Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6622 July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA.

CRISANTO DE BORJA, administrator-appellant,
vs.
JUAN DE BORJA, ET AL., oppositors-appellees.

E. V. Filamor for appellant.

Juan de Borja for himself and co-appellees.

FELIX, J.:

The case. — Quintin, Francisco, Crisanta and Juliana, all surnamed

de Borja, are legitimate children of Marcelo de Borja who, upon his
demise sometime in 1924 or 1925, left a considerable amount of
property. Intestate proceedings must have followed, and the pre-war
records of the case either burned, lost or destroyed during the last
war, because the record shows that in 1930 Quintin de Borja was
already the administrator of the Intestate Estate of Marcelo de Borja.

In the early part of 1938, Quintin de Borja died and Crisanto de Borja,
son of Francisco de Borja, was appointed and took over as
administrator of the Estate. Francisco de Borja, on the other hand,
assumed his duties as executor of the will of Quintin de Borja, but
upon petition of the heirs of said deceased on the ground that his
interests were conflicting with that of his brother's estate he was later
required by the Court to resign as such executor and was succeeded
by Rogelio Limaco, a son-in-law of Quintin de Borja.

It also appears that on February 16, 1940, at the hearing set for the
approval of the statement of accounts of the late administrator of the
Intestate Estate of Marcelo de Borja, then being opposed by Francisco
de Borja, the parties submitted an agreement, which was approved by
the Court (Exh. A). Said agreement, translated into English, reads as
follows:

1. All the accounts submitted and those that are to be

submitted corresponding to this year will be considered
approved;

2. No heir shall claim anything of the harvests from the

lands in Cainta that came from Exequiel Ampil, deceased,
nor from the land in Tabuatin, Nueva Ecija;

3. That the amounts of money taken by each heir shall be

considered as deposited in conjunction with the other
properties of the intestate and shall form part of the mass
without drawing any interest;

4. That it shall be understood as included in this mass the

sum of twelve thousand pesos (P12,000) that the sisters
Crisanta and Juliana de Borja paid of their own money as
part of the price the lands and three thousand pesos
(P3,000) the price of the machinery for irrigation;

5. The right, interests or participation that the deceased

Quintin de Borja has or may have in Civil Case No. 6190 of
the Court of First Instance of Nueva Ecija, shall be likewise
included in the total mass of the inheritance of the
Intestate;

6. Not only the lands in Tabuatin but also those in Cainta

coming from the now deceased Exequiel Ampil shall also
from part of the total mass of the inheritance of the
Intestate of the late Marcelo de Borja;

7. Once the total of the inheritance of the intestate is made

up as specified before in this Agreement, partition thereof
will be made as follows:

From the total mass shall be deducted in case or in kind,

Twelve Thousand Pesos (P12,000) that shall be delivered
 to Da. Juliana de Borja and Da. Crisanta de Borja in equal
shares, and the rest shall be divided among the four heirs,
i. e., Don Francisco de Borja, the heirs of Quintin de Borja,
Da. Juliana de Borja, and Da. Crisanta de Borja, in equal
parts. (TRANSLATION)

The Intestate remained under the administration of Crisanto de Borja

until the then outbreak of the war. From then on and until the
termination of the war, there was a lull and state of inaction in Special
proceeding No. 2414 of the Court of First Instance of Rizal, Pasig
branch (In the Matter of the Intestate Estate of Marcelo de Borja), until
upon petition filed by Miguel B. Dayco, as administrator of the estate
of his deceased mother, Crisanta de Borja, who is one of heirs, for
reconstitution of the records of this case, the Court on December 11,
1945, ordered the reconstitution of the same, requiring the
administrator to submit his report and a copy of the project of partition.

On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his

accounts for the period ranging from March 1 to December 22, 1945,
which according to the heirs of Quintin de Borja were so inadequate
and general that on February 28, 1946, they filed a motion for
specification. On April 30, 1946, they also filed their opposition to said
statement of accounts alleging that the income reported in said
statement was very much less than the true and actual income of the
estate and that the expenses appearing therein were exaggerated
and/or not actually incurred, and prayed that the statement of
accounts submitted by the administrator be disapproved.

The administrator later filed another report of his administration, dated

August 9, 1949, corresponding to the period lapsed from December
23, 1945, to July 31, 1949, showing a cash balance of P71.96, but
with pending obligation amounting to P35,415.

On August 22, 1949, Juan de Borja and sisters, heirs of the deceased
Quintin de Borja, filed their opposition to the statement of accounts
filed by the administrator on the ground that same was not detailed
enough to enable the interested parties to verify the same; that they
cannot understand why the Intestate could suffer any loss considering
that during the administration of the same by Quintin de Borja, the
Estate accumulated gains of more than P100,000 in the form of
advances to the heirs as well as cash balance; that they desired to
examine the accounts of Dr. Crisanto de Borja to verify the loss and
therefore prayed that the administrator be ordered to deposit with the
Clerk of Court all books, receipts, accounts and other papers
pertaining to the Estate of Marcelo de Borja. This motion was
answered by the administrator contending that the Report referred to
was already clear and enough, the income as well as the expenditures
being specified therein; that he had to spend for the repairs of the
properties of the Estate damaged during the Japanese occupation;
that the allegation that during the administration of Quintin de Boria
the Estate realized a profit of P100,000 was not true, because instead
of gain there was even a shortage in the funds although said
administrator had collected all his fees (honorarios) and commissions
corresponding to the entire period of his incumbency; that the
obligations mentioned in said in the report will be liquidated before the
termination of the proceedings same manner as it is done in any other
intestate case; that he was willing to submit all the receipts of the
accounts for the examination of the interested parties before the Clerk
or before the Court itself; that this Intestate could be terminated, the
project of partition having been allowed and confirmed by the
Supreme Court and that the Administrator was also desirous of
terminating it definitely for the benefit of all the parties.

On September 14, 1949, the administrator filed another statement of

accounts covering the period of from March 1, 1945, to July 31, 1949,
which showed a cash balance of P71.95, with pending obligations in
the sum of P35,810.

The heirs of Quintin de Borja, Juan de Borja and his sisters, registered
their opposition said statement of accounts and prayed the Court to
disapprove the same and to appoint an account to go over the books
of the administrator and to submit a report thereon as soon as
possible. The heir Juliana de Borja also formally offered her objection
to the approval of the accounts submitted by the administrator and
prayed further that said administrator be required to submit a complete
accounting of his administration of the Estate from 1937 to 1949. On
the other hand, Francisco de Borja and Miguel B. Dayco, as the only
heir of the deceased Crisanta de Borja, submitted to the Court an
agreement to relieve the administrator from accounting for the period
of the Japanese occupation; that as to the accounting from 1937 to
1941, they affirmed their conformity with the agreement entered into
by all the heirs appearing in the Bill of Exceptions of Juliana de Borja;
and they have no objection to the approval of the statement of
accounts submitted by the administrator covering of the years 1945 to
1949.

On December 6, 1949, the administrator, answered the opposition of

the heir Juliana de Borja, alleging that the corresponding statement of
accounts for the years 1937, 1938, 1939, 1940 and 1941 were
presented and approved by the Court before and during the Japanese
occupation, but the records of the same were destroyed in the Office
of the Clerk of that Court during the liberation of the province of Rizal,
and his personal records were also lost during the Japanese
occupation, when his house was burned; that Judge Peña who was
presiding over the Court in 1945 impliedly denied the petition of heirs
to require him to render an accounting for the period from 1942 to the
early part of 1945, for the reason that whatever money obtained from
the Estate during said period could not be made the subject of any
adjudication it having been declared fiat money and without value, and
ordered that the statement of accounts be presented only for the
period starting from March 1, 1945. The administrator further stated
that he was anxious to terminate this administration but some of the
heirs had not yet complied with the conditions imposed in the project
of partition which was approved by the Supreme Court; that in
accordance with said partition agreement, Juliana de Borja must
deliver to the administrator all the jewelry, objects of value, utensils
and other personal belongings of the deceased spouses Marcelo de
Borja and Tircila Quiogue, which said heir had kept and continued to
retain in her possession; that the heirs of Quintin de Borja should
deliver to the administrator all the lands and a document transferring
in favor of the Intestate the two parcels of land with a total area of 71
hectares of cultivated land in Cabanatuan, Nueva Ecija which were in
the possession of said heirs, together with the house of Feliciana
Mariano Vda. de Sarangaya, which were the objects of Civil Case No.
6190 mentioned in Paragraph 11 of the project of partition; that as
consequence of the said dispossession the heirs of Quintin de Borja
must deliver to the administrator the products of the 71 hectares of
land in Cabanatuan, Nueva Ecija, and the rentals of the house of
Feliciana Mariano or else render to the Court an accounting of the
products of these properties from the time they took possession of the
same in 1937 to the present; that there was a pending obligation
amounting to P36,000 as of September 14, 1949, which the heirs
should pay before the properties adjudicated to them would be
delivered. The Court, however, ordered the administrator on
December 10, 1949, to show and prove by evidence why he should
not be accounts the proceeds of his administration from 1937.

Meantime, Juliana de Borja filed a Constancia denying possession of

any jewelry belonging to the deceased spouses Marcelo de Borja and
Tarcilla Quiogue or any other personal belonging of said spouses, and
signified her willingness to turn over to the administrator the silver
wares mentioned in Paragraph III of the project of partition, which
were the only property in her care, on the date that she would expect
the delivery to her of her share in the inheritance from her deceased
parents.

On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina,

Eufracia, Jacoba and Olimpia, all surnamed de Borja, as heirs of
Quintin de Borja, filed a motion for the delivery to them of their
inheritance in the estate, tendering to the administrator a document
ceding and transferring to the latter all the rights, interests and
participation of Quintin de Borja in Civil Case No. 7190 of the Court of
First Instance of Nueva Ecija, pursuant to the provisions of the project
of Partition, and expressing their willingness to put up a bond if
required to do so by the Court, and on July 18, 1950, the Court
ordered the administrator to deliver to Marcela, Juan, Saturniana,
Eufracia, Jacoba and Olimpia, all surnamed de Borja, all the
properties adjudicated to them in the Project of Partition dated
February 8, 1944, upon the latter's filing a bond in the sum of P10,000
conditioned upon the payment of such obligation as may be ordered
by the Court after a hearing on the controverted accounts of the
administrator. The Court considered the fact that the heirs had
complied with the requirement imposed by the Project of Partition
when they tendered the document ceding and transferring the rights
and interests of Quintin de Borja in the aforementioned lands and
expressed the necessity of terminating the proceedings as soon as
practicable, observing that the Estate had been under administration
for over twenty-five years already. The Court, however, deferred
action on the petition filed by the special administratrix of the Intestate
Estate of Juliana de Borja until after compliance with the conditions
imposed by the project of partition. But on July 20, 1950, apparently
before the properties were delivered to the heirs, Francisco de Borja
and Miguel B. Dayco filed a motion informing the Court that the two
parcels of land located in Cabanatuan, Nueva Ecija, produced some
21,300 cavans of palay, amounting to P213,000 at P10 per cavan,
which were enjoyed by some heirs; that the administrator Crisanto de
Borja had not taken possession of the same for circumstances beyond
his control; and that there also existed the sum of P70,204 which the
former administrator, Quintin de Borja, received from properties that
were redeemed, but which amount did not come into the hands of the
present, administrator because according to reliable information, same
was delivered to the heir Juliana de Borja who deposited it in her
name at the Philippine National Bank. It was, therefore prayed that the
administrator be required to exert the necessary effort to ascertain the
identity of the person or persons who were in possession of the same
amount and of the value of the products of the lands in Mayapyap,
Cabanatuan, Nueva Ecija, and to recover the same for the Intestate
Estate.

On July 28, 1950, the special administratrix of the estate of Juliana de

Borja, then deceased, filed an answer to the motion of these two heirs,
denying the allegation that said heir any product of the lands
mentioned from Quintin de Borja, and informed the Court that the
Mayapyap property had always been in the possession of Francisco
de Borja himself and prayed the court that the administrator be
instructed to demand all the fruits and products of said property from
Francisco de Borja.

On July 28, 1950, the heirs of Quintin de Borja also filed their
opposition to the said motion of Francisco de Borja and Miguel B.
Dayco on the ground that the petition was superfluous because the
present proceeding was only for the approval of the statement of
accounts filed by the administrator; that said motion was improper
because it was asking the Court to order the administrator to perform
what he was duty bound to do; and that said heirs were already barred
or stopped from raising that question in view of their absolute
ratification of and assent to the statement of accounts submitted by
the administrator.

On August 16, 1950, by order of the Court, the properties adjudicated

to Juliana de Borja in the project of Partition were finally delivered to
the estate of said heir upon the filing of a bond for P20,000. In that
same order, the Court denied the administrator's motion to reconsider
the order of July 18, 1950, requiring him to deliver to the heirs of
Quintin de Borja the properties corresponding to them, on the ground
that there existed no sufficient reason to disturb said order. It also
ruled that as the petition of Francisco de Borja and Miguel B. Dayco
made mention of certain properties allegedly belonging to the
Intestate, said petition should properly be considered to gather with
the final accounts of the administrator.

The administrator raised the matter by certiorari to this Tribunal, which

was, docketed as G.R. No. L-4179, and on May 30, 1951, We
rendered decision affirming the order complained of, finding that the
Juan de Borja and sisters have complied with the requirement
imposed in the Project of Partition upon the tender of the document of
cession of rights and quit-claim executed by Marcela de Borja, the
administratrix of the Estate of Quintin de Borja, and holding that the
reasons advanced by the administrator in opposing the execution of
the order of delivery were trivial.

On August 27, 1951, the administrator filed his amended statement of

accounts covering the period from March 1, 1945, to July 31, 1949,
which showed a cash balance of P36,660. An additional statement of
accounts filed on August 31, 1961 for the period of from August 1,
1949, to August 31, 1951, showed a cash balance of P5,851.17 and
pending obligations in the amount of P6,165.03.

The heirs of Quintin de Borja again opposed the approval of the

statements of accounts charging the administrator with having failed to
include the fruits which the estate should have accrued from 1941 to
1951 amounting to P479,429.70, but as the other heirs seemed
satisfied with the accounts presented by said administrator and as
their group was only one of the 4 heirs of Intestate Estate, they prayed
that the administrator be held liable for only P119,932.42 which was
1/4 of the amount alleged to have been omitted. On October 4, 1951,
the administrator filed a reply to said opposition containing a
counterclaim for moral damages against all the heirs of Quintin de
Borja in the sum of P30,000 which was admitted by the Court over the
objection of the heirs of Quintin de Borja that the said pleading was
filed out of time.

The oppositors, the heirs of Quintin de Borja, then filed their answer to
the counterclaim denying the charges therein, but later served
interrogatories on the administrator relative to the averments of said
counterclaim. Upon receipt of the answer to said interrogatories
specifying the acts upon which the claim for moral damages was
based, the oppositors filed an amended answer contending that
inasmuch as the acts, manifestations and pleadings referred to therein
were admittedly committed and prepared by their lawyer, Atty. Amador
E. Gomez, same cannot be made the basis of a counterclaim, said
lawyer not being a party to the action, and furthermore, as the acts
upon which the claim for moral damages were based had been
committed prior to the effectivity of the new Civil Code, the provisions
of said Code on moral damages could not be invoked. On January 15,
1952, the administrator filed an amended counterclaim including the
counsel for the oppositors as defendant.

There followed a momentary respite in the proceedings until another

judge was assigned to preside over said court to dispose of the old
case pending therein. On August 15, 1952, Judge Encarnacion issued
an order denying admission to administrator's amended counterclaim
directed against the lawyer, Atty. Amador E. Gomez, holding that a
lawyer, not being a party to the action, cannot be made answerable for
counterclaims. Another order was also issued on the same date
dismissing the administrator's counterclaim for moral damages against
the heirs of Quintin de Borja and their counsel for the alleged
defamatory acts, manifestation and utterances, and stating that
granting the same to be meritorious, yet it was a strictly private
controversy between said heirs and the administrator which would not
in any way affect the interest of the Intestate, and, therefore, not
proper in an intestate proceedings. The Court stressed that to allow
the ventilation of such personal controversies would further delay the
proceedings in the case which had already lagged for almost 30
years, a situation which the Court would not countenance.

Having disposed of these pending incidents which arose out of the

principal issue, that is, the disputed statement of accounts submitted
by the administrator, the Court rendered judgment on September 5,
1952, ordering the administrator to distribute the funds in his
possession to the heirs as follows: P1,395.90 to the heirs of Quintin de
Borja; P314.99 to Francisco de Borja; P314.99 to the Estate of Juliana
de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed
the intestate the sum of P900, said heirs was ordered to pay instead
the 3 others the sum of P146.05 each. After considering the
testimonies of the witnesses presented by both parties and the
available records on hand, the Court found the administrator guilty of
maladministration and sentenced Crisanto de Borja to pay to the
oppositors, the heirs of Quintin de Borja, the sum of P83,337.31,
which was 1/4 of the amount which the state lost, with legal interest
from the date of the judgment. On the same day, the Court also issued
an order requiring the administrator to deliver to the Clerk of that Court
PNB Certificate of Deposit No. 211649 for P978.50 which was issued
in the name of Quintin de Borja.

The administrator, Dr. Crisanto de Borja, gave notice to appeal from

the lower Court's orders of August 15, 1952, the decision of
September 5, 1952, and the order of even date, but when the Record
on Appeal was finally approved, the Court ordered the exclusion of the
appeal from the order of September 5, 1952, requiring the
administrator to deposit the PNB Certificate of Deposit No. 2114649
with the Clerk of Court, after the oppositors had shown that during the
hearing of that incident, the parties agreed to abide by whatever
resolution the Court would make on the ownership of the funds
covered by that deposit.

The issues. — Reducing the issues to bare essentials, the questions

left for our determination are: (1) whether the counsel for a party in a
case may be included as a defendant in a counterclaim; (2) whether a
claim for moral damages may be entertained in a proceeding for the
settlement of an estate; (3) what may be considered as acts of
maladministration and whether an administrator, as the one in the
case at bar, may be held accountable for any loss or damage that the
estate under his administration may incur by reason of his negligence,
bad faith or acts of maladministration; and (4) in the case at bar has
the Intestate or any of the heirs suffered any loss or damage by
reason of the administrator's negligence, bad faith or
maladministration? If so, what is the amount of such loss or damage?

I. — Section 1, Rule 10, of the Rules of Court defines a counterclaim

as:

SECTION 1. Counterclaim Defined. — A counterclaim is

any claim, whether for money or otherwise, which a party
may have against the opposing party. A counterclaim need
not dismiss or defeat the recovery sought by the opposing
party, but may claim relief exceeding in amount or different
in kind from that sought by the opposing party's claim.

It is an elementary rule of procedure that a counterclaim is a relief

available to a party-defendant against the adverse party which may or
may not be independent from the main issue. There is no controversy
in the case at bar, that the acts, manifestations and actuations alleged
to be defamatory and upon which the counterclaim was based were
done or prepared by counsel for oppositors; and the administrator
contends that as the very oppositors manifested that whatever civil
liability arising from acts, actuations, pleadings and manifestations
attributable to their lawyer is enforceable against said lawyer, the
amended counterclaim was filed against the latter not in his individual
or personal capacity but as counsel for the oppositors. It is his stand,
therefore, that the lower erred in denying admission to said pleading.
We differ from the view taken by the administrator. The appearance of
a lawyer as counsel for a party and his participation in a case as such
counsel does not make him a party to the action. The fact that he
represents the interests of his client or that he acts in their behalf will
not hold him liable for or make him entitled to any award that the Court
may adjudicate to the parties, other than his professional fees. The
principle that a counterclaim cannot be filed against persons who are
acting in representation of another — such as trustees — in their
individual capacities (Chambers vs. Cameron, 2 Fed. Rules Service,
p. 155; 29 F. Supp. 742) could be applied with more force and effect in
the case of a counsel whose participation in the action is merely
confined to the preparation of the defense of his client. Appellant,
however, asserted that he filed the counterclaim against said lawyer
not in his individual capacity but as counsel for the heirs of Quintin de
Borja. But as we have already stated that the existence of a lawyer-
client relationship does not make the former a party to the action, even
this allegation of appellant will not alter the result We have arrived at.

Granting that the lawyer really employed intemperate language in the

course of the hearings or in the preparation of the pleadings filed in
connection with this case, the remedy against said counsel would be
to have him cited for contempt of court or take other administrative
measures that may be proper in the case, but certainly not a
counterclaim for moral damages.

II. — Special Proceedings No. 6414 of the Court of First Instance of

Rizal (Pasig branch) was instituted for the purpose of settling the
Intestate Estate of Marcelo de Borja. In taking cognizance of the case,
the Court was clothed with a limited jurisdiction which cannot expand
to collateral matters not arising out of or in any way related to the
settlement and adjudication of the properties of the deceased, for it is
a settled rule that the jurisdiction of a probate court is limited and
special (Guzman vs. Anog, 37 Phil. 361). Although there is a tendency
now to relax this rule and extend the jurisdiction of the probate court in
respect to matters incidental and collateral to the exercise of its
recognized powers (14 Am. Jur. 251-252), this should be understood
to comprehend only cases related to those powers specifically allowed
by the statutes. For it was even said that:

Probate proceedings are purely statutory and their

functions limited to the control of the property upon the
death of its owner, and cannot extend to the adjudication of
collateral questions (Woesmes, The American Law of
Administration, Vol. I, p. 514, 662-663).

It was in the acknowledgment of its limited jurisdiction that the lower

court dismissed the administrator's counterclaim for moral damages
against the oppositors, particularly against Marcela de Borja who
allegedly uttered derogatory remarks intended to cast dishonor to said
administrator sometime in 1950 or 1951, his Honor's ground being
that the court exercising limited jurisdiction cannot entertain claims of
this kind which should properly belong to a court general jurisdiction.
From what ever angle it may be looked at, a counterclaim for moral
damages demanded by an administrator against the heirs for alleged
utterances, pleadings and actuations made in the course of the
proceeding, is an extraneous matter in a testate or intestate
proceedings. The injection into the action of incidental questions
entirely foreign in probate proceedings should not be encouraged for
to do otherwise would run counter to the clear intention of the law, for
it was held that:

The speedy settlement of the estate of deceased persons

for the benefit of the creditors and those entitled to the
residue by way of inheritance or legacy after the debts and
expenses of administration have been paid, is the ruling
spirit of our probate law (Magabanua vs. Akel, 72 Phil.,
567, 40 Off Gaz., 1871).

III. and IV. — This appeal arose from the opposition of the heirs of
Quintin de Borja to the approval of the statements of accounts
rendered by the administrator of the Intestate Estate of Marcelo de
Borja, on the ground that certain fruits which should have been
accrued to the estate were unaccounted for, which charge the
administrator denied. After a protracted and extensive hearing on the
matter, the Court, finding the administrator, Dr. Crisanto de Borja,
guilty of certain acts of maladministration, held him liable for the
payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the
unreported income which the estate should have received. The
evidence presented in the court below bear out the following facts:

(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547,
1549 and 1551 in Azcarraga Street, Manila, situated in front of the
Arranque market. Of this property, the administrator reported to have
received for the estate the following rentals:

Annual
Total
Period of time monthly
rentals
rental
March to P3,085.00 P51.42
December,
1945
January to 4,980.00 69.17
December,
1946
January to 8,330.00 115.70
December,
1947
January to 9,000.00 125.00
December,
1948
January to 8,840.00 122.77
December,
1949
January to 6,060.00 184.16
December,
1950
 Total P40,295.00

The oppositors, in disputing this record income, presented at the

witness stand Lauro Aguila, a lawyer who occupied the basement of
Door No. 1541 and the whole of Door No. 1543 from 1945 to
November 15, 1949, and who testified that he paid rentals on said
apartments as follows:

1945
Door No. 1541
(basement)
February P20.00 Door No. 1543
March 20.00 For 7
months at
P300
April 60.00 a month P2,100.00
May- 800.00
December
Total P900.00
1946
January- P1,200.00 January- P4,080.00
December December
1947
January P100.00 January P380.00
February 100.00 February 380.00
March 180.00 March 1- 190.00
15
April- 1,140.00 March 16- 4,085.00
December December
P1,820.00 P5,035.00
1948
January- P1,920.00 January- P5,150.00
December December
1949
 January- P1,680.00 January- P4,315.00
November December
15

From the testimony of said witness, it appears that from 1945 to

November 15,1949, he paid a total of P28,200 for the lease of Door
No. 1543 and the basement of Door No. 1541. These figures were not
controverted or disputed by the administrator but claim that said
tenant subleased the apartments occupied by Pedro Enriquez and
Soledad Sodora and paid the said rentals, not to the administrator, but
to said Enriquez. The transcript of the testimony of this witness really
bolster this contention — that Lauro Aguila talked with said Pedro
Enriquez when he leased the aforementioned apartments and
admitted paying the rentals to the latter and not to the administrator. It
is interesting to note that Pedro Enriquez is the same person who
appeared to be the administrator's collector, duly authorized to receive
the rentals from this Azcarraga property and for which services, said
Enriquez received 5 per cent of the amount he might be able to collect
as commission. If we are to believe appellant's contention, aside from
the commission that Pedro Enriquez received he also sublet the
apartments he was occupying at a very much higher rate than that he
actually paid the estate without the knowledge of the administrator or
with his approval. As the administrator also seemed to possess that
peculiar habit of giving little importance to bookkeeping methods, for
he never kept a ledger or book of entry for amounts received for the
estate, We find no record of the rentals the lessees of the other doors
were paying. It was, however, brought about at the hearing that the 6
doors of this building are of the same sizes and construction and the
lower Court based its computation of the amount this property should
have earned for the estate on the rental paid by Atty. Aguila for the 1
1/2 doors that he occupied. We see no excuse why the administrator
could not have taken cognizance of these rates and received the
same for the benefit of the estate he was administering, considering
the fact that he used to make trips to Manila usually once a month and
for which he charged to the estate P8 as transportation expenses for
every trip.
Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate
received P112,800 from February 1, 1945, to November 15, 1949, for
the 6 doors, but the lower Court held him accountable not only for the
sum of P34,235 reported for the period ranging from March 1, 1945, to
December 31, 1949, but also for a deficit of P90,525 or a total of
P124,760. The record shows, however that the upper floor of Door No.
1549 was vacant in September, 1949, and as Atty. Aguila used to pay
P390 a month for the use of an entire apartment from September to
November, 1949, and he also paid P160 for the use of the basement
of an apartment (Door No. 1541), the use, therefore, of said upper
floor would cost P230 which should be deducted, even if the
computation of the lower Court would have to be followed.

There being no proper evidence to show that the administrator

collected more rentals than those reported by him, except in the
instance already mentioned, We are reluctant to bold him accountable
in the amount for which he was held liable by the lower Court, and We
think that under the circumstances it would be more just to add to the
sum reported by the administrator as received by him as rents for
1945-1949 only, the difference between the sum reported as paid by
Atty. Aguila and the sum actually paid by the latter as rents of 1 1/2 of
the apartments during the said period, or P25,457.09 1/4 of which is
P6,364.27 which shall be paid to the oppositors.

The record also shows that in July, 1950, the administrator delivered
to the other heirs Doors Nos. 1545, 1547, 1549 and 1551 although
Doors Nos. 1541 and 1543 adjudicated to the oppositors remained
under his administration. For the period from January to June, 1950,
that the entire property was still administered by him, the administrator
reported to have received for the 2 oppositors' apartments for said
period of six months at P168.33 a month, the sum of P1,010 which
belongs to the oppositors and should be taken from the amount
reported by the administrator.

The lower Court computed at P40 a month the pre-war rental

admittedly received for every apartment, the income that said property
would have earned from 1941 to 1944, or a total of P11,520, but as
We have to exclude the period covered by the Japanese occupation,
the estate should receive only P2,880 1/4 of which P720 the
administrator should pay to the oppositors for the year 1941.

(b) The Intestate estate also owned a parcel of land in Mayapyap,

Nueva Ecija, with an area of 71 hectares, 95 ares and 4 centares,
acquired by Quintin de Borja the spouses Cornelio Sarangaya and
Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance
of said province, In virtue of the agreement entered into by the heirs,
this property was turned over by the estate of Quintin de Borja to the
intestate and formed part of the general mass of said estate. The
report of the administrator failed to disclose any return from this
property alleging that he had not taken possession of the same. He
does not deny however that he knew of the existence of this land but
claimed that when he demanded the delivery of the Certificate of Title
covering this property, Rogelio Limaco, then administrator of the
estate of Quintin de Borja, refused to surrender the same and he did
not take any further action to recover the same.

To counteract the insinuation that the Estate of Quintin de Borja was

in possession of this property from 1940 to 1950, the oppositors
presented several witnesses, among them was an old man, Narciso
Punzal, who testified that he knew both Quintin and Francisco de
Borja; that before the war or sometime in 1937, the former
administrator of the Intestate, Quintin de Borja, offered him the
position of overseer (encargado) of this land but he was notable to
assume the same due to the death of said administrator; that on July
7, 1951, herein appellant invited him to go to his house in Pateros,
Rizal, and while in said house, he was instructed by appellant to testify
in court next day that he was the overseer of the Mayapyap property
for Quintin de Borja from 1937-1944, delivering the yearly proceeds of
1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be
afraid because both Quintin de Borja and Rogelio Limaco were
already dead. But as he knew that the facts on which he was to testify
were false, he went instead to the house of one of the daughters of
Quintin de Borja, who, together with her brother, Atty. Juan de Borja,
accompanied him to the house of the counsel for said oppositors
before whom his sworn declaration was taken (Exh. 3).
Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz
and Ernesto Mangulabnan, testified that they were some of the
tenants of the Mayapyap property; that they were paying their shares
to the overseers of Francisco de Borja and sometimes to his wife,
which the administrator was not able to contradict, and the lower Court
found no reason why the administrator would fail to take possession of
this property considering that this was even the subject of the
agreement of February 16, 1940, executed by the heirs of the
Intestate.

The lower Court, giving due credence to the testimonies of the

witnesses for the oppositors, computed the loss the estate suffered in
the form of unreported income from the rice lands for 10 years at
P67,000 (6,700 a year)and the amount of P4,000 from the remaining
portion of the land not devoted to rice cultivation which was being
leased at P20 per hectare. Consequently, the Court held the
administrator liable to appellees in the sum of P17,750 which is 1/4 of
the total amount which should have accrued to the estate for this item.

But if We exclude the 3 years of occupation, the income for 7 years

would be P46,900 for the ricelands and P2,800 (at P400 a year) for
the remaining portion not developed to rice cultivation or a total of
P48,700, 1/4 of which is P12,175 which We hold the administrator
liable to the oppositors.

(c) The Hacienda Jalajala located in said town of Rizal, was divided
into 3 parts: the Punta section belonged to Marcelo de Borja, the
Bagombong pertained to Bernardo de Borja and Francisco de Borja
got the Jalajala proper. For the purpose of this case, we will just deal
with that part called Junta. This property has an area of 1,345,
hectares, 29 ares and 2 centares (Exh. 36) of which, according to the
surveyor who measured the same, 200 hectares were of cultivated
rice fields and 100 hectares dedicated to the planting of upland rice. It
has also timberland and forest which produce considerable amount of
trees and firewoods. From the said property which has an assessed
value of P115,000 and for which the estates pay real estate tax of
P1,500 annually, the administrator reported the following:
 Expenditure
(not including
administration's
Year Income fees
1945........... P625.00 P1,310.42
1946............. 1,800.00 3,471.00
1947............. 2,550.00 2,912.91
1948............. 1,828.00 3,311.88
1949............. 3,204.50 4,792.09
1950............. 2,082.00 2,940.91
P12,089.50 P18,739.21

This statement was assailed by the oppositors and to substantiate

their charge that the administrator did not file the true income of the
property, they presented several witnesses who testified that there
were about 200 tenants working therein; that these tenants paid to
Crisanto de Borja rentals at the rate of 6 cavanes of palay per hectare;
that in the years of 1943 and 1944, the Japanese were the ones who
collected their rentals, and that the estate could have received no less
than 1,000 cavanes of palay yearly. After the administrator had
presented witnesses to refute the facts previously testified to by the
witnesses for the oppositors, the Court held that the report of the
administrator did not contain the real income of the property devoted
to rice cultivation, which was fixed at 1,000 cavanes every year — for
1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of
8,000 cavanes valued at P73,000. But as the administrator accounted
for the sum of P11,155 collected from rice harvests and if to this
amount we add the sum of P8,739.20 for expenses, this will make a
total of P19,894.20, thus leaving a deficit of P53,105.80, ¼ of which
will be P13,276.45 which the administrator is held liable to pay the
heirs of Quintin de Borja.

It was also proved during the hearing that the forest land of this
property yields considerable amount of marketable firewoods. Taking
into consideration the testimonies of witnesses for both parties, the
Court arrived at the conclusion that the administrator sold to Gregorio
Santos firewoods worth P600 in 1941, P3,500 in 1945 and P4,200 in
1946 or a total of P8,300. As the report included only the amount of
P625, there was a balance of P7,675 in favor of the estate. The
oppositors were not able to present any proof of sales made after
these years, if there were any and the administrator was held
accountable to the oppositors for only P1,918.75.

(d) The estate also, owned ricefields in Cainta, Rizal, with a total area
of 22 hectares, 76 ares and 66 centares. Of this particular item, the
administrator reported an income of P12,104 from 1945 to 1951. The
oppositors protested against this report and presented witnesses to
disprove the same.

Basilio Javier worked as a tenant in the land of Juliana de Borja which

is near the land belonging to the Intestate, the 2 properties being
separated only by a river. As tenant of Juliana de Borja, he knew the
tenants working on the property and also knows that both lands are of
the same class, and that an area accommodating one cavan of
seedlings yields at most 100 cavanes and 60 cavanes at the least.
The administrator failed to overcome this testimony. The lower Court
considering the facts testified to by this witness made a finding that
the property belonging to this Intestate was actually occupied by
several persons accommodating 13 ½ cavanes of seedlings; that as
for every cavan of seedlings, the land produces 60 cavanes of palay,
the whole area under cultivation would have yielded 810 cavanes a
year and under the 50-50 sharing system (which was testified by
witness Javier), the estate would have received no less than 405
cavanes every year. Now, for the period of 7 years — from 1941 to
1950, excluding the 3 years of war — the corresponding earning of the
estate should be 2,835 cavanes, out of which the 405 cavanes from
the harvest of 1941 is valued at P1,215 and the rest 2,430 cavanes at
P10 is valued at P24,300, or all in all P25,515. If from this amount the
reported income of P12,104 is deducted, there will be a balance of
P13,411.10 1/4 of which or P3,352.75 the administrator is held liable
to pay to the oppositors.

(e) The records show that the administrator paid surcharges and
penalties with a total of P988.75 for his failure to pay on time the taxes
imposed on the properties under his administration. He advanced the
reason that he lagged in the payment of those tax obligations because
of lack of cash balance for the estate. The oppositors, however,
presented evidence that on October 29, 1939, the administrator
received from Juliana de Borja the sum of P20,475.17 together with
certain papers pertaining to the intestate (Exh. 4),aside from the
checks in the name of Quintin de Borja. Likewise, for his failure to pay
the taxes on the building at Azcarraga for 1947, 1948 and 1949, said
property was sold at public auction and the administrator had to
redeem the same at P3,295.48, although the amount that should have
been paid was only P2,917.26. The estate therefore suffered a loss of
P378.22. Attributing these surcharges and penalties to the negligence
of the administrator, the lower Court adjudged him liable to pay the
oppositors ¼ of P1,366.97, the total loss suffered by the Intestate, or
P341.74.

(f) Sometime in 1942, a big fire razed numerous houses in Pateros,

Rizal, including that of Dr. Crisanto de Borja. Thereafter, he claimed
that among the properties burned therein was his safe containing
P15,000 belonging to the estate under his administration. The
administrator contended that this loss was already proved to the
satisfaction of the Court who, approved the same by order of January
8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The
oppositors contested the genuineness of this order and presented on
April 21, 1950, an expert witness who conducted several tests to
determine the probable age of the questioned document, and arrived
at the conclusion that the questioned ink writing "(Fdo)" appearing at
the bottom of Exhibit B cannot be more than 4 years old (Exh. 39).
However, another expert witness presented by the administrator
contradicted this finding and testified that this conclusion arrived at by
expert witness Mr. Pedro Manzañares was not supported by
authorities and was merely the result of his own theory, as there was
no method yet discovered that would determine the age of a
document, for every document has its own reaction to different
chemicals used in the tests. There is, however, another fact that called
the attention of the lower Court: the administrator testified that the
money and other papers delivered by Juliana de Borja to him on
October 29, 1939, were saved from said fire. The administrator
justified the existence of these valuables by asserting that these
properties were locked by Juliana de Borja in her drawer in the "casa
solariega" in Pateros and hence was not in his safe when his house,
together with the safe, was burned. This line of reasoning is really
subject to doubt and the lower Court opined, that it runs counter to the
ordinary course of human behaviour for an administrator to leave in
the drawer of the "aparador" of Juliana de Borja the money and other
documents belonging to the estate under his administration, which
delivery has receipted for, rather than to keep it in his safe together
with the alleged P15,000 also belonging to the Intestate. The
subsequent orders of Judge Platon also put the defense of appellant
to bad light, for on February 6, 1943, the Court required Crisanto de
Borja to appear before the Court of examination of the other heirs in
connection with the reported loss, and on March 1, 1943, authorized
the lawyers for the other parties to inspect the safe allegedly burned
(Exh. 35). It is inconceivable that Judge Platon would still order the
inspection of the safe if there was really an order approving the loss of
those P15,000. We must not forget, in this connection, that the
records of this case were burned and that at the time of the hearing of
this incident in 1951, Judge Platon was already dead. The lower Court
also found no reason why the administrator should keep in his such
amount of money, for ordinary prudence would dictate that as an
administration funds that come into his possession in a fiduciary
capacity should not be mingled with his personal funds and should
have been deposited in the Bank in the name of the intestate. The
administrator was held responsible for this loss and ordered to pay ¼
thereof, or the sum of P3,750.

(g) Unauthorized expenditures —

1. The report of the administrator contained certain sums amounting to

P2,130 paid to and receipted by Juanita V. Jarencio the
administrator's wife, as his private secretary. In explaining this item,
the administrator alleged that he needed her services to keep receipts
and records for him, and that he did not secure first the authorization
from the court before making these disbursements because it was
merely a pure administrative function.

The keeping of receipts and retaining in his custody records

connected with the management of the properties under
administration is a duty that properly belongs to the administrator,
necessary to support the statement of accounts that he is obliged to
submit to the court for approval. If ever his wife took charge of the
safekeeping of these receipts and for which she should be
compensated, the same should be taken from his fee. This
disbursement was disallowed by the Court for being unauthorized and
the administrator required to pay the oppositors ¼, thereof or P532.50.

2. The salaries of Pedro Enriquez, as collector of the Azcarraga

property; of Briccio Matienzo and Leoncio Perez, as encargados, and
of Vicente Panganiban and Herminigildo Macetas as forest-guards
were found justified, although un authorized, as they appear to be
reasonable and necessary for the care and preservation of the
Intestate.

3. The lower Court disallowed as unjustified and unnecessary the

expenses for salaries paid to special policemen amounting to P1,509.
Appellant contended that he sought for the services of Macario
Kamungol and others to act as special policemen during harvest time
because most of the workers tilting the Punta property were not
natives of Jalajala but of the neighboring towns and they were likely to
run away with the harvest without giving the share of the estate if they
were not policed. This kind of reasoning did not appear to be
convincing to the trial judge as the cause for such fear seemed to exist
only in the imagination. Granting that such kind of situation existed,
the proper thing for the administrator to do would have been to secure
the previous authorization from the Court if he failed to secure the help
of the local police. He should be held liable for this unauthorized
expenditure and pay the heirs of Quintin de Borja ¼ thereof or
P377.25.

4. From the year 1942 when his house was burned, the administrator
and his family took shelter at the house belonging to the Intestate
known as "casa solariega" which, in the Project of Partition was
adjudicated to his father, Francisco de Borja. This property, however,
remained under his administration and for its repairs he spent from
1945-1950, P1465,14, duly receipted.

None of these repairs appear to be extraordinary for the receipts were

for nipa, for carpenters and thatchers. Although it is true that Rule 85,
section 2 provides that:

SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP

BUILDINGS IN REPAIR. — An executor or administrator
shall maintain in tenant able repair the houses and other
structures and fences belonging to the estate, and deliver
the same in such repair to the heirs or devisees when
directed so to do by the court.

yet considering that during his occupancy of the said "casa solariega"
he was not paying any rental at all, it is but reasonable that he should
take care of the expenses for the ordinary repair of said house.
Appellant asserted that had he and his family not occupied the same,
they would have to pay someone to watch and take care of said
house. But this will not excuse him from this responsibility for the
disbursements he made in connection with the aforementioned repairs
because even if he stayed in another house, he would have had to
pay rentals or else take charge also of expenses for the repairs of his
residence. The administrator should be held liable to the oppositors in
the amount of P366.28.

5. Appellant reported to have incurred expenses amounting to

P6,304.75 for alleged repairs on the rice mill in Pateros, also
belonging to the Intestate. Of the disbursements made therein, the
items corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65,
in the total sum of P570.70 were rejected by the lower court on the
ground that they were all unsigned although some were dated. The
lower Court, however, made an oversight in including the sum of P150
covered by Exhibit L-26 which was duly signed by Claudio Reyes
because this does not refer to the repair of the rice-mill but for the
roofing of the house and another building and shall be allowed.
Consequently, the sum of P570.70 shall be reduced to P420.70 which
added to the sum of P3,059 representing expenditures rejected as
unauthorized to wit:

Exhibit L-59 Yek

............. P500.00 Wing
Exhibit L-60 Yek
............. 616.00 Wing
Exhibit L-61 Yek
............. 600.00 Wing
Exhibit L-62 Yek
............. 840.00 Wing
Exhibit L-63 Yek
............. 180.00 Wing
Exhibit Q-2 scale
............. 323.00 "Howe"
Total
...................... P3,059.00

will give a total of P3,479 1/4 of which is P869.92 that belongs to the
oppositors.

6. On the expenses for planting in the Cainta ricefields: — In his

statement of accounts, appellant reported to have incurred a total
expense of P5,977 for the planting of the ricefields in Cainta, Rizal,
from the agricultural year 1945-46 to 1950-51. It was proved that the
prevailing sharing system in this part of the country was on 50-50
basis. Appellant admitted that expenses for planting were advanced
by the estate and liquidated after each harvest. But the report, except
for the agricultural year 1950 contained nothing of the payments that
the tenants should have made. If the total expenses for said planting
amounted to P5,977, ½ thereof or P2,988.50 should have been paid
by the tenants as their share of such expenditures, and as P965 was
reported by the administrator as paid back in 1950, there still remains
a balance of P2,023.50 unaccounted for. For this shortage, the
administrator is responsible and should pay the oppositors ¼ thereof
or P505.87.

7. On the transportation expenses of the administrator: — It appears

that from the year 1945 to 1951, the administrator charged the estate
with a total of P5,170 for transportation expenses. The un receipted
disbursements were correspondingly itemized, a typical example of
which is as follows:

1950
Gastos de viaje del
administrador From Pateros
To Pasig 50 x
................ P4.00 = P200.00
To Manila 50 x
............... P10.00 = P500.00
To Cainta 8 x
................ P8.00 = P64.00
To Jalajala 5 x
............... P35.00 = P175.00
= P399.00

(Exhibit W-54).

From the report of the administrator, We are being made to believe

that the Intestate estate is a losing proposition and assuming
arguendo that this is true, that precarious financial condition which he,
as administrator, should know, did not deter Crisanto de Borja from
charging to the depleted funds of the estate comparatively big
amounts for his transportation expenses. Appellant tried to justify
these charges by contending that he used his own car in making those
trips to Manila, Pasig and Cainta and a launch in visiting the properties
in Jalajala, and they were for the gasoline consumed. This rather
unreasonable spending of the estate's fund prompted the Court to
observe that one will have to spend only P0.40 for transportation in
making a trip from Pateros to Manila and practically the same amount
in going to Pasig. From his report for 1949 alone, appellant made a
total of 97 trips to these places or an average of one trip for every 3
1/2 days. Yet We must not forget that it was during this period that the
administrator failed or refused to take cognizance of the prevailing
rentals of commercial places in Manila that caused certain loss to the
estate and for which he was accordingly held responsible. For the
reason that the alleged disbursements made for transportation
expenses cannot be said to be economical, the lower Court held that
the administrator should be held liable to the oppositors for ¼ thereof
or the sum of P1,292.50, though We think that this sum should still be
reduced to P500.

8. Other expenses:

The administrator also ordered 40 booklets of printed contracts of

lease in the name of the Hacienda Jalajala which cost P150. As the
said hacienda was divided into 3 parts one belonging to this Intestate
and the other two parts to Francisco de Boria and Bernardo de Borja,
ordinarily the Intestate should only shoulder ¹/3 of the said expense,
but as the tenants who testified during the hearing of the matter
testified that those printed forms were not being used, the Court
adjudged the administrator personally responsible for this amount.
The records reveal, that this printed form was not utilized because the
tenants refused to sign any, and We can presume that when the
administrator ordered for the printing of the same, he did not foresee
this situation. As there is no showing that said printed contracts were
used by another and that they are still in the possession of the
administrator which could be utilized anytime, this disbursement may
be allowed.

The report also contains a receipt of payment made to Mr. Severo

Abellera in the sum of P375 for his transportation expenses as one of
the two commissioners who prepared the Project of Partition. The
oppositors were able to prove that on May 24, 1941, the Court
authorized the administrator to withdraw from the funds of the
intestate the sum of P300 to defray the transportation expenses of the
commissioners. The administrator, however, alleged that he used this
amount for the payment of certain fees necessary in connection with
the approval of the proposed plan of the Azcarraga property which
was then being processed in the City Engineer's Office. From that
testimony, it would seem that appellant could even go to the extent of
disobeying the order of the Court specifying for what purpose that
amount should be appropriated and took upon himself the task of
judging for what it will serve best. Since he was not able to show or
prove that the money intended and ordered by the Court to be paid for
the transportation expenses of the commissioners was spent for the
benefit of the estate as claimed, the administrator should be held
responsible therefor and pay to the oppositors ¼ of P375 or the sum
of P93.75.

The records reveal that for the service of summons to the defendants
in Civil Case No. 84 of the Court of First Instance of Rizal, P104 was
paid to the Provincial Sheriff of the same province (Exhibit H-7).
However, an item for P40 appeared to have been paid to the Chief of
Police on Jalajala allegedly for the service of the same summons.
Appellant claimed that as the defendants in said civil case lived in
remote barrios, the services of the Chief of Police as delegate or
agent of the Provincial Sheriff were necessary. He forgot probably the
fact that the local chiefs of police are deputy sheriffs ex-officio. The
administrator was therefore ordered by the lower Court to pay ¼ of
said amount or P10 to the oppositors.

The administrator included in his Report the sum of P550 paid to Atty.
Filamor for his professional services rendered for the defense of the
administrator in G.R. No. L-4179, which was decided against him, with
costs. The lower Court disallowed this disbursement on the ground
that this Court provided that the costs of that litigation should not be
borne by the estate but by the administrator himself, personally.

Costs of a litigation in the Supreme Court taxed by the Clerk of Court,

after a verified petition has been filed by the prevailing party, shall be
awarded to said party and will only include his fee and that of his
attorney for their appearance which shall not be more than P40;
expenses for the printing and the copies of the record on appeal; all
lawful charges imposed by the Clerk of Court; fees for the taking of
depositions and other expenses connected with the appearance of
witnesses or for lawful fees of a commissioner (De la Cruz, Philippine
Supreme Court Practice, p. 70-71). If the costs provided for in that
case, which this Court ordered to be chargeable personally against
the administrator are not recoverable by the latter, with more reason
this item could not be charged against the Intestate. Consequently,
the administrator should pay the oppositors ¼ of the sum of P550 or
P137.50.

(e) The lower Court in its decision required appellant to pay the
oppositors the sum of P1,395 out of the funds still in the possession of
the administrator.

In the statement of accounts submitted by the administrator, there

appeared a cash balance of P5,851.17 as of August 31, 1961. From
this amount, the sum of P1,002.96 representing the Certificate of
Deposit No. 21619 and Check No. 57338, both of the Philippine
National Bank and in the name of Quintin de Borja, was deducted
leaving a balance of P4,848. As Judge Zulueta ordered the delivery to
the oppositors of the amount of P1,890 in his order of October 8,
1951; the delivery of the amount of P810 to the estate of Juliana de
Borja in his order of October 23, 1951, and the sum of P932.32 to the
same estate of Juliana de Borja by order of the Court of February 29,
1952, or a total of P3,632.32 after deducting the same from the cash
in the possession of the administrator, there will only be a remainder
of P134.98.

The Intestate is also the creditor of Miguel B. Dayco, heir and

administrator of the estate of Crisanta de Borja, in the sum of P900
(Exhibits S and S-1). Adding this credit to the actual cash on hand,
there will be a total of P1,034.98, ¼, of which or P258.74 properly
belongs to the oppositors. However, as there is only a residue of
P134.98 in the hands of the administrator and dividing it among the 3
groups of heirs who are not indebted to the Intestate, each group will
receive P44.99, and Miguel B. Dayco is under obligation to reimburse
P213.76 to each of them.

The lower Court ordered the administrator to deliver to the oppositors

the amount of P1,395.90 and P314.99 each to Francisco de Borja and
the estate of Juliana de Borja, but as We have arrived at the
computation that the three heirs not idebted to the Intestate ought to
receive P44.99 each out of the amount of P134.98, the oppositors are
entitled to the sum of P1,080.91 — the amount deducted from them as
taxes but which the Court ordered to be returned to them — plus
P44.99 or a total of P1,125.90. It appearing however, that ina Joint
Motion dated November 27, 1952, duly approved by the Court, the
parties agreed to fix the amount at P1,125.58, as the amount due and
said heirs have already received this amount in satisfaction of this
item, no other sum can be chargeable against the administrator.

(f) The probate Court also ordered the administrator to render an

accounting of his administration during the Japanese occupation on
the ground that although appellant maintained that whatever money
he received during that period is worthless, same having been
declared without any value, yet during the early years of the war, or
during 1942-43, the Philippine peso was still in circulation, and articles
of prime necessity as rice and firewood commanded high prices and
were paid with jewels or other valuables.

But We must not forget that in his order of December 11, 1945, Judge
Peña required the administrator to render an accounting of his
administration only from March 1, 1945, to December of the same
year without ordering said administrator to include therein the
occupation period. Although the Court below mentioned the condition
then prevailing during the war-years, We cannot simply presume, in
the absence of proof to that effect, that the administrator received
such valuables or properties for the use or in exchange of any asset or
produce of the Intestate, and in view of the aforementioned order of
Judge Peña, which We find no reason to disturb, We see no practical
reason for requiring appellant to account for those occupation years
when everything was affected by the abnormal conditions created by
the war. The records of the Philippine National Bank show that there
was a current account jointly in the names of Crisanto de Borja and
Juanita V. Jarencio, his wife, with a balance of P36,750.35 in
Japanese military notes and admittedly belonging to the Intestate and
We do not believe that the oppositors or any of the heirs would be
interested in an accounting for the purpose of dividing or distributing
this deposit.

(g) On the sum of P13,294 for administrator's fees:

It is not disputed that the administrator set aside for himself and
collected from the estate the sum of P13,294 as his fees from 1945 to
1951 at the rate of P2,400 a year. There is no controversy as to the
fact that this appropriated amount was taken without the order or
previous approval by the probate Court. Neither is there any doubt
that the administration of the Intestate estate by Crisanto de Borja is
far from satisfactory.

Yet it is a fact that Crisanto de Borja exercised the functions of an

administrator and is entitled also to a certain amount as compensation
for the work and services he has rendered as such. Now, considering
the extent and size of the estate, the amount involved and the nature
of the properties under administration, the amount collected by the
administrator for his compensation at P200 a month is not
unreasonable and should therefore be allowed.

It might be argued against this disbursement that the records are

replete with instances of highly irregular practices of the administrator,
such as the pretended ignorance of the necessity of a book or ledger
or at least a list of chronological and dated entries of money or
produce the Intestate acquired and the amount of disbursements
made for the same properties; that admittedly he did not have even a
list of the names of the lessees to the properties under his
administration, nor even a list of those who owed back rentals, and
although We certainly agree with the probate Court in finding appellant
guilty of acts of maladministration, specifically in mixing the funds of
the estate under his administration with his personal funds instead of
keeping a current account for the Intestate in his capacity as
administrator, We are of the opinion that despite these irregular
practices for which he was held already liable and made in some
instances to reimburse the Intestate for amounts that were not
properly accounted for, his claim for compensation as administrator's
fees shall be as they are hereby allowed.
Recapitulation. — Taking all the matters threshed herein together, the
administrator is held liable to pay to the heirs of Quintin de Borja the
following:

Under Paragraphs III and IV:

(a) P7,084.27
...............................................................................
(b) 12,175.00
...............................................................................
(c) 16,113.95
...............................................................................
(d) 3,352.75
...............................................................................
(e) 341.74
...............................................................................
(f) 3,750.00
................................................................................
(g) 1 ..................................................................... 532.50
2 ..................................................................... 377.25
3 ..................................................................... 366.28
4 ..................................................................... 869.92
5 ..................................................................... 505.87
6 ..................................................................... 500.00
7-a
b .................................................................. 93.75
c .................................................................. 10.00
d 137.50
...................................................................
P46,210.00

In view of the foregoing, the decision appealed from is modified by

reducing the amount that the administrator was sentenced to pay the
oppositors to the sum of P46,210.78 (instead of P83,337.31), plus
legal interests on this amount from the date of the decision appealed
from, which is hereby affirmed in all other respects. Without
pronouncement as to costs. It is so ordered.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo,

Labrador and Endencia, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14851 August 31, 1961

INTESTATE ESTATE of the deceased MARCELO DE BORJA. DR.

CRISANTO DE BORJA, administrator, JUAN DE BORJA, ET AL.,
oppositors-appellees,
vs.
JOSE DE BORJA administrator of the TESTATE ESTATE of
JOSEFA TANGCO CFI — Rizal-7866, third party, claimant-
oppositor-appellant.

Jose P. Santillan and J.A. Garcia for oppositors-appellees.

David for third-party, claimant-oppositor-appellant.

BENGZON, J.:

In July 1957, this Supreme Court in G.R. No. L-6622 affirmed the
decision of the Rizal Court of First Instance that ordered Crisanto de
Borja to pay Juan, Marcela, Saturnina, Eufracia Jacoba and Olimpia,
all surnamed Borja but reducing the amount to P46,210.78 plus legal
in interest. This decision having become final, the clerk of court, at the
request of the judgment-creditors, issued a writ of execution. The
sheriff, complying therewith, levied in April 1958 on the rights, interest
or participation of Crisanto de Borja as prospective heir of the
decedents Josefa Tangco and Francisco de Borja in certain specified
real estate in the province of Rizal.
Thereafter, Jose de Borja as administrator of the estate of Josefa
Tangco filed with the sheriff a third party claim asserting that the
properties belonged to the estate of the deceased Josefa Tangco
under liquidation in special proceedings No. 7866 of the Court, and
that, consequently, they were in custodia legis. Acting upon this
opposition, the sheriff required the judgment creditors to post a bond
of P2,500,000.00. The latter resorted to the Court contending it was
unnecessary to do so. On the other hand, the administrator contended
that the levy was improper. The issues thus raised were, after
argument, decided as follows: the levy was proper, and as the
oppositors did not submit to the court a copy of their third party claim,
the sheriff went beyond his powers in requiring submission of a bond.
Therefore, it ordered the sheriff to proceed with the execution even
without a bond.

The administrator appealed.

There is no doubt that the interest of an heir in the estate of a

deceased person may be attached for purposes of execution, even if
the estate is in process of settlement before the courts. This is quite
clear from a reading of section 14, Rule 39, in connection with section
7 (f), Rule 59, which permits the attachment of "the interest of the
defendant in property belonging to the estate of a decedent, whether
as heir, legatee etc." As stated in Cook vs. Escobar1 "when a person
dies and his properties are placed under judicial administration, during
the pendency of such administration, the right, title, and interest which
the heirs, devisees or legatees may have in the properties may be
attached subject to the administration of the estate. The administrator
retains control over the properties and will still have the power to sell
them, if necessary, for the payment of the debts of the deceased."

Although the value of the participation of Rafael Vilar in the

estate of Florentino Vilar was indeterminable before the final
liquidation of the estate, nevertheless, the right of participation in
the estate and the lands thereof may be attached and sold.
(Gotauco & Co. vs. Register of Deeds of Tayabas, 59 Phil. 756).
But, appellant argues, the fact of Crisanto's heirship is not a proper
subject of inquiry in this proceeding. It is enough to explain that the
attachment speaks of Crisanto de Borja as prospective heir of Josefa
Tangco and Francisco de Borja, and as there is no question that he is
a son of the said two spouses, now deceased, he is a "prospective"
heir.

As to the bond, we also think the judgment-creditors are not required

to file a bond, because this is not really a third-party claim, since the
administrator does not dispute that Crisanto is an heir, or at least a
"prospective" heir of Josefa Tangco In other words, there is actually
no conflict between the interest of Crisanto de Borja (which is
attached) and the interest of Josefa Tangco (or of the administrator),
for as already explained, the attachment is in all respects subject to
the administration of the estate.

The appealed order is affirmed, with costs.

Padilla, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, De Leon

and Natividad, JJ., concur.
Bautista Angelo, J., is on leave.
Labrador, J., took no part.

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.

Borja v. Borja
46 SCRA 577

FACTS:

Francisco de Borja filed a petition for probate of the will of his wife
who died, Josefa Tangco, with the CFI of Rizal. He was appointed
executor and administrator, until he died; his son Jose became the
sole administrator. Francisco had taken a 2nd wife Tasiana before he
died; she instituted testate proceedings with the CFI of Nueva Ecija
upon his death and was appointed special administatrix. Jose and
Tasiana entered upon a compromise agreement, but Tasiana opposed
the approval of the compromise agreement. She argues that it was no
valid, because the heirs cannot enter into such kind of agreement
without first probating the will of Francisco, and at the time the
agreement was made, the will was still being probated with the CFI of
Nueva Ecija.

ISSUE:

W/N the compromise agreement is valid, even if the will of Francisco

has not yet been probated.

HELD:

YES, the compromise agreement is valid.

The agreement stipulated that Tasiana will receive P800,000 as full

payment for her hereditary share in the estate of Francisco and Josefa.

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) 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.

G. R. No. 39547

[ G. R. No. 39547, May 03, 1934 ]

IN RE INTESTATE ESTATE OF THE DECEASED FRANCISCO

TORDILLA. GAUDENCIA TORDILLA, PETITIONER AND
APPELLEE, VS. MOISES TORDILLA, OPPONENT AND
APPELLANT.

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:
"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."
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
that 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
of 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
introduce 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 vs. 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:
"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."
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:
"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."
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 vs. 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:
"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 latter's 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 legitime 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. * * *."
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.

This case may be assigned in Wills and Succession.

FACTS:

Facts re: probate proceedings in blue. Facts re: criminal case for
forgery/falsification in red.
 [May 28, 1931] Petitioner Antilano Mercado filed a petition for the probate
of the will of his deceased wife, Ines Basa, with the Pampanga CFI.
 [June 31, 1931] The will was admitted to probate.
 [October 27, 1932] Intervenor Rosario Basa de Leon filed with the justice
of the peace court of San Fernando, Pampanga, a complaint against
Mercado for falsification/forgery of the will probated. Mercado was
arrested. The complaint was subsequently dismissed at the instance of de
Leon herself.
 [March 2, 1933] Same intervenor charged Mercado with the same offense,
this time in the justice of the peace court of Mexico, Pampanga. Mercado
was arrested again. The complaint was likewise dismissed, again at de
Leon’s instance.
 [February 2, 1934] Same banana as on March 2, 1933. Upon due
investigation, the case was dismissed on the ground that the will alleged to
have been falsified has already been probated and that there was no
evidence that Mercado had forged the signature of the testatrix but that, on
the contrary, satisfactory evidence was presented that established the
authenticity of said signature.
 [April 11, 1934] Rosario Basa de Leon and other intervenors moved ex
parte to reopen the probate proceedings, alleging lack of jurisdiction to
probate the will and to close the proceedings. This motion was denied,
having been filed ex parte.
 [May 9, 1934] The provincial fiscal moved for reinvestigation of the
criminal case for forgery before the Pampanga CFI. The motion was
granted, and for the fourth time, Mercado was arrested. The reinvestigation
dragged on for almost a year…
 [May 24, 1934] A second motion to reopen and close probate proceedings
was filed, this time with notice to the adverse party. Same was denied.
 [February 18, 1935] … until the CFI ordered the forgery case to be tried
on the merits.
 [July 26, 1935] Intervenors’ motion was appealed to the Supreme Court,
which affirmed the probate court’s order of denial.
 [c. 1936~37] Mercado moved to dismiss the case, claiming again that the
will alleged to have been forged had already been probated and, further,
that the order probating the will is conclusive as to the authenticity and due
execution thereof. The CFI overruled the motion. Mercado thus filed a
petition for certiorari with preliminary injunction with the Court of
Appeals, which promptly denied same.
 HENCE, THIS PETITION.
ISSUE:

1. WON the probate of Ines Basa’s will is a bar to Mercado’s criminal

prosecution for the alleged forgery of said will.
RULING:
 Applicable law: Code of Civil Procedure (then governing the law on
wills)
 Sec. 306 provides, as re: the effect of judgments: in case of a
judgment/order in respect to the probate of a will, such judgment/order is
conclusive upon the the will.
 Sec. 333 establishes an incontrovertible presumption in favor of
judgments declared by the Code to be conclusive.
 Sec. 625 provides, as re: conclusiveness of the due execution of a probate
will: “… the allowance by the court of a will of real and personal estate
shall be conclusive as to its due execution.”
 Basis for PH law on wills (particularly Sec. 625 of the Code of Civil
Procedure) — Statutes of [the US state of] Vermont.
 Decisions of the Supreme Court of Vermont re: effect of probate of a will
are of persuasive authority in PH.
 Says the Vermont SC in Missionary Society vs. Eells: “The probate of a
will by the probate court having jurisdiction thereof, upon the due notice,
is conclusive as to its due execution against the whole world.”
 In view of the provisions of Secs. 306, 333 and 625 of the Code of Civil
Procedure, a criminal action will not lie against the forger of a will
which had been duly admitted to probate by a court of competent
jurisdiction.
Disposition: Mercado is entitled to have the criminal proceedings against
him quashed; CA judgment is reversed, without pronouncement as to
costs.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner,

vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga,
respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.

LAUREL, J.:

On May 28, 1931, the petitioner herein filed in the Court of First
Instance of Pampanga a petition for the probate of the will of his
deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses, the
probate court, on June 27,1931, admitted the will to probate. Almost
three years later, on April 11, 1934, the five intervenors herein moved
ex parte to reopen the proceedings, alleging lack of jurisdiction of the
court to probate the will and to close the proceedings. Because filed
ex parte, the motion was denied. The same motion was filed a second
time, but with notice to the adverse party. The motion was
nevertheless denied by the probate court on May 24, 1934. On appeal
to this court, the order of denial was affirmed on July 26, 1935. (Basa
vs. Mercado, 33 Off. Gaz., 2521.)

It appears that on October 27, 1932, i. e., sixteen months after the
probate of the will of Ines Basa, intervenor Rosario Basa de Leon filed
with the justice of the peace court of San Fernando, Pampanga, a
complaint against the petitioner herein, for falsification or forgery of the
will probated as above indicated. The petitioner was arrested. He put
up a bond in the sum of P4,000 and engaged the services of an
attorney to undertake his defense. Preliminary investigation of the
case was continued twice upon petition of the complainant. The
complaint was finally dismissed, at the instance of the complainant
herself, in an order dated December 8, 1932. Three months later, or
on March 2, 1933, the same intervenor charged the petitioner for the
second time with the same offense, presenting the complaint this time
in the justice of the peace court of Mexico, Pampanga. The petitioner
was again arrested, again put up a bond in the sum of P4,000, and
engaged the services of counsel to defend him. This second
complaint, after investigation, was also dismissed, again at the
instance of the complainant herself who alleged that the petitioner was
in poor health. That was on April 27, 1933. Some nine months later,
on February 2, 1934, to be exact, the same intervenor accused the
same petitioner for the third time of the same offense. The information
was filed by the provincial fiscal of Pampanga in the justice of the
peace court of Mexico. The petitioner was again arrested, again put
up a bond of P4,000, and engaged the services of defense counsel.
The case was dismissed on April 24, 1934, after due investigation, on
the ground that the will alleged to have been falsified had already
been probated and there was no evidence that the petitioner had
forged the signature of the testatrix appearing thereon, but that, on the
contrary, the evidence satisfactorily established the authenticity of the
signature aforesaid. Dissatisfied with the result, the provincial fiscal,
on May 9, 1934, moved in the Court of First Instance of Pampanga for
reinvestigation of the case. The motion was granted on May 23, 1934,
and, for the fourth time, the petitioner was arrested, filed a bond and
engaged the services of counsel to handle his defense. The
reinvestigation dragged on for almost a year until February 18, 1934,
when the Court of First Instance ordered that the case be tried on the
merits. The petitioner interposed a demurrer on November 25, 1935,
on the ground that the will alleged to have been forged had already
been probated. This demurrer was overruled on December 24, 1935,
whereupon an exception was taken and a motion for reconsideration
and notice of appeal were filed. The motion for reconsideration and
the proposed appeal were denied on January 14, 1936. The case
proceeded to trial, and forthwith petitioner moved to dismiss the case
claiming again that the will alleged to have been forged had already
been probated and, further, that the order probating the will is
conclusive as to the authenticity and due execution thereof. The
motion was overruled and the petitioner filed with the Court of Appeals
a petition for certiorari with preliminary injunction to enjoin the trial
court from further proceedings in the matter. The injunction was
issued and thereafter, on June 19, 1937, the Court of Appeals denied
the petition for certiorari, and dissolved the writ of preliminary
injunction. Three justices dissented in a separate opinion. The case is
now before this court for review on certiorari.

Petitioner contends (1) that the probate of the will of his deceased wife
is a bar to his criminal prosecution for the alleged forgery of the said
will; and, (2) that he has been denied the constitutional right to a
speedy trial.

1. Section 306 of our Code of Civil Procedure provides as to the effect

of judgments.

SEC. 306. Effect of judgment. — The effect of a judgment

or final order in an action or special proceeding before a
court or judge of the Philippine Islands or of the United
States, or of any State or Territory of the United States,
having jurisdiction to pronounce the judgment or order, may
be as follows.

1. In case of a judgment or order against a specific thing, or

in respect to the probate of a will, or the administration of
the estate of a deceased person, or in respect to the
personal, political, or legal condition or relation of a
particular person, the judgment or order is conclusive upon
the title of the thing, the will or administration, or the
condition or relation of the person Provided, That the
probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or
intestate.

xxx xxx xxx

(Emphasis ours.)

Section 625 of the same Code is more explicit as to the

conclusiveness of the due execution of a probate will. It says.

SEC. 625. Allowance Necessary, and Conclusive as to

Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate
shall be conclusive as to its due execution. (Emphasis
ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the

due execution thereof and it cannot be impugned on any of
the grounds authorized by law, except that of fraud, in any
separate or independent action or proceeding. Sec. 625,
Code of Civil Procedure; Castañeda vs. Alemany, 3 Phil.,
426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De
Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393;
Montañano vs. Suesa, 14 Phil., 676; in re Estate of
Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105;
Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42
Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.

In 28 R. C. L., p. 377, section 378, it is said.

The probate of a will by the probate court having

jurisdiction thereof is usually considered as conclusive as
to its due execution and validity, and is also conclusive that
the testator was of sound and disposing mind at the time
when he executed the will, and was not acting under
duress, menace, fraud, or undue influence, and that the will
is genuine and not a forgery. (Emphasis ours.)

As our law on wills, particularly section 625 of our Code of Civil

Procedure aforequoted, was taken almost bodily from the Statutes of
Vermont, the decisions of the Supreme Court of the State relative to
the effect of the probate of a will are of persuasive authority in this
jurisdiction. The Vermont statute as to the conclusiveness of the due
execution of a probated will reads as follows.

SEC. 2356. No will shall pass either real or personal estate,

unless it is proved and allowed in the probate court, or by
appeal in the county or supreme court; and the probate of a
will of real or personal estate shall be conclusive as to its
due execution. (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society
vs. Eells (68 Vt., 497, 504): "The probate of a will by the probate court
having jurisdiction thereof, upon the due notice, is conclusive as to its
due execution against the whole world. (Vt. St., sec. 2336; Fosters
Exrs. vs. Dickerson, 64 Vt., 233.)"

The probate of a will in this jurisdiction is a proceeding in rem. The

provision of notice by Publication as a prerequisite to the allowance of
a will is constructive notice to the whole world, and when probate is
granted, the judgment of the court is binding upon everybody, even
against the State. This court held in the case of Manalo vs. Paredes
and Philippine Food Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40

Cyc., 1265), and the court acquires jurisdiction over all the
persons interested, through the publication of the notice
prescribed by section 630 of the Code of Civil Procedure,
and any order that may be entered therein is binding
against all of them.

Through the publication of the petition for the probate of the

will, the court acquires jurisdiction over all such persons as
are interested in said will; and any judgment that may be
rendered after said proceeding is binding against the whole
world.

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of
Vermont held.

In this State the probate of a will is a proceeding in rem

being in form and substance upon the will itself to
determine its validity. The judgment determines the status
of the instrument, whether it is or is not the will of the
testator. When the proper steps required by law have been
taken the judgment is binding upon everybody, and makes
the instrument as to all the world just what the judgment
declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73;
Burbeck vs. Little, 50 Vt., 713, 715; Missionary Society vs.
 Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings
before the probate court are statutory and are not governed
by common law rules as to parties or causes of action.
(Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs.
Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is
issued against anyone in such proceedings, but all persons
interested in determining the state or conditions of the
instrument are constructively notified by the publication of
notice as required by G. L. 3219. (Woodruff vs. Taylor,
supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)

Section 333, paragraph 4, of the Code of Civil Procedure establishes

an incontrovertible presumption in favor of judgments declared by it to
be conclusive.

SEC. 333. Conclusive Presumptions. — The following

presumptions or deductions, which the law expressly
directs to be made from particular facts, are deemed
conclusive.

xxx xxx xxx

4. The judgment or order of a court, when declared by this

code to be conclusive.

Conclusive presumptions are inferences which the law makes so

peremptory that it will not allow them to be overturned by any contrary
proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S.,
1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun.,
129, 140, 13 N.Y.S., 311.) The will in question having been probated
by a competent court, the law will not admit any proof to overthrow the
legal presumption that it is genuine and not a forgery.

The majority decision of the Court of Appeals cites English decisions

to bolster up its conclusion that "the judgment admitting the will to
probate is binding upon the whole world as to the due execution and
genuineness of the will insofar as civil rights and liabilities are
concerned, but not for the purpose of punishment of a crime." The
cases of Dominus Rex vs. Vincent, 93 English Reports, Full Reprint,
795, the first case being decided in 1721, were cited to illustrate the
earlier English decisions to the effect that upon indictment for forging a
will, the probating of the same is conclusive evidence in the
defendants favor of its genuine character. Reference is made,
however, to the cases of Rex vs. Gibson, 168 English Reports, Full
Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and
Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818,
which establish a contrary rule. Citing these later cases, we find the
following quotation from Black on Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attacked

collaterally although the will was forged; and a payment to
the executor named therein of a debt due the decedent will
discharge the same, notwithstanding the spurious
character of the instrument probated. It has also been held
that, upon an indictment for forging a will, the probate of the
paper in question is conclusive evidence in the defendants
favor of its genuine character. But this particular point has
lately been ruled otherwise.

It was the case of Rex vs. Buttery, supra, which induced the Supreme
Court of Massachussetts in the case of Waters vs. Stickney (12 Allen
1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that
"according to later and sounder decisions, the probate, though
conclusive until set aside of the disposition of the property, does not
protect the forger from punishment." This was reproduced in 28
R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So.,
711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited
in support of the majority opinion of the Court of Appeals. The
dissenting opinion of the Court of Appeals in the instant case under
review makes a cursory study of the statutes obtaining in England,
Massachussetts and Florida, and comes to the conclusion that the
decisions cited in the majority opinion do not appear to "have been
promulgated in the face of statutes similar to ours." The dissenting
opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to
show that the probate of a will in England is only prima facie proof of
the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English
Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that in
Massachussetts there is no statute making the probate of a will
conclusive, and that in Florida the statute(sec. 1810, Revised
Statutes) makes the probate conclusive evidence as to the validity of
the will with regard to personal, and prima facie as to real estate. The
cases decided by the Supreme Court of Florida cited by the majority
opinion, supra, refer to wills of both personal and real estate.

The petitioner cites the case of State vs. McGlynn (20 Cal., 233,
decided in 1862), in which Justice Norton of the Supreme Court of
California, makes the following review of the nature of probate
proceedings in England with respect to wills personal and real
property.

In England, the probate of wills of personal estate belongs

to the Ecclesiastical Courts. No probate of a will relating to
real estate is there necessary. The real estate, upon the
death of the party seized, passes immediately to the
devisee under the will if there be one; or if there be no will,
to the heir at law. The person who thus becomes entitled
takes possession. If one person claims to be the owner
under a will, and another denies the validity of the will and
claims to be the owner as heir at law, an action of
ejectment is brought against the party who may be in
possession by the adverse claimant; and on the trial of
such an action, the validity of the will is contested, and
evidence may be given by the respective parties as to the
capacity of the testator to make a will, or as to any fraud
practiced upon him, or as to the actual execution of it, or as
to any other circumstance affecting its character as a valid
devise of the real estate in dispute. The decision upon the
validity of the will in such action becomes res adjudicata,
and is binding and conclusive upon the parties to that
action and upon any person who may subsequently acquire
the title from either of those parties; but the decision has no
effect upon other parties, and does not settle what may be
 called the status or character of the will, leaving it subject to
be enforced as a valid will, or defeated as invalid,
whenever other parties may have a contest depending
upon it. A probate of a will of personal property, on the
contrary, is a judicial determination of the character of the
will itself. It does not necessarily or ordinarily arise from any
controversy between adverse claimants, but is necessary
in order to authorize a disposition of the personal estate in
pursuance of its provisions. In case of any controversy
between adverse claimants of the personal estate, the
probate is given in evidence and is binding upon the
parties, who are not at liberty to introduce any other
evidence as to the validity of the will.

The intervenors, on the other hand, attempt to show that the English
law on wills is different from that stated in the case of State vs.
McGlynn, supra, citing the following statutes.

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every
instrumental purporting to be testamentary and executed in
accordance with the statutory requirements . . . if it disposes of
property, whether personal or real." The Ecclesiastical Courts which
took charge of testamentary causes (Ewells Blackstone [1910], p.
460), were determined by the Court of Probate Act of 1857, and the
Court of Probate in turn was, together with other courts, incorporated
into the Supreme Court of Judicature, and transformed into the
Probate Division thereof, by the Judicature Act of 1873. (Lord
Halsbury, The Laws of England[1910], pp. 151156.) The intervenors
overlook the fact, however, that the case of Rex vs. Buttery and
Macnamarra, supra, upon which they rely in support of their theory
that the probate of a forged will does not protect the forger from
punishment, was decided long before the foregoing amendatory
statutes to the English law on wills were enacted. The case of State
vs. McGlynn may be considered, therefore, as more or less
authoritative on the law of England at the time of the promulgation of
the decision in the case of Rex vs. Buttery and Macnamarra.

In the case of State vs. McGlynn, the Attorney General of California

filed an information to set aside the probate of the will of one
Broderick, after the lapse of one year provided by the law of California
for the review of an order probating a will, in order that the estate may
be escheated to the State of California for the review of an probated
will was forged and that Broderick therefore died intestate, leaving no
heirs, representatives or devisees capable of inheriting his estate.
Upon these facts, the Supreme Court of California held.

The fact that a will purporting to be genuine will of

Broderick, devising his estate to a devisee capable of
inheriting and holding it, has been admitted to probate and
established as a genuine will by the decree of a Probate
Court having jurisdiction of the case, renders it necessary
to decide whether that decree, and the will established by
it, or either of them, can be set aside and vacated by the
judgment of any other court. If it shall be found that the
decree of the Probate Court, not reversed by the appellate
court, is final and conclusive, and not liable to be vacated
or questioned by any other court, either incidentally or by
any direct proceeding, for the purpose of impeaching it, and
that so long as the probate stands the will must be
recognized and admitted in all courts to be valid, then it will
be immaterial and useless to inquire whether the will in
question was in fact genuine or forged. (State vs. McGlynn,
20 Cal., 233; 81 Am. Dec., 118, 121.).

Although in the foregoing case the information filed by the State was
to set aside the decree of probate on the ground that the will was
forged, we see no difference in principle between that case and the
case at bar. A subtle distinction could perhaps be drawn between
setting aside a decree of probate, and declaring a probated will to be a
forgery. It is clear, however, that a duly probated will cannot be
declared to be a forgery without disturbing in a way the decree
allowing said will to probate. It is at least anomalous that a will should
be regarded as genuine for one purpose and spurious for another.

The American and English cases show a conflict of authorities on the

question as to whether or not the probate of a will bars criminal
prosecution of the alleged forger of the probate will. We have
examined some important cases and have come to the conclusion
that no fixed standard maybe adopted or drawn therefrom, in view of
the conflict no less than of diversity of statutory provisions obtaining in
different jurisdictions. It behooves us, therefore, as the court of last
resort, to choose that rule most consistent with our statutory law,
having in view the needed stability of property rights and the public
interest in general. To be sure, we have seriously reflected upon the
dangers of evasion from punishment of culprits deserving of the
severity of the law in cases where, as here, forgery is discovered after
the probate of the will and the prosecution is had before the
prescription of the offense. By and large, however, the balance seems
inclined in favor of the view that we have taken. Not only does the law
surround the execution of the will with the necessary formalities and
require probate to be made after an elaborate judicial proceeding, but
section 113, not to speak of section 513, of our Code of Civil
Procedure provides for an adequate remedy to any party who might
have been adversely affected by the probate of a forged will, much in
the same way as other parties against whom a judgment is rendered
under the same or similar circumstances. (Pecson vs. Coronel, 43
Phil., 358.)The aggrieved party may file an application for relief with
the proper court within a reasonable time, but in no case exceeding
six months after said court has rendered the judgment of probate, on
the ground of mistake, inadvertence, surprise or excusable neglect.
An appeal lies to review the action of a court of first instance when
that court refuses to grant relief. (Banco Español Filipino vs. Palanca,
37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810;
Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be
probated has become final and unappealable, and after the period
fixed by section 113 of the Code of Civil Procedure has expired, the
law as an expression of the legislative wisdom goes no further and the
case ends there.

. . . The court of chancery has no capacity, as the

authorities have settled, to judge or decide whether a will is
or is not a forgery; and hence there would be an incongruity
in its assuming to set aside a probate decree establishing a
will, on the ground that the decree was procured by fraud,
when it can only arrive at the fact of such fraud by first
deciding that the will was a forgery. There seems,
therefore, to be a substantial reason, so long as a court of
chancery is not allowed to judge of the validity of a will,
except as shown by the probate, for the exception of
probate decrees from the jurisdiction which courts of
chancery exercise in setting aside other judgments
obtained by fraud. But whether the exception be founded in
good reason or otherwise, it has become too firmly
established to be disregarded. At the present day, it would
not be a greater assumption to deny the general rule that
courts of chancery may set aside judgments procured by
fraud, than to deny the exception to that rule in the case of
probate decrees. We must acquiesce in the principle
established by the authorities, if we are unable to approve
of the reason. Judge Story was a staunch advocate for the
most enlarged jurisdiction of courts of chancery, and was
compelled to yield to the weight of authority. He says "No
other excepted case is known to exist; and it is not easy to
discover the grounds upon which this exception stands, in
point of reason or principle, although it is clearly settled by
authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn,
20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs.
Muir, 121 American State Reports, 118, 125.)

We hold, therefore, that in view of the provisions of sections 306, 333

and 625 of our Code of Civil Procedure, criminal action will not lie in
this jurisdiction against the forger of a will which had been duly
admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of
the case. However, the other legal question with reference to the
denial to the accused of his right to a speedy trial having been
squarely raised and submitted, we shall proceed to consider the same
in the light of cases already adjudicated by this court.

2. The Constitution of the Philippines provides that "In all criminal

prosecutions the accused . . . shall enjoy the right . . . to have a
speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58,
sec. 15, No. 7.) Similar provisions are to be found in the Presidents
Instructions to the Second Philippine Commission (par. 11), the
Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of
August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing
organic acts appear to have been taken from similar provisions in the
Constitution of the United States (6th Amendment) and those of the
various states of the American Union. A similar injunction is contained
in the Malolos Constitution (art. 8, Title IV), not to speak of other
constitutions. More than once this court had occasion to set aside the
proceedings in criminal cases to give effect to the constitutional
injunction of speedy trial. (Conde vs. Judge of First Instance and
Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and
Unson[1924], 45 Phil., 650; People vs. Castañeda and
Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15,
1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R.
No. 46039.).

In Conde vs. Rivera and Unson, supra, decided before the adoption of
our Constitution, we said.

Philippine organic and statutory law expressly guarantee

that in all criminal prosecutions the accused shall enjoy the
right to have a speedy trial. Aurelia Conde, like all other
accused persons, has a right to a speedy trial in order that
if innocent she may go free, and she has been deprived of
that right in defiance of law. Dismissed from her humble
position, and compelled to dance attendance on courts
while investigations and trials are arbitrarily postponed
without her consent, is palpably and openly unjust to her
 and a detriment to the public. By the use of reasonable
diligence, the prosecution could have settled upon the
appropriate information, could have attended to the formal
preliminary examination, and could have prepared the case
for a trial free from vexatious, capricious, and oppressive
delays.

In People vs. Castañeda and Fernandez, supra, this court found that
the accused had not been given a fair and impartial trial. The case
was to have been remanded to the court a quo for a new trial before
an impartial judge. This step, however, was found unnecessary. A
review of the evidence convinced this court that a judgment of
conviction for theft, as charged, could not be sustained and, having in
view the right to a speedy trial guaranteed by the Constitution to every
person accused of crime, entered a judgment acquitting the accused,
with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17,

guarantees to every accused person the right to a speedy
trial. This criminal proceeding has been dragging on for
almost five years now. The accused have twice appealed
to this court for redress from the wrong that they have
suffered at the hands of the trial court. At least one of them,
namely Pedro Fernandez alias Piro, had been con-fined in
prison from July 20, 1932 to November 27, 1934, for
inability to post the required bond of P3,000 which was
finally reduced to P300. The Government should be the last
to set an example of delay and oppression in the
administration of justice and it is the moral and legal
obligation of this court to see that the criminal proceedings
against the accused come to an end and that they be
immediately dis-charged from the custody of the law.
(Conde vs. Rivera and Unson, 45 Phil., 651.)

In Kalaw vs. Apostol, supra, the petitioner invoked and this court
applied and gave effect to the doctrines stated in the second Conde
case, supra. In granting the writs prayed for, this court, after referring
to the constitutional and statutory provisions guaranteeing to persons
accused of crime the right to a speedy trial, said:

Se infiere de los preceptos legales transcritos que todo

acusado en causa criminal tiene derecho a ser juzgado
pronta y publicamente. Juicio rapido significa un juicioque
se celebra de acuerdo con la ley de procedimiento criminal
y los reglamentos, libre de dilaciones vejatorias,
caprichosas y opersivas (Burnett vs. State, 76 Ark., 295;
88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13 Ark.,
720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon
vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4
Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr.,
428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p.,
122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos
admitidos resulta que al recurrente se le concedio vista
parcial del asunto, en el Juzgado de Primera Instancia de
Samar, solo despues de haber transcurrido ya mas de un
año y medio desde la presentacion de la primera querella y
desde la recepcion de la causa en dicho Juzgado, y
despues de haberse transferido dos veces la vista
delasunto sin su consentimiento. A esto debe añadirse que
laprimera transferencia de vista era claramente
injustificadaporque el motivo que se alego consistio
unicamente en laconveniencia personal del ofendido y su
abogado, no habiendose probado suficientemente la
alegacion del primero de quese hallaba enfermo. Es cierto
que el recurrente habia pedido que, en vez de señalarse a
vista el asunto para el mayo de 1936, lo fuera para el
noviembre del mismo año; pero,aparte de que la razon que
alego era bastante fuerte porquesu abogado se oponia a
comparecer por compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera quedado
indefenso si hubiese sido obligado a entraren juicio,
aparece que la vista se pospuso por el Juzgado amotu
proprio, por haber cancelado todo el calendario judicial
preparado por el Escribano para el mes de junio.
 Declaramos, con visto de estos hechos, que al recurrents
se leprivo de su derecho fundamental de ser juzgado
prontamente.

Esguerra vs. De la Costa, supra, was a petition for mandamus to

compel the respondent judge of the Court of First Instance of Rizal to
dismiss the complaint filed in a criminal case against the petitioner, to
cancel the bond put up by the said petitioner and to declare the costs
de oficio. In accepting the contention that the petitioner had been
denied speedy trial, this court said:

Consta que en menos de un año el recurrente fue

procesado criminalmente por el alegado delito de abusos
deshonestos, en el Juzgado de Paz del Municipio de
Cainta, Rizal. Como consecuencia de las denuncias que
contra el se presentaron fue arrestado tres veces y para
gozar de libertad provisional, en espera de los juicios, se
vio obligado a prestartres fianzas por la suma de P1,000
cada una. Si no se da fin al proceso que ultimamente se ha
incoado contra el recurrente la incertidumbre continuara
cerniendose sobre el y las consiguientes molestias y
preocupaciones continuaran igualmente abrumandole. El
Titulo III, articulo 1, No. 17,de la Constitucion preceptua
que en todo proceso criminalel acusado tiene derecho de
ser juzgado pronta y publicamente. El Articulo 15, No. 7, de
la Orden General No. 58 dispone asimismo que en las
causas criminales el acusado tendra derecho a ser juzgado
pronta y publicamente. Si el recurrente era realmente
culpable del delito que se le imputo, tenia de todos modos
derechos a que fuera juzgado pronta y publicamente y sin
dilaciones arbitrarias y vejatorias. Hemos declarado
reiteradamente que existe un remedio positivo para los
casos en que se viola el derecho constitucional del
acusado de ser juzgado prontamente. El acusado que
esprivado de su derecho fundomental de ser enjuiciado
rapidamente tiene derecho a pedir que se le ponga en
libertad, si estuviese detenido, o a que la causa que pende
 contra el sea sobreseida definitivamente. (Conde contra
Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford
[1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512;
Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937;
Pueblo contra Castañeda y Fernandez, 35 Gac. Of., 1357.)

We are again called upon to vindicate the fundamental right to a

speedy trial. The facts of the present case may be at variance with
those of the cases hereinabove referred to. Nevertheless, we are of
the opinion that, under the circumstances, we should consider the
substance of the right instead of indulging in more or less academic or
undue factual differentiations. The petitioner herein has been arrested
four times, has put up a bond in the sum of P4,000 and has engaged
the services of counsel to undertake his defense an equal number of
times. The first arrest was made upon a complaint filed by one of the
intervenors herein for alleged falsification of a will which, sixteen
months before, had been probated in court. This complaint, after
investigation, was dismissed at the complainant's own request. The
second arrest was made upon a complaint charging the same offense
and this complaint, too, was dismissed at the behest of the
complainant herself who alleged the quite startling ground that the
petitioner was in poor health. The third arrest was made following the
filing of an information by the provincial fiscal of Pampanga, which
information was dismissed, after due investigation, because of
insufficiency of the evidence. The fourth arrest was made when the
provincial fiscal secured a reinvestigation of the case against the
petitioner on the pretext that he had additional evidence to present,
although such evidence does not appear to have ever been
presented.

It is true that the provincial fiscal did not intervene in the case until
February 2, 1934, when he presented an information charging the
petitioner, for the third time, of the offense of falsification. This,
however, does not matter. The prosecution of offenses is a matter of
public interest and it is the duty of the government or those acting in
its behalf to prosecute all cases to their termination without
oppressive, capricious and vexatious delay. The Constitution does not
say that the right to a speedy trial may be availed of only where the
prosecution for crime is commenced and undertaken by the fiscal. It
does not exclude from its operation cases commenced by private
individuals. Where once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the nature of the offense or
the manner in which it is authorized to be commenced. In any event,
even the actuations of the fiscal himself in this case is not entirely free
from criticism. From October 27, 1932, when the first complaint was
filed in the justice of the peace court of San Fernando, to February 2,
1934, when the provincial fiscal filed his information with the justice of
the peace of Mexico, one year, three months and six days transpired;
and from April 27, 1933, when the second criminal complaint was
dismissed by the justice of the peace of Mexico, to February 2, 1934,
nine months and six days elapsed. The investigation following the
fourth arrest, made after the fiscal had secured a reinvestigation of the
case, appears also to have dragged on for about a year. There
obviously has been a delay, and considering the antecedent facts and
circumstances within the knowledge of the fiscal, the delay may not at
all be regarded as permissible. In Kalaw vs. Apostol, supra, we
observed that the prosecuting officer all prosecutions for public
offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is
his duty to see that criminal cases are heard without vexatious,
capricious and oppressive delays so that the courts of justice may
dispose of them on the merits and determine whether the accused is
guilty or not. This is as clear an admonition as could be made. An
accused person is entitled to a trial at the earliest opportunity.
(Sutherland on the Constitution, p. 664; United States vs. Fox, 3
Mont., 512.) He cannot be oppressed by delaying he commencement
of trial for an unreasonable length of time. If the proceedings pending
trial are deferred, the trial itself is necessarily delayed. It is not to be
supposed, of course, that the Constitution intends to remove from the
prosecution every reasonable opportunity to prepare for trial.
Impossibilities cannot be expected or extraordinary efforts required on
the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily
relative. It is consistent with delays and depends upon circumstances.
It secures rights to a defendant. It does not preclude the rights of
public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct.,
573; 49 Law. ed., 950, 954.).

It may be true, as seems admitted by counsel for the intervenors, in

paragraph 8, page 3 of his brief, that the delay was due to "the efforts
towards reaching an amicable extrajudicial compromise," but this fact,
we think, casts doubt instead upon the motive which led the
intervenors to bring criminal action against the petitioner. The
petitioner claims that the intention of the intervenors was to press
upon settlement, with the continuous threat of criminal prosecution,
notwithstanding the probate of the will alleged to have been falsified.
Argument of counsel for the petitioner in this regard is not without
justification. Thus after the filing of the second complaint with the
justice of the peace court of Mexico, complainant herself, as we have
seen, asked for dismissal of the complaint, on the ground that "el
acusado tenia la salud bastante delicada," and, apparently because of
failure to arrive at any settlement, she decided to renew her complaint.

Counsel for the intervenors contend — and the contention is sustained

by the Court of Appeals — that the petitioner did not complain
heretofore of the denial of his constitutional right to a speedy trial. This
is a mistake. When the petitioner, for the fourth time, was ordered
arrested by the Court of First Instance of Pampanga, he moved for
reconsideration of the order of arrest, alleging, among other things,
"Que por estas continuas acusaciones e investigaciones, el acusado
compareciente no obstante su mal estado de salud desde el año 1932
en que tuvo que ser operado por padecer de tuberculosis ha tenido
que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y
ha incudo en enormes gastos y molestias y ha desatendido su
quebrantada salud." The foregoing allegation was inserted on page 6
of the amended petition for certiorari presented to the Court of
Appeals. The constitutional issue also appears to have been actually
raised and considered in the Court of Appeals. In the majority opinion
of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits

for the consideration of this court the following questions of
law: First, that the respondent court acted arbitrarily and
 with abuse of its authority, with serious damage and
prejudice to the rights and interests of the petitioner, in
allowing that the latter be prosecuted and arrested for the
fourth time, and that he be subjected, also for the fourth
time, to a preliminary investigation for the same offense,
hereby converting the court into an instrument of
oppression and vengeance on the part of the alleged
offended parties, Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening

paragraph:

We cannot join in a decision declining to stop a prosecution

that has dragged for about five years and caused the arrest
on four different occasions of a law abiding citizen for the
alleged offense of falsifying a will that years be competent
jurisdiction.

From the view we take of the instant case, the petitioner is entitled to
have the criminal proceedings against him quashed. The judgment of
the Court of Appeals is hereby reversed, without pronouncement
regarding costs. So ordered.

Avanceña, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ.,

concur.

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

It is said that there are, practical reasons for upholding a

will as against the purely technical reason that one of the
witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We

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

Furthermore, the function of a notary public is, among others, to guard

against any illegal or immoral arrangement Balinon v. De Leon, 50 0.
G. 583.) That function would defeated if the notary public were one of
the attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the
validity of his own act. It would place him in inconsistent position and
the very purpose of acknowledgment, which is to minimize fraud
(Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public
may, in addition, act as a witness to the executive of the document he
has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA
482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will,
N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback,
122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132
A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or
are not decisive of the issue herein because the notaries public and
witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses.
He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the
Civil Code which reads:

ART. 806. Every will must be acknowledged before a

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

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

FOR ALL THE FOREGOING, the judgment appealed from is hereby

reversed and the probate of the last will and testament of Valente Z.
Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.

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

concur.