Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-33006 December 8, 1982

NICANOR NACAR, petitioner,

vs.
CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan del Sur,
PROVINCIAL SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and
ANTONIO DOLORICON, respondents.

Tranquilino O. Calo, Jr. for petitioner.

Ildefonso Japitana and Antonio Boloricon for respondents.

GUTIERREZ, JR., J.:

Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with
preliminary injunction to annul an order of the respondent judge of the municipal
court of Esperanza, Agusan del Sur directing the attachment of seven (7) carabaos,
to effect the return of four (4) carabaos seized under the questioned order, and to
stop the respondent judge from further proceeding in Civil Case No. 65.

Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it
"Claim Against the Estate of the Late Isabelo Nacar With Preliminary Attachment:"
On the basis of this complaint, including an allegation "that defendant are (sic)
about to remove and dispose the above-named property (seven carabaos) with
intent to defraud plaintiff herein", and considering that Mr. Japitana had given
security according to the Rules of Court, Judge Nistal issued the order commanding
the provincial sheriff to attach the seven (7) heads of cattle in the possession of
petitioner Nicanor Nacar. Actually only four (4) carabaos were attached because
three (3) carabaos had earlier been slaughtered during the rites preceding the
burial of the late Isabelo Nacar.

Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment,

and to order the return of the carabaos. Private respondent Japitana filed an
opposition to this motion while intervenor Antonio Doloricon filed a complaint in
intervention asserting that he was the owner of the attached carabaos and that the
certificates of ownership of large cattle were in his name.
The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to
the Supreme Court.

In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the
amount of P1,000.00, directed the issuance of a preliminary mandatory injunction.
The respondents were enjoined from further enforcing the writ of attachment and to
return the seized carabaos. The judge was restrained from further proceeding with
Civil Case No. 65.

We find the petition meritorious.

The pertinent portions of the complaint filed by Mr. Japitana with the municipal court
read as follows:

ILDEFONSO JAPITANA Civil Case No. 65 Plaintiff,

FOR:

Versus

CLAIM AGAINST THE ESTATE NICANOR NACAR THE LATE ISABELO

NACAR WITH Defendant. PRELIMINARY ATTACHMENT x
---------------------------------x

COMPLAINT

COMES NOW the undersigned plaintiff and before this Honorable Court,
respectfully avers:

xxx xxx xxx

That at various dates since the year 1968, the defendant have (sic)
incurred indebtedness to the plaintiff in the total sum of TWO
THOUSAND SEVEN HUNDRED NINETY ONE (P2,791.00) PESOS, which
said amount had long been overdue for payment, and which the
defendant up to this date have (sic) not been able to pay, despite
repeated demands from the plaintiff;

That the defendant Isabelo Nacar died last April, 1970 leaving among
other things personal property consisting seven (7) heads of carabaos
now in the possession of the defendant Nicanor Nacar;

That plaintiff herein file a claim against the estate of the late Isabelo
Nacar to recover the aforementioned sum of P2,791.99;
 That defendant are (sic) about to remove and dispose the above
mentioned property with intent to defraud plaintiff herein;

That plaintiff is willing to put up a bond for the issuance of a

preliminary attachment in an amount to be fixed by the Court, not
exceeding the sum of P 2,791.00 which is the plaintiff's claim herein;

WHEREFORE, it is respectfully prayed that pending the hearing of this

case, a writ of preliminary attachment be issued against the properties
of the defendant to serve as security for the payment or satisfaction of
any judgment that may be recovered herein; and that after due
hearing on the principal against the defendant for the sum of P
2,791,00 with legal interest from September 15, 1970 plus costs of this
suit. (Annex "A", p. 7 rollo).

In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and
absence of a cause of action. Mr. Nacar averred that the indebtedness mentioned in
the complaint was alleged to have been incurred by the late Isabelo Nacar and not
by Nicanor Nacar. There was, therefore, no cause of action against him. The
petitioner also stated that a municipal court has no jurisdiction to entertain an
action involving a claim filed against the estate of a deceased person.

The same grounds have been raised in this petition. Mr. Nacar contends:

xxx xxx xxx

9. That the respondent judge acted without jurisdiction.The municipal

courts or inferior courts have NO jurisdiction to settle the estate of
deceased persons. The proper remedy is for the creditor to file the
proper proceedings in the court of first instance and file the
corresponding claim. But assuming without admitting that the
respondent judge had jurisdiction, it is very patent that he committed a
very grave abuse of discretion and totally disregarded the provisions of
the Rules of Court and decisions of this honorable Court when he
issued an ex-parte writ of preliminary attachment, when there is no
showing that the plaintiff therein has a sufficient cause of action, that
there is no other security for the claim sought to be enforced by the
plaintiff; or that the amount claimed in the action is as much as the
sum for which the order is prayed for above all legal counterclaims;
There was no bond to answer for whatever damages that herein
petitioner may suffer; (Rollo, pp. 3- 4).

xxx xxx xxx

The respondent judge tried to avoid the consequences of the issues raised in the
motion to dismiss by stating that although the title of the complaint styled it a claim
against the estate of the late Isabelo Nacar, the allegations showed that the nature
of the action was really for the recovery of an indebtedness in the amount of
P2,791.99.

The rule cited by the judge is correctly stated but it is hardly relevant to the
contents of the complaint filed by Mr. Japitana.

It is patent from the portions of the complaint earlier cited that the allegations are
not only vague and ambiguous but downright misleading. The second paragraph of
the body of the complaint states that the defendant (herein petitioner Nicanor
Nacar) at various dates since the year 1968 incurred debts to the plaintiff in the
sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that
the debts were actually incurred by the late Isabelo Nacar, who died several months
before the filing of the complaint. The complaint which the respondent judge reads
as one for the collection of a sum of money and all the paragraphs of which are
incidentally unnumbered, expressly states as a material averment:

xxx xxx xxx

That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to
recover the aforementioned sum of P2,791.00;

xxx xxx xxx

Under the circumstances of this case, respondent Japitana has no cause of action
against petitioner Nacar. Mathay v. Consolidated Bank and Trust Company (58 SCRA
559) gives the elements of a valid cause of action:

A cause of action is an act or omission of one party in violation of the

legal right of the other. Its essential elements are, namely: (1) the
existence of a legal right in the plaintiff, (2) a correlative legal duty in
the defendant, and (3) an act or omission of the defendant in violation
of plaintiff's right with consequential injury or damage to the plaintiff
for which he may maintain an action for the recovery of damages or
other appropriate relief. ( Ma-ao Sugar Central Co., Inc. vs. Barrios, et
al., 79 Phil. 666, 667; Ramitere et al. vs. Montinola Vda. de Yulo, et al.,
L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand,
Section 3 of Rule 6 of the Rules of Court provides that the complaint
must state the ultimate facts constituting the plaintiff's cause of action.
Hence, where the complaint states ultimate facts that constitute the
three essential elements of a cause of action, the complaint states a
cause of action; (Community Investment and Finance Corp. vs. Garcia,
 88 Phil. 215, 218) otherwise, the complaint must succumb to a motion
to dismiss on that ground.

Indeed, although respondent Japitana may have a legal right to recover an

indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to pay
the debt for the simple reason that there is nothing in the complaint to show that he
incurred the debt or had anything to do with the creation of the liability. As far as
the debt is concerned, there is no allegation or showing that the petitioner had
acted in violation of Mr. Japitana's rights with consequential injury or damage to the
latter as would create a cause of action against the former.

It is also patent from the complaint that respondent Japitana filed the case against
petitioner Nacar to recover seven (7) heads of carabaos allegedly belonging to
Isabelo Nacar which Japitana wanted to recover from the possession of the
petitioner to answer for the outstanding debt of the late Isabelo Nacar. This matter,
however, is only ancillary to the main action. The ancillary matter does not cure a
fatal defect in the complaint for the main action is for the recovery of an
outstanding debt of the late lsabelo Nacar due respondent Japitana, a cause of
action about which petitioner Nacar has nothing to do.

In fact the fatal defect in the complaint was noticed by the respondent court when it
advised respondent Japitana to amend his complaint to conform with his evidence
and from the court's admission that it was inclined to dismiss the case were it not
for the complaint in intervention of respondent Doloricon. Respondent Doloricon
filed his complaint for intervention on the ground that the four carabaos, subject of
the writ of attachment, were actually his carabaos. Thus, the respondent court in its
Order denying the petitioner's motion to dismiss, to dissolve writ of preliminary
attachment and in order the return of the carabaos said:

... Antonio Doloricon manifested before this Court that he is filing a

third-party complaint alleging that he is the true and lawful owner of
the carabaos in questions.

IN VIEW OF ALL THE FOREGOING, this Court for the interest of both
parties will not for the meantime dismiss this case. Antonio Doloricon is
hereby given 10 days from receipt hereof within which to file his third-
party complaint. The plaintiff who in his opposition to defendant's
motion to dismiss pray (sic) for the custody of the carabaos. This Court
further requires plaintiff to put up the additional bond of P I,000.00
after which the latter may be entitled of (sic) the custody of the
carabaos subject of litigation pending final termination of this case.
(Rollo, pp. 18-19)
The respondent court's reason for not dismissing the case is contrary to applicable
precedents on the matter. We ruled in Mathay v. Consolidated Bank and Trust
Company, supra:

Section I, Rule 16 of the Rules of Court, providing in part that:

Within the time for pleading a motion to dismiss may be

made on any of the following grounds; ...

(g) That the complaint states no cause of action. ...

explicitly requires that the sufficiency of the complaint must be tested exclusively
on the basis of the complaint itself and no other should be considered when the
ground for motion to dismiss is that the complaint states no cause of action.
Pursuant thereto this Court has ruled that:

As a rule the sufficiency of the complaint, when

challenged in a motion to dismiss, must be determined
exclusively on the basis of the facts alleged therein' (Uy
Chao vs. De La Rama Steamship Co., Inc., L-14495,
September 29, 1962, 6 SCRA 69, 72. See also De Jesus, et
al. vs. Belarmino et al., 95 Phil. 365, 371; Dalandan, et at.
vs. Julio, et al., L- 19101, February 29, 1964, 10 SCRA 400;
Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751,
February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac
Producers Cooperative Marketing Association, Inc., et al.,
L-20338, June 30, 1967, 20 SCRA 526, 531)

Hence, it was error for the respondent court not to dismiss the case simply because
respondent Doloricon filed the complaint for intervention alleging that he owned the
carabaos.

Moreover, even assuming that respondent Japitana had a legal right to the carabaos
which were in the possession of petitioner Nacar, the proper procedure would not be
to file an action for the recovery of the outstanding debts of the late Isabelo Nacar
against his stepfather, the petitioner Nacar as defendant. As we said in Maspil v.
Romero (61 SCRA 197):

Appropriate actions for the enforcement or defense of rights must be

taken in accordance with procedural rules and cannot be left to the
whims or caprices of litigants. It cannot even be left to the
untrammeled discretion of the courts of justice without sacrificing
uniformity and equality in the application and effectivity thereof.
Considering the foregoing, the respondent court's denial of the motion to dismiss
the complaint and its issuance of a writ of attachment based on the allegations of
the complaint are improper. With this conclusion, we find no need to discuss the
other issue on whether or not the procedural rules on the issuance of a writ of
attachment were followed by the respondent court in issuing the subject writ of
attachment.

WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction

issued on January 13, 1971 is made permanent and the cash bond filed by the
petitioner in connection therewith is ordered returned to him.

SO ORDERED.

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

Separate Opinions

VASQUEZ, J., concurring:

I concur in the result.

The fundamental error committed by the private respondents was in pursuing their
claim in an ordinary action; and that by the respondent municipal judge in
entertaining the same.

As can be seen from the caption and the body of the complaint filed in Civil Case
No. 65, the claim of the private respondents was not against herein petitioner
Nicanor Nacar but against the estate of the deceased Isabelo Nacar. It is a claim for
money arising from unpaid indebtedness granted on various dates. Isabelo Nacar
died before the said complaint was filed. It does not appear that any proceeding has
been filed to settle his estate.

Under these facts, the filing of an ordinary action to recover said claim is not
allowed in any court. Even if settlement proceedings had been taken to settle the
estate of Isabelo Nacar, the suit to recover the claim of the private respondents may
not be filed against the administrator or executor of his estate. This is expressly
provided for in Section 1 of Rule 87 of the Rules of Court, as follows:
 No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; ... .

The claim of private respondents, being one arising from a contract, may be
pursued only by filing the same in the administration proceedings that may be
taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is
instituted and the subject claim is not filed therein within the period prescribed, the
same shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this
action were commenced during the lifetime of Isabelo Nacar, the same shall have to
be dismissed, and the claim prosecuted in the proper administration proceedings
(Sec. 21, Rule 3, Ibid.).

It would seem that the main purpose of the private respondents in filing Civil Case
No. 65 was to attach the seven carabaos owned by Isabelo Nacar. A case had to be
filed in order to justify the issuance of a writ of attachment, unfortunately, said
remedy may not be allowed. The carabaos, if really owned by Isabelo Nacar,
pertained to his estate upon his death. The claim of the private respondents may
only be satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or
pursued in the appropriate settlement proceedings. A municipal court may not
entertain such a proceeding, it not being vested, under the law then in force, with
probate jurisdiction.

Civil Case No. 65 should accordingly be dismissed and the writ of attachment issued
therein dissolved.

Separate Opinions

VASQUEZ, J., concurring:

I concur in the result.

The fundamental error committed by the private respondents was in pursuing their
claim in an ordinary action; and that by the respondent municipal judge in
entertaining the same.

As can be seen from the caption and the body of the complaint filed in Civil Case
No. 65, the claim of the private respondents was not against herein petitioner
Nicanor Nacar but against the estate of the deceased Isabelo Nacar. It is a claim for
money arising from unpaid indebtedness granted on various dates. Isabelo Nacar
died before the said complaint was filed. It does not appear that any proceeding has
been filed to settle his estate.
Under these facts, the filing of an ordinary action to recover said claim is not
allowed in any court. Even if settlement proceedings had been taken to settle the
estate of Isabelo Nacar, the suit to recover the claim of the private respondents may
not be filed against the administrator or executor of his estate. This is expressly
provided for in Section 1 of Rule 87 of the Rules of Court, as follows:

No action upon a claim for the recovery of money or debt or interest

thereon shall be commenced against the executor or administrator; ... .

The claim of private respondents, being one arising from a contract, may be
pursued only by filing the same in the administration proceedings that may be
taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is
instituted and the subject claim is not filed therein within the period prescribed, the
same shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this
action were commenced during the lifetime of Isabelo Nacar, the same shall have to
be dismissed, and the claim prosecuted in the proper administration proceedings
(Sec. 21, Rule 3, Ibid.).

It would seem that the main purpose of the private respondents in filing Civil Case
No. 65 was to attach the seven carabaos owned by Isabelo Nacar. A case had to be
filed in order to justify the issuance of a writ of attachment, unfortunately, said
remedy may not be allowed. The carabaos, if really owned by Isabelo Nacar,
pertained to his estate upon his death. The claim of the private respondents may
only be satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or
pursued in the appropriate settlement proceedings. A municipal court may not
entertain such a proceeding, it not being vested, under the law then in force, with
probate jurisdiction.

Civil Case No. 65 should accordingly be dismissed and the writ of attachment issued
therein dissolved.

EN BANC

[G.R. No. 39547. May 3, 1934.]

In re Intestate estate of the deceased Francisco Tordilla, GAUDENCIA TORDILLA,

Petitioner-Appellee, v. MOISES TORDILLA, opponent-appellant.

Manly & Reyes for Appellant.

Ocampo & Cea and Buenaventura Blancaflor for Appellee.

SYLLABUS
 1. DESCENT AND DISTRIBUTION; PROPERTY SUBJECT TO COLLATION;
ASSESSMENT OF PROPERTY DONATED. Appellants contention in his third assignment
of error that, where certain value is stated in a deed of donation, that value cannot be questioned
when the properties are brought into collation, is incorrect, as article 1045 of the Civil Code
provides for the assessment of the property at its actual value at the time of the donation. The
actual value at the time of the donation is a question of fact which must be established by proof
the same as any other fact.

2. ID.; ID.; FRUITS AND INTEREST. The fruits and interest produced by property subject to
collation must be ascertained under article 1049 of the Civil Code. (See Guinguing v. Abuton and
Abuton, 48 Phil., 144.)

3. ID.; CONTRACTS WITH RESPECT TO FUTURE INHERITANCE. The second portion

of contract Exhibit H clearly relates to the anticipated future inheritance and, therefore, is null
and void under the provisions of article 1271 of the Civil Code.

4. ID.; ARTICLE 840, CIVIL CODE, STILL IN FORCE. The attention of the court was not
called to any case in which article 840 of the Civil Code has been treated as entirely and
completely repealed, and In re Intestate Estate of Tad-Y (46 Phil., 557), followed.

DECISION

HULL, J.:

This is an appeal from a decision of the Court of First Instance of Camarines Sur providing for
the distribution of the estate of one Francisco Tordilla, who died intestate in Naga, Camarines
Sur, on December 18, 1925, leaving as his only heirs his widow, a legitimate son, the defendant
and appellant, and a recognized natural daughter, petitioner and appellee.

It might be said by way of introduction that the record is voluminous and that many questions of
fact could have been clearly established by direct means rather than to leave the question in
doubt by presenting only circumstantial evidence. This is especially true as to the first and
second assignments of error which read: jgc:chanrobles.com.ph

"I. In including in the partition that residential lot containing 3352 square meters and more fully
described as parcel (2) in the decision (69-70 R. A.) .

II. In including ten (10) carabaos and six (6) cattle (Items 8 and 9 in Dec. at pp. 70-71 R. A.)
among the properties partitioned and in not holding that said animals do not exist and never came
to the possession of the estate."
cralaw virtua1aw library

In a prior proceeding between the deceased and a third party, the third party was given a right to
repurchase the land there in question. But the fact, standing alone, does not remove the lot from
the properties left by the deceased. The fact is whether or not the third party had exercised his
option to repurchase. That fact was well known to appellant and was easily susceptible of
definite and accurate proof. He has seen fit to leave the record in doubt and, therefore, the
finding of the trial court will not be disturbed.

The same remarks are true as to the number of carabaos and cattle that the deceased had at the
time of his death.

The contention of appellant in the third assignment of error is that, where a certain value is stated
in a deed of donation, that value cannot be questioned when the properties are brought into
collation. This is incorrect, as article 1045 of the Civil Code provides for the assessment of the
property at its actual valuation at the time of donation. The recital in the deed cannot therefore be
controlling. The actual value at the time of the donation is a question of fact which must be
established by proof the same as any other fact.

The fourth assignment of error is not well taken. The original testimony was taken by a
commissioner, and the report of the commissioner with the evidence was stricken from the files
on motion for appellant. Thereafter the parties agreed to submit the case for the decision of the
trial court on the evidence taken by the commissioner. Such a procedure waived the erroneous
ruling on evidence by the commissioner. The appellant should have reserved the right to
introduced additional evidence and should have tendered the proper evidence in the trial court.
The trial court, with much experience, and after study of the evidence produced, held that the
actual value of one of the properties was greater than that recited in the deed of donation, and
also fixed the fruits and income from the donated properties at a higher figure than appellant
thought just. The fruits and interest produced by property subject to collation must be ascertained
under article 1049 of the Civil Code. (See Guinguing v. Abuton and Abuton, 48 Phil., 144.)
There is some doubt in our mind as to the real value of the parcel in question and the amount of
the income from the donated properties. But we cannot state from the fragmentary evidence
which has been brought to our attention that the opinion of the trial court is contrary to the
weight of the evidence, and, in case those figures are incorrect, what are the correct figures.

On the questions of fact dealt with in the fifth and sixth assignments of error, after due
consideration, we have determined to be guided by the judgment of the trial court.

The seventh, eighth, and ninth assignments of error refer to the validity of Exhibit H, a contract
entered into between the appellee and the appellant in another case and signed shortly before the
death of their father. The contract is in the nature of a compromise and covered two items,
namely, first, the support of the natural daughter which the brother agreed to assume for one year
and, second, a proposed division of their future inheritance upon the death of their father. It is
assumed that appellant has complied with his terms of the contract, and the father died before the
obligation of the brother terminated. The second portion of the contract Exhibit H clearly relates
to the anticipated future inheritance and, therefore, is null and void under the provisions of article
1271 of the Civil Code which reads: jgc:chanrobl es.com.ph

"ART. 1271. All things, even future ones, which are not out of the commerce of man, may be the
subject-matter of contracts.
"Nevertheless, no contract may be entered into with respect to future inheritances, except those
the object of which is to make a division intervivos of the estate, in accordance with article 1056.

"Any services not contrary to law or to good morals may also be the subject-matter of a
contract."cral aw virtua1aw library

The action of the trial court in holding Exhibit H to be uncontroverted and predicating its final
action on the terms of that document was erroneous and contrary to law.

The tenth assignment of error reads: "In adjudicating to the natural daughter the same share or
amount of properties as that adjudicated to the legitimate son." This assignment of error is based
on article 840 of the Civil Code which provides: jgc:chanrobl es.com.ph

"ART. 840. When the testator leaves legitimate children or descendants, and also natural
children, legally acknowledged, each of the latter shall be entitled to one-half of the portion
pertaining to each of the legitimate children who have not received any betterment, provided that
a sufficient amount remains of the disposable portion, from which it must be taken, after the
burial and funeral expenses have been paid.

"The legitimate children may pay the portion pertaining to the natural ones in cash, or in other
property of the estate, at a fair valuation."
cralaw virtua1aw library

Appellee contends that article 840 of the Civil Code has been repealed by the Code of Civil
Procedure, based on the statement of this court in Concepcion v. Jose (46 Phil., 809). It is true
that in the majority decision in that case it speaks of article 840 being repealed. While, with the
question there considered, namely, from where the funeral expenses should be taken, the Code of
Civil Procedure changed the rule as to those items from what had formerly been in the Civil
Code, by reading the whole decision we have no hesitancy in saying that what the court then had
in mind was not a repeal of the article but in fact merely a modification thereof. In the case of In
re Intestate Estate of Tad-Y, found in the same volume (46 Phil., 557), this court, speaking
through the Chief Justice, applied article 840 of the Civil Code in the following language: jgc:chanrobles.com.ph

"To determine the share that pertains to the natural child which is but one-half of the portion that
in quality and quantity belongs to the legitimate child not bettered, the latters portion must first
be ascertained. If a widow shares in the inheritance, together with only one legitimate child, as in
the instant case, the child gets, according to the law, the third constituting the legitimate in full
ownership, and the third available for betterment in naked ownership, the usufruct of which goes
to the widow. Then the natural child must get one-half of the free third in full ownership and the
other half of this third in naked ownership, from which third his portion must be taken, so far as
possible, after deducting the funeral and burial expenses. . . . ." cralaw virtua1aw library

Our attention has not been called to any case in which this court has treated article 840 as
entirely and completely repealed.

We are therefore of the opinion that this case must be disposed of according to the above
quotation from the case of Tad-Y.

The eleventh assignment of error relates to a matter of accountancy which the court ordered to
take place after its original decision had become in force and needs no further discussion at this
time.

The decision and orders of the trial court must therefore be reversed and the case remanded for
further proceedings consonant with this opinion. Costs against appellee. So ordered.

Malcolm, Villa-Real, Imperial and Goddard, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-

appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE
DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco,
appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of
Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE

DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late

Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa
Tangco, defendant-appellant.

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

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

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda.
de de Borja, special administratrix of the testate estate of Francisco de Borja, 1 from the
approval of a compromise agreement by the Court of First Instance of Rizal, Branch I, in
its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de
Borja, Administrator".

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the
same compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in
its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana
O. Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of
the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the
Hacienda Jalajala Poblacion, which is the main object of the aforesaid compromise
agreement, as the separate and exclusive property of the late Francisco de Borja and
not a conjugal asset of the community with his first wife, Josefa Tangco, and that said
hacienda pertains exclusively to his testate estate, which is under administrator in
Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6
October 1940, filed a petition for the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was
probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was appointed co-administrator. When
Francisco died, on 14 April 1954, Jose became the sole administrator of the testate
estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took
unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in
1955, she was appointed special administratrix. The validity of Tasiana's marriage to
Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has
been plagued with several court suits and counter-suits; including the three cases at
bar, some eighteen (18) cases remain pending determination in the courts. The testate
estate of Josefa Tangco alone has been unsettled for more than a quarter of a century.
In order to put an end to all these litigations, a compromise agreement was entered into
on 12 October 1963, 2 by and between "[T]he heir and son of Francisco de Borja by his
first marriage, namely, Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by
his second marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty.
Luis Panaguiton Jr." The terms and conditions of the compromise agreement are as
follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose
de Borja personally and as administrator of the Testate Estate of Josefa
Tangco,

AND
 The heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty.
Luis Panaguiton Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle,
with finality, the various court litigations, controversies, claims,
counterclaims, etc., between them in connection with the administration,
settlement, partition, adjudication and distribution of the assets as well as
liabilities of the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and
without any reservations to enter into and execute this agreement under
the following terms and conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala
properties situated in Jalajala, Rizal, presently under administration in the
Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal), more
specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de la

jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y
con el pico del Monte Zambrano; al Oeste con Laguna de
Bay; por el Sur con los herederos de Marcelo de Borja; y por
el Este con los terrenos de la Familia Maronilla

with a segregated area of approximately 1,313 hectares at the amount of

P0.30 per square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana

Ongsingco Vda. de de Borja the total amount of Eight Hundred Thousand
Pesos (P800,000) Philippine Currency, in cash, which represent P200,000
as his share in the payment and P600,000 as pro-rata shares of the heirs
Crisanto, Cayetano and Matilde, all surnamed de Borja and this shall be
considered as full and complete payment and settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of
Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-
Rizal, respectively, and to any properties bequeathed or devised in her
favor by the late Francisco de Borja by Last Will and Testament or by
Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this payment shall be taken from
and shall depend upon the receipt of full payment of the proceeds of the
sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of

that particular obligation incurred by the late Francisco de Borja in favor of
the Rehabilitation Finance Corporation, now Development Bank of the
Philippines, amounting to approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and Inheritance taxes on the
Estate of the late Francisco de Borja or the sum of P3,500.00, more or
less, which shall be deducted by the buyer of Jalajala, "Poblacion" from
the payment to be made to Tasiana Ongsingco Vda. de Borja under
paragraph 2 of this Agreement and paid directly to the Development Bank
of the Philippines and the heirs-children of Francisco de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay

directly to Tasiana Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de
Borja, corresponding certified checks/treasury warrants, who, in turn, will
issue the corresponding receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda. de de

Borja, Jose de Borja personally and as administrator of the Testate Estate
of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors, administrators, and
assigns, hereby forever mutually renounce, withdraw, waive, remise,
release and discharge any and all manner of action or actions, cause or
causes of action, suits, debts, sum or sums of money, accounts, damages,
claims and demands whatsoever, in law or in equity, which they ever had,
or now have or may have against each other, more specifically Sp.
Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-
Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No.
7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury
with the Provincial Fiscal of Rizal, the intention being to completely,
absolutely and finally release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or partially, directly or
indirectly, from the administration, settlement, and distribution of the
assets as well as liabilities of the estates of Francisco de Borja and Josefa
Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco
 Vda. de de Borja expressly and specifically renounce absolutely her rights
as heir over any hereditary share in the estate of Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment

under paragraph 4 hereof, shall deliver to the heir Jose de Borja all the
papers, titles and documents belonging to Francisco de Borja which are in
her possession and said heir Jose de Borja shall issue in turn the
corresponding receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the sale
of the properties mentioned under paragraph 1 of this agreement and
upon receipt of the total and full payment of the proceeds of the sale of the
Jalajala property "Poblacion", otherwise, the non-fulfillment of the said
sale will render this instrument NULL AND VOID AND WITHOUT EFFECT
THEREAFTER.

IN WITNESS WHEREOF, the parties hereto have her unto set their hands
in the City of Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12
October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866;
and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special
Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances.
The Rizal court approved the compromise agreement, but the Nueva Ecija court
declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de
de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case
No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R.
case No. L-28568) by the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October

1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on
the ground that: (1) the heirs cannot enter into such kind of agreement without first
probating the will of Francisco de Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3)
that even if it were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and
the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara.
74 Phil. 479, wherein the Court's majority held the view that the presentation of a will for
probate is mandatory and that the settlement and distribution of an estate on the basis
of intestacy when the decedent left a will, is against the law and public policy. It is
likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial settlement of a
decedent's estate by agreement between heirs, upon the facts that "(if) the decedent
left no will and no debts, and the heirs are all of age, or the minors are represented by
their judicial and legal representatives ..." The will of Francisco de Borja having been
submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement
was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de
Borja stresses that at the time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of Court of 1940, which allowed
the extrajudicial settlement of the estate of a deceased person regardless of whether he
left a will or not. He also relies on the dissenting opinion of Justice Moran, in Guevara
vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's will, the probate of the will is
a useless ceremony; and if they have divided the estate in a different manner, the
probate of the will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is
apparent from an examination of the terms of the agreement between Jose de Borja
and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the
sum of P800,000 payable to Tasiana Ongsingco

shall be considered as full complete payment settlement of her

hereditary share in the estate of the late Francisco de Borja as well as the
estate of Josefa Tangco, ... and to any properties bequeathed or devised
in her favor by the late Francisco de Borja by Last Will and Testament or
by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not
applicable to the cases at bar. There was here no attempt to settle or distribute the
estate of Francisco de Borja among the heirs thereto before the probate of his will. The
clear object of the contract was merely the conveyance by Tasiana Ongsingco of any
and all her individual share and interest, actual or eventual in the estate of Francisco de
Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or
legatee. And as a hereditary share in a decedent's estate is transmitted or vested
immediately from the moment of the death of such causante or predecessor in interest
(Civil Code of the Philippines, Art. 777) 3 there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his hereditary share immediately after
such death, even if the actual extent of such share is not determined until the
subsequent liquidation of the estate. 4 Of course, the effect of such alienation is to be
deemed limited to what is ultimately adjudicated to the vendor heir. However, the
aleatory character of the contract does not affect the validity of the transaction; neither
does the coetaneous agreement that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82)
are to be considered settled and should be dismissed, although such stipulation, as
noted by the Rizal Court, gives the contract the character of a compromise that the law
favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco
de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco de Borja's last will and
testament and would exist even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established in the Guevara and
analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the
one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction
was binding on both in their individual capacities, upon the perfection of the contract,
even without previous authority of the Court to enter into the same. The only difference
between an extrajudicial compromise and one that is submitted and approved by the
Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil
Code is explicit on the point:

8. Art. 2037. A compromise has upon the parties the effect and authority of
res judicata; but there shall be no execution except in compliance with a
judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A

expressed no definite period for its performance, the same was intended
to have a resolutory period of 60 days for its effectiveness. In support of
such contention, it is averred that such a limit was expressly stipulated in
an agreement in similar terms entered into by said Ongsingco with the
brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and
Cayetano, all surnamed de Borja, except that the consideration was fixed
at P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and
which contained the following clause:
 III. That this agreement shall take effect only upon the consummation of
the sale of the property mentioned herein and upon receipt of the total and
full payment of the proceeds of the sale by the herein owner heirs-children
of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all
surnamed de Borja; Provided that if no sale of the said property mentioned
herein is consummated, or the non-receipt of the purchase price thereof
by the said owners within the period of sixty (60) days from the date
hereof, this agreement will become null and void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a
party to this particular contract (Annex 1), and that the same appears not to have been
finalized, since it bears no date, the day being left blank "this day of October 1963";
and while signed by the parties, it was not notarized, although plainly intended to be so
done, since it carries a proposed notarial ratification clause. Furthermore, the
compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore
transcribed that of the total consideration of P800, 000 to be paid to Ongsingco,
P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all
surnamed de Borja" which corresponds to the consideration of P600,000 recited in
Annex 1, and that circumstance is proof that the duly notarized contract entered into wit
Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and
supersede the separate unformalize agreement with the other three Borja heirs. Hence,
the 60 days resolutory term in the contract with the latter (Annex 1) not being repeated
in Annex A, can not apply to the formal compromise with Jose de Borja. It is moreover
manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made
within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex 1)
was plainly omitted in Annex A as improper and ineffective, since the Hacienda de
Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco
for her share formed part of the estate of Francisco de Borja and could not be sold until
authorized by the Probate Court. The Court of First Instance of Rizal so understood it,
and in approving the compromise it fixed a term of 120 days counted from the finality of
the order now under appeal, for the carrying out by the parties for the terms of the
contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to
approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco
was not an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but
she was an heir of Francisco de Borja, whose estate was the object of Special
Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This circumstance is
irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in
the estate of her late husband, not the estate itself; and as already shown, that eventual
share she owned from the time of Francisco's death and the Court of Nueva Ecija could
not bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose
of it in favor of whomsoever she chose. Such alienation is expressly recognized and
provided for by article 1088 of the present Civil Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they
were notified in writing of the sale of the vendor.

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a
coheir could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is
void because it amounts to a compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de
Borja", which is in itself definite admission of her civil status. There is nothing in the text
of the agreement that would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in consideration of the cession of
her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of

Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832
(Amended Record on Appeal in L-28568, page 157), that the compromise agreement of
13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its
execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964,
had declared that "no amicable settlement had been arrived at by the parties", and that
Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed
amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order
and motion above-mentioned was the compromise agreement of 13 October 1963,
which already had been formally signed and executed by the parties and duly notarized.
What the record discloses is that some time after its formalization, Ongsingco had
unilaterally attempted to back out from the compromise agreement, pleading various
reasons restated in the opposition to the Court's approval of Annex "A" (Record on
Appeal, L-20840, page 23): that the same was invalid because of the lapse of the
allegedly intended resolutory period of 60 days and because the contract was not
preceded by the probate of Francisco de Borja's will, as required by this Court's
Guevarra vs. Guevara ruling; that Annex "A" involved a compromise affecting
Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections
have been already discussed. It was natural that in view of the widow's attitude, Jose de
Borja should attempt to reach a new settlement or novatory agreement before seeking
judicial sanction and enforcement of Annex "A", since the latter step might ultimately
entail a longer delay in attaining final remedy. That the attempt to reach another
settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is
more than probable that the order of 21 September 1964 and the motion of 17 June
1964 referred to the failure of the parties' quest for a more satisfactory compromise. But
the inability to reach a novatory accord can not invalidate the original compromise
(Annex "A") and justifies the act of Jose de Borja in finally seeking a court order for its
approval and enforcement from the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately performed within 120 days from
the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of the Court of First
Instance of Nueva Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has
affected her unfavorably, in that while the purchasing power of the agreed price of
P800,000 has diminished, the value of the Jalajala property has increased. But the fact
is that her delay in receiving the payment of the agreed price for her hereditary interest
was primarily due to her attempts to nullify the agreement (Annex "A") she had formally
entered into with the advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561,
30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a
revaluation with every subsequent fluctuation in the values of currency and properties of
the estate", is particularly opposite in the present case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala
(Poblacion), concededly acquired by Francisco de Borja during his marriage to his first
wife, Josefa Tangco, is the husband's private property (as contended by his second
spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial)
partnership with Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio
Mariano, presiding) declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by Article 160 of the Civil
Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose de
Borja has become moot and academic, in view of the conclusion reached by this Court
in the two preceding cases (G.R. No. L-28568), upholding as valid the cession of
Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de
Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims between
the parties. But as the question may affect the rights of possible creditors and legatees,
its resolution is still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been
originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de
Borja and their title thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo
vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among the
co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to
Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to
Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).

The lot allotted to Francisco was described as

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E.

Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay;
containing an area of 13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate

Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal
(Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa
Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described
declared exclusive private property of Francisco, while in his answer defendant (now
appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco
de Borja and Josefa Tangco), conformably to the presumption established by Article 160
of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the
effect that:

Art. 160. All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband
or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and
exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the
plaintiff had adduced sufficient evidence to rebut the presumption, and declared the
Hacienda de Jalajala (Poblacion) to be the exclusive private property of the late
Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be
entitled to its possession. Defendant Jose de Borja then appealed to this Court.

The evidence reveals, and the appealed order admits, that the character of the
Hacienda in question as owned by the conjugal partnership De Borja-Tangco was
solemnly admitted by the late Francisco de Borja no less than two times: first, in the
Reamended Inventory that, as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance of
Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the
same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff
Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa Tangco,
submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing the Jalajala
property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa
Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of
Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of
Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed the
Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses
Francisco de Borja and Josefa Tangco, which are in the possession of the Administrator
of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866
of the Court of First Instance of Rizal" (Exhibit "4").

Notwithstanding the four statements aforesaid, and the fact that they are plain
admissions against interest made by both Francisco de Borja and the Administratrix of
his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija Courts,
supporting the legal presumption in favor of the conjugal community, the Court below
declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the
private exclusive property of the late Francisco de Borja. It did so on the strength of the
following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951
(Exhibit "F") that

He tomado possession del pedazo de terreno ya delimitado (equivalente a

1/4 parte, 337 hectareas) adjunto a mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire
Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount
P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that
upon receipt of a subsequent demand from the provincial treasurer for realty taxes the
sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of Marcelo)
wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo
issue a check for P17,000.00 to pay the back taxes and said that the amount would
represent Francisco's contribution in the purchase of the Hacienda. The witness further
testified that

Marcelo de Borja said that that money was entrusted to him by Francisco
de Borja when he was still a bachelor and which he derived from his
business transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15)
(Emphasis supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the
admissions in the inventories relied upon by defendant-appellant Jose de Borja since
probate courts can not finally determine questions of ownership of inventoried property,
but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his
share of the original Hacienda with his private funds, for which reason that share can
not be regarded as conjugal partnership property, but as exclusive property of the buyer,
pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of
the Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the
husband.

We find the conclusions of the lower court to be untenable. In the first place, witness
Gregorio de Borja's testimony as to the source of the money paid by Francisco for his
share was plain hearsay, hence inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both Marcelo and Francisco de Borja were
already dead when Gregorio testified. In addition, the statement itself is improbable,
since there was no need or occasion for Marcelo de Borja to explain to Gregorio how
and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of
artificiality is clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page
14) does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3
and 4) disclose that there were two real properties in Jalajala owned by Francisco de
Borja, one of 72.038 sq. m., assessed at P44,600, and a much bigger one of
1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To which
of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition,
Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly
self-serving, and not admissible in the absence of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3",
"4" and "7") are not conclusive on the conjugal character of the property in question; but
as already noted, they are clear admissions against the pecuniary interest of the
declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as
such of much greater probative weight than the self-serving statement of Francisco
(Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the
Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but actually
confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de
Jalajala (Poblacion) declared property of the conjugal partnership of Francisco de Borja
and Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for
damages should be ventilated in the corresponding special proceedings for the
settlement of the estates of the deceased, the same requires no pro announcement
from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of
Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-
28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio

and Esguerra, JJ., concur.

Fernando, J., took no part.

SECOND DIVISION

[G.R. No. 124099. October 30, 1997]

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES

AGAPE, ESTABANA GALOLO, and CELSA AGAPE, petitioners, vs. COURT OF APPEALS
AND JULIO VIVARES, respondents.

DECISION
TORRES, JR., J.:

Unless legally flawed, a testators intention in his last will and testament is its life and soul which
deserves reverential observance.

The controversy before us deals with such a case.

Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape,
Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate
of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of
Appealsi[1] dated November 29, 1995, the dispositive portion of which reads:

WHEREFORE, premises considered, the judgment appealed from allowing or admitting the will
of Torcuato J. Reyes to probate and directing the issuance of Letter Testamentary in favor of
petitioner Julio A. Vivares as executor without bond is AFFIRMED but modified in that the
declaration that paragraph II of the Torcuato Reyes' last will and testament, including
subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said
paragraphs (a) and (b) are declared VALID. Except as above modified, the judgment appealed
from is AFFIRMED.

SO ORDERED."ii[2]

The antecedent facts:

On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in
part, to wit:

xxx

II. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties to wit:

a. All my shares of our personal properties consisting among others of jewelries, coins, antiques,
statues, tablewares, furnitures, fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with
my brother Jose, situated in Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in
Camiguin; real estates in Lunao, Ginoong, Caamulan, Sugbongcogon, Boloc-Boloc,
Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan, all in the province of Misamis Oriental.iii
[3]

The will consisted of two pages and was signed by Torcuato Reyes in the presence of three
witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan. Private respondent Julio A.
Vivares was designated the executor and in his default or incapacity, his son Roch Alan S.
Vivares.

Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate
of the will before the Regional Trial Court of Mambajao, Camiguin. The petitioner was set for
hearing and the order was published in the Mindanao Daily Post, a newspaper of general
circulation, once a week for three consecutive weeks. Notices were likewise sent to all the
persons named in the petition.

On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo,
namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceaseds natural children with
Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations:
a) that the last will and testament of Reyes was not executed and attested in accordance with the
formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence
upon the testator at the time of the execution of the will. The opposition further averred that
Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be
his wife in the will, because the latter was already married to Lupo Ebarle who was still then
alive and their marriage was never annulled. Thus Asuncion can not be a compulsory heir for her
open cohabitation with Reyes was violative of public morals.

On July 22, 1992, the trial court issued an ordering declaring that it had acquired jurisdiction
over the petition and, therefore, allowed the presentation of evidence. After the presentation of
evidence and submission of the respective memoranda, the trial court issued its decision on April
23, 1993.

The trial court declared that the will was executed in accordance with the formalities prescribed
by law. It, however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was
never married to the deceased Reyes, and, therefore, their relationship was an adulterous one.
Thus:

The admission in the will by the testator to the illicit relationship between him and ASUNCION
REYES EBARLE who is somebody elses, wife, is further bolstered, strengthened, and confirmed
by the direct testimonies of the petitioner himself and his two attesting witnesses during the trial.

In both cases, the common denominator is the immoral meretrecious, adulterous and adulterous
and illicit relationship existing between the testator and the devisee prior to the death of the
testator, which constituted the sole and primary consideration for the devise or legacy, thus
making the will intrinsically invalid.iv[4]

The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which
was declared null and void for being contrary to law and morals. Hence, Julio Vivares filed an
appeal before the Court of Appeals with the allegation that the oppositors failed to present any
competent evidence that Asuncion Reyes was legally married to another person during the period
of her cohabitation with Torcuato Reyes.

On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed
the trial courts decision admitting the will for probate but the modification that paragraph II
including subparagraphs (a) and (b) were declared valid. The appellee court stated:

Considering that the oppositors never showed any competent, documentary or otherwise during
the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void,
either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred
in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for
being contrary to law and morals. Said declarations are not sufficient to destroy the presumption
of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion
Reyes is his wife.v[5]

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for
review.

Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law,
public policy and evidence on record. Torcuato Reyes and Asuncion Oning Reyes were collateral
relatives up to the fourth civil degree. Witness Gloria Borromeo testified that Oning Reyes was
her cousin as her mother and the latters father were sister and brother. They were also nieces of
the late Torcuato Reyes. Thus, the purported marriage of the deceased Reyes and Oning Reyes
was void ab initio as it was against public policy pursuant to Article 38 (1) of the Family Code.
Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at the time she
was cohabiting with the testator hence, she could never contact any valid marriage with the latter.
Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the
testator, himself, were sufficient to destroy the presumption of marriage. To further support their
contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo
Ebarle.vi[6]

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated.vii[7] Thus, the court merely inquires on its due
execution, whether or not it complies with the formalities prescribed by law, and the
testamentary capacity of the testator. It does not determine nor even by implication prejudge the
validity or efficacy of the wills provisions.viii[8] The intrinsic validity is not considered since the
consideration thereof usually comes only after the will has been proved and allowed. There are,
however, notable circumstances wherein the intrinsic validity was first determined as when the
defect of the will is apparent on its face and the probate of the will may become a useless
ceremony if it is intrinsically invalid.ix[9] The intrinsic validity of a will may be passed upon
because practical considerations demanded it as when there is preterition of heirs or the
testamentary provisions are doubtful legality.x[10] Where the parties agree that the intrinsic
validity be first determined, the probate court may also do so.xi[11] Parenthetically, the rule on
probate is not inflexible and absolute. Under exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and pass upon certain provisions of the
will.xii[12]

The case at bar arose from the institution of the petition for the probate of the will of the late
Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1) whether
or not the testator had animus testandi; (2) whether or not vices of consent attended the execution
of the will; and (3) whether or not the formalities of the will had been complied with. Thus, the
lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the
will. As a result, the declaration of the testator that Asuncion Oning Reyes was his wife did not
have to be scrutinized during the probate proceedings. The propriety of the institution of Oning
Reyes as one of the devisees/legatees already involved inquiry on the wills intrinsic validity and
which need not be inquired upon by the probate court.

The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA
206) in the instant case. In the case aforesaid, the testator himself, acknowledged his illicit
relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno,
whom I declare and avow to be entitled to my love an [sic] affection, for all the things which she
has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comfort and represent myself as her own husband, in truth and in
fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony
because of my aforementioned previous marriage.

Thus, the very tenor of the will invalidates the legacy because the testator admitted he was
disposing of the properties to a person with whom he had been living in concubinage.xiii[13] To
remand the case would only be a waste of time and money since the illegality or defect was
already patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes merely
stated in his will that he was bequeathing some of his personal and real properties to his wife,
Asuncion Oning Reyes. There was never an open admission of any illicit relationship. In the case
of Nepomuceno, the testator admitted that he was already previously married and that he had an
adulterous relationship with the devisee.

We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial
evidence that Asuncion Reyes was still married to another during the time she cohabited with the
testator. The testimonies of the witnesses were merely hearsay and even uncertain as to the
whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion. Thus:

The foregoing testimony cannot go against the declaration of the testator that Asuncion Oning
Reyes is his wife. In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated
that the declaration of the husband is competent evidence to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or
otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator was
inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial
court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and
Testament, as void for being contrary to law and morals. Said declarations are not sufficient to
destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the
testator that Asuncion Reyes is his wife.xiv[14]

In the elegant language of Justice Moreland written decades ago, he said-

A will is the testator speaking after death. Its provisions have substantially the same force and
effect in the probate court as if the testator stood before the court in full life making the
declarations by word of mouth as they appear in the will. That was the special purpose of the law
in the creation of the instrument known as the last will and testament. Men wished to speak after
they were dead and the law, by the creation of that instrument, permitted them to do so. xxx All
doubts must be resolved in favor of the testators having meant just what he said. (Santos vs.
Manarang, 27 Phil. 209).

Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy
of the marriage certificate of Asuncion Reyes and Lupo Ebarle. Their failure to present the said
certificate before the probate court to support their position that Asuncion Reyes had an existing
marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on
appeal, much less in this petition for review. This Court would no try the case a new or settle
factual issues since its jurisdiction is confined to resolving questions of law which have been
passed upon by the lower courts. The settled rule is that the factual findings of the appellate court
will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners
have not shown in this case.xv[15]

Considering the foregoing premises, we sustain the findings of the appellate court it appearing
that it did not commit a reversible error in issuing the challenged decision.

ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED
and the instant petition for review is DENIED for lack of merit.

SO ORDERED.

Regalado, (Chairman), Romero, Puno, and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-7188 August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.

SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.

MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a
document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the
City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he
was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres
Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First
Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he
left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without
contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote
out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he
(testator) signed on he left hand margin of the front page of each of the three folios or sheets of
which the document is composed, and numbered the same with Arabic numerals, and finally
signed his name at the end of his writing at the last page, all this, in the presence of the three
attesting witnesses after telling that it was his last will and that the said three witnesses signed
their names on the last page after the attestation clause in his presence and in the presence of
each other. The oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and at the time of the
testator's death, holographic wills were not permitted by law still, because at the time of the
hearing and when the case was to be decided the new Civil Code was already in force, which
Code permitted the execution of holographic wills, under a liberal view, and to carry out the
intention of the testator which according to the trial court is the controlling factor and may
override any defect in form, said trial court by order dated January 24, 1952, admitted to probate
Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are
appealing from that decision; and because only questions of law are involved in the appeal, the
case was certified to us by the Court of Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may
execute a holographic will which must be entirely written, dated and signed by the testator
himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was
executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not
permitted, and the law at the time imposed certain requirements for the execution of wills, such
as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand
margin by the testator and by the three attesting witnesses, requirements which were not
complied with in Exhibit "A" because the back pages of the first two folios of the will were not
signed by any one, not even by the testator and were not numbered, and as to the three front
pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41
Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand
margin of every page, said:

. . . . This defect is radical and totally vitiates the testament. It is not enough that the
signatures guaranteeing authenticity should appear upon two folios or leaves; three pages
having been written on, the authenticity of all three of them should be guaranteed by the
signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court
declared:

From an examination of the document in question, it appears that the left margins of the
six pages of the document are signed only by Ventura Prieto. The noncompliance with
section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator
at the left margin of each of the five pages of the document alleged to be the will of
Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate.

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new
Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked
by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil
Code expressly provides: "The validity of a will as to its form depends upon the observance of
the law in force at the time it is made." The above provision is but an expression or statement of
the weight of authority to the affect that the validity of a will is to be judged not by the law
enforce at the time of the testator's death or at the time the supposed will is presented in court for
probate or when the petition is decided by the court but at the time the instrument was executed.
One reason in support of the rule is that although the will operates upon and after the death of the
testator, the wishes of the testator about the disposition of his estate among his heirs and among
the legatees is given solemn expression at the time the will is executed, and in reality, the legacy
or bequest then becomes a completed act. This ruling has been laid down by this court in the case
of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling
factor and that all adequate remedies and interpretations should be resorted to in order to carry
out said intention, and that when statutes passed after the execution of the will and after the death
of the testator lessen the formalities required by law for the execution of wills, said subsequent
statutes should be applied so as to validate wills defectively executed according to the law in
force at the time of execution. However, we should not forget that from the day of the death of
the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested
right, protected under the due process clause of the constitution against a subsequent change in
the statute adding new legal requirements of execution of wills which would invalidate such a
will. By parity of reasoning, when one executes a will which is invalid for failure to observe and
follow the legal requirements at the time of its execution then upon his death he should be
regarded and declared as having died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal requirements or which dispenses with such
requirements as to execution should be allowed to validate a defective will and thereby divest the
heirs of their vested rights in the estate by intestate succession. The general rule is that the
Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate.
With costs.
i

ii

iii

iv

vi

vii

viii

ix

xSUPREME COURT
ManilaFIRST DIVISION
G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

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

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

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

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

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of the
testator and of each other, considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to acknowledge the
will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed executor
of the will, following the reasoning of the trial court, maintains that there is substantial compliance with
the legal requirement of having at least three attesting witnesses even if the notary public acted as
one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:
 It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

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

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

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

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

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

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

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