. 'The
movants alleged, among others, the following:
x x x x x x x x x
6. To keep the agitation to sell moving, Atty. Antigua filed a
motion for the production of the certificates of title and to
deposit the same with the Branch Clerk of Court, presumably
for the ready inspection of interested buyers. Said motion was
granted by the Hon. Court in its order of October 2, 1978
which, however, became the subject of various motions for
reconsideration from heirs-distributees who contended that as
owners they cannot be deprived of their titles for the flimsy
reasons advanced by Atty, Antigua. In view of the motions for
reconsideration, Atty Antigua ultimately withdraw his motions
for production of titles.
7. The incident concerning the production of titles triggered
another incident involving Atty. Raul H. Sesbreno who was then
the counsel of herein movants Petra O. Borromeo and
Amelinda B. Talam In connection with said incident, Atty.
Sesbreno filed a pleading which the tion. presiding, Judge
Considered direct contempt because among others, Atty.
Sesbreno insinuated that the Hon. Presiding Judge stands to
receive "fat commission" from the sale of the entire property.
Indeed, Atty. Sesbreno was seriously in danger of being
declared in contempt of court with the dim prospect of
suspension from the practice of his profession. But obviously to
extricate himself from the prospect of contempt and
suspension. Atty. Sesbreno chose rapproachment and
ultimately joined forces with Atty. Antigua, et al., who,
together, continued to harass administrator
x x x x x x x x x
9. The herein movants are informed and so they allege, that a
brother of the Hon. Presiding Judge is married to a sister of Atty.
Domingo L. Antigua.
10. There is now a clear tug of war bet ween Atty. Antigua, et
al. who are agitating for the sale of the entire estate or to buy
out the individual heirs, on the one hand, and the herein
movants, on the other, who are not willing to sell their
distributive shares under the terms and conditions presently
proposed. In this tug of war, a pattern of harassment has
become apparent against the herein movants, especially Jose
Cuenco Borromeo. Among the harassments employed by Atty
Antigua et al. are the pending motions for the removal of
administrator Jose Cuenco Borromeo, the subpoena duces
tecum issued to the bank which seeks to invade into the
privacy of the personal account of Jose Cuenco Borromeo,
and the other matters mentioned in paragraph 8 hereof. More
harassment motions are expected until the herein movants
shall finally yield to the proposed sale. In such a situation, the
herein movants beg for an entirely independent and impartial
judge to pass upon the merits of said incidents.
11. Should the Hon. Presiding Judge continue to sit and take
cognizance of this proceeding, including the incidents above-
mentioned, he is liable to be misunderstood as being biased in
favor of Atty Antigua, et al. and prejudiced against the herein
movants. Incidents which may create this impression need not
be enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos. Their
motion for reconsideration having been denied, the private respondents
filed a petition for certiorari and/or prohibition with preliminary injunction
before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among others,
the following:
x x x x x x x x x
16. With all due respect, petitioners regret the necessity of
having to state herein that respondent Hon. Francisco P.
Burgos has shown undue interest in pursing the sale initiated by
Atty. Domingo L. Antigua, et al. Significantly, a brother of
respondent Hon. Francisco P. Burgos is married to a sister of
Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of the
estate cannot be legally done without the conformity of the
heirs-distributees because the certificates of title are already
registered in their names Hence, in pursuit of the agitation to
sell, respondent Hon. Francisco P. Burgos urged the heirs-
distributees to sell the entire property based on the rationale
that proceeds thereof deposited in the bank will earn interest
more than the present income of the so called estate. Most of
the heirs-distributees, however. have been petitioner timid to
say their piece. Only the 4/9 group of heirs led by Jose Cuenco
Borromeo have had the courage to stand up and refuse the
proposal to sell clearly favored by respondent Hon. Francisco
P. Burgos.
x x x x x x x x x
20. Petitioners will refrain from discussing herein the merits of the
shotgun motion of Atty. Domingo L. Antigua as well as other
incidents now pending in the court below which smack of
12

harassment against the herein petitioners. For, regardless of the
merits of said incidents, petitioners respectfully contend that it
is highly improper for respondent Hon. Francisco P. Burgos to
continue to preside over Sp. Proc. No. 916-R by reason of the
following circumstances:
(a) He has shown undue interest in the sale of the
properties as initiated by Atty. Domingo L. Antigua
whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done
without the conformity of the heirs-distributees, and
petitioners have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar
incidents are clearly intended to harass and
embarrass administrator Jose Cuenco Borromeo in
order to pressure him into acceding to the proposed
sale.
(d) Respondent has shown bias and prejudice
against petitioners by failing to resolve the claim for
attorney's fees filed by Jose Cuenco Borromeo and
the late Crispin Borromeo. Similar claims by the other
lawyers were resolved by respondent after
petitioners refused the proposed sale. (pp. 41-43,
Rollo)
On March 1, 1983, the appellate court rendered its decision granting the
petition for certiorari and/or prohibition and disqualifying Judge
Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916-R. The court also ordered the transmission of the
records of the case to the Executive Judge of the Regional Trial Court of
Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the
appellate court on April 11, 1983. Hence, the present petition for review
seeking to modify the decision of the Intermediate Appellate Court
insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further
hearing the case of Intestate Estate of Vito Borromeo and orders the
remand of the case to the Executive Judge of the Regional Trial Court of
Cebu for re-raffling.
The principal issue in this case has become moot and academic
because Judge Francisco P. Burgos decided to retire from the Regional
Trial Court of Cebu sometime before the latest reorganization of the
judiciary. However, we decide the petition on its merits for the guidance
of the judge to whom this case will be reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been
harassed. They contend that Judge Burgos has benn shown unusual
interest in the proposed sale of the entire estate for P6,700,000.00 in favor
of the buyers of Atty. Antigua. They claim that this disinterest is shown by
the judge's order of March 2, 1979 assessing the property of the estate at
P15,000,000.00. They add that he only ordered the administrator to sell so
much of the properties of the estate to pay the attorney's fees of the
lawyers-claimants. To them, the inhibition of Judge Burgos would have
been unreasonable because his orders against the failure of Jose
Cuenco Borromeo, as administrator, to give an accounting and
inventory of the estate were all affirmed by the appellate court. They
claim that the respondent court, should also have taken judicial notice
of the resolution of this Court directing the said judge to "expedite the
settlement and adjudication of the case" in G.R. No. 54232. And finally,
they state that the disqualification of judge Burgos would delay further
the closing of the administration proceeding as he is the only judge who
is conversant with the 47 volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been
harassed. countered that Judge Burgos appointed Ricardo V. Reyes as
co-administrator of the estate on October 11, 1972, yet Borromeo was
singled out to make an accounting of what t he was supposed to have
received as rentals for the land upon which the Juliana Trade Center is
erected, from January, 1977 to February 1982, inclusive, without
mentioning the withholding tax for the Bureau of Internal Revenue. In
order to bolster the agitation to sell as proposed by Domingo L. Antigua,
Judge Burgos invited Antonio Barredo, Jr., to a series of conferences
from February 26 to 28, 1979. During the conferences, Atty. Antonio
Barredo, Jr., offered to buy the shares of the heirs-distributees presumably
to cover up the projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed
by petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo
be required to file an inventory when he has already filed one to
account for cash, a report on which the administrators had already
rendered: and to appear and be examined under oath in a proceeding
conducted by Judge Burgos lt was also prayed that subpoena duces
tecum be issued for the appearance of the Manager of the
Consolidated Bank and Trust Co., bringing all the bank records in the
name of Jose Cuenco Borromeo jointly with his wife as well as the
appearance of heirs-distributees Amelinda Borromeo Talam and another
heir distributee Vitaliana Borromeo. Simultaneously with the filing of the
motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a request for the
issuance of subpoena duces tecum to the Manager of Consolidated
Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City; Register of
Deeds for the Province of Cebu and another subpoena duces tecum to
Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces
tecum to the Managert of the bank, the Register of deeds for the City of
Cebu, the Register of Deeds for the Province, of Cebu. and to Jose
Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in
behalf of the heirs of Marcial Borromeo who had a common cause with
Atty Barredo, Jr., joined petitioner Domingo L. Antigua by filing a motion
for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a
subpoena duces tecum to private respondent Jose Cuenco Borromeo
to bring and produce all the owners" copies of the titles in the court
presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces
tecum commanding Atty. Jose Cuenco Borromeo to bring and produce
the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on June
14, 1979, before the date of the hearing, Judge Burgos issued an order
denying the private respondents' motion for reconsideration and the
motion to quash the subpoena.1avvphi1
It was further argued by the private respondents that if ,judge Francisco
P. Burgos is not inhibited or disqualified from trying Sp. Proc. No. 916-R,
there would be a miscarriage of justice Because for the past twelve
years, he had not done anything towards the closure of the estate
proceedings except to sell the properties of the heirs-distributees as
initiated by petitioner Domingo L. Antigua at 6.7 million pesos while the
Intestate Court had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition,
more specifically, the insistence of the trial judge to sell the entire estate
at P6,700,000.00, where 4/9 group of heirs objected, cannot easily be
ignored. Suspicion of partiality on the part of a trial judge must be
avoided at all costs. In the case of Bautista v. Rebeuno (81 SCRA 535),
this Court stated:
... The Judge must maintain and preserve the trust and faith of
the parties litigants. He must hold himself above reproach and
suspicion. At the very first sign of lack of faith and trust to his
actions, whether well grounded or not, the Judge has no other
alternative but inhibit himself from the case. A judge may not
be legally Prohibited from sitting in a litigation, but when
circumstances appear that will induce doubt to his honest
13

actuations and probity in favor or of either partly or incite such
state of mind, he should conduct a careful self-examination.
He should exercise his discretion in a way that the people's
faith in the Courts of Justice is not impaired, "The better course
for the Judge under such circumstances is to disqualify himself
"That way he avoids being misunderstood, his reputation for
probity and objectivity is preserve ed. what is more important,
the Ideal of impartial administration of justice is lived up to.
In this case, the fervent distrust of the private respondents is based on
sound reasons. As Earlier stated, however, the petition for review seeking
to modify the decision of the Intermediate Appellate Court insofar as it
disqualifies and inhibits Judge Francisco P. Burgos from further hearing
the Intestate Estate of Vito Borromeo case and ordering the remand of
the case to the Executive Judge of the Regional Trial Court for re-raffling
should be DENIED for the decision is not only valid but the issue itself has
become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on
any and all incidents in Special Proceedings No. 916-R during the
pendency of this petition and No. 63818. They also pray that all acts of
the respondents related to the said special proceedings after March 1,
1983 when the respondent Judge was disqualified by the appellate
court be declared null and void and without force and effect
whatsoever.
The petitioners state that the respondent Judge has set for hearing all
incidents in Special Proceedings No. 916-R, including the reversion from
the heirs-distributees to the estate, of the distributed properties already
titled in their names as early as 1970, notwithstanding the pending
inhibition case elevated before this Court which is docketed as G.R. No.
63818.
The petitioners further argue that the present status of Special
Proceeding No. 916-R requires only the appraisal of the attorney's fees of
the lawyers-claimants who were individually hired by their respective
heirs-clients, so their attorney's fees should be legally charged against
their respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a
dilatory one and barred by res judicata because this Court on July 8,
1981, in G.R. No. 54232 directed the respondent Judge to expedite the
settlement and liquidation of the decedent's estate. They claim that this
resolution, which was already final and executory, was in effect reversed
and nullified by the Intermediate Appellate Court in its case-AC G.R.-No.
SP - 11145 when it granted the petition for certiorari and or prohibition
and disqualified Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916R as well as ordering the
transmission of the records of the case to the Executive Judge of the
Regional Trial Court of Region VII for re-raffling on March 1, 1983, which
was appealed to this Court by means of a Petition for Review (G.R. No.
63818).
We agree with the petitioners' contention that attorney's fees are not the
obligation of the estate but of the individual heirs who individually hired
their respective lawyers. The portion, therefore, of the Order of August 15,
1969, segregating the exhorbitantly excessive amount of 40% of the
market value of the estate from which attorney's fees shall be taken and
paid should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate
Court in G.R. No. 63818, we grant the petition.
WHEREFORE,
(1) In G.R. No. 41171, the order of the respondent judge dated
December 24, 1974, declaring the respondent entitled to 5/9
of the estate of the late Vito Borromeo and the order dated
July 7, 1975, denying the petitioner's motion for reconsideration
of the aforementioned order are hereby SET ASIDE for being
NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court declaring the
waiver document valid is hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in
the decision of the Intermediate Appellate Court disqualifying
and ordering the inhibition of Judge Francisco P. Burgos from
further hearing Special Proceedings No. 916-R is declared
moot and academic. The judge who has taken over the sala
of retired Judge Francisco P. Burgos shall immediately conduct
hearings with a view to terminating the proceedings. In the
event that the successor-judge is likewise disqualified, the order
of the Intermediate Appellate Court directing the Executive
Judge of the Regional Trial Court of Cebu to re-raffle the case
shall be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue
seeking to restrain Judge Francisco P. Burgos from further
acting in G.R. No. 63818 is MOOT and ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered to
speedily terminate the close Special Proceedings No. 916-R,
subject to the submission of an inventory of the real properties
of the estate and an accounting of the cash and bank
deposits by the petitioner-administrator of the estate as
required by this Court in its Resolution dated June 15, 1983; and
(6) The portion of the Order of August 15, 1969, segregating
40% of the market value of the estate from which attorney's
fees shall be taken and paid should be, as it is hereby DELETED.
The lawyers should collect from the heirs-distributees who
individually hired them, attorney's fees according to the nature
of the services rendered but in amounts which should not
exceed more than 20% of the market value of the property the
latter acquired from the estate as beneficiaries.
SO ORDERED.
G.R. No. 126707 February 25, 1999
BLANQUITA E. DELA MERCED, LUISITO E. DELA MERCED, BLANQUTIA M.
MACATANGAY, MA. OLIVIA M. PAREDES, TERESITA P. RUPISAN, RUBEN M.
ADRIANO, HERMINIO M. ADRIANO, JOSELITO M. ADRIANO, ROGELIO M.
ADRIANO, WILFREDO M. ADRIANO, VICTOR M. ADRIANO, CORAZON A.
ONGOCO, JASMIN A. MENDOZA and CONSTANTINO M.
ADRIANO, petitioners,
vs.
JOSELITO P. DELA MERCED, respondent.
PURISIMA, J.:
This is a Petition for Review on Certiorari of the Decision of the Court of
Appeals, dated October 17, 1996, in CA-G.R. CV No. 41283, which
reversed the decision, dated June 10, 1992, of the Regional Trial Court,
Branch 67, Pasig City, in Civil Case No. 59705.
The facts of the case are, as follows:
On March 23, 1987, Evarista M. dela Merced died intestate, without issue.
She left five (5) parcels of land situated in Orambo, Pasig City.
At the time of her death, Evarista was survived by three sets of heirs, viz:
(1) Francisco M. dela Merced, her legitimate brother; (2) Teresita P.
Rupisan, her niece who is the only daughter of Rosa dela Merced-Platon
(a sister who died in 1943); and (3) the legitimate children of Eugenia
dela Merced-Adriano (another sister of Evarista who died in 1965),
namely: Herminio, Ruben, Joselito, Rogelio, Wilfredo, Victor and
14

Constantino, all surnamed Adriano, Corazon Adriano-Ongoco and
Jasmin Adriano-Mendoza.
Almost a year later or on March 19, 1988, to be precise, Francisco
(Evarista's brother) died. He was survived by his wife Blanquita Errea dela
Merced and their three legitimate children, namely, Luisito E. dela
Merced, Blanquita M. Macatangay and Ma. Olivia M. Paredes.
On April 20, 1989, the three sets of heirs of the decedent, Evarista M. dela
Merced, referring to (1) the abovenamed heirs of Francisco; (2) Teresita
P. Rupisan and (3) the nine [9] legitimate children of Eugenia, executed
an extrajudicial settlement, entitled "Extrajudicial Settlement of the Estate
of the Deceased Evarista M. dela Merced" adjudicating the properties of
Evarista to them, each set with a share of one-third (1/3) pro-indiviso.
On July 26, 1990, private respondent Joselito P. Dela Merced, illegitimate
son of the late Francisco de la Merced, filed a "Petition for Annulment of
the Extrajudicial Settlement of the Estate of the Deceased Evarista M.
Dela Merced with Prayer for a Temporary Restraining Order", alleging
that he was fraudulently omitted from the said settlement made by
petitioners, who were fully aware of his relation to the late Francisco.
Claiming successional rights, private respondent Joselito prayed that he
be included as one of the beneficiaries, to share in the one-third (1/3)
pro-indiviso share in the estate of the deceased Evarista, corresponding
to the heirs of Francisco.
On August 3, 1990, the trial court issued the temporary restraining order
prayed for by private respondent Joselito, enjoining the sale of any of
the real properties of the deceased Evarista.
After trial, however, or on June 10, 1992, to be definite, the trial court
dismissed the petition, lifted the temporary restraining order earlier issued,
and cancelled the notice of lis pendens on the certificates of title
covering the real properties of the deceased Evarista.
In dismissing the petition, the trial court stated:
The factual setting of the instant motion after considering the
circumstances of the entire case and the other evidentiary
facts and documents presented by the herein parties points
only to one issue which goes into the very skeleton of the
controversy, to wit: "Whether or not the plaintiff may
participate in the intestate estate of the late Evarista M. Dela
Merced in his capacity as representative of his alleged father,
Francisdo Dela Merced, brother of the deceased, whose
succession is under consideration.
xxx xxx xxx
It is to be noted that Francisco Dela Merced, alleged father of
the herein plaintiff, is a legitimate child, not an illegitimate.
Plaintiff, on the other hand, is admittedly an illegitimate child of
the late Francisco Dela Merced. Hence, as such, he cannot
represent his alleged father in the succession of the latter in the
intestate estate of the late Evarista Dela Merced, because of
the barrier in Art. 992 of the New Civil Code which states that:
An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother, nor
shall such children or relatives inherit in the same manner from
the illegitimate child.
The application of Art. 992 cannot be ignored in the instant
case, it is clearly worded in such a way that there can be no
room for any doubts and ambiguities. This provision of the law
imposes a barrier between the illegitimate and the legitimate
family. . . . (Rollo, p. 87-88)
Not satisfied with the dismissal of his petition, the private respondent
appealed to the Court of Appeals.
In its Decision of October 17, 1996, the Court of Appeals reversed the
decision of the trial court of origin and ordered the petitioners to execute
an amendatory agreement which shall form part of the original
settlement, so as to include private respondent Joselito as a co-heir to
the estate of Francisco, which estate includes one-third (1/3) pro indiviso
of the latter's inheritance from the deceased Evarista.
The relevant and dispositive part of the Decision of the Court of Appeals,
reads:
xxx xxx xxx
It is a basic principle embodied in Article 777, New Civil Code
that the rights to the succession are transmitted from the
moment of the death of the decedent, so that Francisco dela
Merced inherited 1/3 of his sister's estate at the moment of the
latter's death. Said 1/3 of Evarista's estate formed part of
Francisco's estate which was subsequently transmitted upon his
death on March 23, 1987 to his legal heirs, among whom is
appellant as his illegitimate child. Appellant became entitled
to his share in Francisco's estate from the time of the latter's
death in 1987. The extrajudicial settlement therefore is void
insofar as it deprives plaintiff-appellant of his share in the estate
of Francisco M. dela Merced. As a consequence, the
cancellation of the notice of lis pendens is not in order
because the property is directly affected. Appellant has the
right to demand a partition of his father's estate which includes
1/3 of the property inherited from Evarista dela Merced.
WHEREFORE, premises considered, the appealed decision is
hereby REVERSED and SET ASIDE. Defendants-appellees are
hereby ordered to execute an amendatory
agreement/settlement to include herein plaintiff-appellant
Joselito dela Merced as co-heir to the estate of Francisco dela
Merced which includes 1/3 of the estate subject of the
questioned Deed of Extrajudicial Settlement of the Estate of
Evarista M. dela Merced dated April 20, 1989. The amendatory
agreement/settlement shall form part of the original
Extrajudicial Settlement. With costs against defendants-
appellees.
SO ORDERED. (Rollo, p. 41)
In the Petition under consideration, petitioners insist that being an
illegitimate child, private respondent Joselito is barredfrom inheriting from
Evarista because of the provision of Article 992 of the New Civil Code,
which lays down an impassable barrier between the legitimate and
illegitimate families.
The Petition is devoid of merit.
Article 992 of the New Civil Code is not applicable because involved
here is not a situation where an illegitimate child would inherit ab
intestato from a legitimate sister of his father, which is prohibited by the
aforesaid provision of law. Rather, it is a scenario where an illegitimate
child inherits from his father, the latter's share in or portion of, what the
latter already inherited from the deceased sister, Evarista.
As opined by the Court of Appeals, the law in point in the present case is
Article 777 of the New Civil Code which provides that the rights to
succession are transmitted from the moment of death of the decedent.
Since Evarista died ahead of her brother Francisco, the latter inherited a
portion of the estate of the former as one of her heirs. Subsequently,
when Francisco died, his heirs, namely: his spouse, legitimate children,
and the private respondent, Joselito, an illegitimate child, inherited his
(Francisco's) share in the estate of Evarista. It bears stressing that Joselito
does not claim to be an heir of Evarista by right of representation but
participates in his own right, as an heir of the late Francisco, in the latter's
share (or portion thereof) in the estate of Evarista.
15

Petitioners argue that if Joselito desires to assert successional rights to the
intestate estate of his father, the proper forum should be in the
settlement of his own father's intestate estate, as this Court held in the
case of Gutierrez vs. Macandog(150 SCRA 422 [1987])
Petitioners' reliance on the case of Gutierrez vs. Macandog (supra) is
misplaced. The said case involved a claim for support filed by one
Elpedia Gutierrez against the estate of the decedent, Agustin Gutierrez,
Sr., when she was not even an heir to the estate in question, at the time,
and the decedent had no obligation whatsoever to give her support.
Thus, this Court ruled that Elpedia should have asked for support
pendente lite before the Juvenile and Domestic Relations Court in which
court her husband (one of the legal heirs of the decedent) had instituted
a case for legal separation against her on the ground of an attempt
against his life. When Mauricio (her husband) died, she should have
commenced an action for the settlement of the estate of her husband,
in which case she could receive whatever allowance the intestate court
would grant her.
The present case, however, relates to the rightful and undisputed right of
an heir to the share of his late father in the estate of the decedent
Evarista, ownership of which had been transmitted to his father upon the
death of Evarista. There is no legal obstacle for private respondent
Joselito, admittedly the son of the late Francisco, to inherit in his own
right as an heir to his father's estate, which estate includes a one-third
(1/3) undivided share in the estate of Evarista.
WHEREFORE, for lack of merit, the Petition is hereby DENIED and the
Appealed Decision of the Court of Appeals AFFIRMED in toto.
SO ORDERED.
G.R. No. L-55076 September 21, 1987
MATILDE S. PALICTE, petitioner,
vs.
HON. JOSE O. RAMOLETE as Presiding Judge of Court of First Instance of
Cebu, Branch III, and MARCELO SOTTO, Administrator, respondents.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari of the order of the then Court of
First Instance of Cebu declaring the deed of redemption executed for
the petitioner null and void and denying the petitioner's motion that the
Registrar of Deeds of the City of Cebu be directed to transfer the
Owner's Duplicate Certificates of Title to Lot Nos. 1049, 1051, and 1052
from Filemon Sotto to her and to issue a new Owner's Duplicate
Certificate of Title to Lot 2179-C in her name.
On July 5, 1979, a sale at public auction was held pursuant to a writ of
execution issued on February 5, 1979 by the respondent judge and to a
court order dated June 4, 1979 in the case of Pilar Teves, et al. vs
Marcelo Sotto, Administrator, Civil Case No. R-10027, for the satisfaction
of judgment in the amount of P725,270.00.
The following properties belonging to the late Don Filemon Sotto and
administered by respondent Marcelo Sotto were levied upon:
1. Parcel of land on Lot No. 1049, covered by TCT No. 27640 of
the Banilad Friar Lands Estate, Cebu City;
2. Parcel of land on Lot No. 1052, covered by TCT No. 27642 of
the Banilad Friar Lands Estate, Cebu City;
3. Parcel of land on Lot No. 1051,covered by TCT No. 27641 of
the Banilad Friad Lands Estate, Cebu City;
4. Parcel of land on Lot No. 5253 of the Cebu Cadastre, Cebu
City, covered by TCT No. 27639;
5. Parcel of land situated at Mantalongon, Dalaguete, Cebu,
covered by TD No. 010661, with an area of 76-708; (sic)
6. Parcel of land on Lot No. 4839 of the Upon Cadastre, at
Barrio Sa-ac Mactan Island, with an area of Forty Four
Thousand Six Hundred Forty Four (44,644) square meters more
or less;
7. Residential House of strong materials, situated on a
Government lot at Lahug, Cebu City;
8. Residential House of strong materials, situated at Central,
Cebu City. " (Rollo, p. 40)
Seven of the above-described properties were awarded to Pilar Teves,
who alone bid for them for the amount of P217,300.00.
The residential house situated on a government lot at Lahug, Cebu City,
was awarded to lone bidder Asuncion Villarante for the amount of
P10,000.00.
Within the period for redemption, petitioner Matilde S. Palicte, as one of
the heirs of the late Don Filemon Sotto, redeemed from purchaser Pilar
Teves, four (4) lots for the sum of P60,000.00.
A deed of redemption dated July 29, 1980, executed by Deputy
Provincial Sheriff Felipe V. Belandres and approved by the Clerk of Court,
Esperanza Garcia as Ex-Officio Sheriff, was issued for these lots:
1. A parcel of land or Lot No. 2179-C-PDI-25027 Cebu
Cadastre, Cebu City, bid at P20,000.00;
2. A parcel of land or Lot No. 1052, covered by TCT No. 27642,
of the Banilad Friar Lands Estate, Cebu City, bid at P15,000.00;
3. A parcel of land or Lot No.1051,covered by TCT No. 27641, of
the Banilad Friar Lands Estate, Cebu City, at P5,000.00;
4. A parcel of land or Lot No. 1049, covered by TCT No. 27640,
of the Banilad Friar Lands Estate, Cebu City, at P20,000.00.
(Rollo, p. 42)
On July 24, 1980, petitioner Palicte filed a motion with respondent Judge
Ramolete for the transfer to her name of the titles to the four (4) parcels
of land covered by the deed of redemption.
This motion was opposed by the plaintiffs in Civil Case No. R-10027,
entitled "Pilar Teves, et al. vs Marcelo Sotto, administrator" on several
grounds, principal among which, is that movant, Palicte, is not one of
those authorized to redeem under the provisions of the Rules of Court.
A hearing on the said motion, with both parties adducing evidence was
held.
The lower court held that although Palicte is one of the declared heirs in
Spl. Proc. No. 2706-R, she does not qualify as a successor-in-interest who
may redeem the real properties sold. It ruled that the deed of
redemption is null and void. The motion of Palicte was denied.
Hence, the present petition.
The petitioner raises the following assignment of errors:
A
16

RESPONDENT JUDGE ERRED IN RULING THAT THE JUDGMENT
DEBTOR ENTITLED TO REDEEM UNDER SECTION 29(a), RULE 39 OF
THE REVISED RULES OF COURT REAL PROPERTY SOLD ON
EXECUTION AGAINST THE ESTATE OF THE DECEDENT IS ONLY THE
ADMINISTRATOR OF THE ESTATE, OR HIS SUCCESSOR-IN-INTEREST.
B
RESPONDENT JUDGE ERRED IN RULING THAT PETITIONER, WHO IS
A DECLARED HEIR OF THE DECEDENT, IS NOT THE JUDGMENT
DEBTOR NOR DOES SHE QUALIFY AS A SUCCESSOR-IN-INTEREST
OF THE ADMINISTRATOR OF THE ESTATE ENTITLED TO RIGHT OF
REDEMPTION UNDER SECTION 29(a), RULE 39 OF THE RULES OF
COURT.
C
RESPONDENT JUDGE ERRED IN RULING THAT ALTHOUGH
PETITIONER IS A DECLARED HEIR OF THE DECEDENT, HER RIGHT
TO THE ESTATE, LIKE THAT OF REDEMPTION OF CERTAIN ESTATE
PROPERTY, COULD ONLY ARISE AFTER DISTRIBUTION OF THE
ESTATE AS THERE IS STILL JUDGMENT DEBT CHARGEABLE
AGAINST THE ESTATE.
D
RESPONDENT JUDGE ERRED IN RULING THAT PETITIONER'S
REDEMPTION OF FOUR (4) PARCELS OF LAND OF THE ESTATE OF
THE DECEDENT SOLD ON EXECUTION OF JUDGMENT AGAINST
THE ESTATE IS NULL AND VOID AND INEFFECTIVE. (Rollo, pp. 17-
18)
These assigned errors center on whether or not petitioner Palicte may
validly exercise the right of redemption under Sec. 29, Rule 39 of the
Rules of Court.
We answer in the affirmative. Sec. 29 of Rule 39 provides:
SEC. 29. Who may redeem real property so sold. Real
property sold as provided in the last preceding section, or any
part thereof sold separately, may be redeemed in the manner
hereinafter provided, by the following persons:
(a) The judgment debtor, or his successor in interest in the
whole or any part of the property;
(b) A creditor having a lien by attachment, judgment or
mortgage on the property sold, or on some part thereof,
subsequent to the judgment under which the property was
sold. Such redeeming creditor is termed a redemptioner.
Under Subsection (a), property sold subject to redemption may be
redeemed by the judgment debtor or his successor-in-interest in the
whole or any part of the property. Does Matilde Palicte fall within the
term "successor-in-interest"?
Magno vs Viola and Sotto (61 Phil. 80, 84-85) states that:
The rule is that the term "successor-in-interest" includes one to
whom the debtor has transferred his statutory right of
redemption (Big Sespe Oil Co. vs Cochran, 276 Fed., 216, 223);
one to whom the debtor has conveyed his interest in the
property for the purpose of redemption (Southern California
Lumber Co. vs. McDowell, 105 Cal, 99; 38 Pac., 627; Simpson vs.
Castle, 52 Cal., 644; Schumacher vs. Langford, 20 Cal. App.,
61; 127 Pac., 1057); one who succeeds to the interest of the
debtor by operation of law (XI McKinney's California
Jurisprudence, 99); one or more joint debtors who were joint
owners of the property sold (Emerson vs. Yosemite Gold Min.
etc. Co., 149 Cal., 50; 85 Pac., 122); the wife as regards her
husband's homestead by reason of the fact that some portion
of her husband' title passes to her (Hefner vs. Urton, 71 Cal.,
479; 12 Pac., 486). This court has held that a surety can not
redeem the property of the principal sold on execution
because the surety, by paying the debt of the principal, stands
in the place of the creditor, not of the debtor, and
consequently is not a successor in interest in the property. (G.
Urruitia & Co. vs. Moreno and Reyes, 28 Phil., 260, 268).
(Emphasis supplied).
In the case at bar, petitioner Palicte is the daughter of the late Don
Filemon Sotto whose estate was levied upon on execution to satisfy the
money judgment against it. She is one of the declared heirs in Special
Proceeding No. 2706-R. As a legitimate heir, she qualifies as a successor-
in- interest.
Art. 777 of the Civil Code states that:
The rights to the succession are transmitted from the moment
of the death of the decedent.
At the moment of the decedent's death, the heirs start to own the
property, subject to the decedent's liabilities. In fact, they may dispose of
the same even while the property is under administration. (Barretto vs.
Tuason, 59 Phil. 845; Jakosalem vs. Rafols, 73 Phil. 628). If the heirs may
dispose of their shares in the decedent's property even while it is under
administration. With more reason should the heirs be allowed to redeem
redeemable properties despite the presence of an administrator.
The respondents contend that the petitioner must positively prove that
the three other co-heirs, the administrator, and the intestate court had
expressly agreed to the redemption of the disputed parcels of land. We
see no need for such prior approval. While it may have been desirable, it
is not indispensable under the circumstances of this case. What is
important is that all of them acquiesced in the act of redeeming
property for the estate. The petitioner contends that the administrator
and the three other heirs agreed to the redemption. There is, however.
no clear proof of such approval. What is beyond dispute from the
records is that they did not disapprove nor reprobate the acts of the
petitioner. There is likewise nothing in the records to indicate that the
redemption was not beneficial to the estate of Don Filemon Sotto.
It may be true that the interest of a specific heir is not yet fixed and
determinate pending the order of distribution but, nonetheless, the heir's
interest in the preservation of the estate and the recovery of its
properties is greater than anybody else's, definitely more than the
administrator's who merely holds it for the creditors, the heirs, and the
legatees.
The petitioner cites precedents where persons with inchoate or
contingent interest were allowed to exercise the right of redemption as
"successors-in-interest," e.g. Director of Lands vs. Lagniton (103 Phil. 889,
892) where a son redeemed the property of his parents sold on
execution and Rosete vs. Provincial Sheriff of Zambales (95 Phil. 560, 564),
where a wife by virtue of what the Court called "inchoate right of dower
or contingent interest" redeemed a homestead as successor-in-interest
of her husband.
In fact, the Court was explicit in Lagniton that:
... The right of a son, with respect to the property of a father or
mother, is also an inchoate or contingent interest, because
upon the death of the father or the mother or both, he will
have a right to inherit said conjugal property. If any holder of
an inchoate interest is a successor in interest with right to
redeem a property sold on execution, then the son is such a
successor in interest, as he has an inchoate right to the
property of his father.
17

The lower court, therefore, erred in considering the person of the
administrator as the judgment debtor and as the only "successor-in-
interest." The estate of the deceased is the judgment debtor and the
heirs who will eventually acquire that estate should not be prohibited
from doing their share in its preservation.
Although petitioner Palicte validly redeemed the properties, her motion
to transfer the titles of the four (4) parcels of land covered by the Deed
of Redemption from registration in the name of Filemon Sotto to her
name cannot prosper at this time.
Otherwise, to allow such transfer of title would amount to a distribution of
the estate.
As held in the case of Philippine Commercial and Industrial Bank vs.
Escolin (56 SCRA 267, 345- 346):
Indeed, the law on the matter is specific, categorical and
unequivocal. Section 1 of Rule 90 provides:
SECTION 1. When order for distribution of residue made.
When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law,
have been paid, the court, on the application of the executor
or administrator, or of a person interested in the estate, and
after hearing upon notice, shall assign the residue of the estate
to the persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares from
the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the court
as to who are the lawful heirs of the deceased person or as to
the distributive shares to which each person is entitled under
the law, the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a sum to
be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
These provisions cannot mean anything less than that in order
that a proceeding for the settlement of the estate of a
deceased may be deemed ready for final closure, (1) there
should have been issued already an order of distribution or
assignment of the estate of the decedent among or to those
entitled thereto by will or by law, but (2) such order shall not be
issued until after it is shown that the "debts, funeral expenses,
expenses of administration, allowances, taxes, etc.,
chargeable to the estate" have been paid, which is but logical
and proper, (3) besides, such an order is usually issued upon
proper and specific application for the purpose of the
interested party or parties, and not of the court."
The other heirs are, therefore, given a six months period to join as co-
redemptioners in the redemption made by the petitioner before the
motion to transfer titles to the latter's name may be granted.
WHEREFORE, the petition is hereby GRANTED. The respondent court's
orders declaring the deed of redemption null and void and denying the
motion to transfer title over the redeemed properties to Matilda Palicte
are REVERSED and SET ASIDE, subject to the right of the other heirs to join
in the redemption as stated above.
SO ORDERED.

G.R. No. 89783 February 19, 1992
MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B. LOCSIN, AUREA B.
LOCSIN, MATILDE L. CORDERO, SALVADOR B. LOCSIN and MANUEL V. DEL
ROSARIO, petitioners,
vs.
THE HON. COURT OF APPEALS, JOSE JAUCIAN, FLORENTINO JAUCIAN,
MERCEDES JAUCIAN ARBOLEDA, HEIRS OF JOSEFINA J. BORJA, HEIRS OF
EDUARDO JAUCIAN and HEIRS OF VICENTE JAUCIAN, respondents.
NARVASA, C.J.:
Reversal of the decision of the Court of Appeals in CA-G.R. No. CV-11186
affirming with modification the judgment of the Regional Trial Court of
Albay in favor of the plaintiffs in Civil Case No. 7152 entitled "Jose
Jaucian, et al. v. Mariano B. Locsin, et al.," an action for recovery of real
property with damages is sought. in these proceedings initiated by
petition for review on certiorari in accordance with Rule 45 of the Rules
of Court.
The petition was initially denied due course and dismissed by this Court. It
was however reinstated upon a second motion for reconsideration filed
by the petitioners, and the respondents were required to comment
thereon. The petition was thereafter given due course and the parties
were directed to submit their memorandums. These, together with the
evidence, having been carefully considered, the Court now decides the
case.
First, the facts as the Court sees them in light of the evidence on record:
The late Getulio Locsin had three children named Mariano, Julian and
Magdalena, all surnamed Locsin. He owned extensive residential and
agricultural properties in the provinces of Albay and Sorsogon. After his
death, his estate was divided among his three (3) children as follows:
(a) the coconut lands of some 700 hectares in Bual, Pilar, Sorsogon, were
adjudicated to his daughter, Magdalena Locsin;
(b) 106 hectares of coconut lands were given to Julian Locsin, father of
the petitioners Julian, Mariano, Jose, Salvador, Matilde, and Aurea, all
surnamed Locsin;
(c) more than forty (40) hectares of coconut lands in Bogtong, eighteen
(18) hectares of riceland in Daraga, and the residential lots in Daraga,
Albay and in Legazpi City went to his son Mariano, which Mariano
brought into his marriage to Catalina Jaucian in 1908. Catalina, for her
part, brought into the marriage untitled properties which she had
inherited from her parents, Balbino Jaucian and Simona Anson. These
were augmented by other properties acquired by the spouses in the
course of their union,
1
which however was not blessed with children.
Eventually, the properties of Mariano and Catalina were brought under
the Torrens System. Those that Mariano inherited from his father, Getulio
Locsin, were surveyed cadastrally and registered in the name of
"Mariano Locsin, married to Catalina Jaucian.''
2

Mariano Locsin executed a Last Will and Testament instituting his wife,
Catalina, as the sole and universal heir of all his properties.
3
The will was
drawn up by his wife's nephew and trusted legal adviser, Attorney
Salvador Lorayes. Attorney Lorayes disclosed that the spouses being
childless, they had agreed that their properties, after both of them shall
have died should revert to their respective sides of the
family, i.e., Mariano's properties would go to his "Locsin relatives"
(i.e., brothers and sisters or nephews and nieces), and those of Catalina
to her "Jaucian relatives."
4

Don Mariano Locsin died of cancer on September 14, 1948 after a
lingering illness. In due time, his will was probated in Special Proceedings
No. 138, CFI of Albay without any opposition from both sides of the
family. As directed in his will, Doa Catalina was appointed executrix of
18

his estate. Her lawyer in the probate proceeding was Attorney Lorayes.
In the inventory of her husband's estate
5
which she submitted to the
probate court for approval,
6
Catalina declared that "all items
mentioned from Nos. 1 to 33 are the private properties of the deceased
and form part of his capital at the time of the marriage with the surviving
spouse, while items Nos. 34 to 42 are conjugal."
7

Among her own and Don Mariano's relatives, Doa Catalina was closest
to her nephew, Attorney Salvador Lorayes, her nieces, Elena Jaucian,
Maria Lorayes-Cornelio and Maria Olbes-Velasco, and the husbands of
the last two: Hostilio Cornelio and Fernando Velasco. 8 Her trust in Hostilio
Cornelio was such that she made him custodian of all the titles of her
properties; and before she disposed of any of them, she unfailingly
consulted her lawyer-nephew, Attorney Salvador Lorayes. It was Atty.
Lorayes who prepared the legal documents and, more often than not,
the witnesses to the transactions were her niece Elena Jaucian, Maria
Lorayes-Cornelio, Maria Olbes-Velasco, or their husbands. Her niece,
Elena Jaucian, was her life-long companion in her house.
Don Mariano relied on Doa Catalina to carry out the terms of their
compact, hence, nine (9) years after his death, as if in obedience to his
voice from the grave, and fully cognizant that she was also advancing in
years, Doa Catalina began transferring, by sale, donation or
assignment, Don Mariano's as well as her own, properties to their
respective nephews and nieces. She made the following sales and
donation of properties which she had received from her husband's
estate, to his Locsin nephews and nieces:
EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE WITNESSES
23 Jan. 26, 1957 Deed of Absolute Sale in 962 P 481
favor of Mariano Locsin
1-JRL Apr. 7, 1966 Deed of Sale in favor of 430,203 P 20,000
Jose R. Locsin
1-JJL Mar. 22, 1967 Deed of Sale in favor of 5,000 P 1,000 Hostilio Cornello
Julian Locsin (Lot 2020) Helen M. Jaucian
1 Nov. 29, 1974 Deed of Donation in 26,509
favor Aurea Locsin,
Matilde L. Cordero
and Salvador Locsin
2 Feb. 4, 1975 Deed of Donation in 34,045
favor Aurea Locsin,
Matilde L. Cordero
and Salvador Locsin
3 Sept. 9, 1975 Deed of Donation in (Lot 2059)
favor Aurea Locsin,
Matilde L. Cordero
and Salvador Locsin
4 July 15, 1974 Deed of Absolute Sale in 1,424 Hostilio Cornelio
favor of Aurea B. Locsin Fernando Velasco
5 July 15, 1974 Deed of Absolute Sale in 1,456 P 5,750 Hostilio Cornelio
favor of Aurea B. Locsin Elena Jaucian
6 July 15, 1974 Deed of Absolute Sale in 1,237 P 5,720 - ditto -
favor of Aurea B. Locsin
7 July 15, 1974 Deed of Absolute Sale in 1,404 P 4,050 - ditto -
favor of Aurea B. Locsin
15 Nov. 26, 1975 Deed of Sale in favor of 261 P 4,930 - ditto -
Aurea Locsin
16 Oct. 17, 1975 Deed of Sale in favor of 533 P 2,000 Delfina Anson
Aurea Locsin M. Acabado
17 Nov. 26, 1975 Deed of Sale in favor of 373 P 1,000 Leonor Satuito
Aurea Locsin Mariano B. Locsin
19 Sept. 1, 1975 Conditional Donation in 1,130 P 3,000 - ditto -
favor of Mariano Locsin
1-MVRJ Dec. 29, 1972 Deed of Reconveyance 1,5110.66 P 1,000 Delfina
Anson
in favor of Manuel V. del (Lot 2155) Antonio Illegible
Rosario whose maternal
grandfather was Getulio
Locsin
2-MVRJ June 30, 1973 Deed of Reconveyance 319.34 P 500 Antonio
Illegible
in favor of Manuel V. del (Lot 2155) Salvador Nical
Rosario but the rentals
from bigger portion of
Lot 2155 leased to Filoil
Refinery were assigned to
Maria Jaucian Lorayes
Cornelio
Of her own properties, Doa Catalina conveyed the following to her
own nephews and nieces and others:
EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE
2-JJL July 16, 1964 Deed of Sale in favor 5,000 P 1,000
Vicente Jaucian (lot 2020)
(6,825 sqm. when
resurveyed)
24 Feb. 12, 1973 Deed of Absolute Sale 100 P 1,000
in favor of Francisco M.
Maquiniana
26 July 15, 1973 Deed of Absolute Sale in 130 P 1,300
favor of Francisco
Maquiniana
27 May 3, 1973 Deed of Absolute Sale in 100 P 1,000
favor of Ireneo Mamia
28 May 3, 1973 Deed of Absolute Sale in 75 P 750
favor of Zenaida Buiza
29 May 3, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Felisa Morjella
30 Apr. 3, 1973 Deed of Absolute Sale in 31 P 1,000
favor of Inocentes Motocinos
31 Feb. 12, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Casimiro Mondevil
32 Mar. 1, 1973 Deed of Absolute Sale in 112 P 1,200
favor of Juan Saballa
25 Dec. 28, 1973 Deed of Absolute Sale in 250 P 2,500
of Rogelio Marticio
Doa Catalina died on July 6, 1977.
19

Four years before her death, she had made a will on October 22, 1973
affirming and ratifying the transfers she had made during her lifetime in
favor of her husband's, and her own, relatives. After the reading of her
will, all the relatives agreed that there was no need to submit it to the
court for probate because the properties devised to them under the will
had already been conveyed to them by the deceased when she was
still alive, except some legacies which the executor of her will or estate,
Attorney Salvador Lorayes, proceeded to distribute.
In 1989, or six (6) years after Doa Catalina's demise, some of her
Jaucian nephews and nieces who had already received their legacies
and hereditary shares from her estate, filed action in the Regional Trial
Court of Legaspi City (Branch VIII, Civil Case No. 7152) to recover the
properties which she had conveyed to the Locsins during her lifetime,
alleging that the conveyances were inofficious, without consideration,
and intended solely to circumvent the laws on succession. Those who
were closest to Doa Catalina did not join the action.
After the trial, judgment was rendered on July 8, l985 in favor of the
plaintiffs (Jaucian), and against the Locsin defendants, the dispositive
part of which reads:
WHEREFORE, this Court renders judgment for the plaintiffs and
against the defendants:
(1) declaring the, plaintiffs, except the heirs of Josefina J. Borja
and Eduardo Jaucian, who withdrew, the rightful heirs and
entitled to the entire estate, in equal portions, of Catalina
Jaucian Vda. de Locsin, being the nearest collateral heirs by
right of representation of Juan and Gregorio, both surnamed
Jaucian, and full-blood brothers of Catalina;
(2) declaring the deeds of sale, donations, reconveyance and
exchange and all other instruments conveying any part of the
estate of Catalina J. Vda. de Locsin including, but not limited
to those in the inventory of known properties (Annex B of the
complaint) as null and void ab-initio;
(3) ordering the Register of Deeds of Albay and/or Legazpi City
to cancel all certificates of title and other transfers of the real
properties, subject of this case, in the name of defendants,
and derivatives therefrom, and issue new ones to the plaintiffs;
(4) ordering the defendants, jointly and severally, to reconvey
ownership and possession of all such properties to the plaintiffs,
together with all muniments of title properly endorsed and
delivered, and all the fruits and incomes received by the
defendants from the estate of Catalina, with legal interest from
the filing of this action; and where reconveyance and delivery
cannot be effected for reasons that might have intervened
and prevent the same, defendants shall pay for the value of
such properties, fruits and incomes received by them, also with
legal interest from the filing, of this case
(5) ordering each of the defendants to pay the plaintiffs the
amount of P30,000.00 as exemplary damages; and the further
sum of P20,000.00 each as moral damages; and
(6) ordering the defendants to pay the plaintiffs attorney's fees
and litigation expenses, in the amount of P30,000.00 without
prejudice to any contract between plaintiffs and counsel.
Costs against the defendants.
9

The Locsins appealed to the Court of Appeals (CA-G.R. No. CV-11186)
which rendered its now appealed judgment on March 14, 1989, affirming
the trial court's decision.
The petition has merit and should be granted.
The trial court and the Court of Appeals erred in declaring the private
respondents, nephews and nieces of Doa Catalina J. Vda. de Locsin,
entitled to inherit the properties which she had already disposed of more
than ten (10) years before her death. For those properties did not form
part of her hereditary estate, i.e., "the property and transmissible rights
and obligations existing at the time of (the decedent's) death and those
which have accrued thereto since the opening of the succession."
10
The
rights to a person's succession are transmitted from the moment of his
death, and do not vest in his heirs until such time.
11
Property which Doa
Catalina had transferred or conveyed to other persons during her
lifetime no longer formed part of her estate at the time of her death to
which her heirs may lay claim. Had she died intestate, only the property
that remained in her estate at the time of her death devolved to her
legal heirs; and even if those transfers were, one and all, treated as
donations, the right arising under certain circumstances to impugn and
compel the reduction or revocation of a decedent's gifts inter vivos does
not inure to the respondents since neither they nor the donees are
compulsory (or forced) heirs.
12

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

On March 27, 1967, Lot 2020
16
was partitioned by and among Doa
Catalina, Julian Locsin, Vicente Jaucian and Agapito Lorete.
17
At least
Vicente Jaucian, among the other respondents in this case, is estopped
from assailing the genuineness and due execution of the sale of portions
of Lot 2020 to himself, Julian Locsin, and Agapito Lorete, and the
partition agreement that he (Vicente) concluded with the other co-
owners of Lot 2020.
Among Doa, Catalina's last transactions before she died in 1977 were
the sales of property which she made in favor of Aurea Locsin and
Mariano Locsin in 1975.
18

There is not the slightest suggestion in the record that Doa Catalina was
mentally incompetent when she made those dispositions. Indeed, how
can any such suggestion be made in light of the fact that even as she
was transferring properties to the Locsins, she was also
contemporaneously disposing of her other properties in favor of the
20

Jaucians? She sold to her nephew, Vicente Jaucian, on July 16, 1964 (21
years before her death) one-half (or 5,000 sq.m.) of Lot 2020. Three years
later, or on March 22, 1967, she sold another 5000 sq.m. of the same lot
to Julian Locsin.
19

From 1972 to 1973 she made several other transfers of her properties to
her relatives and other persons, namely: Francisco Maquiniana, Ireneo
Mamia, Zenaida Buiza, Feliza Morjella, Inocentes Motocinos, Casimiro
Mondevil, Juan Saballa and Rogelio Marticio.
20
None of those
transactions was impugned by the private respondents.
In 1975, or two years before her death, Doa Catalina sold some lots not
only to Don Mariano's niece, Aurea Locsin, and his nephew, Mariano
Locsin
II,
21
but also to her niece, Mercedes Jaucian Arboleda.
22
If she was
competent to make that conveyance to Mercedes, how can there be
any doubt that she was equally competent to transfer her other pieces
of property to Aurea and Mariano II?
The trial court's belief that Don Mariano Locsin bequeathed his entire
estate to his wife, from a "consciousness of its real origin" which carries
the implication that said estate consisted of properties which his wife
had inherited from her parents, flies in the teeth of Doa Catalina's
admission in her inventory of that estate, that "items 1 to 33 are the
private properties of the deceased (Don Mariano) and forms (sic) part of
his capital at the time of the marriage with the surviving spouse, while
items 34 to 42 are conjugal properties, acquired during the marriage."
She would have known better than anyone else whether the listing
included any of her paraphernal property so it is safe to assume that
none was in fact included. The inventory was signed by her under oath,
and was approved by the probate court in Special Proceeding No. 138
of the Court of First Instance of Albay. It was prepared with the
assistance of her own nephew and counsel, Atty. Salvador Lorayes, who
surely would not have prepared a false inventory that would have been
prejudicial to his aunt's interest and to his own, since he stood to inherit
from her eventually.
This Court finds no reason to disbelieve Attorney Lorayes' testimony that
before Don Mariano died, he and his wife (Doa Catalina), being
childless, had agreed that their respective properties should eventually
revert to their respective lineal relatives. As the trusted legal adviser of
the spouses and a full-blood nephew of Doa Catalina, he would not
have spun a tale out of thin air that would also prejudice his own interest.
Little significance, it seems, has been attached to the fact that among
Doa Catalina's nephews and nieces, those closest to her: (a) her
lawyer-nephew Attorney Salvador Lorayes; (b) her niece and
companion Elena Jaucian: (c) her nieces Maria Olbes-Velasco and
Maria Lorayes-Cornelio and their respective husbands, Fernando
Velasco and Hostilio Cornelio, did not join the suit to annul and undo the
dispositions of property which she made in favor of the Locsins, although
it would have been to their advantage to do so. Their desistance
persuasively demonstrates that Doa Catalina acted as a completely
free agent when she made the conveyances in favor of the petitioners.
In fact, considering their closeness to Doa Catalina it would have been
well-nigh impossible for the petitioners to employ "fraud, undue pressure,
and subtle manipulations" on her to make her sell or donate her
properties to them. Doa Catalina's niece, Elena Jaucian, daughter of
her brother, Eduardo Jaucian, lived with her in her house. Her nephew-in-
law, Hostilio Cornelio, was the custodian of the titles of her properties. The
sales and donations which she signed in favor of the petitioners were
prepared by her trusted legal adviser and nephew, Attorney Salvador
Lorayes. The (1) deed of donation dated November 19,
1974
23
in favor of Aurea Locsin, (2) another deed of donation dated
February 4, 1975
24
in favor of Matilde Cordero, and (3) still another deed
dated September 9, 1975
25
in favor of Salvador Lorayes, were all
witnessed by Hostilio Cornelio (who is married to Doa Catalina's niece,
Maria Lorayes) and Fernando Velasco who is married to another niece,
Maria Olbes.
26
The sales which she made in favor of Aurea Locsin on July
15, 1974
27
were witnessed by Hostilio Cornelio and Elena Jaucian. Given
those circumstances, said transactions could not have been anything
but free and voluntary acts on her part.
Apart from the foregoing considerations, the trial court and the Court of
Appeals erred in not dismissing this action for annulment and
reconveyance on the ground of prescription. Commenced decades
after the transactions had been consummated, and six (6) years after
Doa Catalina's death, it prescribed four (4) years after the subject
transactions were recorded in the Registry of Property,
28
whether
considered an action based on fraud, or one to redress an injury to the
rights of the plaintiffs. The private respondents may not feign ignorance
of said transactions because the registration of the deeds was
constructive notice thereof to them and the whole world.
29

WHEREFORE, the petition for review is granted. The decision dated March
14, 1989 of the Court of Appeals in CA-G.R. CV No. 11186 is REVERSED
and SET ASIDE. The private respondents' complaint for annulment of
contracts and reconveyance of properties in Civil Case No. 7152 of the
Regional Trial Court, Branch VIII of Legazpi City, is DISMISSED, with costs
against the private respondents, plaintiffs therein.
SO ORDERED.
G.R. No. 98709 May 13, 1993
MAGDALENA LLENARES, petitioner,
vs.
HON. COURT OF APPEALS and APOLINAR ZABELLA, respondents.
DAVIDE, JR., J.:
Petitioner availed of this recourse under Rule 45 of the Revised Rules of
Court to obtain a reversal of the Decision of the Seventh Division of Court
of Appeals in CA-G.R. CV No. 09853, promulgated on 24 April 1990,
1
and
the reinstatement of the 4 April 1986 Decision of Branch 57 of the
Regional Trial Court (RTC), Lucena City, in a case
2
involving the recovery
of the possession and quieting of title over a parcel of land. The
dispositive portion of the trial court's decision reads as follows:
WHEREFORE, judgment is hereby rendered for the plaintiff who
is declared the true and absolute owner of the land covered
by TCT No. 28170 (Registry of Deeds, Lucena City) particularly
described in par. 2 of plaintiff's complaint and it is hereby
ordered
1. That the defendant or any person acting in his behalf
surrender and transfer possession of the land in question
(covered by TCT No. 28170 to the plaintiff;
2. That the defendant render an accounting of the fruits he
received from the aforementioned property from August 1976
until possession is transferred to the plaintiff, said accounting to
be approved by the court;
3. That in keeping with the findings of this court, the Register of
Deeds, Lucena City, should, as he is hereby ordered cancel
Entry No. 35285 in TCT No. 28170, said entry being an
annotation of the adverse claim of defendant Apolinar Zabella
inscribed on Feb. 17, 1977;
4. That the defendant pay to plaintiff the amount of P2,500.00
as attorney's fees and P1,000.00 as expenses of litigation.
3

Petitioner filed the aforementioned complaint on 12 July 1977 after she
had been allegedly dispossessed of the property in question by private
respondent Apolinar Zabella in 1976, and after the latter had caused to
be annotated in Transfer Certificate of Title (TCT) No. 28170 an affidavit of
adverse claim on 17 February 1977. She prayed therein that, inter alia,
she be restored to the possession of the said property and that the
adverse claim be cancelled.
4

21

As disclosed by the pleadings and the challenged decision, the
antecedent facts are as follows:
Juan Zabella and Anastacio Llenares were co-owners, in equal shares, of
a parcel of land situated in barrio Silangang Mayao of the then
Municipality, now City, of Lucena. In the cadastral survey of the said
municipality, the lot was designated as Cadastral Lot No. 4804-D. This
designation was later changed to Lot. No. 5015.
On 21 December 1929, Anastacio Llenares sold his one-half (1/2) share in
the lot to Ariston Zabella, private respondent's father. Subsequently, after
due proceedings, the cadastral court awarded Lot. No. 5015 to Juan
Zabella and Anastacio Llenares in equal shares. Decree No. 54398 was
issued to both of them and on the basis thereof, Original Certificate of
Title (OCT) No. 43073 was issued in their names on July 1937.
Anastacio Llenares passed away on 27 March 1931 leaving the
petitioner, his only child, as his sole heir. On the other hand, Juan Zabella
and niece Irene Catapat. On 5 February 1960, Rosario and Irene
adjudicated to themselves Juan Zabella's one-half (1/2) share in the lot.
This adjudication was annotated in OCT No. 43073. Rosario died on 5
June 1962 leaving, as her only heirs, her children Godofredo, Noemi,
Natividad, Olimpio and Numeriana, all surnamed Zaracena.
On 22 June 1976, petitioner, as the sole heir of Anastacio Llenares,
adjudicated to herself, by way of a Salaysay ng Pagmamana ng Nag-
iisang Tagapagmana (Exhibit "A"), the one-half (1/2) share in the
property belonging to Anastacio Llenares. This fact was likewise
annotated in OCT No. 43073.
On 26 August 1976, however, OCT No. 43073 was cancelled and in its
place, TCT No. T-27166 was issued for the entire lot. On 16 February 1977,
private respondent Zabella filed an adverse claim which was duly
annotated in TCT No. T-27166.
As a consequence of a Kasunduan ng Pagsusukat (Exhibit "I") executed
by and between Irene Catapat and the heirs of Rosario Zabella
Zaracena, Lot No. 5015 was subsidivided into Lot. Nos. 5015-A, 5015-B
and 5015-C. Lot No. 5015-A, which comprises one-half (1/2) of Lot No.
5015 corresponding to Anastacio's share, was allotted to the petitioner.
TCT No. T-27166 was thereafter cancelled and separate Transfer
Certificate of Title were issued for each of the subdivided lots. TCT No.
28170 was issued in the petitioner's name for Lot No. 5015-A.
As regards the issue of possession, the petitioner's evidence discloses that
since she was only four (4) years old when her father died, her cousin
Rosario Zabella administered the land in question until 1959 when she
(petitioner) placed Rufo Orig as tenant therein. The latter worked as
such, delivering to the petitioner her share of the harvest until 1976, when
he stopped doing so as he was ordered by the private respondent not to
give the petitioner her share anymore. Private respondent allegedly
claimed ownership over the property. Petitioner further proved that she
had been paying the land taxes on the property until the filing of the
case.
On the other hand, according to his own version, private respondent
and his siblings took possession of that portion of the land sold by
Anastacio Llenares after Ariston Zabella's death on 21 March 1930. He
then converted the same into riceland. It was irrigated in 1955 and he
has been paying the irrigation charges since 1960. Moreover, he and his
co-heirs have been in possession of the property without interference by
any party until "the present."
5

The trial court limited the issues to the following: whether the private
respondent had acquired absolute ownership of the land in question by
prescription and whether the plaintiff's (petitioner) action is barred by
laches.
6
In finding for the petitioner, the lower court made the following
disquisitions:
It is beyond cavil that the land in question (then part of a big
parcel) has been registered and titled in the name of plaintiff's
father Anastacio Llenares since July 28, 1937 even as it is now
registered in the name of plaintiff who made an affidavit of
self-adjudification on June 22, 1976 being the only child of
Anastacio Llenares. Anastacio Llenares became the registered
owner by virtue of a cadastral proceedings, a proceedings in
remthat is binding and conclusive against the whole world. No
evidence of irregularity or fraud in the issuance of the title has
been adduced, and even if there is intrinsic fraud, the period
of one year within which to ventilate this infirmity has long
expired. It is a postulate in law that "no title to registered land in
derogation to that of the registered owner shall be acquired
by prescription or adverse possession. Prescription is unavailing
not only against the registered owner but also against his
hereditary successors because the latter merely step into the
shoes of the decedent by operation of law and are merely the
continuation of the personality of their predecessor in interest."
(Barcelona vs. Barcelona, 100 Phil. 251). On this score alone,
defendant's claim of prescription should fail. The court also
notes, in passing, that defendant's evidence does not
convincingly establish that he possessed the property publicly,
exclusively and peacefully in the concept of owner. For one
thing, he has not even paid any realty tax on the property as
the property is not declared for taxation purposes in his name.
The court is neither impressed with the credibility of defendant's
witnesses. For example, the witness Sergio Dalida testified that
in 1918 the land in litigation was in the possession of Ariston
Zabella (T.S.N. 8-21-84 p. 8). There seems to be no truth to this
because the property was bought by Ariston Zabella only in
the year 1929. And then, there was that other witness Cosme
Ranillo who unequivocally admitted during cross-examination
that he was coached by the defendant (vide: t.s.n. 11-20-84 p.
24-26).
As regards the Deed of Sale of the property in litigation in favor
of Ariston Zabella (Exh. "1") which is apparently the cornerstone
of defendant's claim over the property the court concurs with
the submission of the plaintiff that after final judgment has
been rendered in the cadastral proceedings, all rights or
claims prior thereto are deemed barred by the principle of res
judicata. Hence after the finality of the judgment in the
cadastral case, the Deed of Sale has lost its efficacy
being functus oficio.
With respect to the defense of laches so emphatically and
exhaustively discussed by defendant's counsel in his brief we
find this to be devoid of merit because of the following cogent
reasons, viz:
Firstly, the defense of laches was never interposed or
pleaded in the answer filed by the defendant. Not
even in our most gratuitous moment can we see a
nuance of this defense being asserted in the answer:
It is a rule of procedure that defenses and objections
not pleaded either in a motion to dismiss or in the
answer are deemed waived. (Sec. 2 Rule 9 of the
Rules of Court).
Secondly, the evidence shows that plaintiff has not
been sleeping on her rights. According to her she
was dispossessed of the land in 1976. It is admitted by
the defendant that in 1977, plaintiff lodged a
complaint against the defendant regarding the land
in question with the Presidential Action Committee
On Land Problems (PACLAP) as (sic) Camp Wilhelm,
Lucena City. And then the instant action was filed in
court on July 12, 1977.
On the contrary it is the defendant and/or his
predeccessor in interest who have been sleeping on
their rights if any. They did not assert their right of
ownership over the land in question arising from the
Deed of Sale during the cadastral proceedings in the
year 1937 or thereabout (sic). Except for filing an
adverse claim on February 17, 1977, defendant has
22

not taken any step to have the title of the property
and its tax declaration transferred to his name.
Thirdly, as adverted to, a title once registered cannot
be defeated even by adverse, open and notorious
possession. In the same vein, laches, too, may not be
considered a valid defense for claiming ownership of
registered land. Where prescription would not lie,
neither would laches be available (De La Cruz vs. De
La Cruz, CA-G.R. No. 4700-R, Aug. 14, 1950; Adove vs,
Lopez, CA-G.R. No. 18060-R, Aug. 30, 1957.
7

From this adverse decision, the private respondent appealed to the
respondent Court of Appeals, which docketed the case as CA-G.R. CV
No. 09853. He asked the respondent Court to reverse the RTC because
the latter erred: (a) in not considering the unsullied testimonial and
documentary evidence for the appellant; (b) in appreciating the
plaintiff-appellee's flimsy and insufficient testimonial evidence; (c) in not
declaring that prescription and laches were raised by the defendant; (d)
in declaring that the failure to present to the cadastral court the deed of
absolute sale bars the appellant (private respondent) from proving his
ownership over the land in suit; and (e) in rendering judgment in favor of
the petitioner.
8

In its Decision, the respondent Court upheld the private respondent's
position and decreed as follows:
WHEREFORE, the appealed decision is reversed and another
one entered
(1) declaring defendant-appellant the true and lawful owner
of the 12,501 square meters of land described in and covered
by Transfer Certificate of Title No. T-28170 of the Registry of
Deeds of Lucena City;
(2) ordering the plaintiff-appellee to execute to the
defendant-appellant the proper deed of conveyance
transferring full ownership of Transfer Certificate of Title No. T-
28170 to the said defendant-appellant;
(3) ordering the Register of Deeds of Lucena City to cancel
said Transfer Certificate of Title No. T-28170 and to issue
thereafter a new one in the name of defendant-appellant, in
the event the plaintiff-appellee shall fail or refuse to execute
the conveyance;
(4) ordering the plaintiff-appellee to pay attorney's fees of
P10,000.00.
Costs against the plaintiff-appellee.
9

In resolving the appeal against the petitioner, the respondent Court
stressed the fact that although OCT No. 43073 was issued in 1937, it was
only on 26 August 1976 that the petitioner initially moved "to change the
registered ownership" of the property with the issuance of TCT No. 27166.
At that time, petitioner was already forty-nine (49) years old. In short, the
respondent Court observed that she allowed twenty-eight (28) years to
pass from the time she attained the age of majority before taking
any affirmative action to protect her rights over the property. It thus
concluded that "suspicion then is not altogether unjustified that the
inaction was because the appellee knew of the sale by her father Juan
Zabella (sic)," and that such knowledge is notice "that appellee had no
right over half of the land. "
10

Anent the petitioner's contention that the private respondent is not only
guilty of laches but that prescription had already set in against him, the
respondent Court ruled that the former's evidence speaks otherwise
because after TCT No. T-27166 was issued on 26 August 1976, the private
respondent promptly filed his adverse claim, thereby making of record
his interest in the land. Thus, neither prescription nor laches applies
against him.
11

Public respondent also overturned the trail court's finding that the
petitioner was in possession of the property until she was dispossessed in
1976 by the private respondent principally because it was in the third
quarter of 1977 that she (petitioner) declared the questioned property in
her name, and had paid land taxes thereon only for the same third
quarter of 1977. The other tax payments were not in her name, but in the
names of Godofredo Zaracena and Juan Zabella. The respondent Court
opined that "[N]ormally, one who claims possession in ownership will
declare the property in his name and will pay taxes on it,"
12
and
concluded that the petitioner's claimed possession "is not possession in
law that deserves protection and recognition."
13
On the other hand, it
gave credit to the private respondent's version chiefly because he has
been paying irrigation charges since 1960.
Aggrieved thereby, the petitioner took this recourse, and raises the
following issues:
1. Whether or not the alleged sale of a property by virtue of an
instrument which was not filed or registered under Act 3344
and was not submitted before the Cadastral Court during the
hearing thereof may deprived (sic) an adjudicated-declared
owner the (sic) enjoyment of possession and the improvements
thereof.
2. Whether or not a party in (sic) whose title was vested by
virtue of a rendition of judgment and issuance of the decree of
registration in a judicial proceeding in rem which as such, binds
the whole world and who ever claim (sic) thereafter on the
said land are (sic) deemed barred under the principle of res
judicata.
3. Whether (sic) or not property covered by Torence (sic) Title
can be acquired by prescription or adverse possession.
14

After the private respondent filed his Comment, We gave due course to
the petition and directed both parties to submit their respective
Memoranda, which they complied with.
The petition is impressed with merit.
1. In the first place, the public respondent's factual findings on the
issuance of possession on the basis of which it rejected the findings of
fact and conclusions of the trial court are conjectural and
speculative. Hence, We cannot be bound by such findings under the
rule that findings of fact of the Court of Appeals are conclusive on this
Court.
15
The trial court gave credence to the petitioner's account that
she had legally possessed the property in question until 1976,
categorically ruling that the private respondent's "evidence does not
convincingly establish that he possessed the property publicly,
exclusively and peacefully in the concept of owner."
16
The reasons for
this pronouncement have already been given. Clearly, these matters are
inexorably anchored on the witnesses' credibility. It is a settled judicial
precept that the issue of the credibility of witnesses is primarily addressed
to the trial court since it is in a better position to decide such a question,
having seen and heard the witnesses and having observed their
deportment and manner of testifying during the trial.
17

Moreover, its findings on such credibility carry great weight and respect,
and will be sustained by the appellate court unless certain facts of
substance and value have been overlooked which, if considered, might
affect the result of the case.
18
That the petitioner neither declared the
property in her name nor paid the taxes thereon until 1977 is not,
contrary to the public respondent's conclusion, fatal to her cause. Until
27 June 1976, the property remained covered by OCT No. 43073 in the
names of Juan Zabella and Anastacio Llenares. The private respondent's
alleged claim was not annotated thereon. There is, as well, no evidence
to show that the private respondent had earlier made any extrajudicial
or judicial demands to enforce his claim on the property based on the
so-called deed of sale which Anastacio had executed on 21 December
1929 in favor of Ariston Zabella, the private respondent's predecessor-in-
interest. Since the petitioner is Anastacio Llenares's sole heir, the
continued existence of OCT No. 43073 fully protected her rights; and her
23

failure to declare for taxation purposes the one-half (1/2) portion of the
land pertaining to Anastacio did not, therefore, prejudice her because
the payments of the real estate taxes by other such as Godofredo
Zaracena and Juan Zabella, as found by the public respondent per
Exhibits "C", "C-1" and "C-2"
19
for and in behalf of the registered
owners benefited the registered owners themselves and their
successors-in-interest. On the other, the private respondent neither had
the property declared in his name for taxation purposes nor paid the real
estate taxes thereon. All that he paid, and this was only beginning in
1960, were the irrigation charges. And yet, the respondent Court
resolved the issue in his favor. This palpable inconsistency on the part of
the Court of Appeals defies all logic.
Furthermore, the respondent Court's conclusion that the petitioner made
no move to have the property declared in her name or pay the real
estate taxes thereon before 1976 because she knew all along about the
1929 sale executed by her father to Ariston Zabella, is plain speculation
and, as characterized by the public respondent, a mere "suspicion," thus:
. . . The suspicion then is not altogether unjustified
that the inaction was because the appellee knew of
the sale by her father to Juan (sic) Zabella. . . .
20

Such a suspicion has no basis at all. The parties do not dispute
the fact that at the time of Anastacio Llenares' death on 27
March 1931, the petitioner was only four (4) years old. The
deed of sale was executed by Anastacio Llenares on 21
December 1929, when the petitioner was only two (2) years
old. Being at that time very much below the age of reason, the
petitioner could not have been expected to be aware of the
existence of the said deed of sale, much less understand its
contents. The evidence failed to show that the private
respondent informed the petitioner of such a sale at any time
before the former filed the adverse claim on 17 February 1977.
2. Secondly, the respondent Court erroneously applied the rule on
prescription against the petitioner and not against the private
respondent. The evidence conclusively established that at an
appropriate cadastral proceedings, Lot No. 5015 was awarded by the
cadastral court to Juan Zabella and Anastacio Llenares in equal pro-
indiviso shares; the decision became final; and on 28 July 1937, OCT No.
43073 was issued in favor of Juan Zabella and Anastacio Llenares. It was
only on 17 February 1977, or after the lapse of over thirty-nine (39) years,
that the private respondent, as a successor-in-interest of Ariston Zabella,
took the first legal step i.e., the filing of the affidavit of adverse claim
to protect and preserve his supposed right acquired under the deed
of sale. Unfortunately, however, this move did not produce any legal
effect. Anadverse claim under Section 110 of the Land Registration Act
(Act No. 496), the governing law at that time, referred to a claim of "any
part or interest in registered land adverse to the registered owner, arising
subsequent to the date of the original registration."
21
In the instant case,
the private respondent's "adverse claim" is one based on a transaction
which had occurred long before the rendition of the decision in the
cadastral proceedings and the issuance of OCT No. 43073. This seems to
have escaped the attention of the public respondent which instead
concluded that it was the petitioner who did not take any legal action
from 1937, when OCT No. 43073 was issued, until 26 August 1976, when
TCT NO. 27166 was issued following her execution on 22 June 1976 of the
affidavit of "self-adjudication." This conclusion has no basis. As has been
earlier adverted to, the continued existence of OCT No. 43073 in Juan
Zabella's name protected the petitioner as the sole heir of Anastacio
Llenares. There is no law which requires her, as a sole heir, to execute an
affidavit of adjudication and cause both the cancellation of the OCT
and the issuance of a new one in her name and in the names of the
heirs of co-owner Juan Zabella in order to transfer the ownership of the
property to her, or protect her rights and interests therein. The transfer in
her favor took place, ipso jure, upon the death of Anastacio Llenares.
22

3. Finally, the so-called deed of sale executed by Anastacio Llenares in
1929 had lost its efficacy after the judgment in the cadastral
proceedings adjudicating Lot No. 5015 to him and Juan Zabella
became final. Ariston Zabella, the vendee in the said sale, did not file
any answer in the cadastral proceedings or advance any claims on the
said lot. It is to be noted that the proceedings under the Cadastral Act
(Act No. 2259, as amended)
23
are judicial and in rem. As such, they bind
the whole world. The final judgment rendered therein is deemed to have
settled the status of the land subject thereof; any claim over it not noted
thereon by other parties is therefore deemed barred under the principle
of res judicata.
24
In a cadastal proceeding, the Government is actually
the plaintiff and all the claimants are defendants.
25
This is because the
former, represented by the Solicitor General, institutes the proceedings
by a petition against the holders, claimants, possessors or occupants of
such lands or any part thereof while the latter, or those claiming interest
in the entire land or any part of it, whether named in the notice or not,
are required to appear before the court and file an answer on or before
the return day or within such further time as may be followed by the
court.
26
All conflicting interest shall be adjudicated therein and the
decree awarded in favor of the party entitled to the land; when it has
become final, the decree shall serve as the basis for an original
certificate of title in favor of the said party. This shall have the same
effect as a certificate of title granted under the Land Registration Act.
27

A party fraudulently deprived of his property in a cadastral proceeding
may nevertheless file, within one (1) year from the entry of the decree, a
petition for review.
28
After the lapse of the said period, if the property
has not yet passed on to an innocent purchaser for value, an action for
conveyance may still be filed by the aggrieved party.
29
In the instant
case, that action for conveyance could have only been based on an
implied trust in Article 1456 of the Civil Code:
Art. 1456. If property is acquired through mistake or fraud, the
person obtaining it is, by force of law, considered a trustee of
an implied trust for the benefit of the person from whom the
property comes.
It is now settled that an action for the conveyance of property based on
an implied or constructive trust prescribes in ten (10) years.
30

WHEREFORE, judgment is hereby rendered GRANTING the instant
petition, ANNULING the challenged decision of the public respondent
Court of Appeals of 24 April 1991 in CA-G.R. CV No. 09853 and
REINSTATING the decision of the trial court subject of the appeal in the
latter case.
Costs against the private respondent. SO ORDERED.
G.R. No. 77029 August 30, 1990
BIENVENIDO, ESTELITA, MACARIO, LUIS, ADELAIDE, ENRIQUITA and
CLAUDIO, all surnamed, GEVERO,petitioners,
vs.
INTERMEDIATE APPELLATE COURT and DEL MONTE DEVELOPMENT
CORPORATION, respondents.
PARAS, J.:
This is a petition for review on certiorari of the March 20, 1988
decision
1
of the then Intermediate Appellate Court (now Court of
Appeals) in AC-GR CV No. 69264, entitled Del Monte Development
Corporation vs. Enrique Ababa, et al., etc. affirming the decision
2
of the
then Court of First Instance (now Regional Trial Court) of Misamis Oriental
declaring the plaintiff corporation as the true and absolute owner of that
portion of Lot 476 of the Cagayan Cadastre, particularly Lot No. 2476-D
of the subdivision plan (LRC) Psd-80450, containing an area of Seven
Thousand Eight Hundred Seventy Eight (7,878) square meters more or
less.
As found by the Appellate Court, the facts are as follows:
The parcel of land under litigation is Lot No. 2476 of the
Subdivision Plan Psd-37365 containing an area of 20,119 square
meters and situated at Gusa, Cagayan de Oro City. Said lot
was acquired by purchase from the late Luis Lancero on
September 15, 1964 as per Deed of Absolute Sale executed in
24

favor of plaintiff and by virtue of which Transfer Certificate of
Title No. 4320 was issued to plaintiff (DELCOR for brevity). Luis
Lancero, in turn acquired the same parcel from Ricardo
Gevero on February 5, 1952 per deed of sale executed by
Ricardo Gevero which was duly annotated as entry No. 1128
at the back of Original Certificate of Title No. 7610 covering the
mother lot identified as Lot No. 2476 in the names of Teodorica
Babangha 1/2 share and her children: Maria; Restituto,
Elena, Ricardo, Eustaquio and Ursula, all surnamed surnamed
Gevero, 1/2 undivided share of the whole area containing
48,122 square meters.
Teodorica Babangha died long before World War II and was
survived by her six children aforementioned. The heirs of
Teodorica Babangha on October 17,1966 executed an Extra-
Judicial Settlement and Partition of the estate of Teodorica
Babangha, consisting of two lots, among them was lot 2476. By
virtue of the extra-judicial settlement and partition executed
by the said heirs of Teodorica Babangha, Lot 2476-A to Lot
2476-I, inclusive, under subdivision plan (LRC) Psd-80450 duly
approved by the Land Registration Commission, Lot 2476-D,
among others, was adjudicated to Ricardo Gevero who was
then alive at the time of extra-judicial settlement and partition
in 1966. Plaintiff (private respondent herein) filed an action with
the CFI (now RTC) of Misamis Oriental to quiet title and/or
annul the partition made by the heirs of Teodorica Babangha
insofar as the same prejudices the land which it acquired a
portion of lot 2476.
Plaintiff now seeks to quiet title and/or annul the partition
made by the heirs of Teodorica Babangha insofar as the same
prejudices the land which it acquired, a portion of Lot 2476.
Plaintiff proved that before purchasing Lot 2476-A it first
investigated and checked the title of Luis Lancero and found
the same to be intact in the office of the Register of Deeds of
Cagayan de Oro City. The same with the subdivision plan (Exh.
"B"), the corresponding technical description (Exh. "P") and the
Deed of Sale executed by Ricardo Gevero all of which were
found to be unquestionable. By reason of all these, plaintiff
claims to have bought the land in good faith and for value,
occupying the land since the sale and taking over from
Lancero's possession until May 1969, when the defendants
Abadas forcibly entered the property. (Rollo, p. 23)
After trial the court a quo on July 18, 1977 rendered judgment, the
dispositive portion of which reads as follows:
WHEREFORE, premises considered, judgment is hereby
rendered declaring the plaintiff corporation as the true and
absolute owner of that portion of Lot No. 2476 of the Cagayan
Cadastre, particularly Lot No. 2476-D of the subdivision plan
(LRC) Psd-80450, containing an area of SEVEN THOUSAND
EIGHT HUNDRED SEVENTY EIGHT (7,878) square meters, more or
less. The other portions of Lot No. 2476 are hereby adjudicated
as follows:
Lot No. 2476 B to the heirs of Elena Gevero;
Lot No. 2476 C to the heirs of Restituto Gevero;
Lot No. 2476 E to the defendant spouses Enrique C. Torres
and Francisca Aquino;
Lot No. 2476 F to the defendant spouses Eduard Rumohr
and Emilia Merida Rumohf ;
Lot Nos. 2476-H, 2476-I and 2476 G to defendant spouses
Enrique Abada and Lilia Alvarez Abada.
No adjudication can be made with respect to Lot No. 2476-A
considering that the said lot is the subject of a civil case
between the Heirs of Maria Gevero on one hand and the
spouses Daniel Borkingkito and Ursula Gevero on the other
hand, which case is now pending appeal before the Court of
Appeals. No pronouncement as to costs,
SO ORDERED. (Decision, Record on Appeal, p.
203; Rollo, pp. 21-22)
From said decision, defendant heirs of Ricardo Gevero (petitioners
herein) appealed to the IAC (now Court of Appeals) which
subsequently, on March 20, 1986, affirmed the decision appealed from.
Petitioners, on March 31, 1986, filed a motion for reconsideration (Rollo,
p. 28) but was denied on April 21, 1986.
Hence, the present petition.
This petition is devoid of merit.
Basically, the issues to be resolved in the instant case are: 1)
whether or not the deed of sale executed by Ricardo Gevero
to Luis Lancero is valid; 2) in the affirmative, whether or not the
1/2 share of interest of Teodorica Babangha in one of the
litigated lots, lot no. 2476 under OCT No. 7610 is included in the
deed of sale; and 3) whether or not the private respondents'
action is barred by laches.
Petitioners maintain that the deed of sale is entirely invalid citing alleged
flaws thereto, such as that: 1) the signature of Ricardo was forged
without his knowledge of such fact; 2) Lancero had recognized the fatal
defect of the 1952 deed of sale when he signed the document in 1968
entitled "Settlement to Avoid the Litigation"; 3) Ricardo's children
remained in the property notwithstanding the sale to Lancero; 4) the
designated Lot No. is 2470 instead of the correct number being Lot No.
2476; 5) the deed of sale included the share of Eustaquio Gevero without
his authority; 6) T.C.T. No. 1183 of Lancero segregated the area of 20,119
square meters from the bigger area (OCT No. 7616) without the consent
of the other co-owners; 7) Lancero caused the 1952 Subdivision survey
without the consent of the Geveros' to bring about the segregation of
the 20,119 square meters lot from the mother lot 2476 which brought
about the issuance of his title T-1183 and to DELCOR's title T4320, both of
which were illegally issued; and 8) the area sold as per document is
20,649 square meters whereas the segregated area covered by TCT No.
T-1183 of Lancero turned out to be 20,119 square meters (Petitioners
Memorandum, pp. 62-78).
As to petitioners' claim that the signature of Ricardo in the 1952 deed of
sale in favor of Lancero was forged without Ricardo's knowledge of such
fact (Rollo, p. 71) it will be observed that the deed of sale in question was
executed with all the legal formalities of a public document. The 1952
deed was duly acknowledged by both parties before the notary public,
yet petitioners did not bother to rebut the legal presumption of the
regularity of the notarized document (Dy v. Sacay, 165 SCRA 473 [1988]);
Nuguid v. C.A., G.R. No. 77423, March 13, 1989). In fact it has long been
settled that a public document executed and attested through the
intervention of the notary public is evidence of the facts in clear,
unequivocal manner therein expressed. It has the presumption of
regularity and to contradict all these, evidence must be clear,
convincing and more than merely preponderant (Rebuleda v. I.A.C., 155
SCRA 520-521 [1987]). Forgery cannot be presumed, it must be proven
(Siasat v. IAC, No. 67889, October 10, 1985). Likewise, petitioners
allegation of absence of consideration of the deed was not
substantiated. Under Art. 1354 of the Civil Code, consideration is
presumed unless the contrary is proven.
As to petitioners' contention that Lancero had recognized the fatal
defect of the 1952 deed when he signed the document in 1968 entitled
"Settlement to Avoid Litigation" (Rollo, p. 71), it is a basic rule of evidence
that the right of a party cannot be prejudiced by an act, declaration, or
omission of another (Sec. 28. Rule 130, Rules of Court). This particular rule
is embodied in the maxim "res inter alios acta alteri nocere non debet."
Under Section 31, Rule 130, Rules of Court "where one derives title to
25

property from another, the act, declaration, or omission of the latter,
while holding the title, in relation to the property is evidence against the
former." It is however stressed that the admission of the former owner of a
property must have been made while he was the owner thereof in order
that such admission may be binding upon the present owner (City of
Manila v. del Rosario, 5 Phil. 227 [1905]; Medel v. Avecilla, 15 Phil. 465
[1910]). Hence, Lanceros' declaration or acts of executing the 1968
document have no binding effect on DELCOR, the ownership of the land
having passed to DELCOR in 1964.
Petitioners' claim that they remained in the property, notwithstanding the
alleged sale by Ricardo to Lancero (Rollo, p. 71) involves a question of
fact already raised and passed upon by both the trial and appellate
courts. Said the Court of Appeals:
Contrary to the allegations of the appellants, the trial court
found that Luis Lancero had taken possession of the land upon
proper investigation by plaintiff the latter learned that it was
indeed Luis Lancero who was the owner and possessor of Lot
2476 D. . . . (Decision, C.A., p. 6).
As a finding of fact, it is binding upon this Court (De Gola-Sison v.
Manalo, 8 SCRA 595 [1963]; Gaduco vs. C.A., 14 SCRA 282 [1965]; Ramos
v. Pepsi-Cola, 19 SCRA 289 [1967]; Tan v. C.A., 20 SCRA 54 [1967]; Ramirez
Tel. Co. v. Bank of America, 33 SCRA 737 [1970]; Lucero v. Loot, 25 SCRA
687 [1968]; Guerrero v. C.A., 142 SCRA 130 [1986]).
Suffice it to say that the other flaws claimed by the petitioners which
allegedly invalidated the 1952 deed of sale have not been raised before
the trial court nor before the appellate court. It is settled jurisprudence
that an issue which was neither averred in the complaint nor raised
during the trial in the court below cannot be raised for the first time on
appeal as it would be offensive to the basic rules of fair play, justice and
due process. (Matienzo v. Servidad, 107 SCRA 276 [1981]; Dela Santa v.
C.A., 140 SCRA 44 [1985]; Dihiansan v. C.A., 157 SCRA 434 [1987];
Anchuelo v. IAC, 147 SCRA 434 [1987]; Dulos Realty and Development
Corporation v. C.A., 157 SCRA [1988]; Kamos v. IAC, G.R. No. 78282, July
5, 1989).
Petitioners aver that the 1/2 share of interest of Teodorica (mother of
Ricardo) in Lot 2476 under OCT No. 7610 was not included in the deed of
sale as it was intended to limit solely to Ricardos' proportionate share out
of the undivided 1/2 of the area pertaining to the six (6) brothers and
sisters listed in the Title and that the Deed did not include the share of
Ricardo, as inheritance from Teodorica, because the Deed did not recite
that she was deceased at the time it was executed (Rollo, pp. 67-68).
The hereditary share in a decedents' estate is transmitted or vested
immediately from the moment of the death of the "causante" or
predecessor in interest (Civil Code of the Philippines, Art. 777), and there
is no legal bar to a successor (with requisite contracting capacity)
disposing of his hereditary share immediately after such death, even if
the actual extent of such share is not determined until the subsequent
liquidation of the estate (De Borja v. Vda. de Borja, 46 SCRA 577 [1972]).
Teodorica Babangha died long before World War II, hence, the rights to
the succession were transmitted from the moment of her death. It is
therefore incorrect to state that it was only in 1966, the date of
extrajudicial partition, when Ricardo received his share in the lot as
inheritance from his mother Teodorica. Thus, when Ricardo sold his share
over lot 2476 that share which he inherited from Teodorica was also
included unless expressly excluded in the deed of sale.
Petitioners contend that Ricardo's share from Teodorica was excluded in
the sale considering that a paragraph of the aforementioned deed
refers merely to the shares of Ricardo and Eustaquio (Rollo, p. 67-68).
It is well settled that laws and contracts shall be so construed as to
harmonize and give effect to the different provisions thereof
(Reparations Commission v. Northern Lines, Inc., 34 SCRA 203 [1970]), to
ascertain the meaning of the provisions of a contract, its entirety must be
taken into account (Ruiz v. Sheriff of Manila, 34 SCRA 83 [1970]). The
interpretation insisted upon by the petitioners, by citing only one
paragraph of the deed of sale, would not only create contradictions but
also, render meaningless and set at naught the entire provisions thereof.
Petitioners claim that DELCOR's action is barred by laches considering
that the petitioners have remained in the actual, open, uninterrupted
and adverse possession thereof until at present (Rollo, p. 17).
An instrument notarized by a notary public as in the case at bar is a
public instrument (Eacnio v. Baens, 5 Phil. 742). The execution of a public
instrument is equivalent to the delivery of the thing (Art. 1498, 1st Par.,
Civil Code) and is deemed legal delivery. Hence, its execution was
considered a sufficient delivery of the property (Buencamino v. Viceo, 13
Phil. 97; [1906]; Puato v. Mendoza, 64 Phil. 457 [1937]; Vda. de Sarmiento
v. Lesaca, 108 Phil. 900 [1960]; Phil. Suburban Development Corp. v.
Auditor Gen., 63 SCRA 397 (1975]).
Besides, the property sold is a registered land. It is the act of registration
that transfers the ownership of the land sold. (GSIS v. C.A., G.R. No.
42278, January 20, 1989). If the property is a registered land, the
purchaser in good, faith has a right to rely on the certificate of title and is
under no duty to go behind it to look for flaws (Mallorca v. De Ocampo,
No. L-26852, March 25, 1970; Unchuan v. C.A., 161 SCRA 710 [1988];
Nuguid v. CA-G.R. No. 77427, March 13, 1989).
Under the established principles of land registration law, the person
dealing with registered land may generally rely on the correctness of its
certificate of title and the law will in no way oblige him to go behind the
certificate to determine the condition of the property (Tiongco v. de la
Merced, L-2446, July 25, 1974; Lopez vs. CA., G.R. No. 49739, January 20,
1989; Davao Grains Inc. vs. IAC, 171 SCRA 612 [1989]). This
notwithstanding, DELCOR did more than that. It did not only rely on the
certificate of title. The Court of Appeals found that it had first
investigated and checked the title (T.C.T. No. T-1183) in the name of Luis
Lancero. It likewise inquired into the Subdivision Plan, the corresponding
technical description and the deed of sale executed by Ricardo Gevero
in favor of Luis Lancero and found everything in order. It even went to
the premises and found Luis Lancero to be in possession of the land to
the exclusion of any other person. DELCOR had therefore acted in good
faith in purchasing the land in question.
Consequently, DELCOR's action is not barred by laches.
The main issues having been disposed of, discussion of the other issues
appear unnecessary.
PREMISES CONSIDERED, the instant petition is hereby DISMISSED and the
decision of the Court of Appeals is hereby AFFIRMED. SO ORDERED.
[G.R. No. 94918. September 2, 1992.]

DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR.,
EVELYN SUAREZ-DE LEON and REGINIO I. SUAREZ, Petitioners, v. THE COURT
OF APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO, MA.
CONCEPCION VITO and VIRGINIA BANTA,Respondents.

Villareal Law Offices, for Petitioners.

Nelson Loyola for Private Respondent.


SYLLABUS


1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST
OF THE CHILDREN, DIFFERENT AND ADVERSE FROM THEIR MOTHER. The
legitime of the surviving spouse is equal to the legitime of each child. The
proprietary interest of petitioners in the levied and auctioned property is
different from and adverse to that of their mother. Petitioners became
co-owners of the property not because of their mother but through their
own right as children of their deceased father. Therefore, petitioners are
26

not barred in any way from instituting the action to annul the auction
sale to protect their own interest.


NOCON, J.:


The ultimate issue before Us is whether or not private respondents can
validly acquire all the five (5) parcels of land co-owned by petitioners
and registered in the name of petitioners deceased father. Marcelo
Suarez, whose estate has not been partitioned or liquidated, after the
said properties were levied and publicly sold en masse to private
respondents to satisfy the personal judgment debt of Teofista Suarez, the
surviving spouse of Marcelo Suarez, mother of herein
petitioners.chanrobles law library

The undisputed facts of the case are as follows:chanrob1es virtual 1aw
library

Herein petitioners are brothers and sisters. Their father died in 1955 and
since then his estate consisting of several valuable parcels of land in
Pasig, Metro Manila has lot been liquidated or partitioned. In 1977,
petitioners widowed mother and Rizal Realty Corporation lost in the
consolidated cases for rescission of contract and for damages, and
were ordered by Branch 1 of the then Court of First Instance of Rizal (now
Branch 151, RTC of Pasig) to pay, jointly and severally, herein
respondents the aggregate principal amount of about P70,000 as
damages. 1

The judgment against petitioners mother and Rizal Realty Corporation
having become final and executory, five (5) valuable parcel of land in
Pasig, Metro Manila, (worth to be millions then) were levied and sold on
execution on June 24, 1983 in favor of the private respondents as the
highest bidder for the amount of P94,170.000. Private respondents were
then issued a certificate of sale which was subsequently registered or
August 1, 1983.

On June 21, 1984 before the expiration of the redemption period,
petitioners filed a reinvindicatory action 2 against private respondents
and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No.
51203, for the annulment of the auction sale and the recovery of the
ownership of the levied pieces of property. Therein, they alleged, among
others, that being strangers to the case decided against their mother,
they cannot be held liable therefor and that the five (5) parcels of land,
of which they are co-owners, can neither be levied nor sold on
execution.

On July 31, 1984, the Provincial Sheriff of Rizal issued to private
respondents a final deed of sale 3 over the properties.

On October 22, 1984, Teofista Suarez joined by herein petitioners filed
with Branch 151 a Motion for Reconsideration 4 of the Order dated
October 10, 1984, claiming that the parcels of land are co-owned by
them and further informing the Court the filing and pendency of an
action to annul the auction sale (Civil Case No. 51203), which motion
however, was denied.chanrobles.com:cralaw:red

On February 25, 1985, a writ of preliminary injunction was issued enjoining
private respondents from transferring to third parties the levied parcels of
land based on the finding that the auctioned lands are co-owned by
petitioners.

On March 1, 1985, private respondent Valente Raymundo filed in Civil
Case No. 51203 a Motion to Dismiss for failure on the part of the
petitioners to prosecute, however, such motion was later denied by
Branch 155, Regional Trial Court, Pasig.

On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte
Motion to Dismiss complaint for failure to prosecute. This was granted by
Branch 155 through an Order dated May 29, 1986, notwithstanding
petitioners pending motion for the issuance of alias summons to be
served upon the other defendants in the said case. A motion for
reconsideration was filed but was later denied.

On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-
21739 an Order directing Teofista Suarez and all persons claiming right
under her to vacate the lots subject of the judicial sale; to desist from
removing or alienating improvements thereon; and to surrender to
private respondents the owners duplicate copy of the torrens title and
other pertinent documents.

Teofista Suarez then filed with the then Court of Appeals a petition
for certiorari to annul the Orders of Branch 151 dated October 10, 1984
and October 14, 1986 issued in Civil Case Nos. 21736-21739.

On December 4, 1986 petitioners filed with Branch 155 a Motion for
reconsideration of the Order 5 dated September 24, 1986. In an Order
dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal
and directed the issuance of alias summons.chanrobles law library : red

Respondents then appealed to the Court of Appeals seeking to annul
the orders dated February 25, 1985, 7 May 19, 1989 8 and February 26,
1990 9 issued in Civil Case No. 51203 and further ordering respondent
Judge to dismiss Civil Case No. 51203. The appellate court rendered its
decision on July 27, 1990, 10 the dispositive portion of which
reads:jgc:chanrobles.com.ph

"WHEREFORE, the petition for certiorari is hereby granted and the
questioned orders dated February 25, 1985, May 19, 1989 and February
26, 1990 issued in Civil Case No. 51203 are hereby annulled, further
respondent Judge is ordered to dismiss Civil Case No. 51203." 11

Hence, this appeal.

Even without touching on the incidents and issues raised by both
petitioner and private respondents and the developments subsequent to
the filing of the complaint, We cannot but notice the glaring error
committed by the trial court.

It would be useless to discuss the procedural issue on the validity of the
execution and the manner of publicly selling en masse the subject
properties for auction. To start with, only one-half of the 5 parcels of land
should have been the subject of the auction sale.

The law in point is Article 777 of the Civil Code, the law applicable at the
time of the institution of the case.

"The rights to the succession are transmitted from the moment of the
death of the decedent."cralaw virtua1aw library

Article 888 further provides:chanrobles.com.ph : virtual law library

"The legitime of the legitimate children and descendants consists of one-
half of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of
illegitimate children and of the surviving spouse as hereinafter
provided."cralaw virtua1aw library

Article 892 par. 2 likewise provides:jgc:chanrobles.com.ph

"If there are two or more legitimate children or descendants, the
surviving spouse shall be entitled to a portion equal to the legitime of
each of the legitimate children or descendants."cralaw virtua1aw library

Thus, from the foregoing, the legitime of the surviving spouse is equal to
the legitime of each child.

The proprietary interest of petitioners in the levied and auctioned
property is different from and adverse to that of their mother. Petitioners
became co-owners of the property not because of their mother but
through their own right as children of their deceased father. Therefore,
petitioners are not barred in any way from instituting the action to annul
the auction sale to protect their own interest.

WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as
well as its Resolution of August 28, 1990 are hereby REVERSED and set
aside; and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the sale with regard to
said portion. SO ORDERED.

27

G.R. No. L-43082 June 18, 1937
PABLO LORENZO, as trustee of the estate of Thomas Hanley,
deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee
of the estate of Thomas Hanley, deceased, brought this action in the
Court of First Instance of Zamboanga against the defendant, Juan
Posadas, Jr., then the Collector of Internal Revenue, for the refund of the
amount of P2,052.74, paid by the plaintiff as inheritance tax on the
estate of the deceased, and for the collection of interst thereon at the
rate of 6 per cent per annum, computed from September 15, 1932, the
date when the aforesaid tax was [paid under protest. The defendant set
up a counterclaim for P1,191.27 alleged to be interest due on the tax in
question and which was not included in the original assessment. From
the decision of the Court of First Instance of Zamboanga dismissing both
the plaintiff's complaint and the defendant's counterclaim, both parties
appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in
Zamboanga, Zamboanga, leaving a will (Exhibit 5) and considerable
amount of real and personal properties. On june 14, 1922, proceedings
for the probate of his will and the settlement and distribution of his estate
were begun in the Court of First Instance of Zamboanga. The will was
admitted to probate. Said will provides, among other things, as follows:
4. I direct that any money left by me be given to my nephew
Matthew Hanley.
5. I direct that all real estate owned by me at the time of my
death be not sold or otherwise disposed of for a period of ten
(10) years after my death, and that the same be handled and
managed by the executors, and proceeds thereof to be given
to my nephew, Matthew Hanley, at Castlemore,
Ballaghaderine, County of Rosecommon, Ireland, and that he
be directed that the same be used only for the education of
my brother's children and their descendants.
6. I direct that ten (10) years after my death my property be
given to the above mentioned Matthew Hanley to be
disposed of in the way he thinks most advantageous.
x x x x x x x x x
8. I state at this time I have one brother living, named Malachi
Hanley, and that my nephew, Matthew Hanley, is a son of my
said brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the
best interests of ther estate to appoint a trustee to administer the real
properties which, under the will, were to pass to Matthew Hanley ten
years after the two executors named in the will, was, on March 8, 1924,
appointed trustee. Moore took his oath of office and gave bond on
March 10, 1924. He acted as trustee until February 29, 1932, when he
resigned and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant
Collector of Internal Revenue, alleging that the estate left by the
deceased at the time of his death consisted of realty valued at P27,920
and personalty valued at P1,465, and allowing a deduction of P480.81,
assessed against the estate an inheritance tax in the amount of
P1,434.24 which, together with the penalties for deliquency in payment
consisting of a 1 per cent monthly interest from July 1, 1931 to the date of
payment and a surcharge of 25 per cent on the tax, amounted to
P2,052.74. On March 15, 1932, the defendant filed a motion in the
testamentary proceedings pending before the Court of First Instance of
Zamboanga (Special proceedings No. 302) praying that the trustee,
plaintiff herein, be ordered to pay to the Government the said sum of
P2,052.74. The motion was granted. On September 15, 1932, the plaintiff
paid said amount under protest, notifying the defendant at the same
time that unless the amount was promptly refunded suit would be
brought for its recovery. The defendant overruled the plaintiff's protest
and refused to refund the said amount hausted, plaintiff went to court
with the result herein above indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley,
deceased, passed to his instituted heir, Matthew Hanley, from
the moment of the death of the former, and that from the
time, the latter became the owner thereof.
II. In holding, in effect, that there was deliquency in the
payment of inheritance tax due on the estate of said
deceased.
III. In holding that the inheritance tax in question be based
upon the value of the estate upon the death of the testator,
and not, as it should have been held, upon the value thereof
at the expiration of the period of ten years after which,
according to the testator's will, the property could be and was
to be delivered to the instituted heir.
IV. In not allowing as lawful deductions, in the determination of
the net amount of the estate subject to said tax, the amounts
allowed by the court as compensation to the "trustees" and
paid to them from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in
denying his motion for new trial.
The defendant-appellant contradicts the theories of the plaintiff and
assigns the following error besides:
The lower court erred in not ordering the plaintiff to pay to the
defendant the sum of P1,191.27, representing part of the
interest at the rate of 1 per cent per month from April 10, 1924,
to June 30, 1931, which the plaintiff had failed to pay on the
inheritance tax assessed by the defendant against the estate
of Thomas Hanley.
The following are the principal questions to be decided by this court in
this appeal: (a) When does the inheritance tax accrue and when must it
be satisfied? (b) Should the inheritance tax be computed on the basis of
the value of the estate at the time of the testator's death, or on its value
ten years later? (c) In determining the net value of the estate subject to
tax, is it proper to deduct the compensation due to trustees? (d) What
law governs the case at bar? Should the provisions of Act No. 3606
favorable to the tax-payer be given retroactive effect? (e) Has there
been deliquency in the payment of the inheritance tax? If so, should the
additional interest claimed by the defendant in his appeal be paid by
the estate? Other points of incidental importance, raised by the parties
in their briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to
pay the same. Section 1536 as amended, of the Administrative Code,
imposes the tax upon "every transmission by virtue of inheritance, devise,
bequest, gift mortis causa, or advance in anticipation of
inheritance,devise, or bequest." The tax therefore is upon transmission or
the transfer or devolution of property of a decedent, made effective by
his death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax
imposed on the right to succeed to, receive, or take property by or
under a will or the intestacy law, or deed, grant, or gift to become
operative at or after death. Acording to article 657 of the Civil Code,
"the rights to the succession of a person are transmitted from the
moment of his death." "In other words", said Arellano, C. J., ". . . the heirs
succeed immediately to all of the property of the deceased ancestor.
28

The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered
to them a deed for the same before his death." (Bondad vs. Bondad, 34
Phil., 232. See also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-
Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs. Gat-
Pandan, 14 Phil., 491; Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras
Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs.
Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil.,
531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51
Phil., 396; Baun vs. Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts
that while article 657 of the Civil Code is applicable to testate as well as
intestate succession, it operates only in so far as forced heirs are
concerned. But the language of article 657 of the Civil Code is broad
and makes no distinction between different classes of heirs. That article
does not speak of forced heirs; it does not even use the word "heir". It
speaks of the rights of succession and the transmission thereof from the
moment of death. The provision of section 625 of the Code of Civil
Procedure regarding the authentication and probate of a will as a
necessary condition to effect transmission of property does not affect
the general rule laid down in article 657 of the Civil Code. The
authentication of a will implies its due execution but once probated and
allowed the transmission is effective as of the death of the testator in
accordance with article 657 of the Civil Code. Whatever may be the
time when actual transmission of the inheritance takes place, succession
takes place in any event at the moment of the decedent's death. The
time when the heirs legally succeed to the inheritance may differ from
the time when the heirs actually receive such inheritance. "Poco
importa", says Manresa commenting on article 657 of the Civil Code,
"que desde el falleimiento del causante, hasta que el heredero o
legatario entre en posesion de los bienes de la herencia o del legado,
transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse
al momento de la muerte, y asi lo ordena el articulo 989, que debe
considerarse como complemento del presente." (5 Manresa, 305; see
also, art. 440, par. 1, Civil Code.) Thomas Hanley having died on May 27,
1922, the inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it
does not follow that the obligation to pay the tax arose as of the date.
The time for the payment on inheritance tax is clearly fixed by section
1544 of the Revised Administrative Code as amended by Act No. 3031, in
relation to section 1543 of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions.
The following shall not be taxed:
(a) The merger of the usufruct in the owner of the
naked title.
(b) The transmission or delivery of the inheritance or
legacy by the fiduciary heir or legatee to the
trustees.
(c) The transmission from the first heir, legatee, or
donee in favor of another beneficiary, in
accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate to the
new beneficiary is greater than that paid by the first, the
former must pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article
shall be paid:
(a) In the second and third cases of the next
preceding section, before entrance into possession
of the property.
(b) In other cases, within the six months subsequent
to the death of the predecessor; but if judicial
testamentary or intestate proceedings shall be
instituted prior to the expiration of said period, the
payment shall be made by the executor or
administrator before delivering to each beneficiary
his share.
If the tax is not paid within the time hereinbefore prescribed,
interest at the rate of twelve per centum per annum shall be
added as part of the tax; and to the tax and interest due and
unpaid within ten days after the date of notice and demand
thereof by the collector, there shall be further added a
surcharge of twenty-five per centum.
A certified of all letters testamentary or of admisitration shall be
furnished the Collector of Internal Revenue by the Clerk of
Court within thirty days after their issuance.
It should be observed in passing that the word "trustee", appearing in
subsection (b) of section 1543, should read "fideicommissary" or "cestui
que trust". There was an obvious mistake in translation from the Spanish to
the English version.
The instant case does fall under subsection (a), but under subsection (b),
of section 1544 above-quoted, as there is here no fiduciary heirs, first
heirs, legatee or donee. Under the subsection, the tax should have been
paid before the delivery of the properties in question to P. J. M. Moore as
trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as
the real properties are concerned, did not and could not legally pass to
the instituted heir, Matthew Hanley, until after the expiration of ten years
from the death of the testator on May 27, 1922 and, that the inheritance
tax should be based on the value of the estate in 1932, or ten years after
the testator's death. The plaintiff introduced evidence tending to show
that in 1932 the real properties in question had a reasonable value of
only P5,787. This amount added to the value of the personal property left
by the deceased, which the plaintiff admits is P1,465, would generate an
inheritance tax which, excluding deductions, interest and surcharge,
would amount only to about P169.52.
If death is the generating source from which the power of the estate to
impose inheritance taxes takes its being and if, upon the death of the
decedent, succession takes place and the right of the estate to tax vests
instantly, the tax should be measured by the vlaue of the estate as it
stood at the time of the decedent's death, regardless of any subsequent
contingency value of any subsequent increase or decrease in value. (61
C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft,
Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20
Sup. Ct. Rep., 747; 44 Law. ed., 969.) "The right of the state to an
inheritance tax accrues at the moment of death, and hence is ordinarily
measured as to any beneficiary by the value at that time of such
property as passes to him. Subsequent appreciation or depriciation is
immaterial." (Ross, Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of
Law of and Procedure (vol. 37, pp. 1574, 1575) that, in the case of
contingent remainders, taxation is postponed until the estate vests in
possession or the contingency is settled. This rule was formerly followed in
New York and has been adopted in Illinois, Minnesota, Massachusetts,
Ohio, Pennsylvania and Wisconsin. This rule, horever, is by no means
entirely satisfactory either to the estate or to those interested in the
property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its
anterior system, we find upon examination of cases and authorities that
New York has varied and now requires the immediate appraisal of the
postponed estate at its clear market value and the payment forthwith of
the tax on its out of the corpus of the estate transferred. (In reVanderbilt,
172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Y.
Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172
N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp.,
1079.Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3
Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California adheres to this new
rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a
transmission by inheritance is taxable at the time of the predecessor's
29

death, notwithstanding the postponement of the actual possession or
enjoyment of the estate by the beneficiary, and the tax measured by
the value of the property transmitted at that time regardless of its
appreciation or depreciation.
(c) Certain items are required by law to be deducted from the
appraised gross in arriving at the net value of the estate on which the
inheritance tax is to be computed (sec. 1539, Revised Administrative
Code). In the case at bar, the defendant and the trial court allowed a
deduction of only P480.81. This sum represents the expenses and
disbursements of the executors until March 10, 1924, among which were
their fees and the proven debts of the deceased. The plaintiff contends
that the compensation and fees of the trustees, which aggregate
P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should also be
deducted under section 1539 of the Revised Administrative Code which
provides, in part, as follows: "In order to determine the net sum which
must bear the tax, when an inheritance is concerned, there shall be
deducted, in case of a resident, . . . the judicial expenses of the
testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his
services (Barney vs. Saunders, 16 How., 535; 14 Law. ed., 1047). But from
this it does not follow that the compensation due him may lawfully be
deducted in arriving at the net value of the estate subject to tax. There is
no statute in the Philippines which requires trustees' commissions to be
deducted in determining the net value of the estate subject to
inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary
trust has been created, it does not appear that the testator intended
that the duties of his executors and trustees should be separated.
(Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App. Div., 363; In
re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5
of his will, the testator expressed the desire that his real estate be
handled and managed by his executors until the expiration of the period
of ten years therein provided. Judicial expenses are expenses of
administration (61 C. J., p. 1705) but, in State vs. Hennepin County
Probate Court (112 N. W., 878; 101 Minn., 485), it was said: ". . . The
compensation of a trustee, earned, not in the administration of the
estate, but in the management thereof for the benefit of the legatees or
devises, does not come properly within the class or reason for exempting
administration expenses. . . . Service rendered in that behalf have no
reference to closing the estate for the purpose of a distribution thereof to
those entitled to it, and are not required or essential to the perfection of
the rights of the heirs or legatees. . . . Trusts . . . of the character of that
here before the court, are created for the the benefit of those to whom
the property ultimately passes, are of voluntary creation, and intended
for the preservation of the estate. No sound reason is given to support
the contention that such expenses should be taken into consideration in
fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the
estate of Thomas Hanley under the provisions of section 1544 of the
Revised Administrative Code, as amended by section 3 of Act No. 3606.
But Act No. 3606 went into effect on January 1, 1930. It, therefore, was
not the law in force when the testator died on May 27, 1922. The law at
the time was section 1544 above-mentioned, as amended by Act No.
3031, which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in
force at the time of the death of the decedent (26 R. C. L., p. 206; 4
Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not foresee and
ought not to be required to guess the outcome of pending measures. Of
course, a tax statute may be made retroactive in its operation. Liability
for taxes under retroactive legislation has been "one of the incidents of
social life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct.
Rep., 44.) But legislative intent that a tax statute should operate
retroactively should be perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct.
Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S., 602;
Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.)
"A statute should be considered as prospective in its operation, whether
it enacts, amends, or repeals an inheritance tax, unless the language of
the statute clearly demands or expresses that it shall have a retroactive
effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of
Regulations No. 65 of the Department of Finance makes section 3 of Act
No. 3606, amending section 1544 of the Revised Administrative Code,
applicable to all estates the inheritance taxes due from which have not
been paid, Act No. 3606 itself contains no provisions indicating legislative
intent to give it retroactive effect. No such effect can begiven the
statute by this court.
The defendant Collector of Internal Revenue maintains, however, that
certain provisions of Act No. 3606 are more favorable to the taxpayer
than those of Act No. 3031, that said provisions are penal in nature and,
therefore, should operate retroactively in conformity with the provisions
of article 22 of the Revised Penal Code. This is the reason why he applied
Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the
surcharge of 25 per cent is based on the tax only, instead of on both the
tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer
is allowed twenty days from notice and demand by rthe Collector of
Internal Revenue within which to pay the tax, instead of ten days only as
required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an
offense committed against the state which, under the Constitution, the
Executive has the power to pardon. In common use, however, this sense
has been enlarged to include within the term "penal statutes" all status
which command or prohibit certain acts, and establish penalties for their
violation, and even those which, without expressly prohibiting certain
acts, impose a penalty upon their commission (59 C. J., p. 1110).
Revenue laws, generally, which impose taxes collected by the means
ordinarily resorted to for the collection of taxes are not classed as penal
laws, although there are authorities to the contrary. (See Sutherland,
Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12
Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard
Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article
22 of the Revised Penal Code is not applicable to the case at bar, and in
the absence of clear legislative intent, we cannot give Act No. 3606 a
retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at
a certain time and the tax may be paid within another given time. As
stated by this court, "the mere failure to pay one's tax does not render
one delinqent until and unless the entire period has eplased within which
the taxpayer is authorized by law to make such payment without being
subjected to the payment of penalties for fasilure to pay his taxes within
the prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the executor to pay the
inheritance tax before the delivery of the decedent's property to the
trustee. Stated otherwise, the defendant contends that delivery to the
trustee was delivery to the cestui que trust, the beneficiery in this case,
within the meaning of the first paragraph of subsection (b) of section
1544 of the Revised Administrative Code. This contention is well taken
and is sustained. The appointment of P. J. M. Moore as trustee was made
by the trial court in conformity with the wishes of the testator as
expressed in his will. It is true that the word "trust" is not mentioned or used
in the will but the intention to create one is clear. No particular or
technical words are required to create a testamentary trust (69 C. J., p.
711). The words "trust" and "trustee", though apt for the purpose, are not
necessary. In fact, the use of these two words is not conclusive on the
question that a trust is created (69 C. J., p. 714). "To create a trust by will
the testator must indicate in the will his intention so to do by using
language sufficient to separate the legal from the equitable estate, and
with sufficient certainty designate the beneficiaries, their interest in the
ttrust, the purpose or object of the trust, and the property or subject
matter thereof. Stated otherwise, to constitute a valid testamentary trust
there must be a concurrence of three circumstances: (1) Sufficient words
to raise a trust; (2) a definite subject; (3) a certain or ascertain object;
statutes in some jurisdictions expressly or in effect so providing." (69 C. J.,
pp. 705,706.) There is no doubt that the testator intended to create a
trust. He ordered in his will that certain of his properties be kept together
undisposed during a fixed period, for a stated purpose. The probate
court certainly exercised sound judgment in appointment a trustee to
carry into effect the provisions of the will (see sec. 582, Code of Civil
Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust
estate vested in him (sec. 582 in relation to sec. 590, Code of Civil
Procedure). The mere fact that the estate of the deceased was placed
30

in trust did not remove it from the operation of our inheritance tax laws or
exempt it from the payment of the inheritance tax. The corresponding
inheritance tax should have been paid on or before March 10, 1924, to
escape the penalties of the laws. This is so for the reason already stated
that the delivery of the estate to the trustee was in esse delivery of the
same estate to the cestui que trust, the beneficiary in this case. A trustee
is but an instrument or agent for the cestui que trust (Shelton vs. King, 299
U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore accepted
the trust and took possesson of the trust estate he thereby admitted that
the estate belonged not to him but to his cestui que trust (Tolentino vs.
Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not acquire any
beneficial interest in the estate. He took such legal estate only as the
proper execution of the trust required (65 C. J., p. 528) and, his estate
ceased upon the fulfillment of the testator's wishes. The estate then
vested absolutely in the beneficiary (65 C. J., p. 542).
The highest considerations of public policy also justify the conclusion we
have reached. Were we to hold that the payment of the tax could be
postponed or delayed by the creation of a trust of the type at hand, the
result would be plainly disastrous. Testators may provide, as Thomas
Hanley has provided, that their estates be not delivered to their
beneficiaries until after the lapse of a certain period of time. In the case
at bar, the period is ten years. In other cases, the trust may last for fifty
years, or for a longer period which does not offend the rule against
petuities. The collection of the tax would then be left to the will of a
private individual. The mere suggestion of this result is a sufficient warning
against the accpetance of the essential to the very exeistence of
government. (Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022;
Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs.
Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs.
Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles
River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The
obligation to pay taxes rests not upon the privileges enjoyed by, or the
protection afforded to, a citizen by the government but upon the
necessity of money for the support of the state (Dobbins vs. Erie
Country, supra). For this reason, no one is allowed to object to or resist
the payment of taxes solely because no personal benefit to him can be
pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43
Law. ed., 740.) While courts will not enlarge, by construction, the
government's power of taxation (Bromley vs. McCaughn, 280 U. S., 124;
74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax
laws so loose a construction as to permit evasions on merely fanciful and
insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No. 16,653;
U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed in Froelich
& Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros., Wolf &
Sons vs. McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12 Phil., 624;
Hongkong & Shanghai Banking Corporation vs. Rafferty, 39 Phil., 145;
Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax
statute should be construed to avoid the possibilities of tax evasion.
Construed this way, the statute, without resulting in injustice to the
taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in
our tax system. Thus, no court is allowed to grant injunction to restrain the
collection of any internal revenue tax ( sec. 1578, Revised Administrative
Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs.
Posadas (47 Phil., 461), this court had occassion to demonstrate
trenchment adherence to this policy of the law. It held that "the fact that
on account of riots directed against the Chinese on October 18, 19, and
20, 1924, they were prevented from praying their internal revenue taxes
on time and by mutual agreement closed their homes and stores and
remained therein, does not authorize the Collector of Internal Revenue
to extend the time prescribed for the payment of the taxes or to accept
them without the additional penalty of twenty five per cent." (Syllabus,
No. 3.)
". . . It is of the utmost importance," said the Supreme Court of the United
States, ". . . that the modes adopted to enforce the taxes levied should
be interfered with as little as possible. Any delay in the proceedings of
the officers, upon whom the duty is developed of collecting the taxes,
may derange the operations of government, and thereby, cause serious
detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed.,
65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in
the payment of inheritance tax and, therefore, liable for the payment of
interest and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date
when Moore became trustee. The interest due should be computed
from that date and it is error on the part of the defendant to compute it
one month later. The provisions cases is mandatory (see and cf. Lim Co
Chui vs. Posadas, supra), and neither the Collector of Internal Revenuen
or this court may remit or decrease such interest, no matter how heavily
it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of
notice and demand thereof by the Collector of Internal Revenue, a
surcharge of twenty-five per centum should be added (sec. 1544,
subsec. (b), par. 2, Revised Administrative Code). Demand was made by
the Deputy Collector of Internal Revenue upon Moore in a
communiction dated October 16, 1931 (Exhibit 29). The date fixed for the
payment of the tax and interest was November 30, 1931. November 30
being an official holiday, the tenth day fell on December 1, 1931. As the
tax and interest due were not paid on that date, the estate became
liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the
fifth error assigned by the plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge
due from the estate of Thomas Hanley inaccordance with the
conclusions we have reached.
At the time of his death, the deceased left real properties valued at
P27,920 and personal properties worth P1,465, or a total of P29,385.
Deducting from this amount the sum of P480.81, representing allowable
deductions under secftion 1539 of the Revised Administrative Code, we
have P28,904.19 as the net value of the estate subject to inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised
Administrative Code, should be imposed at the rate of one per centum
upon the first ten thousand pesos and two per centum upon the amount
by which the share exceed thirty thousand pesos, plus an additional two
hundred per centum. One per centum of ten thousand pesos is P100.
Two per centum of P18,904.19 is P378.08. Adding to these two sums an
additional two hundred per centum, or P965.16, we have as primary tax,
correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible
under section 1544 of the Revised Administrative Code. First should be
added P1,465.31 which stands for interest at the rate of twelve per
centum per annum from March 10, 1924, the date of delinquency, to
September 15, 1932, the date of payment under protest, a period
covering 8 years, 6 months and 5 days. To the tax and interest thus
computed should be added the sum of P724.88, representing a
surhcarge of 25 per cent on both the tax and interest, and also P10, the
compromise sum fixed by the defendant (Exh. 29), giving a grand total
of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of
P1,581.69 is legally due from the estate. This last sum is P390.42 more than
the amount demanded by the defendant in his counterclaim. But, as we
cannot give the defendant more than what he claims, we must hold
that the plaintiff is liable only in the sum of P1,191.27 the amount stated in
the counterclaim.
The judgment of the lower court is accordingly modified, with costs
against the plaintiff in both instances. So ordered.



31

ARTICLE 779
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.
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 inOngsingco 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,
32

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 pre-established 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.
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of Leodegaria Julian.
FELIX BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of
Davao, Branch VI; AVELINA B. ANTONIO and DELIA B.
LANABAN, respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of
First Instance of Davao dated February 28, 1974, declaring illegal and
void the will of his mother, Leodegaria Julian, converting the testate
proceeding into an intestate proceeding and ordering the issuance of
the corresponding notice to creditors (Special Case No. 1808). The
antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12,
1973 in Davao City at the age of sixty-seven. She was survived by her
husband, Felix Balanay, Sr., and by their six legitimate children named
Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B.
Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27,
1973 for the probate of his mother's notarial will dated September 5, 1970
which is written in English. In that will Leodegaria Julian declared (a) that
she was the owner of the "southern half of nine conjugal lots (par. II); (b)
that she was the absolute owner of two parcels of land which she
inherited from her father (par. III), and (c) that it was her desire that her
properties should not be divided among her heirs during her husband's
lifetime and that their legitimes should be satisfied out of the fruits of her
properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death
(he was eighty-two years old in 1973) her paraphernal lands and all the
conjugal lands (which she described as "my properties") should be
divided and distributed in the manner set forth in that part of her will. She
33

devised and partitioned the conjugal lands as if they were all owned by
her. She disposed of in the will her husband's one half share of the
conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will
on the grounds of lack of testamentary capacity, undue influence,
preterition of the husband and alleged improper partition of the
conjugal estate. The oppositors claimed that Felix Balanay, Jr. should
collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an
affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his
opposition to the probate of the will and affirmed that he was interested
in its probate. On the same date Felix Balanay, Sr. signed an instrument
captioned "Conformation (sic) of Division and Renunciation of Hereditary
Rights" wherein he manifested that out of respect for his wife's will he
"waived and renounced' his hereditary rights in her estate in favor of their
six children. In that same instrument he confirmed the agreement, which
he and his wife had perfected before her death, that their conjugal
properties would be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the
affidavit and "conformation" of Felix Balanay, Sr. were void. The lower
court in its order of June 18, 1973 "denied" the opposition and reset for
hearing the probate of the will. It gave effect to the affidavit and
conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it
appointed its branch clerk of court as special administrator of the
decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of
June 18, 1973 on the grounds (a) that the testatrix illegally claimed that
she was the owner of the southern half of the conjugal lots and (b) that
she could not partition the conjugal estate by allocating portions of the
nine lots to her children. Felix Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion. The lower court denied it
in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O.
Montaa, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his
counsel of record was Atty. Cabreros), filed a motion dated September
25, 1973 for "leave of court to withdraw probate of alleged will of
Leodegaria Julian and requesting authority to proceed by intestate
estate proceeding." In that motion Montaa claimed to be the lawyer
not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned
the conjugal assets or allegedly effected a compromise of future
legitimes. He prayed that the probate of the will be withdrawn and that
the proceeding be converted into an intestate proceeding. In another
motion of the same date he asked that the corresponding notice to
creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in
their comments dated October 15, 1973 manifested their conformity with
the motion for the issuance of a notice to creditors. They prayed that the
will be declared void for being contrary to law and that an intestacy be
declared.
The lower court, acting on the motions of Atty. Montaa, assumed that
the issuance of a notice to creditors was in order since the parties had
agreed on that point. It adopted the view of Attys. Montaa and Guyo
that the will was void. So, in its order of February 28, 1974 it dismissed the
petition for the probate, converted the testate proceeding into an
intestate proceeding, ordered the issuance of a notice to creditors and
set the intestate proceeding for hearing on April 1 and 2, 1974. The lower
court did not abrogate its prior orders of June 18 and October 15, 1973.
The notice to creditors was issued on April 1, 1974 and published on May
2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17,
1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a
verified motion dated April 15, 1974, asked for the reconsideration of the
lower court's order of February 28, 1974 on the ground that Atty.
Montaa had no authority to withdraw the petition for the allowance of
the will. Attached to the motion was a copy of a letter dated March 27,
1974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz
V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaa's services and informed him that his withdrawal of
the petition for the probate of the will was without their consent and was
contrary to their repeated reminder to him that their mother's will was
"very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for
reconsideration. The lower court denied the motion in its order of June
29, 1974. It clarified that it declared the will void on the basis of its own
independent assessment of its provisions and not because of Atty.
Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw
the petition for probate (which the lower court assumed to have been
filed with the petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony
if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue
(Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang
vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs.
Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974
that the will was void and in converting the testate proceeding into an
intestate proceeding notwithstanding the fact that in its order of June 18,
1973 , it gave effect to the surviving husband's conformity to the will and
to his renunciation of his hereditary rights which presumably included his
one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a
will does not result in the invalidity of the other dispositions, unless it is to
be presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made" (Art. 792,
Civil Code). "Where some of the provisions of a will are valid and others
invalid, the valid parts will be upheld if they can be separated from the
invalid without defeating the intention of the testator or interfering with
the general testamentary scheme, or doing injustice to the beneficiaries"
(95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the
conjugal lands is contrary to law because, although she was a coowner
thereof, her share was inchoate and proindiviso (Art. 143, Civil Code;
Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But
That illegal declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime but should be kept
intact and that the legitimes should be paid in cash is contrary to article
1080 of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an
act inter vivos, or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the compulsory
heirs.
A parent who, in the interest of his or her family, to keep any
agricultural, industrial, or manufacturing enterprise intact, may
avail himself of the right granted him in this article, by ordering
34

that the legitime of the other children to whom the property is
not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate
among her six children (her husband had renounced his hereditary rights
and his one-half conjugal share). She did not assign the whole estate to
one or more children as envisaged in article 1080. Hence, she had no
right to require that the legitimes be paid in cash. On the other hand, her
estate may remain undivided only for a period of twenty years. So, the
provision that the estate should not be divided during her husband's
lifetime would at most be effective only for twenty years from the date of
her death unless there are compelling reasons for terminating the
coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-
half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code)
but insofar as said renunciation partakes of a donation of his hereditary
rights and his one-half share in the conjugal estate (Art. 1060[1] Civil
Code), it should be subject to the limitations prescribed in articles 750
and 752 of the Civil Code. A portion of the estate should be adjudicated
to the widower for his support and maintenance. Or at least his legitime
should be respected.
Subject to the foregoing observations and the rules on collation, the will
is intrinsically valid and the partition therein may be given effect if it does
not prejudice the creditors and impair the legitimes. The distribution and
partition would become effective upon the death of Felix Balanay, Sr. In
the meantime, the net income should be equitably divided among the
children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity
to his wife's will and his renunciation of his hereditary rights, his one-half
conjugal share became a part of his deceased wife's estate. His
conformity had the effect of validating the partition made in paragraph
V of the will without prejudice, of course, to the rights of the creditors and
the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the
making of a will shall only pass thereby, as if the testator had it at the
time of making the will, should it expressly appear by the will that such
was his intention". Under article 930 of the Civil Code "the legacy or
devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing
bequeathed, though not belonging to the testator when he made the
will, afterwards becomes his, by whatever title, the disposition shall take
effect."
In the instant case there is no doubt that the testatrix and her husband
intended to partition the conjugal estate in the manner set forth in
paragraph V of her will. It is true that she could dispose of by will only her
half of the conjugal estate (Art. 170, Civil Code) but since the husband,
after the dissolution of the conjugal partnership, had assented to her
testamentary partition of the conjugal estate, such partition has become
valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the
testatrix instituted as heir her sister and preterited her parents. Her will was
intrinsically void because it preterited her compulsory heirs in the direct
line. Article 854 of the Civil Code provides that "the preterition or omission
of one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and
legacies, shall be valid insofar as they are not inofficious." Since the
preterition of the parents annulled the institution of the sister of the
testatrix and there were no legacies and devises, total intestacy resulted
(.Art. 960[2], Civil Code).1wph1.t
In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of
the will as contemplated in its uncancelled order of June 18, 1973. Save
in an extreme case where the will on its face is intrinsically void, it is the
probate court's duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs.
Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported
testament is in itself prima facie proof that the supposed testator has
willed that his estate should be distributed in the manner therein
provided, and it is incumbent upon the state that, if legally tenable, such
desire be given effect independent of the attitude of the parties
affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200,
August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and
principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561,
June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An
interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will
(Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially
where the will evinces an intention on the part of the testator to dispose
of practically his whole estate. So compelling is the principle that
intestacy should be avoided and that the wishes of the testator should
prevail that sometimes the language of the will can be varied for the
purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970,
31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be
followed and the dispositions of the properties in his will should be upheld
(Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in
his will because any disposition therein is better than that which the law
can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327,
341).
Two other errors of the lower court may be noticed. It erred in issuing a
notice to creditors although no executor or regular administrator has
been appointed. The record reveals that it appointed a special
administrator. A notice to creditors is not in order if only a special
administrator has been appointed. Section 1, Rule 86 of the Rules of
Court, in providing that "immediately after granting letters of
testamentary or of administration, the court shall issue a notice requiring
all persons having money claims against the decedent to file them in the
office of the clerk of said court" clearly contemplates the appointment
of an executor or regular administrator and not that of a special
administrator.
It is the executor or regular administrator who is supposed to oppose the
claims against the estate and to pay such claims when duly allowed
(See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's
appointment of its branch clerk of court as special administrator (p.
30, Rollo) is not a salutary practice because it might engender the
suspicion that the probate Judge and his clerk of court are in cahoots in
milking the decedent's estate. Should the branch clerk of court commit
any abuse or devastavit in the course of his administration, the probate
Judge might find it difficult to hold him to a strict accountability. A court
employee should devote his official time to his official duties and should
not have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974
are set aside and its order of June 18, 1973, setting for hearing the
petition for probate, is affirmed. The lower court is directed to conduct
further proceedings in Special Case No. 1808 in consonance with this
opinion. Costs, against the private respondents. SO ORDERED.
35

ARTICLE 783
Rabadilla vs CA (see Art 776)
G.R. No. L-3362 March 1, 1951
TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE
GIL, administratrix-appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.
JUGO, J.:
The Court of First Instance of Manila admitted to probate the alleged will
and testament of the deceased Carlos Gil. The oppositor Pilar Gil Vda.
de Murciano appealed to this Court, raising only question of law. Her
counsel assigns the two following alleged errors:
Primer Error. El Juzgado inferior erro al dejar de declarar que
el alegado testamento de Carlos Gil no ha sido otogar de
acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido
testamento.
The alleged will read as follows:
Primera Pagina (1)
EN EL NOMBRE DE DIOS, AMEN
Yo, Carlos Gil, de 66 aos de edad, residente de Porac,
Pampanga, I. F., hallandome sano y en pleno goce de mis
facultades intelectuales, libre y expontaneamente, sin
violencia, coaccion, dolo o influencia ilegal de persona
extraa, otorgo y ordeno este mi testamento y ultima voluntad
en castellano, idioma que poseo y entiendo, de la manera
siguiente:
1. Declaro que durante mi matrimonio con mi esposa la hoy
Isabel Herreros no tuvimos hijos;
2. Declaro que tengo propiedades situadas en Manila y en la
Provincia de Pampanga;
3. Doy y adjudico a mi querida esposa Isabel Herretos todos
mis bienes ya que muebles e inmuebles situados en Manila y
en Pampanga, bajo la condicion de que cuando esta muera
y si hayan bienes remanentes heredadas por ella de mi, que
dichos bienes remanentes se adjudicaran a Don Carlos Worrel.
4. Nombro como albacea de mis bienes despues de mi
fallecimiento al Dr. Galicano Coronel a quien tengo absoluta
confianza, con relevacion de fianza;
En testimonio de todo lo cual, firmo este mi testamento y en el
margen izquierdo de cada una de sus dos paginas, utiles con
la clausula de atestiguamiento en presencia de los testigos,
quienes a su vez firmaron cada una de dichas paginas y la
clausula de atestiguamiento en mi presencia cada uno de
ellos con la de los demas, hoy en Porac, Pampanga, I. F., el
dia 27 de Mayo de mil novecientos treinta y nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos mayores de edad,
certificamos: que el testamento que precede este escrito en
la lengua castellana que conoce la testadora, compuesto de
dos paginas utiles con la clausula de atestiguamiento
paginadas correlativamente en letras y numeros en la parte
superior de la casilla, asi como todas las hojas del mismo, en
nuestra presencia y que cada uno de nosotros hemos
atestiguado y firmado dicho documento y todas las hojas del
mismo en presencia del testador y en la de cada uno de
nosotros.
(Fdo.) ALFREDO T. RIVERA
(Fdo.) RAMON MENDIOLA
(Fdo.) MARIANO OMAA
Regarding the correctness and accuracy of the above-copied alleged
will, the court below said:
. . . The only copy available is a printed form contained in the
record appeal in case G.R. No. L-254, entitled "Testate Estate of
Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil, oppositor and appellee."
Both parties are agreed that this is a true and correct copy of
the will. (P. 10, Record on Appeal).
The appeal being only on questions of law the above finding of the court
below cannot be disputed. The conclusions of law reached by said court
are based on it. Moreover, the finding is correctly based on the
evidence of record. The parties agreed that said copy is true and
correct. If it were otherwise, they would not have so agreed, considering
that the defect is of an essential character and is fatal to the validity of
the attestation clause.
It will be noted that the attestation clause above quoted does not state
that the alleged testor signed the will. It declares only that it was signed
by the witnesses. This is a fatal defect, for the precise purpose of the
attestation clause is to certify that the testator signed the will, this being
the most essential element of the clause. Without it there is no attestation
at all. It is said that the court may correct a mere clerical error. This is too
much of a clerical error for it effects the very essence of the clause.
Alleged errors may be overlooked or correct only in matters of form
which do not affect the substance of the statement.
It is claimed that the correction may be made by inference. If we cure a
deficiency by means of inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills? Where are we to draw the
line? Following that procedure we would be making interpolations by
inferences, implication, and even by internal circumtantial evidence. This
would be done in the face of the clear, uniquivocal, language of the
statute as to how the attestation clause should be made. It is to be
supposed that the drafter of the alleged will read the clear words of the
statute when he prepared it. For the court to supply alleged deficiencies
would be against the evident policy of the law. Section 618 of Act No.
190, before it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not render
the will invalid if it proven that the will was in fact signed and
attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1,
1916, besides increasing the contents of the attestation clause, entirely
suppressed the above-quoted provision. This would show that the
36

purpose of the amending act was to surround the execution of a will
with greater guarantees and solemnities. Could we, in view of this, hold
that the court can cure alleged deficiencies by inferences, implications,
and internal circumstantial evidence? Even in ordinary cases the law
requires certain requisities for the conclusiveness of circumstantial
evidence.
It is contended that the deficiency in the attestation clause is cured by
the last paragraph of the body of the alleged will, which we have
quoted above. At first glance, it is queer that the alleged testator should
have made an attestation clause, which is the function of the witness.
But the important point is that he attests or certifies his own signature, or,
to be accurate, his signature certifies itself. It is evident that one cannot
certify his own signature, for it does not increase the evidence of its
authenticity. It would be like lifting one's self by his own bootstraps.
Consequently, the last paragraph of the will cannot cure in any way the
fatal defect of the attestation clause of the witnesses. Adding zero to an
insufficient amount does not make it sufficient.
It is said that the rules of statutory construction are applicable to
documents and wills. This is true, but said rules apply to the body of the
will, containing the testamentary provisions, but not to the attestation
clause, which must be so clear that it should not require any
construction.
The parties have cited pro and con several decisions of the Supreme
Court, some of which are said to be rather strict and others liberal, in the
interpretation of section 618 of Act No. 190, as amended by Act No.
2645.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the
following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND
634 OF THE CODE OF CIVIL PROCEDURE CONSTRUED. The
right to dispose of the property by will is governed entirely by
statute. The law is here found in section 618 of the Code of Civil
Procedure, as amended. The law not alone carefully makes
use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention.
2. ID.; ID.; ATTESTATION. The Philippine authorities relating to
the attestation clause to wills reviewed. The cases of Sao vs.
Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152), particularly compared. The
decision in In re Will of Quintana, supra, adopted and
reaffirmed. The decision in Nayve vs. Mojal and Aguilar, supra,
modified.
3. ID.; ID.; ID.; ID. The portion of section 618 of the Code of
Civil Procedure, as amended, which provides that "The
attestation clause shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other" applied and
enforced.
4. ID.; ID.; ID.; ID. An attestation clause which does not recite
that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will.
(Sano vs. Quintana, supra.)
In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge
Manuel V. Moran, now Chief Justice of the Supreme Court, in his decision
made the following pronouncement:
. . . En la clausula de atestiguamiento del testamento en
cuestion, se hace constar que los testadores firmaron el
testamento en presencia de los tres testigos instrumentales y
que estos firmaron el testamento los unos en presencia de los
otros, pero no se hace constar que dichos testigos firmaron el
testamento en presencia de los testadores, ni que estos y
aquellos firmaron todas y cada una de las paginas del
testamento los primeros en presencia de los segundos y vice-
versa.
En su virtud, se deniega la solicitud en la que se pide la
legalizacion del alegado testamento Exhibit A de Gregorio
Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo
murio intestado.
The Supreme Court fully affirmed the decision, laying down the following
doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS
OF. The attestation clause must be made in strict conformity
with the requirements of section 618 of Act No. 190, as
amended. Where said clause fails to show on its face a full
compliance with those requirements, the defect constitutes
sufficient ground for the disallowance of the will. (Sano vs.
Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30).
Evidence aliunde should not be admitted to establish facts not
appearing on the attestation clause, and where said evidence
has been admitted it should not be given the effect intended.
(Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS
AMENDED. Section 618 of Act No. 190, as amended, should
be given a strict interpretation in order to give effect to the
intention of the Legislature. Statutes prescribing formalities to
be observed in the execution of wills are very strictly construed.
Courts cannot supply the defensive execution of will. (40 Cyc.,
p. 1079; Uy Coque vs. Navas L. Sioca, supra.)
It is true that in subsequent decisions, the court has somewhat relaxed
the doctrine of the Gumban vs. Gorcho case,supra, but not to the
extent of validating an attestation clause similar to that involved herein.
In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the
attestation clause which was complete, and it was also signed by the
two attesting witnesses. For this reason, the court said:
In reality, it appears that it is the testatrix who makes the
declaration about the points contained in the above
described paragraph; however, as the witnesses, together with
the testatrix, have signed the said declaration, we are of the
opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the
requirements of section 1 of Act No. 2645 which provides that: .
. . (p. 381, supra.)
The attestation clause involved herein is very different.
In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was
held that:
An attestation clause to a will, copied from a form book and
reading: "We, the undersigned attesting witnesses, whose
residences are stated opposite our respective names, do
hereby certify that the testatrix, whose name is signed
hereinabove, has publish unto us the foregoing will consisting
of two pages as her Last Will and Testament, and has signed
the same in our presence, and in witness whereof we have
each signed the same and each page thereof in the presence
of said testatrix and in the presence of each other," held not to
be fatally defective and to conform to the law.
37

This very different from the attestation clause in the case at bar.
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3,
May 23, 1939), the will was objected to on the ground that, although the
attestation clause stated that "each of the pages of which the said will is
composed" was signed by the testatrix at the left margin and at the foot
of the fifth page, it did not state that the signature was made in the
presence of the witnesses. It was held, however, that said deficiency was
cured by the phrase "as well as by each of us in the presence of the
testatrix." The words "as well as" indicate that the testatrix signed also in
the presence of the witnesses, for the phrase "as well as" in this case is
equivalent to "also." The language is clear and, unlike the attestation
clause in the present case, does not necessitate any correction. In the
body of the will the testatrix stated that she signed in the presence of
each and all of the three witnesses. This was considered as a
corroboration, but it was unnecessary.
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52,
No. 7, October 18, 1939; 68 Phil., 745), the attestation clause reads as
follows:
Suscrito y declarado por el testador Valerio Leynez, como su
ultima voluntad y testamento en presencia de todos y cada
uno de nosotros, y a ruego de dicho testador, firmamos el
presente cada uno en presencia de los otros, o de los demas y
de la del mismo testsador, Valerio Leynez. El testamento
consta de dos (2) paginas solamente.
The objection was that the attestation clause did not state that the
testator and the witnesses signed each and every page of the will. This
fact , however, appears in the will itself. It is clear, therefore, that in case
of the will complied with all the requisites for its due execution. In the
instant case, essential words were omitted.
In the case of Alcala vs. De Villa
1
(40 Off. Gaz., 14th Supplement, 131,
134-135, No. 23, April 18, 1939), the attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba
mencionadios otorgo el Sr. Emiliano Alcala su ultima voluntad
o testamentao compuesto de cuatro paginas incluida ya esta
clasula de atestiguamiento. Que estabamos presentes en el
momento de leer y ratificar el que el testamento arriba
mencionado es su ultima voluntad o testamento compuesto
de cuatro paginasen papel de maquinilla. Que igualmente
estabamos presentes cuando el firmo este documento al pie
del mismo y en el margen izquierdo de cada pagina del
testador tambien en presencia suya y de cada uno de
nosotros en cada pagina y en el margen izquierdo de esta
escritura o testamento. En su testimonio firmamos abajo en
prsencia del testador y de cada uno de nosotros.
The above attestation clause is substantially perfect. The only clerical
error is that it says "testador" instead of "testamento" in the phrase "cada
pagina del testador." The word "tambien" renders unnecessary the use of
the verb "firmamos."
In the case of Mendoza vs. Pilapil
2
(40 Off. Gaz., 1855, No. 9, June 27,
1941), the attestation clause did not state the number of pages of the
will. However, it was held that this deficiency was cured by the will itself,
which stated that it consisted of three pages and in fact it had three
pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October
23, 1947), decided by the Court of Appeals, the attestation clause
(translated in Spanish) reads as follows:
Nosotros, los testigos, certificamos que este que hemos
firmado es el testamento y ultima voluntad, que se ha
redactado en cuatro paginas, de Numeriano Rallos, quien
despues de leer y de leer y de leerle el mencionado
testamento, y despues de que ella dio su conformidad, firmo y
marco con su dedo pulgar derecho en nuestra presencia y en
presencia de cada uno de nosotros, que asimismo cada uno
de nosotros, los testigos, firmamos enpresencia de la testadora
y en presencia de cada uno de nosotros.
It will be noticed that the only thing omitted is the statement as to the
signing of the testatrix and the witnesses of each and every page of the
will, but the omission is cured by the fact that their signatures appear on
every page. This attestation clause is different from that involved in the
present case.
There is no reason why wills should not be executed by complying
substantially with the clear requisites of the law, leaving it to the courts to
supply essential elements. The right to dispose of property by will is not
natural but statutory, and statutory requirements should be satisfied.
The right to make a testamentary disposition of one's property
is purely of statutory creation, and is available only upon the
compliance with the requirements of the statute. The
formalities which the Legislature has prescribed for the
execution of a will are essential to its validity, and cannot be
disregarded. The mode so prescribed is the measure for the
exercise of the right, and the heir can be deprived of his
inheritance only by a compliance with this mode. For the
purpose of determining whether a will has been properly
executed, the intention of the testator in executing it is entitled
to no consideration. For that purpose only intention of the
Legislature, as expressed in the language of the statute, can
be considered by the court, and whether the will as presented,
shows a compliance with the statute. Estate of Walker, 110
Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104. In re
Seaman's Estate, 80 Pac., 700, 701.)
In interpreting the legislature's thought, courts have rigidly
opposed any exception tending to weaken the basic principle
underlying the law, the chief purpose of which is to see that
the testator's wishes are observed. It is possible, in some or
many cases, a decedent may have thought he had made a
will, but the statute says he had not. The question is not one of
his intention, but of what he actually did, or . . . failed to do. . . .
It may happen . . . that . . . wills . . . truly expressing the intertions
of the testator are made without observations of the required
forms; and whenever that happens, the genuine intention is
frustrated. . . . The Legislature . . . has taught of it best and has
therefore determined, to run the risk of frustrating (that
intention, . . . in preference to the risk of giving effect to or
facilitating the formation of spurious wills, by the absence of
forms. . . . The evil probably to arise by giving to wills made
without any form, . . ." or, in derogation of testator's wishes,
fraudulently imposing spurious wills on his effect on his estate.
Churchill's Estate, 260 Pac. 94, 101, 103 Atl. 533.
It has always been the policy of this court to sustain a will if it is
legally possible to do so, but we cannot break down the
legislative barriers protecting a man's property after death,
even if a situation may be presented apparently meritorious.
(In Re: Maginn, 30 A. L. R., pp. 419, 420.)
In view of the foregoing, the decision appealed from is reversed,
denying the probate of the alleged will and declaring intestate the
estate of the deceased Carlos Gil. With costs against the appellee. It is
so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.
Montinola vs Herbosa (Digest)
FACTS: Montinola filed an action against the heirs of Dr. Jose Rizal for
recovery of possession of personal property (the RIZAL RELICS) allegedly
sold to him by Doa Trinidad Rizal. The trial court held that neither party is
entitled to the possession of such property, relying principally on the fact
38

that in Rizal's Mi Ultimo Adios, there is a line where Rizal bequeathed all
his property to the Filipino people. The court argued that the handwritten
work of Rizal constitutes a holographic will giving the State all his
property.

ISSUE: Does Mi Ultimo Adios constitute a last will?

HELD: No. An instrument which merely expresses a last wish as a thought
or advice but does not contain a disposition of property, and executed
without Animus Standi cannot be legally considered a will. Rizal's Mi
Ultimo Adios is but a literary piece of work, and was so intended. It may
be considered a will in a grammatical sense but not in a legal or juridical
sense. Moreover, it also lacks the requirements of a holographic will such
as a statement of the year month and day of its execution and his
signature.

G.R. No. L-4888 May 25, 1953
JOSE MERZA, petitioner,
vs.
PEDRO LOPEZ PORRAS, 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, well-
established 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
39

"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.
Paras, C.J., Feria, Pablo, Bengzon, Bautista Angelo and Labrador,
JJ., concur.
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-
CORONA, respondents.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court
1
involving
the probate of the two wills of the late Dolores Luchangco Vitug, who
died in New York, U. S.A., on November 10, 1980, naming private
respondent Rowena Faustino-Corona executrix. In our said decision, we
upheld the appointment of Nenita Alonte as co-special administrator of
Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G.
Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for
authority from the probate court to sell certain shares of stock and real
properties belonging to the estate to cover allegedly his advances to
the estate in the sum of P667,731.66, plus interests, which he claimed
were personal funds. As found by the Court of Appeals,
2
the alleged
advances consisted of P58,147.40 spent for the payment of estate tax,
P518,834.27 as deficiency estate tax, and P90,749.99 as "increment
thereto."
3
According to Mr. Vitug, he withdrew the sums of P518,834.27
and P90,749.99 from savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the
ground that the same funds withdrawn from savings account No. 35342-
038 were conjugal partnership properties and part of the estate, and
hence, there was allegedly no ground for reimbursement. She also
sought his ouster for failure to include the sums in question for inventory
and for "concealment of funds belonging to the estate."
4

Vitug insists that the said funds are his exclusive property having acquired
the same through a survivorship agreement executed with his late wife
and the bank on June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK OF
AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION
(hereinafter referred to as the BANK), that all money now or
hereafter deposited by us or any or either of us with the BANK
in our joint savings current account shall be the property of all
or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and
after the death of either or any of us shall belong to and be
the sole property of the survivor or survivors, and shall be
payable to and collectible or withdrawable by such survivor or
survivors.
We further agree with each other and the BANK that the
receipt or check of either, any or all of us during our lifetime, or
the receipt or check of the survivor or survivors, for any
payment or withdrawal made for our above-mentioned
account shall be valid and sufficient release and discharge of
the BANK for such payment or withdrawal.
5

The trial courts
6
upheld the validity of this agreement and granted "the
motion to sell some of the estate of Dolores L. Vitug, the proceeds of
which shall be used to pay the personal funds of Romarico Vitug in the
total sum of P667,731.66 ... ."
7

On the other hand, the Court of Appeals, in the petition for certiorari filed
by the herein private respondent, held that the above-quoted
survivorship agreement constitutes a conveyance mortis causa which
"did not comply with the formalities of a valid will as prescribed by Article
805 of the Civil Code,"
8
and secondly, assuming that it is a mere
donation inter vivos, it is a prohibited donation under the provisions of
Article 133 of the Civil Code.
9

The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November
26, 1985 (Annex II, petition) is hereby set aside insofar as it
granted private respondent's motion to sell certain properties
of the estate of Dolores L. Vitug for reimbursement of his
alleged advances to the estate, but the same order is
sustained in all other respects. In addition, respondent Judge is
directed to include provisionally the deposits in Savings
Account No. 35342-038 with the Bank of America, Makati, in
the inventory of actual properties possessed by the spouses at
the time of the decedent's death. With costs against private
respondent.
10

In his petition, Vitug, the surviving spouse, assails the appellate court's
ruling on the strength of our decisions in Rivera v. People's Bank and Trust
Co.
11
and Macam v. Gatmaitan
12
in which we sustained the validity of
"survivorship agreements" and considering them as aleatory contracts.
13

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

xxx xxx xxx
40

In Macam v. Gatmaitan,
18
it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract
whereby, according to article 1790 of the Civil Code, one of
the parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to
give or do in case of the occurrence of an event which is
uncertain or will happen at an indeterminate time. As already
stated, Leonarda was the owner of the house and Juana of
the Buick automobile and most of the furniture. By virtue of
Exhibit C, Juana would become the owner of the house in
case Leonarda died first, and Leonarda would become the
owner of the automobile and the furniture if Juana were to die
first. In this manner Leonarda and Juana reciprocally assigned
their respective property to one another conditioned upon
who might die first, the time of death determining the event
upon which the acquisition of such right by the one or the
other depended. This contract, as any other contract, is
binding upon the parties thereto. Inasmuch as Leonarda had
died before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as Leonarda
would have acquired the ownership of the automobile and of
the furniture if Juana had died first.
19

xxx xxx xxx
There is no showing that the funds exclusively belonged to one party,
and hence it must be presumed to be conjugal, having been acquired
during the existence of the marita. relations.
20

Neither is the survivorship agreement a donation inter vivos, for obvious
reasons, because it was to take effect after the death of one party.
Secondly, it is not a donation between the spouses because it involved
no conveyance of a spouse's own properties to the other.
It is also our opinion that the agreement involves no modification petition
of the conjugal partnership, as held by the Court of Appeals,
21
by "mere
stipulation"
22
and that it is no "cloak"
23
to circumvent the law on
conjugal property relations. Certainly, the spouses are not prohibited by
law to invest conjugal property, say, by way of a joint and several bank
account, more commonly denominated in banking parlance as an
"and/or" account. In the case at bar, when the spouses Vitug opened
savings account No. 35342-038, they merely put what rightfully belonged
to them in a money-making venture. They did not dispose of it in favor of
the other, which would have arguably been sanctionable as a
prohibited donation. And since the funds were conjugal, it can not be
said that one spouse could have pressured the other in placing his or her
deposits in the money pool.
The validity of the contract seems debatable by reason of its "survivor-
take-all" feature, but in reality, that contract imposed a mere obligation
with a term, the term being death. Such agreements are permitted by
the Civil Code.
24

Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both
reciprocally bind themselves to give or to do something in
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur
at an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract
depends on either the happening of an event which is (1) "uncertain," (2)
"which is to occur at an indeterminate time." A survivorship agreement,
the sale of a sweepstake ticket, a transaction stipulating on the value of
currency, and insurance have been held to fall under the first category,
while a contract for life annuity or pension under Article 2021, et
sequentia, has been categorized under the second.
25
In either case, the
element of risk is present. In the case at bar, the risk was the death of
one party and survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary
to law its operation or effect may be violative of the law. For
instance, if it be shown in a given case that such agreement is
a mere cloak to hide an inofficious donation, to transfer
property in fraud of creditors, or to defeat the legitime of a
forced heir, it may be assailed and annulled upon such
grounds. No such vice has been imputed and established
against the agreement involved in this case.
26

xxx xxx xxx
There is no demonstration here that the survivorship agreement had
been executed for such unlawful purposes, or, as held by the respondent
court, in order to frustrate our laws on wills, donations, and conjugal
partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having
predeceased her husband, the latter has acquired upon her death a
vested right over the amounts under savings account No. 35342-038 of
the Bank of America. Insofar as the respondent court ordered their
inclusion in the inventory of assets left by Mrs. Vitug, we hold that the
court was in error. Being the separate property of petitioner, it forms no
more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June
29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE.
No costs. SO ORDERED.
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D.
SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial
Court, National Capital Judicial Region, Branch 21, Manila, ALFREDO D.
SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D.
SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.
AZCUNA, J.:
This is a petition for certiorari
1
with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the
nullification of the orders, dated August 10, 1999 and October 14, 1999,
of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the
petition for probate on the ground of preterition, in the consolidated
cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396,
and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio
v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will
of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the
settlement of the intestate estate of the late Segundo Seangio,
docketed as Sp. Proc. No. 9890870 of the RTC, and praying for the
appointment of private respondent Elisa D. SeangioSantos as special
administrator and guardian ad litem of petitioner Dy Yieng Seangio.
41

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio,
opposed the petition. They contended that: 1) Dy Yieng is still very
healthy and in full command of her faculties; 2) the deceased Segundo
executed a general power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision over his business
in the Philippines; 3) Virginia is the most competent and qualified to serve
as the administrator of the estate of Segundo because she is a certified
public accountant; and, 4) Segundo left a holographic will, dated
September 20, 1995, disinheriting one of the private respondents, Alfredo
Seangio, for cause. In view of the purported holographic will, petitioners
averred that in the event the decedent is found to have left a will, the
intestate proceedings are to be automatically suspended and replaced
by the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of
Segundo, docketed as SP. Proc. No. 9993396, was filed by petitioners
before the RTC. They likewise reiterated that the probate proceedings
should take precedence over SP. Proc. No. 9890870 because testate
proceedings take precedence and enjoy priority over intestate
proceedings.
2

The document that petitioners refer to as Segundos holographic will is
quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores
St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya ay
naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong
kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa
ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan
para makapagutang na kuarta siya at kanya asawa na si Merna de los
Reyes sa China Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na
mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko
at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko
at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila
sa harap ng tatlong saksi.
3

(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and
SP. Proc. No. 9993396 were consolidated.
4

On July 1, 1999, private respondents moved for the dismissal of the
probate proceedings
5
primarily on the ground that the document
purporting to be the holographic will of Segundo does not contain any
disposition of the estate of the deceased and thus does not meet the
definition of a will under Article 783 of the Civil Code. According to
private respondents, the will only shows an alleged act of disinheritance
by the decedent of his eldest son, Alfredo, and nothing else; that all
other compulsory heirs were not named nor instituted as heir, devisee or
legatee, hence, there is preterition which would result to intestacy. Such
being the case, private respondents maintained that while procedurally
the court is called upon to rule only on the extrinsic validity of the will, it is
not barred from delving into the intrinsic validity of the same, and
ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property
of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that:
1) generally, the authority of the probate court is limited only to a
determination of the extrinsic validity of the will; 2) private respondents
question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and,
4) the rule on preterition does not apply because Segundos will does not
constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.
6

On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy
Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being
omitted, Article 854 of the New Civil Code thus applies. However, insofar
as the widow Dy Yieng Seangio is concerned, Article 854 does not apply,
she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise
would amount to an abuse of discretion. The Supreme Court in the case
of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has
made its position clear: "for respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face,
the will appears to be intrinsically void would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added
futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved (underscoring
supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is
hereby DENIED for lack of merit. Special Proceedings No. 9993396 is
hereby DISMISSED without pronouncement as to costs.
SO ORDERED.
7

Petitioners motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH
LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B"
HEREOF) CONSIDERING THAT:
42

I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3
AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE
FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF
THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE
ALLEGED GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE
INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATORS TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL THAT
NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS
IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE
PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of
the Rules of Court which respectively mandate the court to: a) fix the
time and place for proving the will when all concerned may appear to
contest the allowance thereof, and cause notice of such time and
place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the
mailing of said notice to the heirs, legatees and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of an heir,
but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng
Mana, simply contains a disinheritance of a compulsory heir. Thus, there
is no preterition in the decedents will and the holographic will on its face
is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and
private respondents alike, with the sole exception of Alfredo, to inherit his
estate. None of the compulsory heirs in the direct line of Segundo were
preterited in the holographic will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic
will that it is both intrinsically and extrinsically valid, respondent judge was
mandated to proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work
injustice to petitioners, and will render nugatory the disinheritance of
Alfredo.
The purported holographic will of Segundo that was presented by
petitioners was dated, signed and written by him in his own handwriting.
Except on the ground of preterition, private respondents did not raise
any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably
showed Segundos intention of excluding his eldest son, Alfredo, as an
heir to his estate for the reasons that he cited therein. In effect, Alfredo
was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that
the same must be effected through a will wherein the legal cause
therefor shall be specified. With regard to the reasons for the
disinheritance that were stated by Segundo in his document, the Court
believes that the incidents, taken as a whole, can be considered a form
of maltreatment of Segundo by his son, Alfredo, and that the matter
presents a sufficient cause for the disinheritance of a child or
descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance
of children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make a
will or to change one already made;
(5) A refusal without justifiable cause to support the parents or
ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child
or descendant;
8

(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of
civil interdiction.
Now, the critical issue to be determined is whether the document
executed by Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.
Segundos document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic
will prescribed by law. It is written, dated and signed by the hand of
Segundo himself. An intent to dispose mortis causa[9] can be clearly
deduced from the terms of the instrument, and while it does not make
an affirmative disposition of the latters property, the disinheritance of
Alfredo, nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of
Alfredo.
10

Moreover, it is a fundamental principle that the intent or the will of the
testator, expressed in the form and within the limits prescribed by law,
must be recognized as the supreme law in succession. All rules of
construction are designed to ascertain and give effect to that intention.
It is only when the intention of the testator is contrary to law, morals, or
public policy that it cannot be given effect.
11

Holographic wills, therefore, being usually prepared by one who is not
learned in the law, as illustrated in the present case, should be construed
more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the
43

intention of the testator.
12
In this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was
intended by Segundo to be his last testamentary act and was executed
by him in accordance with law in the form of a holographic will. Unless
the will is probated,
13
the disinheritance cannot be given effect.
14

With regard to the issue on preterition,
15
the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It was, in
the Courts opinion, Segundos last expression to bequeath his estate to
all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo
did not institute an heir
16
to the exclusion of his other compulsory heirs.
The mere mention of the name of one of the petitioners, Virginia, in the
document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo
and his son, Alfredo.1wphi1
Considering that the questioned document is Segundos holographic
will, and that the law favors testacy over intestacy, the probate of the
will cannot be dispensed with. Article 838 of the Civil Code provides that
no will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless the will is
probated, the right of a person to dispose of his property may be
rendered nugatory.
17

In view of the foregoing, the trial court, therefore, should have allowed
the holographic will to be probated. It is settled that testate proceedings
for the settlement of the estate of the decedent take precedence over
intestate proceedings for the same purpose.
18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial
Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999,
are set aside. Respondent judge is directed to reinstate and hear SP
Proc. No. 99-93396 for the allowance of the holographic will of Segundo
Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby
suspended until the termination of the aforesaid testate proceedings.
No costs. SO ORDERED.
ARTICLE 784
G.R. No. 1439 March 19, 1904
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.
Arellano, C. J., Torres, Cooper, Mapa, McDonough and Johnson,
JJ., concur.


44

ARTICLE 788
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON,
ANGELINA DIZON and LILIA DIZON,oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of Pampanga
approving the Executrix-appellee's project of partition instead of
Oppositors-Appellants' proposed counter-project of partition.
1

On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in
Angeles, Pampanga, and was survived by seven compulsory heirs, to wit,
six legitimate children named Estela Dizon, Tomas V. Dizon, Bernardita
Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and
Josefina Dizon, and a legitimate granddaughter named Lilia Dizon, who
is the only legitimate child and heir of Ramon Dizon, a pre-deceased
legitimate son of the said decedent. Six of these seven compulsory heirs
(except Marina Dizon, the executrix-appellee) are the oppositors-
appellants.
The deceased testatrix left a last will executed on February 2, 1960 and
written in the Pampango dialect. Named beneficiaries in her will were
the above-named compulsory heirs, together with seven other
legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia,
Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and
Laureano Tiambon.
In her will, the testatrix divided, distributed and disposed of all her
properties appraised at P1,801,960.00 (except two small parcels of land
appraised at P5,849.60, household furniture valued at P2,500.00, a bank
deposit in the sum of P409.95 and ten shares of Pampanga Sugar
Development Company valued at P350.00) among her above-named
heirs.
Testate proceedings were in due course commenced
2
and by order
dated March 13, 1961, the last will and testament of the decedent was
duly allowed and admitted to probate, and the appellee Marina Dizon-
Rivera was appointed executrix of the testatrix' estate, and upon her
filing her bond and oath of office, letters testamentary were duly issued
to her.
After the executrix filed her inventory of the estate, Dr. Adelaido
Bernardo of Angeles, Pampanga was appointed commissioner to
appraise the properties of the estate. He filed in due course his report of
appraisal and the same was approved in toto by the lower court on
December 12, 1963 upon joint petition of the parties.
The real and personal properties of the testatrix at the time of her death
thus had a total appraised value of P1,811,695.60, and the legitime of
each of the seven compulsory heirs amounted to P129,362.11.
3
(/7 of
the half of the estate reserved for the legitime of legitimate children and
descendants).
4
In her will, the testatrix "commanded that her property
be divided" in accordance with her testamentary disposition, whereby
she devised and bequeathed specific real properties comprising
practically the entire bulk of her estate among her six children and eight
grandchildren. The appraised values of the real properties thus
respectively devised by the testatrix to the beneficiaries named in her
will, are as follows:
1. Estela Dizon ....................................... P 98,474.80
2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon ....................................... 131,987.41
6. Lilia Dizon .............................................. 72,182.47
7. Marina Dizon ..................................... 1,148,063.71
8. Pablo Rivera, Jr. ...................................... 69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01
The executrix filed her project of partition dated February 5, 1964, in
substance adjudicating the estate as follows:
(1) with the figure of P129,254.96 as legitime for a basis Marina
(exacultrix-appellee) and Tomas (appellant) are admittedly
considered to have received in the will more than their
respective legitime, while the rest of the appellants, namely,
Estela, Bernardita, Angelina, Josefina and Lilia received less
than their respective legitime;
(2) thus, to each of the latter are adjudicated the properties
respectively given them in the will, plus cash and/or properties,
to complete their respective legitimes to P129,254.96; (3) on
the other hand, Marina and Tomas are adjudicated the
properties that they received in the will less the cash and/or
properties necessary to complete the prejudiced legitime
mentioned in number 2 above;
(4) the adjudications made in the will in favor of the
grandchildren remain untouched.<re||an1w>
On the other hand oppositors submitted their own counter-
project of partition dated February 14, 1964, wherein they
proposed the distribution of the estate on the following basis:
(a) all the testamentary dispositions were proportionally
reduced to the value of one-half () of the entire estate, the
value of the said one-half () amounting to P905,534.78; (b)
the shares of the Oppositors-Appellants should consist of their
legitime, plus the devises in their favor proportionally reduced;
(c) in payment of the total shares of the appellants in the
entire estate, the properties devised to them plus other
properties left by the Testatrix and/or cash are adjudicated to
them; and (d) to the grandchildren who are not compulsory
heirs are adjudicated the properties respectively devised to
them subject to reimbursement by Gilbert D. Garcia, et al., of
the sums by which the devise in their favor should be
proportionally reduced.
Under the oppositors' counter-project of partition, the testamentary
disposition made by the testatrix of practically her whole estate of
P1,801,960.01, as above stated, were proposed to be reduced to the
amounts set forth after the names of the respective heirs and devisees
totalling one-half thereof as follows:
1. Estela Dizon ........................................... P 49,485.56
2. Angelina Dizon ......................................... 53,421.42
3. Bernardita Dizon ....................................... 26,115.04
4. Josefina Dizon .......................................... 26,159.38
5. Tomas V. Dizon ......................................... 65,874.04
6. Lilia Dizon .................................................. 36,273.13
7. Marina Dizon ........................................... 576,938.82
8. Pablo Rivera, Jr. ......................................... 34,814.50
9. Grandchildren Gilbert Garcia et al .......... 36,452.80
T o t a l ................................................... P905,534.78
while the other half of the estate (P905,534.78) would be deemed as
constituting the legitime of the executrix-appellee and oppositors-
appellants, to be divided among them in seven equal parts of
P129,362.11 as their respective legitimes.
45

The lower court, after hearing, sustained and approved the executrix'
project of partition, ruling that "(A)rticles 906 and 907 of the New Civil
Code specifically provide that when the legitime is impaired or
prejudiced, the same shall be completed and satisfied. While it is true
that this process has been followed and adhered to in the two projects
of partition, it is observed that the executrix and the oppositors differ in
respect to the source from which the portion or portions shall be taken in
order to fully restore the impaired legitime. The proposition of the
oppositors, if upheld, will substantially result in a distribution of intestacy,
which is in controversion of Article 791 of the New Civil Code" adding
that "the testatrix has chosen to favor certain heirs in her will for reasons
of her own, cannot be doubted. This is legally permissible within the
limitation of the law, as aforecited." With reference to the payment in
cash of some P230,552.38, principally by the executrix as the largest
beneficiary of the will to be paid to her five co-heirs, the oppositors
(excluding Tomas Dizon), to complete their impaired legitimes, the lower
court ruled that "(T)he payment in cash so as to make the proper
adjustment to meet with the requirements of the law in respect to
legitimes which have been impaired is, in our opinion, a practical and
valid solution in order to give effect to the last wishes of the testatrix."
From the lower court's orders of approval, oppositors-appellants have
filed this appeal, and raise anew the following issues: .
1. Whether or not the testamentary dispositions made in the testatrix' will
are in the nature of devises imputable to the free portion of her estate,
and therefore subject to reduction;
2. Whether the appellants are entitled to the devise plus their legitime
under Article 1063, or merely to demand completion of their legitime
under Article 906 of the Civil Code; and
3. Whether the appellants may be compelled to accept payment in
cash on account of their legitime, instead of some of the real properties
left by the Testatrix;
which were adversely decided against them in the proceedings below.
The issues raised present a matter of determining the avowed intention
of the testatrix which is "the life and soul of a will."
5
In consonance
therewith, our Civil Code included the new provisions found in Articles
788 and 791 thereof that "(I)f a testamentary disposition admits of
different interpretations, in case of doubt, that interpretation by which
the disposition is to be operative shall be preferred" and "(T)he words of a
will are to receive an interpretation which will give to every expression
some effect, rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy." In Villanueva vs. Juico
6
for
violation of these rules of interpretation as well as of Rule 123, section 59
of the old Rules of Court, 7 the Court, speaking through Mr. Justice J.B.L.
Reyes, overturned the lower court's decision and stressed that "the
intention and wishes of the testator, when clearly expressed in his will,
constitute the fixed law of interpretation, and all questions raised at the
trial, relative to its execution and fulfillment, must be settled in
accordance therewith, following the plain and literal meaning of the
testator's words, unless it clearlyappears that his intention was
otherwise." 8
The testator's wishes and intention constitute the first and principal law in
the matter of testaments, and to paraphrase an early decision of the
Supreme Court of Spain, 9 when expressed clearly and precisely in his
last will amount to the only law whose mandate must imperatively be
faithfully obeyed and complied with by his executors, heirs and devisees
and legatees, and neither these interested parties nor the courts may
substitute their own criterion for the testator's will. Guided and restricted
by these fundamental premises, the Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the testatrix' testamentary
disposition was in the nature of a partition of her estate by will. Thus, in
the third paragraph of her will, after commanding that upon her death
all her obligations as well as the expenses of her last illness and funeral
and the expenses for probate of her last will and for the administration of
her property in accordance with law, be paid, she expressly provided
that "it is my wish and I command that my property be divided" in
accordance with the dispositions immediately thereafter following,
whereby she specified each real property in her estate and designated
the particular heir among her seven compulsory heirs and seven other
grandchildren to whom she bequeathed the same. This was a valid
partition
10
of her estate, as contemplated and authorized in the first
paragraph of Article 1080 of the Civil Code, providing that "(S)hould a
person make a partition of his estate by an act inter vivos or by will, such
partition shall be respected, insofar as it does not prejudice the legitime
of the compulsory heirs." This right of a testator to partition his estate is
subject only to the right of compulsory heirs to their legitime. The Civil
Code thus provides the safeguard for the right of such compulsory heirs:
ART. 906. Any compulsory heir to whom the testator
has left by any title less than the legitime belonging
to him may demand that the same be fully satisfied.
ART. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may
be inofficious or excessive.
This was properly complied with in the executrix-
appellee's project of partition, wherein the five
oppositors-appellants namely Estela, Bernardita,
Angelina, Josefina and Lilia, were adjudicated the
properties respectively distributed and assigned to
them by the testatrix in her will, and the differential to
complete their respective legitimes of P129,362.11
each were taken from the cash and/or properties of
the executrix-appellee, Marina, and their co-
oppositor-appellant, Tomas, who admittedly were
favored by the testatrix and received in the partition
by will more than their respective legitimes.
2. This right of a testator to partition his estate by will was recognized
even in Article 1056 of the old Civil Code which has been reproduced
now as Article 1080 of the present Civil Code. The only amendment in
the provision was that Article 1080 "now permits any person (not a
testator, as under the old law) to partition his estate by act inter
vivos."
11
This was intended to repeal the then prevailing doctrine
12
that
for a testator to partition his estate by an act inter vivos, he must first
make a will with all the formalities provided by law. Authoritative
commentators doubt the efficacy of the amendment
13
but the question
does not here concern us, for this is a clear case of partition by will, duly
admitted to probate, which perforce must be given full validity and
effect. Aside from the provisions of Articles 906 and 907 above quoted,
other codal provisions support the executrix-appellee's project of
partition as approved by the lower court rather than the counter-project
of partition proposed by oppositors-appellants whereby they would
reduce the testamentary disposition or partition made by the testatrix to
one-half and limit the same, which they would consider as mere devises
or legacies, to one-half of the estate as the disposable free portion, and
apply the other half of the estate to payment of the legitimes of the
seven compulsory heirs. Oppositors' proposal would amount substantially
to a distribution by intestacy and pro tanto nullify the testatrix' will,
contrary to Article 791 of the Civil Code. It would further run counter to
the provisions of Article 1091 of the Civil Code that "(A) partition legally
made confers upon each heir the exclusive ownership of the property
adjudicated to him."
3. In Habana vs. Imbo,
14
the Court upheld the distribution made in the
will of the deceased testator Pedro Teves of two large coconut
plantations in favor of his daughter, Concepcion, as against adverse
claims of other compulsory heirs, as being a partition by will, which
should be respected insofar as it does not prejudice the legitime of the
compulsory heirs, in accordance with Article 1080 of the Civil Code. In
upholding the sale made by Concepcion to a stranger of the
plantations thus partitioned in her favor in the deceased's will which was
being questioned by the other compulsory heirs, the Court ruled that
"Concepcion Teves by operation of law, became the absolute owner of
said lots because 'A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him' (Article 1091,
46

New Civil Code), from the death of her ancestors, subject to rights and
obligations of the latter, and, she can not be deprived of her rights
thereto except by the methods provided for by law (Arts. 657, 659, and
661, Civil Code).
15
Concepcion Teves could, as she did, sell the lots in
question as part of her share of the proposed partition of the properties,
especially when, as in the present case, the sale has been expressly
recognized by herself and her co-heirs ..."
4. The burden of oppositors' contention is that the testamentary
dispositions in their favor are in the nature of devises of real property,
citing the testatrix' repeated use of the words "I bequeath" in her
assignment or distribution of her real properties to the respective heirs.
From this erroneous premise, they proceed to the equally erroneous
conclusion that "the legitime of the compulsory heirs passes to them by
operation of law and that the testator can only dispose of the free
portion, that is, the remainder of the estate after deducting the legitime
of the compulsory heirs ... and all testamentary dispositions, either in the
nature of institution of heirs or of devises or legacies, have to be taken
from the remainder of the testator's estate constituting the free
portion."
16

Oppositors err in their premises, for the adjudications and assignments in
the testatrix' will of specific properties to specific heirs cannot be
considered all devises, for it clearly appear from the whole context of
the will and the disposition by the testatrix of her whole estate (save for
some small properties of little value already noted at the beginning of
this opinion) that her clear intention was to partition her whole estate
through her will. The repeated use of the words "I bequeath" in her
testamentary dispositions acquire no legal significance, such as to
convert the same into devises to be taken solely from the free one-half
disposable portion of the estate. Furthermore, the testatrix' intent that her
testamentary dispositions were by way of adjudications to the
beneficiaries as heirs and not as mere devisees, and that said dispositions
were therefore on account of the respective legitimes of the compulsory
heirs is expressly borne out in the fourth paragraph of her will,
immediately following her testamentary adjudications in the third
paragraph in this wise: "FOURTH: I likewise command that in case any of
those I named as my heirs in this testament any of them shall die before I
do, his forced heirs under the law enforced at the time of my death shall
inherit the properties I bequeath to said deceased."
17

Oppositors' conclusions necessarily are in error. The testamentary
dispositions of the testatrix, being dispositions in favor of compulsory heirs,
do not have to be taken only from the free portion of the estate, as
contended, for the second paragraph of Article 842 of the Civil Code
precisely provides that "(O)ne who has compulsory heirs may dispose of
his estate provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs." And even going by oppositors'
own theory of bequests, the second paragraph of Article 912 Civil Code
covers precisely the case of the executrix-appellee, who admittedly was
favored by the testatrix with the large bulk of her estate in providing that
"(T)he devisee who is entitled to a legitime may retain the entire
property, provided its value does not exceed that of the disposable
portion and of the share pertaining to him as legitime." For "diversity of
apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate." 18 Fundamentally, of course, the
dispositions by the testatrix constituted a partition by will, which by
mandate of Article 1080 of the Civil Code and of the other cited codal
provisions upholding the primacy of the testator's last will and testament,
have to be respected insofar as they do not prejudice the legitime of the
other compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left
by will is not deemed subject to collation, if the testator has not otherwise
provided, but the legitime shall in any case remain unimpaired" and
invoking of the construction thereof given by some authorities that "'not
deemed subject to collation' in this article really means not imputable to
or chargeable against the legitime", while it may have some
plausibility
19
in an appropriate case, has no application in the present
case. Here, we have a case of a distribution and partition of the entire
estate by the testatrix, without her having made any previous donations
during her lifetime which would require collation to determine the
legitime of each heir nor having left merely some properties by will which
would call for the application of Articles 1061 to 1063 of the Civil Code
on collation. The amount of the legitime of the heirs is here determined
and undisputed.
5. With this resolution of the decisive issue raised by oppositors-
appellants, the secondary issues are likewise necessarily resolved. Their
right was merely to demand completion of their legitime under Article
906 of the Civil Code and this has been complied with in the approved
project of partition, and they can no longer demand a further share from
the remaining portion of the estate, as bequeathed and partitioned by
the testatrix principally to the executrix-appellee.
Neither may the appellants legally insist on their legitime being
completed with real properties of the estate instead of being paid in
cash, per the approved project of partition. The properties are not
available for the purpose, as the testatrix had specifically partitioned
and distributed them to her heirs, and the heirs are called upon, as far as
feasible to comply with and give effect to the intention of the testatrix as
solemnized in her will, by implementing her manifest wish of transmitting
the real properties intact to her named beneficiaries, principally the
executrix-appellee. The appraisal report of the properties of the estate as
filed by the commissioner appointed by the lower court was approved in
toto upon joint petition of the parties, and hence, there cannot be said
to be any question and none is presented as to fairness of the
valuation thereof or that the legitime of the heirs in terms of cash has
been understated. The plaint of oppositors that the purchasing value of
the Philippine peso has greatly declined since the testatrix' death in
January, 1961 provides no legal basis or justification for overturning the
wishes and intent of the testatrix. The transmission of rights to the
succession are transmitted from the moment of death of the decedent
(Article 777, Civil Code) and accordingly, the value thereof must be
reckoned as of then, as otherwise, estates would never be settled if there
were to be a revaluation with every subsequent fluctuation in the values
of the currency and properties of the estate. There is evidence in the
record that prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account of her
inheritance, which, per the parties' manifestation,
20
"does not in any way
affect the adjudication made to her in the projects of partition of either
party as the same is a mere advance of the cash that she should receive
in both projects of partition." The payment in cash by way of making the
proper adjustments in order to meet the requirements of the law on non-
impairment of legitimes as well as to give effect to the last will of the
testatrix has invariably been availed of and sanctioned.
21
That her co-
oppositors would receive their cash differentials only now when the value
of the currency has declined further, whereas they could have received
them earlier, like Bernardita, at the time of approval of the project of
partition and when the peso's purchasing value was higher, is due to
their own decision of pursuing the present appeal.
ACCORDINGLY, the orders appealed from are hereby affirmed. Without
cost.
February 28, 1962
G.R. No. L-15737
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant,
vs.
DELFIN N. JUICO, in his capacity as Judicial Administrator of the testate
estate of FAUSTA NEPOMUCENO, defendant-appellee.
REYES, J.B.L., J.:

Subject to this direct appeal to us on points of law is the decision of the
Court of First Instance of Rizal, in its Civil Case No. Q-2809, dismissing
plaintiff-appellant's complaint for the recovery of certain properties that
were originally owned by the plaintiff's granduncle, Nicolas Villaflor, and
which he granted to his widow, Doa Fausta Nepomuceno,
bequeathing to her "su uso y posesion mientras viva y no se case en
segundas nupcias".
47

The following facts appear of record: On October 9, 1908, Don Nicolas
Villaflor, a wealthy man of Castillejos, Zambales, executed a will in
Spanish in his own handwriting, devising and bequeathing in favor of his
wife, Dona Fausta Nepomuceno, one-half of all his real and personal
properties, giving the other half to his brother Don Fausto Villaflor.
Clause 6th, containing the institution of heirs, reads as follows:
SEXTO En virtud de las facultades que me conceden las leyes,
instituyo per mis unicos y universales herederos de todos mis derechos y
acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que partan todos mis bienes que me pertenescan,
en iguales partes, para despues de mi muerte, exceptuando las
donaciones y legados que, abajo mi mas expontanea voluntad, lo
hago en la forma siguiente:
SEPTIMO: Lego para dispues de mi muerte a mi esposa Da. Fausta
Nepomuceno, en prueba de mi amor y carino, los bienes, alhajas y
muebles que a continuacion se expresan; .
OCTAVO: Que estos legades disfrutaria mi referida esposa Da. Fausta
Nepomuceno su uso y posesion mientras viva y no se case en segundas
nupcias, de la contrario, pasara a ser propiedad estos dichos legados
de mi sobrina nieta Leonor Villaflor.
The 12th clause of the will provided, however, that Clauses 6th and 7th
thereof would be deemed annulled from the moment he bore any child
with Doa Fausta Nepomuceno. Said Clause 12th reads as follows:
DUODECIMO: Quedan anulados las parrafos 6.0 y 7.0 de este
testamento que tratan de institucion de herederos y los legados que se
haran despues de mi muerte a favor de mi esposa, en el momento que
podre tener la dicha de contrar con hijo y hijos legitimos o legitimados,
pues estos, conforme a ley seran mis herederos.
Don Nicolas Villaflor died on March 3, 1922, without begetting any child
with his wife Doa Fausta Nepomuceno. The latter, already a widow,
thereupon instituted Special Proceeding No. 203 of the Court of First
Instance of Zambales, for the settlement of her husband's estate and in
that proceeding, she was appointed judicial administratrix. In due course
of administration, she submitted a project of partition, now Exhibit "E". In
the order of November 24, 1924, now exhibit "C", the probate court
approved the project of partition and declared the proceeding closed.
As the project of partition, Exhibit "E", now shows Doa Fausta
Nepomuceno received by virtue thereof the ownership and possession
of a considerable amount of real and personal estate. By virtue also of
the said project of partition, she received the use and possession of all
the real and personal properties mentioned and referred to in Clause 7th
of the will. The order approving the project of partition (Exh. "C"),
however, expressly provided that approval thereof was "sin perjuicio de
lo dispuesto en la clausula 8.o del testamento de Nicolas Villaflor."
On May 1, 1956, Doa Fausta Nepomuceno died without having
contracted a second marriage, and without having begotten any child
with the deceased Nicolas Villaflor. Her estate is now being settled in
Special Proceeding No. Q-1563 in the lower court, with the defendant
Delfin N. Juico as the duly appointed and qualified judicial administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the
same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as his
"sobrina nieta Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present action against the
administrator of the estate of the widow Fausta Nepomuceno, on
February 8, 1958, contending that upon the widow's death, said plaintiff
became vested with the ownership of the real and personal properties
bequeathed by the late Nicolas Villaflor to clause 7 of his will, pursuant to
its eight (8th) clause. Defendant's position, adopted by the trial court, is
that the title to the properties aforesaid became absolutely vested in the
widow upon her death, on account of the fact that she never remarried.
We agree with appellant that the plain desire and intent of the testator,
as manifested in clause 8 of his testament, was to invest his widow with
only a usufruct or life tenure in the properties described in the seventh
clause, subject to the further condition (admitted by the appellee) that if
the widow remarried, her rights would thereupon cease, even during her
own lifetime. That the widow was meant to have no more than a life
interest in those properties, even if she did not remarry at all, is evident
from the expressions used by the deceased "uso y posesion mientras
viva" (use and possession while alive) in which the first half of the phrase
"uso y posesion" instead of "dominio" or "propiedad") reinforces the
second ("mientras viva"). The testator plainly did not give his widow the
full ownership of these particular properties, but only the right to their
possession and use (or enjoyment) during her lifetime. This is in contrast
with the remainder of the estate in which she was instituted universal heir
together with the testator's brother (clause 6).
SEXTO: En virtud de las facultades que me conceden las leyes,
instituyo por mis unicos y universales herederos de todos mis derechos y
acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que parten todos mis bienes que me pertenescan,
en iguales partes, para despues de mi muerte, exceptuando las
donaciones y legados que, abajo mi mas expontanea voluntad, lo
hago en la forma siguiente.
The court below, in holding that the appellant Leonor Villaflor, as
reversionary legatee, could succeed to the properties bequeathed by
clause 7 of the testament only in the event that the widow remarried,
has unwarrantedly discarded the expression "mientras viva," and
considered the words "uso y posesion" as equivalent to "dominio"
(ownership). In so doing, the trial court violated Article 791 of the Civil
Code of the Philippines, as well as section 59 of Rule 123 of the Rules of
Court.
ART. 791. The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render
any of the expressions inoperative; and of two modes of interpreting a
will, that one is to be preferred which will prevent intestacy."
SEC. 59. Instrument construed so as to give effect to all provisions. In
the construction of an instrument where there are several provisions or
particulars, such a construction is, if possible, to be adopted as will give
effect to all."
Speculation as to the motives of the testator in imposing the conditions
contained in clause 7 of his testament should not be allowed to obscure
the clear and unambiguous meaning of his plain words, which are over
the primary source in ascertaining his intent. It is well to note that if the
testator had intended to impose as sole condition the non-remarriage of
his widow, the words "uso y posesion mientras viva" would have been
unnecessary, since the widow could only remarry during her own
lifetime.
The Civil Code, in Article 790, p. 1 (Article 675 of the Code of 1889),
expressly enjoins the following:
ART. 790. The words of a will are to be taken in their ordinary and
grammatical sense, unless a clear intention to use them in another sense
can be gathered, and that other can be ascertained."
Technical words in a will are to be taken in their technical sense, unless
the context clearly indicates a contrary intention, or unless it satisfactorily
48

appears that the will was drawn solely by the testator, and that he was
unacquainted with such technical sense. (675a)
In consonance with this rule, this Supreme Court has laid the doctrine in
In re Estate of Calderon, 26 Phil., 233, that the intention and wishes of the
testator, when clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial, relative to its execution
and fulfillment, must be settled in accordance therewith, following the
plain and literal meaning of the testator's words, unless itclearly appears
that his intention was otherwise. The same rule is adopted by the
Supreme Court of Spain (TS. Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril
1913; 16 Enero 1915; 23 Oct. 1925).
La voluntad del testador, clara, precisa y constantemente expresada al
ordenar su ultimo voluntad, es ley unica, imperativa y obligatoria que
han de obedecer y cumplir fieldmente albaceas, legatarios y heredera,
hoy sus sucesores, sin que esa voluntad patente, que no ha menester de
interpretaciones, pues no ofrece la menor duda, pueda sustituirse, pues
no ofrece la menor duda, pueda sustituirse por ningun otro criterio de
alguna de los interesados, ni tampoco por el judicial. (Tribunal Supremo
of Spain, Sent. 20 March 1918)
The American decisions invoked by appellee in his brief inapplicable,
because they involve cases where the only condition imposed on the
legatee was that she should remain a widow. As already shown, the
testament of Don Nicolas Villaflor clearly and unmistakably provided that
his widow should have the possession and use of the legacies while alive
and did not remarry. It necessarily follows that by the express provisions
of the 8th clause of his will, the legacies should pass to the testator's
"sobrinanieta", appellant herein, upon the widow's death, even if the
widow never remarried in her lifetime. Consequently, the widow had no
right to retain or dispose of the aforesaid properties, and her estate is
accountable to the reversionary legatee for their return, unless they had
been lost due to fortuitous event, or for their value should rights of
innocent third parties have intervened.
PREMISES CONSIDERED, the decision appealed from is reversed, and the
appellant Leonor Villaflor Vda. de VILLANUEVA is declared entitled to the
ownership and fruits of the properties described in clause 7 of the will or
testament, from the date of the death of Doa Fausta Nepomuceno.
The records are ordered remanded to the court of origin for liquidation,
accounting and further proceedings conformably to this decision. Costs
against the Administrator-appellee.
G.R. No. 1027 May 19, 1903
RAMON DEL ROSARIO, plaintiff-appellee,
vs.
CLEMENTE DEL ROSARIO, defendant-appellant.
WILLARD, J.:
I. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a last
will, the eighth, ninth, eleventh, and eighteenth clauses of which are as
follows:
Eight. The testator declares that the 5,000 pesos which he
brought to his marriage he hereby bequeathes to his nephew
Enrique Gloria y Rosario and Ramon del Rosario, natural
children of his brother Clemente del Rosario, notwithstanding
the fact that they purport to be the issue of the marriage of
Escolastico Gloria and Rosendo del Rosario, successively.
Ninth. The testator declares that the said sum of 5,000 pesos is
to be divided, 3,000 pesos for the first named and 2,000 pesos
for the second named, the delivery of the said sums to be
effected by the wife of the testator, provided that these young
men behave themselves as they have done up to the present
time, and do not cease to study until taking the degree of
bachelor of arts, and then take a business course, if their
health will permit, their support to be paid out of the
testamentary estate and they to live in the house of the
widow.
Eleventh. The testator declares that in a case the said young
men should be still engaged in study at the time of the death
of the testator's wife, they shall continue to be supported at
the expense of the testamentary estate, without deducting
such expenses from their legacies, if they should desire to
continue the same studies.
Eighteenth. The testator further states that although his wife is
at the present time fifty-five years of age, and consequently is
not likely to marry again, as she herself says, nevertheless it is
impossible that the opposite of what she asserts might occur,
and, if so, then it is to be regarded as sufficient reason to
authorize the young men Ramon and Enrique, so often
referred to, separate from their aunt, in which event they are
to be supported by the testamentary estate on a small
allowance of twenty-five pesos per month, provided that they
continue their studies or should be in poor health, this without in
any respect reducing the amount of their shares.
Don Ramon del Rosario, one of the persons mentioned in these clauses,
brought this action in 1902 against Don Clemente del Rosario, the then
executor, asking, among other things, that the said executor pay him an
allowance from the death of the widow of the testator at the rate of 75
pesos a month, and that the executor allow him to live in the house in
which the widow was living at that time.
The widow of the testator, Doa Honorata Valdez, died on July 7, 1900.
The court below ordered judgment in respect to this allowance, and the
right to live in the house as prayed for by the plaintiff. In this we think that
the court erred.
While by the eight clause the support of the plaintiff and of Don Enrique
Gloria is charged against the estate, yet the eleventh clause makes it
plain that this unconditional right was to last only during the lifetime of
the widow. After her death the right to this allowance is made to
depend on the continuance of their studies. That this is the correct
construction of the will is made more plain by the eighteenth clause
above quoted. In the case of their separation from their aunt by her
remarriage, they were entitled to the specified allowance of 25 pesos a
month only on condition that they were pursuing their studies or were in
poor health.
The court did not find that the plaintiff was still pursuing his studies. On the
contrary, he found that the plaintiff had fulfilled the condition by
obtaining the degree of bachelor of arts in 1898.
The right to live in the house of the widow terminated at her death.
II. The seventh clause of the will of Don Nicolas is as follows:
Seventh. The testator states that in the present condition of his
affairs he has acquired, during his married life, some tens of
thousands of dollars, of which one-half belongs to his wife as
her share of the profits of the conjugal partnership, and the
other half belongs to him as his share of such profits; but, in
view of the agreement entered into between the two spouses,
the property will not be partitioned, and upon the death of the
testator all the said property will pass to his wife, in order that
she may enjoy the revenue therefrom during her lifetime, but
without authority to convey any of such property, inasmuch as
she, being grateful for the benefit resulting to her, binds herself
in turn to deliver said property at her death to the testator's
brothers, Don Clemente del Rosario and Don Rosendo del
49

Rosario, and his sister, Doa Luisa del Rosario, who shall enjoy
the revenue from the said property during their respective lives,
and shall then, in turn, transmit the same to their male children,
both those born in wedlock and natural children who may be
known.
This was later modified by a codicil, as follows:
That in seventh clause of said testament he desires and wills
that in the distribution of his property and that of his wife
among the male children of his brothers, Clemente and
Rosendo del Rosario, and those of his sister, Luisa del Rosario, in
such distribution his nephews Enrique Gloria and Ramon del
Rosario must be understood to be included, in addition to the
legacies mentioned in his said testament.
The thirteenth clause of his will was as follows:
The testator declares that in case Doa Luisa del Rosario
should die before or after the wife of the testator, then the
legacy due her by virtue of this will shall not pass in its entirety
to her male children, except as to the sum of 1,000 pesos, the
remainder to pass to Don Enrique Gloria Rosario and Don
Ramon del Rosario, natural sons of Don Clemente del Rosario,
as already stated.
This was modified by the codicil as follows:
That in the thirteenth clause the testator provided that upon
the death of his sister, Luisa del Rosario, her male children were
to inherit from her up to the sum of 1,000 pesos, and this he
rectifies, for better understanding, to the effect that it is his will
that the remainder of all her portion should be divided into
equal parts, one-third to go to his brother Don Clemente del
Rosario and the other two-thirds to be divided equally among
his said nephews, Enrique Gloria and Ramon del Rosario.
Doa Honorata Valdez made her will three days after that of her
husband. The seventh clause is as follows:
The testatrix declares that she institutes her beloved husband,
Don Nicolas del Rosario y Alejo, as her heir to all the property
which she may have at her death, and in the unexpected
case of the death of her said husband then she institute as
heirs her brothers-in-law, Don Rosendo and Don Clemente del
Rosario y Alejo, and her sister-in-law,Doa Luisa del Rosario,
who shall enjoy the usufruct during their lifetime of all the
revenue of the said property. Upon the death of any of them,
the property shall pass to the male children of her said
brothers-in-law and sister-in-law, the issue of lawful marriage or
natural children who may be known; that upon the death of
her sister-in-law,Doa Luisa, then her share shall not pass in its
entirety to her male children, except the sum of 1,000 pesos,
Enrique Gloria and Don Ramon del Rosario, natural children of
her brother-in-law Don Clemente del Rosario.
Doa Luisa died one yea after Don Nicolas and two years before the
death of Doa Honorata, which, as has been said, occurred on July, 7,
1900.
Don Enrique Gloria died on July 6, 1900.
Don Ramon del Rosario claims in this action that he is now entitled, by
virtue of both wills, to a certain part of the share of the estates left to
said Doa Luisa during her life, and he asks that the defendant be
directed to render accounts and to proceed to the partition of the said
estates. The controversy between the parties upon this branch of the
case is as follows:
The defendant claims that the plaintiff is entitled to nothing under the
wills, because the gift to him was conditional, the condition being that
he should be the natural son of Don Clemente, recognized by the latter
as such in one of the ways pointed out by the Civil Code; that he can
not prove such recognition, the parol evidence presented at the trial
being prohibited by said Code, and that he has therefore not complied
with the condition.
The plaintiff claims that such evidence was proper, that both wills state
that Don Ramon del Rosario is the natural son of Don Clemente, and
that in any event the bequests are made to the plaintiff by name.
The court below, holding the parol evidence immaterial, ordered
judgment for the plaintiff as prayed for.
(1) So far as the disposition of that part of the inheritance left in the aunt's
will to Doa Luisa for life is concerned, the question is free from doubt. It
is distinctly declared that Ramon del Rosario and Enrique Gloria shall
take certain parts of it after 1,000 pesos have been deducted. They are
pointed out by name as the legatees. It is true that they are called the
natural sons of Don Clemente. But this is merely a further description of
persons already well identified, and, if false, can be rejected in
accordance with the provision of article 773 of the Civil Code, which by
article 789 is applicable to legatees.
(2) The ninth clause of the will of Doa Honorata is as follows:
The testatrix bequeaths the sum of 3,000 pesos to her nephews Enrique
Gloria and Ramon del Rosario in equal parts that is, 1,500 pesos each.
The plaintiff was entitled to one-half of this legacy in his own right. This
has been paid to him. Don Enrique Gloria died before his the testatrix. By
the provisions of articles 982 and 983 of the Civil Code the right of
accretion exists as to the other half in favor of the plaintiff and he is
entitled to have it paid to him.
(3) The will of Doa Honorata plainly declares that, on the death of any
one of the life tenants, the male children of such tenant shall inherit, and
in respect to Doa Luisa it is expressly declared that this shall take place
whether she dies before or after the testatrix. The derecho de
acrecer did not therefore exist in favor of the other two life tenants, Don
Clemente and Don Rosendo. "En la sucesion testada es ley preferente la
voluntad del testador, de modo que este prohibiendo expresamente el
derecho de acrecer, nombrando sustitutos, o marcando el destino
especial de cada porcion vacante, excluye la aplicacion de los
articulos que vamos a examinar." (7 Manresa, Comentarios al Codigo
Civil, p. 276.)
This right does, however, exist in the share of Doa Luisa in favor of the
plaintiff, for the reasons stated in connection with the legacy of 3,000
pesos.
(4) We have passed upon the rights of the plaintiff to the share
of Doa Luis under the will of Doa Honorata, because the interest is
expressly left to him (en concepto de legado) as a legacy. This is
controlling. (5 Manresa, 315.)
These or equivalent words are wanting in the will of Don Nicolas.
Applying article 668 of the Civil Code, we must hold that any interest
which the plaintiff may have taken in the share of Doa Luisa under the
will of Don Nicolas he took as an heir and not as a legatee.
The distinction between the two is constantly maintained throughout the
Code, and their rights and obligations differ materially. (Arts. 660, 668,
768, 790, 858, 891, 1003.)
(5) The legatee can demand his legacy from the heir or from the
executor, when the latter is authorized to give it. (Art. 885.) The powers
given to the executors by the will of Doa Honorata are contained in the
fourteenth clause, which is as follows:
50

The testatrix appoints as the executors of her will, in the first
place, her beloved husband, Nicolas del Rosario y Alejo, in the
second place her brother-in-law Clemente del Rosario, in the
third place her brother-in-law Rosendo del Rosario, in the fourth
place Don Ramon del Rosario when he shall attain his majority,
all of them without bond and free from the obligation of
terminating the administration within the legal term. At her
death they shall take possession of all such goods and things
as may be her property, and are hereby authorized fully and
as required by law to prepare an inventory of said property,
and to effect the division and partition of the estate among
her heirs. She also authorizes them to execute and sign deeds
of partition, sales with a resolutory condition, cancellations,
receipts, acquittances, and such other documents as may be
necessary.
The twenty-first clause of the will of Don Nicolas is substantially the same.
Each will prohibited any judicial intervention in the settlement of the
estates.
The clause in the will of Doa Honorata which is a copy of that in the will
of Don Nicolas is as follows:
The testatrix declares that she expressly prohibits any judicial
intervention in this her will, although minors, absentees, or
persons under disability be interested therein, as it is her wish
and will that all the proceedings be conducted extrajudicially,
and in case a family council should be necessary, she
designates the persons who, in accordance with the provisions
of the Civil Code now in force, should form such council, or
else leaves their appointment to the discretion of her
executors.
If the executor was not authorized to pay these legacies, the heirs must
pay them.
The life tenants and the heirs who take the remainder under these wills
are numerous. If they did not pay the legacies and did not agree upon
an administrator, judicial intervention would be necessary, the very thing
which the testators had expressly prohibited. The important power of
making the partition was attempted to be given to the executors. In
view of these considerations and a study of the whole will, we hold that
the executors are given power to pay the legacies.
The action, therefore, was properly directed against the executor so far
as it related to the allowance and the legacy of 3,000 pesos. As to these
legacies, the action may be supported also under article 902, 2, which
allows executors to pay money legacies.
It was also properly directed against him, so far as it related to the share
to which the plaintiff is entitled under the will ofDoa Honorata in the
portion to Doa Luisa for life.
The provisions of articles 1025-1027 are no obstacle to this suit. That an
inventory is being formed, or that the creditors have not been paid, is a
matter of defense which should have been set up in the answer.
It was not properly directed against him in so far as it related to the
similar share left to him by the will of Don Nicolas. He took that as heir
and not a legatee, and the heir can maintain no such action against the
executor.
The fact that the plaintiff under the will of Doa Honorata is a legatee of
an aliquot part of the estate, having become entitled to receive one-
third of it on the death of Doa Luisa, does not prevent him from
maintaining this action against the executor. Though such a legatee
closely resembles an heir, yet, like all other legatees, he must seek his
share from the heir or executor. (6 Manresa, 561.)
(6) While in this action he has a right to have his interest as legatee
declared, yet it can not be delivered to him without a partition of the
estate.
It remains to be considered whether the executor has power to make
the partition. Such power is expressly given by the will. This provision is,
however, void under the terms of article 1057 of the Civil Code, which is
as follows:
The testator may, by an act inter vivos or causa mortis, intrust
the mere power of making the division after his death to any
person who is not one of the coheirs.
The provisions of this and the foregoing articles shall be
observed even should there be a minor or a person subject to
guardianship among the coheirs; but the trustee must in such
case make an inventory of the property of the inheritance,
citing the coheirs, the creditors, and the legatees.
Don Clemente, the executor, against whom the action was directed,
was not only an heir as a life tenant but also in the fee after his death of
Don Rosendo if the latter died without issue. Upon the death of the
widow, Doa Luisa then being dead, it became his duty to divide the
estate into three parts, or at least to set off the third, which was to pass to
the plaintiff by the death of the widow and Doa Luisa. In this partition
he was directly interested, for, with his brother Don Rosendo, he had a
life interest in the part of the estate not set off to the plaintiff. Article 1057
prohibited an heir from being contador for this very reason, namely, that
the partition should be made impartially.
Although the executor has no power to make the partition, the heirs can
do so. Arts. 1058-1060, Civil Code.)
The plaintiff is not bound to remain a co-owner with the other heirs. Being
a legatee of an aliqout part, he has the same right to seek a partition
that an heir has. (7 Manresa, 578; art. 1051, Codigo Civil.) But in so
seeking it he must make parties to his suit all persons interested in the
estate (7 Manresa, 577). This he has not done in this suit, and he
consequently is not entitled to the partition ordered by the court below.
(7) We have held that the only thing that can be decided in this case is
the rights of the plaintiff as legatee.
The court below ordered the executor to render accounts of his
administration of both estates.
As to the estate of Don Nicolas, the only thing here in question is the right
to the allowance. As we hold that the plaintiff is not entitled to it, he is
not entitled to any statement of accounts as such pretended legatee.
As to the estate of Doa Honorata, he is entitled to be paid a legacy of
1,500 pesos. Article 907 requires the executor to render accounts to the
heir, not to the legatee; and although by article 789 all of the provisions
of Chapter II (in which both articles are found) relating to heirs are made
applicable to legatees, we can not hold that this requires an executor to
submit his accounts to one who has no interest in the estate except to a
money legacy when there is no suggestion that it will not be paid when
the right to it is established.
In respect to the share of Doa Luisa, there is reason for saying that a
legatee on an aliquot part is entitled to an accounting. But, inasmuch as
in this case there can be no final determination of the rights of the
parties interested in the estate, because they are not all parties to this
suit, the executor should not in this suit be ordered to submit his
accounts.
(8) The plaintiff in his complaint has limited himself to claiming the
allowance, his rights to the share of Doa Luisa, and the legacies left to
him.
51

The question as to whether he would be entitled to any part of the share
of Don Clemente upon the latter's death, under the seventh clause of
the two wills, was not presented by the complaint nor passed upon by
the court and is not before us for decision.
(9) The result of the foregoing considerations is:
1. The plaintiff is not entitled to any allowance under either will.
2. He is not entitled to live in the house No. 128 Calle Clavel.
3. He is entitled to be paid, under the ninth clause of the will
of Doa Honorata, the sum of 1,500 pesos, in addition to the 1,500 pesos
already received under that clause.
4. He is entitled to the share of the estate left by the will
of Doa Honorata to Doa Luisa during her life, after deducting 1,000
pesos.
5. This share can not be set off to him in this suit, but only in a proceeding
to which all persons interested in the estate are parties.
6. His interest in the share left to Doa Luis during her life by the will of
Don Nicolas can not be determined in this suit.
7. The executor can not be required to render in this suit his accounts as
such executor.
8. The plaintiff's rights under the seventh clause of the two wills, to the
share left to Don Clemente for life are not before us for decision.
III. After judgment had been rendered in the court below and a bill of
exceptions allowed, but before the record had been sent to this court,
Don Clemente del Rosario, the defendant, died. After his death Don
Rosendo del Rosario, who was named in both wills to succeed to the
executorship on the death of Don Clemente, appeared in the court
below and withdrew the appeal and bill of exceptions. Thereupon the
widow of Don Clemente, for herself and in representation of the minor
son of her late husband, asked and was granted leave to prosecute the
appeal.
This ruling was correct. According to the Spanish authorities, anyone
legally affected by the judgment might appeal. According to the
American authorities, if a trustee refuses to appeal, the beneficiary may
do so in his name.
That the son of Don Clemente has a direct interest in the question of the
allowance of 75 pesos a month to the plaintiff is plain. We have held that
in respect to this allowance the executor represents the estate and the
judgment against him binds it.
It would be manifestly unjust to allow an executor, with perhaps only a
slight personal interest in an estate, by withdrawing an appeal, to fasten
upon the estate a claim which, as we hold, it should not bear.
IV. At the argument of this case on the merits, after the appellant had
closed, the respondent made the point for the first time that the
appellant's brief contained no assignment of errors.
This is true. But a full assignment of errors is found in the bill of exceptions
at pages 14 and 15. The appellee answered the brief of the appellant
without making any suggestion of this mistake. He has been in no way
prejudiced by it, and we can not affirm the judgment on this ground.
The judgment of the court below is reversed and the case remanded
with directions to the court below to enter judgment in accordance with
this opinion. The costs of this instance will be equally divided between
the parties. So ordered.
Arellano, C.J., Cooper, Mapa and Ladd, JJ., concur.