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

NICANOR NACAR, petitioner, vs. CLAUDIO A. NISTAL as

Municipal Judge of Esperanza, Agusan del Sur; PROVINCIAL
SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and
ANTONIO DOLORICON, respondents.

Tranquilino O. Calo, Jr. for petitioner.

Ildefonso Japitana and Antonio Doloricon for respondents.

SYNOPSIS

To recover a sum of money, respondent Japitana filed a complaint

entitled, "Claim against the Estate of the Late Isabelo Nacar with
Preliminary Attachment" against the petitioner before the Municipal Court
of Esperanza, Agusan del Sur. On the basis of the said complaint, the
provincial sheriff was ordered to attach seven (7) heads of cattle in
possession of the petitioner, although actually only four (4) carabaos
were attached. Claiming ownership of the attached carabaos, Antonio
Doloricon filed a complaint in intervention. Petitioner's motion to dismiss,
to dissolve writ of attachment and to order the return of the seized
carabaos, was, upon opposition of the private respondent, denied by the
respondent court. Hence, the instant recourse. Upon posting a P1,000.00
bond, a preliminary mandatory injunction was issued by the Supreme
Court.
The Supreme Court held that since respondent Japitana has no
cause of action against the petitioner because the debts were actually
incurred by the late Isabelo Nacar, the respondent Court's denial of the
motion to dismiss the complaint and its issuance of a writ of attachment
based thereon, are improper.
Petition granted. Preliminary mandatory injunction made
permanent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; LACK OF

CAUSE OF ACTION; CASE AT BAR. — It is patent from the portions of the
complaint earlier cited that the allegations are not only vague and ambiguous
but downright misleading. The second paragraph of the body of the complaint
states that the defendant (herein petitioner Nicanor Nacar) at various dates
since the year 1968 incurred debts to the plaintiff in the total sum of
P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that
the debts were actually incurred by the late Isabelo Nacar, who died several
months before the filing of the complaint. The complaint which the respondent
judge reads as one for the collection of a sum of money and all the
paragraphs of which are incidentally unnumbered, expressly states as a
material averment: . . . That plaintiff herein file (sic) a claim against the estate
of the late Isabelo Nacar to recover the aforementioned sum of 12,791.00; . . .
Under the circumstances of this case, respondent Japitana has no cause of
action against petitioner Nacar. Although respondent Japitana may have a
legal right to recover an indebtedness due him, petitioner Nicanor Nacar has
no correlative legal duty to pay the debt for the simple reason that there is
nothing in the complaint to show that he incurred the debt or had anything to
do wish the creation of the liability. As far as the debt is concerned, there is no
allegation or showing that the petitioner had acted in violation of Mr.
Japitana's rights with consequential injury or damage to the latter as would
create a cause of action against the former. The respondent court's reason for
not dismissing the case is contrary to applicable precedents on the matter.
We ruled in Mathay v. Consolidated Bank and Trust Company (58 SCRA
559): "Section I, Rule 16 of the Rules of Court, explicitly requires that the
sufficiency of the complaint must be tested exclusively on the basis of the
complaint itself and no other should be considered when the ground for
motion to dismiss that the complaint states no cause of action. Pursuant
thereto this Court has ruled that: 'As a rule the sufficiency of the complaint,
when challenged in a motion to dismiss, must be determined exclusively on
the basis of the facts alleged therein.' "(Cases cited) Hence, it was error for
the respondent court not to dismiss the case simply because respondent
Doloricon filed the complaint for intervention alleging that he owned the
carabaos.
2. ID.; ID.; ID.; ID.; ENFORCEMENT OR DEFENSE OF RIGHTS
PROVIDED FOR IN THE PROCEDURAL RULES. — Moreover, even
assuming that respondent Japitana had a legal right to the carabaos which
were in the possession of petitioner Nacar, the proper procedure would not be
to file an action for the recovery of the outstanding debts of the late Isabelo
Nacar against his stepfather, the petitioner Nacar as defendant. As we said in
Maspil v. Romero (61 SCRA 197): "Appropriate actions for the enforcement or
defense of rights must be taken in accordance with procedural rules and
cannot be left to the whims or caprices of litigants. It cannot even be left to the
untrammeled discretion of the courts of justice without sacrificing uniformity
and equality in the application and effectivity thereof."
VASQUEZ, J., concurring:
 1. REMEDIAL LAW; SPECIAL PROCEEDING; CLAIMS AGAINST
ESTATE; ACTION FOR RECOVERY OF MONEY SHOULD BE FILED IN
ADMINISTRATION PROCEEDINGS. — The filing of an ordinary action to
recover money claim is not allowed in any court. Even if settlement
proceedings had been taken to settle the estate of Isabelo Nacar, the suit to
recover the claim of the private respondents may not be filed against the
administrator or executor of his estate. This is expressly provided for in
Section 1 of Rule 87 of the Rules of Court, as follows: "No action upon claim
for the recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; . . . ." The claim of private respondents,
being one arising from a contract, may be pursued only by filing the same in
the administration proceedings that may be taken to settle the estate of the
deceased Isabelo Nacar. If such a proceeding is instituted and the subject
claim is not filed therein within the period prescribed, the same shall be
deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this action
were commenced during the lifetime of Isabelo Nacar, the same shall have to
be dismissed, and the claim prosecuted in the proper administration
proceedings (Sec. 21, Rule 3, Ibid.).
2. ID.; ID.; ID.; ID.; MUNICIPAL COURT NOT VESTED WITH
PROBATE JURISDICTION. — It would seem that the main purpose of the
private respondents in filing Civil Case No. 65 was to attach the seven
carabaos owned by Isabelo Nacar. A case had to be filed in order to justify the
issuance of a writ of attachment. Unfortunately, said remedy may not be
allowed. The carabaos, if really owned by Isabelo Nacar, pertained to his
estate upon his death. The claim of the private respondents may only be
satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or
pursued in the appropriate settlement proceedings. A municipal court may not
entertain such a proceeding, it not being vested, under the law then in force,
with probate jurisdiction.

DECISION

GUTIERREZ, JR., J : p

Nicanor Nacar filed this petition for certiorari, prohibition, and

mandamus with preliminary injunction to annul an order of the
respondent judge of the municipal court of Esperanza, Agusan del Sur
directing the attachment of seven (7) carabaos, to effect the return of four
(4) carabaos seized under the questioned order, and to stop the
respondent judge from further proceeding in Civil Case No. 65.
 Respondent Ildefonso Japitana filed the complaint in Civil Case
No. 65 and entitled it "Claim Against the Estate of the Late Isabelo Nacar
With Preliminary Attachment:" On the basis of this complaint, including
an allegation "that defendant are (sic) about to remove and dispose the
above-named property (seven carabaos) with intent to defraud plaintiff
herein", and considering that Mr. Japitana had given security according
to the Rules of Court, Judge Nistal issued the order commanding the
provincial sheriff to attach the seven (7) heads of cattle in the possession
of petitioner Nicanor Nacar. Actually only four (4) carabaos were
attached because three (3) carabaos had earlier been slaughtered during
the rites preceding the burial of the late Isabelo Nacar.
Nicanor Nacar filed a motion to dismiss, to dissolve writ of
preliminary attachment, and to order the return of the carabaos. Private
respondent Japitana filed an opposition to this motion while intervenor
Antonio Doloricon filed a complaint in intervention asserting that he was
the owner of the attached carabaos and that the certificates of ownership
of large cattle were in his name.
The respondent Judge denied the motion to dismiss prompting Mr.
Nacar to come to the Supreme Court.
In a resolution dated January 12, 1971, this Court, upon the
posting of a bond in the amount of P1,000.00, directed the issuance of a
preliminary mandatory injunction. The respondents were enjoined from
further enforcing the writ of attachment and to return the seized
carabaos. The judge was restrained from further proceeding with Civil
Case No. 65.
We find the petition meritorious.
The pertinent portions of the complaint filed by Mr. Japitana with
the municipal court read as follows:
"ILDEFONSO JAPITAN Civil Case No. 65
Plaintiff, FOR:
— Versus — CLAIM AGAINST THE ESTATE
NICANOR NACAR OF THE LATE ISABELO NACAR
Defendant. WITH PRELIMINARY ATTACHMENT
x-----------------------x
COMPLAINT
COMES NOW the undersigned plaintiff and before this
Honorable Court, respectfully avers:
xxx xxx xxx
"That at various dates since the year 1968, the defendant
have (sic) incurred indebtedness to the plaintiff in the total sum of
 TWO THOUSAND SEVEN HUNDRED NINETY ONE (P2,791.00)
PESOS, which said amount had long been overdue for payment,
and which the defendant up to this date have (sic) not been able to
pay, despite repeated demands from the plaintiff;.
"That the defendant Isabelo Nacar died last April, 1970
leaving among other things personal property consisting seven (7)
heads of carabaos now in the possession of the defendant Nicanor
Nacar;
"That plaintiff herein file a claim against the estate of the late
Isabelo Nacar to recover the aforementioned sum of P2,791.99;

"That defendant are (sic) about to remove and dispose the

above mentioned property with intent to defraud plaintiff herein;
"That plaintiff is willing to put up a bond for the issuance of a
preliminary attachment in an amount to be fixed by the Court, not
exceeding the sum of P2,791.00 which is the plaintiff's claim
herein;
"WHEREFORE, it is respectfully prayed that pending the
hearing of this case, a writ of preliminary attachment be issued
against the properties of the defendant to serve as security for the
payment or satisfaction of any judgment that may be recovered
herein; and that after due hearing on the principal against the
defendant for the sum of P2,791.00 with legal interest from
September 15, 1970 plus costs of this suit." (Annex "A", p. 7 rollo).
In his motion to dismiss, the petitioner raised the issue of lack of
jurisdiction and absence of a cause of action. Mr. Nacar averred that the
indebtedness mentioned in the complaint was alleged to have been
incurred by the late Isabelo Nacar and not by Nicanor Nacar. There was,
therefore, no cause of action against him. The petitioner also stated that
a municipal court has no jurisdiction to entertain an action involving a
claim filed against the estate of a deceased person.
The same grounds have been raised in this petition. Mr. Nacar
contends:
xxx xxx xxx
"9. That the respondent judge acted without jurisdiction. The
municipal courts or inferior courts have NO jurisdiction to settle the
estate of deceased persons. The proper remedy is for the creditor
to file the proper proceedings in the court of first instance and file
the corresponding claim. But assuming without admitting that the
respondent judge had jurisdiction, it is very patent that he
committed a very grave abuse of discretion and totally disregarded
the provisions of the Rules of Court and decisions of this honorable
 Court when he issued an ex-parte writ of preliminary attachment,
when there is no showing that the plaintiff therein has a sufficient
cause of action, that there is no other security for the claim sought
to be enforced by the plaintiff; or that the amount claimed in the
action is as much as the sum for which the order is prayed for
above all legal counterclaims; There was no bond to answer for
whatever damages that herein petitioner may suffer; (Rollo, pp. 3-
4).
xxx xxx xxx
The respondent judge tried to avoid the consequences of the
issues raised in the motion to dismiss by stating that although the title of
the complaint styled it a claim against the estate of the late Isabelo
Nacar, the allegations showed that the nature of the action was really for
the recovery of an indebtedness in the amount of P2,791.99.
The rule cited by the judge is correctly stated but it is hardly
relevant to the contents of the complaint filed by Mr. Japitana.
It is patent from the portions of the complaint earlier cited that the
allegations are not only vague and ambiguous but downright misleading.
The second paragraph of the body of the complaint states that the
defendant (herein petitioner Nicanor Nacar) at various dates since the
year 1968 incurred debts to the plaintiff in the sum of P2,791.00. And yet,
in the subsequent paragraphs, one clearly gathers that the debts were
actually incurred by the late Isabelo Nacar, who died several months
before the filing of the complaint. The complaint which the respondent
judge reads as one for the collection of a sum of money and all the
paragraphs of which are incidentally unnumbered, expressly states as a
material averment:
xxx xxx xxx
That plaintiff herein file (sic) a claim against the estate of the
late Isabelo Nacar to recover the aforementioned sum of
P2,791.00;
xxx xxx xxx
Under the circumstances of this case, respondent Japitana has no
cause of action against petitioner Nacar. Mathay v. Consolidated Bank
and Trust Company (58 SCRA 559) gives the elements of a valid cause
of action:
"A cause of action is an act or omission of one party in
violation of the legal right of the other. Its essential elements are,
namely: the existence of a legal right in the plaintiff, (2) a correlative
legal duty in the defendant, and (3) an act or omission of the
defendant in violation of plaintiff's right with consequential injury or
 damage to the plaintiff for which he may maintain an action for the
recovery, damages or other appropriate relief. (Ma-ao Sugar
Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667; Ramitere, et
al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966,
16 SCRA 251, 255). On the other hand, Section 3 of Rule 6 of the
Rules of Court provides that the complaint must state the ultimate
facts constituting the plaintiff's cause of action. Hence, where the
complaint states ultimate facts that constitute the three essential
elements of a cause of action, the complaint states a cause of
action; (Community Investment and Finance Corp. vs. Garcia, 88
Phil. 215, 218) otherwise, the complaint must succumb to a motion
to dismiss on that ground."
Indeed, although respondent Japitana may have a legal right to
recover an indebtedness due him, petitioner Nicanor Nacar has no
correlative legal duty to pay the debt for the simple reason that there is
nothing in the complaint to show that he incurred the debt or had
anything to do with the creation of the liability. As far as the debt is
concerned, there is no allegation or showing that the petitioner had acted
in violation of Mr. Japitana's rights with consequential injury or damage to
the latter as would create a cause of action against the former.
It is also patent from the complaint that respondent Japitana filed
the case against petitioner Nacar to recover seven (7) heads of carabaos
allegedly belonging to Isabelo Nacar which Japitana wanted to recover
from the possession of the petitioner to answer for the outstanding debt
of the late Isabelo Nacar. This matter, however, is only ancillary to the
main action. The ancillary matter does not cure a fatal defect in the
complaint for the main action is for the recovery of an outstanding debt of
the late Isabelo Nacar due respondent Japitana, a cause of action about
which petitioner Nacar has nothing to do.
In fact the fatal defect in the complaint was noticed by the
respondent court when it advised respondent Japitana to amend his
complaint to conform with his evidence and from the court's admission
that it was inclined to dismiss the case were it not for the complaint in
intervention of respondent Doloricon. Respondent Doloricon filed his
complaint for intervention on the ground that the four carabaos, subject
of the writ of attachment, were actually his carabaos. Thus, the
respondent court in its Order denying the petitioner's motion to dismiss,
to dissolve writ of preliminary attachment and to order the return of the
carabaos said:
". . . Antonio Doloricon manifested before this Court that he
is filing a third-party complaint alleging that he is the true and lawful
owner of the carabaos in questions.
 "IN VIEW OF ALL THE FOREGOING, this Court for the
interest of both parties will not for the meantime dismiss this case.
Antonio Doloricon is hereby given 10 days from receipt hereof
within which to file his third-party complaint. The plaintiff who in his
opposition to defendant's motion to dismiss pray (sic) for the
custody of the carabaos. This Court further requires plaintiff to put
up the additional bond of P1,000.00 after which the latter may be
entitled of (sic) the custody of the carabaos subject of litigation
pending final termination of this case." (Rollo, pp. 18-19).
The respondent court's reason for not dismissing the case is
contrary to applicable precedents on the matter. We ruled in Mathay v.
Consolidated Bank and Trust Company, supra:
"Section 1, Rule 16 of the Rules of Court, providing in part
that:
"Within the time for pleading a motion to dismiss may
be made on any of the following grounds; . . .'
"'(g) That the complaint states no cause of action. . . .'
explicitly requires that the sufficiency of the complaint must be
tested exclusively on the basis of the complaint itself and no other
should be considered when the ground for motion to dismiss is that
the complaint states no cause of action. Pursuant thereto this Court
has ruled that:
"'As a rule the sufficiency of the complaint, when
challenged in a motion to dismiss, must be determined
exclusively on the basis of the facts alleged therein.' (Uy
Chao vs. De La Rama Steamship Co., Inc., L-14495,
September 29, 1962, 6 SCRA 69, 72. See also De Jesus, et
al. vs. Belarmino, et al., Phil. 365, 371; Dalandan, et al. vs.
Julio, et al., L-19101, February 29, 1964, 10 SCRA 400;
Remitere, et al. vs. Montinola Vda. de Yulo, et al., L-19751,
February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac
Producers Cooperative Marketing Association, Inc., et al., L-
20338, June 30, 1967, 20 SCRA 526, 531.)
Hence, it was error for the respondent court not to dismiss the
case simply because respondent Doloricon filed the complaint for
intervention alleging that he owned the carabaos.
Moreover, even assuming that respondent Japitana had a legal
right to the carabaos which were in the possession of petitioner Nacar,
the proper procedure would not be to file an action for the recovery of the
outstanding debts of the late Isabelo Nacar against his stepfather, the
petitioner Nacar as defendant. As we said in Maspil v. Romero (61 SCRA
197):
 "Appropriate actions for the enforcement or defense of rights
must be taken in accordance with procedural rules and cannot be
left to the whims or caprices of litigants. It cannot even be left to the
untrammeled discretion of the courts of justice without sacrificing
uniformity and equality in the application and effectivity thereof."
Considering the foregoing, the respondent court's denial of the
motion to dismiss the complaint and its issuance of a writ of attachment
based on the allegations of the complaint are improper. With this
conclusion, we find no need to discuss the other issue on whether or not
the procedural rules on the issuance of a writ of attachment were
followed by the respondent court in issuing the subject writ of
attachment.

WHEREFORE, the petition is hereby granted. The preliminary

mandatory injunction issued on January 13, 1971 is made permanent
and the cash bond filed by the petitioner in connection therewith is
ordered returned to him.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana and Relova,
JJ., concur.

Separate Opinions
VASQUEZ, J., concurring:

I concur in the result.

The fundamental error committed by the private respondents was
in pursuing their claim in an ordinary action; and that by the respondent
municipal judge in entertaining the same.
As can be seen from the caption and the body of the complaint
filed in Civil Case No. 65, the claim of the private respondents was not
against herein petitioner Nicanor Nacar but against the estate of the
deceased Isabelo Nacar. It is a claim for money arising from unpaid
indebtedness granted on various dates. Isabelo Nacar died before the
said complaint was filed. It does not appear that any proceeding has
been filed to settle his estate.
Under these facts, the filing of an ordinary action to recover said
claim is not allowed in any court. Even if settlement proceedings had
been taken to settle the estate of Isabelo Nacar, the suit to recover the
claim of the private respondents may not be filed against the
 administrator or executor of his estate. This is expressly provided for in
Section 1 of Rule 87 of the Rules of Court, as follows:
"No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or
administrator; . . . ."
The claim of private respondents, being one arising from a
contract, may be pursued only by filing the same in the administration
proceedings that may be taken to settle the estate of the deceased
Isabelo Nacar. If such a proceeding is instituted and the subject claim is
not filed therein within the period prescribed, the same shall be deemed
"barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this action
were commenced during the lifetime of Isabelo Nacar, the same shall
have to be dismissed, and the claim prosecuted in the proper
administration proceedings (Sec. 21, Rule 3, Ibid.).
It would seem that the main purpose of the private respondents in
filing Civil Case No. 65 was to attach the seven carabaos owned by
Isabelo Nacar. A case had to be filed in order to justify the issuance of a
writ of attachment, unfortunately, said remedy may not be allowed. The
carabaos, if really owned by Isabelo Nacar, pertained to his estate upon
h9 death. The claim of the private respondents may only be satisfied by a
voluntary act on the part of the heirs of Isabelo Nacar, or pursued in the
appropriate settlement proceedings. A municipal court may not entertain
such a proceeding, it not being vested, under the law then in force, with
probate jurisdiction.
Civil Case No. 65 should accordingly be dismissed and the writ of
attachment issued therein dissolved.
||| (Nacar v. Nistal, G.R. No. L-33006, [December 8, 1982], 204 PHIL 407-418)

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

In re Intestate estate of the deceased Francisco Tordilla,

GAUDENCIA TORDILLA, petitioner-appellee, vs. MOISES
TORDILLA,opponent-appellant.

Manly & Reyes for appellant.

Ocampo & Cea and Buenaventura Blancaflor for appellee.

SYLLABUS
 1. DESCENT AND DISTRIBUTION; PROPERTY SUBJECT TO
COLLATION; ASSESSMENT OF PROPERTY DONATED. — Appellant's
contention in his third assignment of error that, where certain value is stated in
a deed of donation, that value cannot be questioned when the properties are
brought into collation, is incorrect, as article 1045 of the Civil Code provides for
the assessment of the property at its actual value at the time of the donation.
The actual value at the time of the donation is a question of fact which must be
established by proof the same as any other fact.
2. ID.; ID.; FRUITS AND INTEREST. — The fruits and interest produced
by property subject to collation must be ascertained under article 1049 of the
Civil Code. (See Guinguing vs. Abuton and Abuton, 48 Phil., 144.)
3. ID.; CONTRACTS WITH RESPECT TO FUTURE INHERITANCE. —
The second portion of contract Exhibit H clearly relates to the anticipated future
inheritance and, therefore, is null and void under the provisions of article 1271
of the Civil Code.
4. ID.; ARTICLE 840, CIVIL CODE, STILL IN FORCE. — The attention
of the court was not called to any case in which article 840 of the Civil Code
has been treated as entirely and completely repealed, and In re Intestate Estate
of Tad-Y (46 Phil., 557), followed.

DECISION

HULL, J :p

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 the fact,
standing alone, does not remove the lot from the properties left by the
deceased. The fact is whether or not the third party had exercised his option
to repurchase. That fact was well known to appellant and was easily
susceptible of definite and accurate proof. He has seen fit to leave the record
in doubt and, therefore, the finding of the trial court will not be disturbed.
The same remarks are true as to the number of carabaos and cattle
that the deceased had at the time of his death.
The contention of appellant in the third assignment of error is that,
where a certain value is stated in a deed of donation, that value cannot be
questioned when the properties are brought into collation. This is incorrect, as
article 1045 of the Civil Code provides for the assessment of the property at
its actual valuation at the time of donation. The recital in the deed cannot
therefore be controlling. The actual value at the time of the donation is a
question of fact which must be established by proof the same as any other
fact.
The fourth assignment of error is not well taken. The original testimony
was taken by a commissioner, and the report of the commissioner with the
evidence was stricken from the files on motion for appellant. Thereafter the
parties agreed to submit the case for the decision of the trial court on the
evidence taken by the commissioner. Such a procedure waived the erroneous
ruling on evidence by the commissioner. The appellant should have reserved
the right to introduced additional evidence and should have tendered the
proper evidence in the trial court. The trial court, with much experience, and
after study of the evidence produced, held that the actual value of one of the
properties was greater than that recited in the deed of donation, and also fixed
the fruits and income from the donated properties at a higher figure than
appellant thought just. The fruits and interest produced by property subject to
collation must be ascertained under article 1049 of the Civil Code. (See
Guinguing 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 legitimate in full ownership, and the third available for
betterment in naked ownership, the usufruct of which goes to the widow.
Then the natural child must get one-half of the free third in full ownership
and the other half of this third in naked ownership, from which third his
portion must be taken, so far as possible, after deducting the funeral and
burial expenses. . . . ."
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.
||| (Tordilla v. Tordilla, G.R. No. 39547, [May 3, 1934], 60 PHIL 162-167)

[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.]

 TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA,
TASIANA O. VDA. DE DE BORJA, special
Administratrix appellee, vs. JOSE DE BORJA, oppositor-
appellant.

[G.R. No. L-28611.]

TASIANA O. VDA. DE DE BORJA, as Administratrix of the

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

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Guevara for defendant-appellant.

SYLLABUS

1. CIVIL LAW; WILLS AND SUCCESSION; HEREDITARY SHARE IN ESTATE

VESTS FROM THE MOMENT OF DEATH OF DECEDENT; SHARE
IMMEDIATELY DISPOSABLE. — The hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death of
the causante or predecessor in interest (Civil Code of the Philippines, Art. 777,
[3], and there is no legal bar to a successor (with requisite contracting capacity)
disposing of her or his hereditary share immediately after such death, even if the
actual extent of such share is not determined until the subsequent liquidation of
the estate. The effect of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir, but the aleatory character of the
contract does not affect the validity of the transaction.
2. ID.; ID.: PRESENTATION OF WILL FOR PROBATE NOT NEEDED IN
CONVEYANCE BY HEIR OF HER SHARE. — The doctrine enunciated in
Guevara vs. Guevara (74 Phil. 749) which states that the presentation of a will for
probate is mandatory and that the settlement and distribution of an estate on the
basis of intestacy when the decedent left a will is against the law and public
policy, is not applicable to the cases at bar where there was no attempt to settle
or distribute the estate of Francisco De Borja among the heirs thereto before the
probate of his will, the clear object of the compromise contract between Jose de
Borja and Tasiana Ongsingco Vda. de Borja being merely the conveyance by the
latter of any and all her individual share and interest, actual or eventual, in the
estates of Francisco de Borja and Josefa Tangco.
3. ID.; ID.; ID.; COMPROMISE CONTRACT BINDING ON PARTIES EVEN IF
WITHOUT PROBATE COURT APPROVAL. — Since the compromise contract
was entered into by and between "Jose de Borja personally and as administrator
of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the
heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja," it is clear that the transaction was binding on both
in their individual capacities, upon the perfection of the contract, even without
previous authority of the court to enter into the same.
4. ID.; ID.; ID.; ID.; DIFFERENCE BETWEEN EXTRAJUDICIAL COMPROMISE
AND ONE APPROVED BY THE COURT. — The only difference between an
extrajudicial compromise and one that is submitted and approved by the court, is
that the latter can be enforced by execution proceedings.
5. ID.; ID.; ID.; ID., EFFECT OF CONTRACT ON PERSON NOT PARTY
THERETO, INSTANT CASE. — The resolutory period of 60 days, allegedly
intended to limit the effectiveness of the compromise agreement between
Tasiana Ongsingco and Jose de Borja, but which was embodied in another
agreement between Ongsingco and the brothers and sisters of De Borja, does
not have any validity as far as De Borja is concerned since De Borja was not a
party to the second agreement.
6. ID.; ID.; SUCCESSIONAL INTEREST OF COMPULSORY HEIR EXISTS
INDEPENDENT OF WILL OF TESTATOR, OR PROBATE THEREOF. — The
prerequisite of a previous probate of a will established in the Guevara and
analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de
Borja who, as the surviving spouse of Francisco de Borja was his compulsory
heir under articles 995 et. seq. of the present Civil Code and, barring
unworthiness or valid disinheritance, her successional interest existed
independent of Francisco de Borja's last will and testament and would exist even
if such will were not probated at all.
7. ID.; ID.; HEREDITARY SHARE CAN BE SOLD TO A CO-HEIR. — The owner
of the undivided hereditary share could dispose of it in favor of whomsoever such
owner chose. Such alienation is expressly recognized and provided for by article
1088 of the present Civil Code: "Art. 1088. Should any of the heirs sell his
hereditary rights to a stranger before the partition, any or all of the co-heirs may
be subrogated to the rights of the purchaser by reimbursing him for the price of
the sale, provided they do so within the period of one month from the time they
were notified in writing of the sale by the vendor." If a sale of a hereditary right
can be made to a stranger, then afortiori sale thereof to a coheir could not be
forbidden.
8. ID.: CONTRACTS; INABILITY TO REACH NOVATORY ACCORD DOES NOT
INVALIDATE ORIGINALLY VALID CONTRACT. — The inability to reach a
novatory accord can not invalidate the original compromise agreement entered
into by the parties and justifies the act of one of the parties in finally seeking a
court order for its approval and enforcement.
9. ID., PERSONS AND FAMILY RELATIONS; CONJUGAL PARTNERSHIP
PROPERTY; PRESUMPTION OF CONJUGAL CHARACTER OF PROPERTY
CONFIRMED IN INSTANT CASE. — The legal presumption in favor of the
conjugal character of the Hacienda de Jalajala concededly acquired by Francisco
de Borja during his marriage to his first wife, cannot be rebutted by testimony
which is plain hearsay having a clearly discernible ring of artificiality and a
statement which is plainly self-serving and which is not admissible in the absence
of cross-examination. Such legal presumption has actually been confirmed by the
clear admissions against the pecuniary interest of the declarants Francisco de
Borja and his executor-widow Tasiana Ongsingco consisting of solemn
admissions by the former in the Reamended Inventory and Reamended
Accounting in Special Proceedings No. 7866 of the CFI of Rizal and the latter's
inventory submitted in court listing the Jalajala property as "Conjugal properties
of the Spouses Francisco de Borja and Josefa Tangco."
10. SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATES; FLUCTUATION
IN VALUE OF CURRENCY DOES NOT WARRANT REVALUATION OF
PROPERTIES OF ESTATE. — The decision that "estates, would never be
settled if there were to be a revaluation with every subsequent fluctuation in the
values of currency and properties of the estate," is particularly apposite in the
present case where Tasiana Ongsingco pleads that the time elapsed in the
appeal has affected her unfavorably because, while the purchasing power of the
agreed price of P800,000 has diminished, the value of the Jalajala property has
increased. The fact is that her delay in receiving the payment of the agreed price
for her hereditary interest was primarily due to her attempts to nullify the
agreement she had formally entered into with the advice of her counsel.

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

Of these case, the first, numbered L-28040 is an appeal by Tasiana Ongsico

Vda. de de Borja, special administratrix of the testate estate of Francisco de
Borja, 1 from the approval of a compromise agreement by the Court of First
Instance of Rizal, Branch I. In its Special Proceeding No. R-7866, entitled,
"Testate Estate of Josefa Tangco, Jose de Borja, Administrator."
Case No. L-28568 is an appeal by administrator Jose de Borja from the
disapproval of the same compromise agreement by the Court of First Instance of
Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate
Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special
Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja from the
decision of the Court of First Instance of Rizal, Branch X, in its Civil Case No.
7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the
aforesaid compromise agreement, as the separate and exclusive property of the
late Francisco de Borja and not a conjugal asset of the community with his first
wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate
estate, which is under administration in Special Proceeding No. 832 of the Court
of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife Josefa
Tangco on 6 October 1940, filed a petition for the probate of her will which was
docketed as Special Proceeding No. R-7866 of the Court of First Instance of
Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de
Borja was appointed executor and administrator: in 1952, their son, Jose de
Borja, was appointed co-administrator. When Francisco died, on 14 April 1954,
Jose became the sole administrator of the testate estate of his mother, Jose
Tangco While a widower Francisco de Borja allegedly took unto himself a second
wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate
proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she
was appointed special administratrix. The validity of Tasiana's marriage to
Francisco was questioned in said proceeding.
The relationship between the children of the first marriage and Tasiana
Ongsingco has been plagued with several court suits and counter-suits; including
the three cases at bar, some eighteen (18) cases remain pending determination
in the courts. The testate estate of Josefa Tangco alone has been unsettled for
more than a quarter of a century. In order to put an end to all these litigations, a
compromise agreement was entered into on 12 October 1963, 2 by and between
"[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco,"
and "[T]he heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis
Panaguiton, Jr." The terms and conditions of the compromise agreement are as
follows:

"A G R E E M E N T
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage namely,
Jose de Borja personally and as administrator of the Testate Estate of
Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de Borja, assisted by her lawyer,
Atty. Luis Panaguiton, Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein to terminate and
settle, with finality, the various court litigations, controversies, claims,
counterclaims, etc., between them in connection with the administration,
settlement, partition, adjudication and distribution of the assets as well
as liabilities of the estates of Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed voluntarily
and without any reservations to enter into and execute this agreement
under the following terms and conditions:
1. That the parties agree to sell the Poblacion portion of the Jalajala
properties situated in Jalajala, Rizal, presently under administration in
the Testate Estate of Josefa Tangco (SP. Proc. No. 7866, Rizal), more
specifically described as follows:
'Linda al Norte con el Rio Puwang que la separa de la
jurisdiccion del Municipio de Pililla de la Provincia de Rizal, y con
el pico del Monte Zambrano; al Oeste con la Laguna de Bay; por
el Sur con los herederos de Marcelo de Borja; y por el Este con
los terrenos de la Familia Maronilla'
with a segregated area of approximately 1,313 hectares at the
amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana
Ongsingco Vda. de de Borja the total amount of Eight Hundred
Thousand Pesos (P800,000) Philippine Currency, in cash, which
represent P200,000 as his share in the payment and P600,000 as pro-
rata shares of the heirs Crisanto, Cayetano, and Matilde, all surnamed
de Borja and this shall be considered as full and complete payment and
settlement of her hereditary share in the estate of the late Francisco de
Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva
Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any properties
bequeathed or devised in her favor by the late Francisco de Borja by
Last Will and Testament or by Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for consideration or otherwise. The funds for
this payment shall be taken from and shall depend upon the receipt of
full payment of the proceeds of the sale of Jalajala, 'Poblacion.'
3. That Tasiana Ongsinco Vda. de de Borja hereby assumes payment of
that particular obligation incurred by the late Francisco de Borja in favor
of the Rehabilitation Finance Corporation, now Development Bank of the
Philippines, amounting to approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and Inheritance taxes on the
Estate of the late Francisco de Borja or the sum of P3,500.00, more or
less, which shall be deducted by the buyer of Jalajala, 'Poblacion' from
the payment to be made to Tasiana Ongsingco Vda. de Borja under
paragraph 2 of this Agreement and paid directly to the Development
Bank of the Philippines and the heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala 'Poblacion' is hereby authorized to
pay directly Tasiana Ongsingco Vda. de de Borja the balance of the
payment due her under paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de
Borja, corresponding certified checks/treasury warrant, who, in turn, will
issue the corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda. de de
Borja, Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors, administrators,
and assigns, hereby forever mutually renounce, withdraw, waive, remise,
release and discharge any and all manner of action or actions, cause or
causes of action, suits, debts, sum or sums of money, accounts,
damages, claims and demands whatsoever, in law or in equity, which
they ever had, or now have or may have against each other, more
specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp.
Proc. No 832-Nueva Ecija, Civil Case No. 3033, CFI-Nueva Ecija and
Civil Case No. 7452-CFI, Rizal, as well as the case filed against Manuel
Quijal for perjury with the Provincial Fiscal of Rizal, the intention being to
completely, absolutely and finally release each other, their heirs,
successors, and assigns, from any and all liability, arising wholly or
partially, directly or indirectly, from the administration, settlement, and
distribution of the assets as well as liabilities of the estates of Francisco
de Borja and Josefa Tangco, first spouse of Francisco de Borja, and
lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically
renounce absolutely her rights as heir over any hereditary share in the
estate of Francisco de Borja.
 6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the
payment under paragraph 4 hereof, shall deliver to the heir Jose de
Borja all the papers, titles and documents belonging to Francisco de
Borja which are in her possession and said heir Jose de Borja shall
issue in turn the corresponding receipt thereof.
7. That this agreement shall take effect only upon the fulfillment of the
sale of the properties mentioned under paragraph 1 of this agreement
and upon receipt of the total and full payment of the proceeds of the sale
of the Jalajala property 'Poblacion', otherwise, the non-fulfillment of the
said sale will render this instrument NULL AND VOID AND WITHOUT
EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands in the City of Manila, Philippines, this 12th of October, 1963."
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of
12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding
No. 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 compromise agreement of 12
October 1963 is not disputed, but its validity is, nevertheless, attacked by
Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind
of agreement without first probating the will of Francisco de Borja; (2) that the
same involves a compromise on the validity of the marriage between Francisco
de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased
to have force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco
and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs.
Guevara. 74 Phil. 479, wherein the Court's majority held the view that the
presentation of a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by appellant Tasiana
Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions
the validity of an extrajudicial settlement of a decedent's estate by agreement
between heirs, upon the facts that "(if) the decedent left no will and no debts, and
the heirs are all of age, or the minors are represented by their judicial and legal
representatives . . ." The will of Francisco de Borja having been submitted to the
Nueva Ecija Court and still pending probate when the 1963 agreement was
made, those circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose
de Borja stresses that at the time it was entered into, on 12 October 1963, the
governing provision was Section 1, Rule 74 of the original Rules of Court of
1940, which allowed the extrajudicial settlement of the estate of a deceased
person regardless of whether he left a will or not. He also relies on the dissenting
opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was
expressed the view that if the parties have already divided the estate in
accordance with a decedent's will, the probate of the will is a useless ceremony;
and if they have divided the estate in a different manner, the probate of the will is
worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar.
This is apparent from an examination of the terms of the agreement between
Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement
specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco —
"shall be considered as full — complete payment — settlement of
her hereditary share in the estate of the late Francisco de Borja as
well as the estate of Josefa Tangco, . . . and to any properties
bequeathed or devised in her favor by the late Francisco de Borja
by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or
otherwise."
This provision evidences beyond doubt that the ruling in the Guevara case is not
applicable to the cases at bar. There was here no attempt to settle or distribute
the estate of Francisco de Borja among the heirs thereto before the probate of
his will. The clear object of the contract was merely the conveyance by Tasiana
Ongsingco of any and all her individual share and interest, actual or eventual, in
the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to
any other claimant, creditor or legatee And as a hereditary share in a decedent's
estate is transmitted or vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the Philippines, Art.
777) 3 there is no legal bar to a successor (with requisite contracting capacity)
disposing of her or his hereditary share immediately after such death, even if the
actual extent of such share is not determined until the subsequent liquidation of
the estate. 4 Of course, the effect of such alienation is to be deemed limited to
what is ultimately adjudicated to the vendor heir. However, the aleatory character
of the contract does not affect the validity of the transaction; neither does the
coetaneous agreement that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp.
79-82) are to be considered settled and should be dismissed, although such
stipulation, as noted by the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only because it serves to
avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of

Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article
995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid
disinheritance, her successional interest existed independent of Francisco de
Borja's last will and testament, and would exist even if such will were not
probated at all. Thus, the prerequisite of a previous probate of the will, as
established in the Guevara and analogous cases, can not apply to the case of
Tasiana Ongsingco Vda. de de Borja.
Since the compromise contract Annex A was entered into by and between "Jose
de Borja personally and as administrator of the Testate Estate of Josefa Tangco"
on the one hand, and on the other, "the heir and surviving spouse of Francisco
de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is
clear that the transaction was binding on both in their individual capacities, upon
the perfection of the contract, even without previous authority of the Court to
enter into the same The only difference between an extrajudicial compromise
and one that is submitted and approved by the Court, is that the latter can be
enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the
point:
Art. 2037. A compromise has upon the parties the effect and authority
of res judicata; but there shall be no execution except in compliance with
a judicial compromise.
It is argued by Tasiana Ongsingco that while the agreement Annex A expressed
no definite period for its performance, the same was intended to have a
resolutory period of 60 days for its effectiveness. In support of such contention, it
is averred that such a limit was expressly stipulated in an agreement in similar
terms entered into by said Ongsingco with the brothers and sister of Jose de
Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that
the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-
28040, pp. 39-46) and which contained the following clause:
"III. That this agreement shall take effect only upon the consummation of
the sale of the property mentioned herein and upon receipt of the total
and full payment of the proceeds of the sale by the herein owner heirs-
children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde,
all surnamed de Borja; Provided that if no sale of the said property
mentioned herein is consummated, or the non-receipt of the purchase
price thereof by the said owners within the period of sixty (60) days from
the date hereof, this agreement will become null and void and of no
further effect."
Ongsingco's argument loses validity when it is considered that Jose de Borja was
not a party to this particular contract (Annex 1), and that the same appears not to
have been finalized, since it bears no date, the day being left blank "this — day of
October 1963"; and while signed by the parties, it was not notarized, although
plainly intended to be so done, since it carries a proposed notarial ratification
clause. Furthermore, the compromise contract with Jose de Borja (Annex A),
provides in its par. 2 heretofore transcribed that of the total consideration of
P800,000 to be paid to Ongsingco, P600,000 represent the "pro rata share of the
heirs Crisanto, Cayetano and Matilde, all surnamed de Borja" which corresponds
to the consideration of P600,000 recited in Annex 1, and that circumstance is
proof that the duly notarized contract entered into with Jose de Borja under date
12 October 1963 (Annex A), was designed to absorb and supersede the
separate unformalized agreement with the other three Borja heirs. Hence, the 60
days resolutory term in the contract with the latter (Annex 1) not being repeated
in Annex A, can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the Hacienda de Jalajala
was to be made within sixty days from the date of the agreement with Jose de
Borja's coheirs (Annex 1) was plainly omitted in Annex A as improper and
ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to
raise the P800,000 to be paid to Ongsingco for her share formed part of the
estate of Francisco de Borja and could not be sold until authorized by the
Probate Court. The Court of First Instance of Rizal so understood it, and in
approving the compromise it fixed a term of 120 days counted from the finality of
the order now under appeal, for the carrying out by the parties of the terms of the
contract.
This brings us to the plea that the Court of First In stance of Rizal had no
jurisdiction to approve the compromise with Jose de Borja (Annex A) because
Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending
settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose
estate was the object of Special Proceeding No. 832 of the Court of First
Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by
Tasiana Ongsingco was only her eventual share in the estate of her late
husband, not the estate itself; and as already shown, that eventual share she
owned from the time of Francisco's death and the Court of Nueva Ecija could not
bar her selling it. As owner of her undivided hereditary share, Tasiana could
dispose of it in favor of whomsoever she chose Such alienation is expressly
recognized and provided for by article 1088 of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they
were notified in writing of the sale of the vendor."
If a sale of a hereditary right can be made to a stranger, then a fortiori sale
thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex
"A") is void because it amounts to a compromise as to her status and marriage
with the late Francisco de Borja. The point is without merit, for the very opening
paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the
heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite admission of her civil
status. There is nothing in the text of the agreement that would show that this
recognition of Ongsingco's status as the surviving spouse of Francisco de Borja
was only made in consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First
Instance of Nueva Ecija in its order of 21 September 1964, in Special
Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that
the compromise agreement of 13 October 1963 (Annex "A") had been
abandoned, as shown by the fact that, after its execution, the Court of First
Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no
amicable settlement had been arrived at by the parties", and that Jose de Borja
himself, in a motion of 17 June 1964, had stated that the proposed amicable
settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the
order and motion above-mentioned was the compromise agreement of 13
October 1963, which already had been formally signed and executed by the
parties and duly notarized. What the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to back out from the
compromise agreement, pleading various reasons restated in the opposition to
the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that
the same was invalid because of the lapse of the allegedly intended resolutory
period of 60 days and because the contract was not preceded by the probate of
Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling;
that Annex "A" involved a compromise affecting Ongsingco's status as wife and
widow of Francisco de Borja, etc., all of which objections have been already
discussed. It was natural that in view of the widow's attitude, Jose de Borja
should attempt to reach a new settlement or novatory agreement before seeking
judicial sanction and enforcement of Annex "A", since the latter step might
ultimately entail a longer delay in attaining final remedy. That the attempt to
reach another settlement failed is apparent from the letter of Ongsingco's counsel
to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in
G.R. No. L-28040; and it is more than probable that the order of 21 September
1964 and the motion of 17 June 1964 referred to the failure of the parties' quest
for a more satisfactory compromise. But the inability to reach a novatory accord
can not invalidate the original compromise (Annex "A") and justifies the act of
Jose de Borja in finally seeking a court order for its approval and enforcement
from the Court of First Instance of Rizal, which, as heretofore described, decreed
that the agreement be ultimately performed within 120 days from the finality of
the order, now under appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of the Court of
First Instance of Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal
has affected her unfavorably, in that while the purchasing power of the agreed
price of P800,000 has diminished, the value of the Jalajala property has
increased. But the fact is that her delay in receiving the payment of the agreed
price for her hereditary interest was primarily due to her attempts to nullify the
agreement (Annex "A") she had formally entered into with the advice of her
counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency,
what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554,
that "estates would never be settled if there were to be a revaluation with every
subsequent fluctuation in the values of currency and properties of the estate", is
particularly opposite in the present case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de
Jalajala (Poblacion), concededly acquired by Francisco de Borja during his
marriage to his first wife, Josefa Tangco, is the husband's private property (as
contended by his second spouse, Tasiana Ongsingco), or whether it forms part
of the conjugal (ganancial) partnership with Josefa Tangco The Court of First
Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was
adequate evidence to overcome the presumption in favor of its conjugal
character established by Article 160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose
de Borja has become moot and academic, in view of the conclusion reached by
this Court in the two preceding cases (G.R. No. L-28568), upholding as valid the
cession of Tasiana Ongsingco's eventual share in the estate of her late husband,
Francisco de Borja, for the sum of P800,000 with the accompanying reciprocal
quit-claims between the parties. But as the question may affect the rights of
possible creditors and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been
originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo
de Borja, and their title thereto was duly registered in their names as co-owners
in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No.
26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda
was partitioned among the co-owners: the Punta section went to Marcelo de
Borja; the Bagombong section to Bernardo de Borja, and the part in Jalajala
proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De
Borja, 101 Phil. 911, 932).
The lot allotted to Francisco was described as —
"Una Parcela de terreno en Poblacion, jalajala: N. Puang Rier; E.
Hermogena Romero; S. Heirs of Marcelo de Borja, O. Laguna de Bay;
containing an area of 13,488,870 sq. m. more or less, assessed at
P297,410." (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the
Testate Estate of Francisco de Borja, instituted a complaint in the Court of First
Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as
Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have
the Hacienda above described declared exclusive private property of Francisco,
while in his answer defendant (now appellant) Jose de Borja claimed that it was
conjugal property of his parents (Francisco de Borja and Josefa Tangco),
conformably to the presumption established by Article 160 of the Philippine Civil
Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that:
"Art. 160. All property of the marriage is presumed to belong
to the conjugal partnership, unless it be proved that it pertains
exclusively to the husband or to the wife."
Defendant Jose de Borja further counterclaimed for damages, compensatory,
moral and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held
that the plaintiff had adduced sufficient evidence to rebut the presumption, and
declared the Hacienda de Jalajala (Poblacion) to be the exclusive private
property of the late Francisco de Borja, and his Administratrix, Tasiana
Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de
Borja then appealed to this Court.
The evidence reveals, and the appealed order admits, that the character of the
Hacienda in question as owned by the conjugal partnership De Borja-Tangco
was solemnly admitted by the late Francisco de Borja no less than two times:
first, in the Reamended Inventory that, as executor of the estate of his deceased
wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of
First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the
Reamended Accounting of the same date, also filed in the proceedings aforesaid
(Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as
oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7
September 1954 (Exhibit "3") listing the Jalajala property among the "Conjugal
Properties of the Spouses Francisco de Borja and Josefa Tangco". And once
more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja,
in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija,
submitted therein in December, 1955, an inventory wherein she listed the
Jalajala Hacienda under the heading "Conjugal Property of the Deceased
Spouses Francisco de Borja and Josefa Tangco, which are in the possession of
the Administrator of the Testate Estate of the Deceased Josefa Tangco in
Special Proceedings No 7866 of the Court of First Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain
admissions against interest made by both Francisco de Borja and the
Administratrix of his estate, in the course of judicial proceedings in the Rizal and
Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal
community, the Court below declared that the Hacienda de Jalajala (Poblacion)
was not conjugal property, but the private exclusive property of the late Francisco
de Borja. It did so on the strength of the following evidences: (a) the sworn
statement by Francisco de Borja on 6 August 1951 (Exhibit "F") that —
"He tomado posesion del pedazo de terreno ya delimitado
(equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno
personal y exclusivo (Poblacion de Jalajala, Rizal)."
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the
entire Hacienda had been bought at a foreclosure sale for P40,100.00, of
which amount P25,100 was contributed by Bernardo de Borja and P15,000.00
by Marcelo de Borja; that upon receipt of a subsequent demand from the
provincial treasurer for realty taxes in the sum of P17,000, Marcelo told his
brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-
owner, and upon Bernardo's assent to the proposal, Marcelo issued a check
for P17,000.00 to pay the back taxes and said that the amount would
represent Francisco's contribution in the purchase of the Hacienda. The
witness further testified that —
"Marcelo de Borja said that money was entrusted to him by
Francisco de Borja when he was still a bachelor and which he
derived from his business transactions." (Hearing, 2 February
1965, t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement
overweighed the admissions in the inventories relied upon by defendant-
appellant Jose de Borja, since probate courts can not finally determine questions
of ownership of inventoried property, but that the testimony of Gregorio de Borja
showed that Francisco de Borja acquired his share of the original Hacienda with
his own private funds, for which reason that share can not be regarded as
conjugal partnership property, but as exclusive property of the buyer, pursuant to
Article L-1396 (4) of the Civil Code of 1889 and Article 148 (4) of the Civil Code
of the Philippines.
 "The following shall be the exclusive property of each
spouse:
xxx xxx xxx
"(4) That which is purchased with exclusive money of the
wife or of the husband."
We find the conclusions of the lower court to be untenable. In the first place,
witness Gregorio de Borja's testimony as to the source of the money paid by
Francisco for his share was plain hearsay, hence inadmissible and of no
probative value, since he was merely repeating what Marcelo de Borja had told
him (Gregorio). There is no way of ascertaining the truth of the statement, since
both Marcelo and Francisco de Borja were already dead when Gregorio testified.
In addition, the statement itself is improbable, since there was no need or
occasion for Marcelo de Borja to explain to Gregorio how and when Francisco de
Borja had earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is
clearly discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante,
page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal)" refers precisely to the Hacienda in question. The
inventories (Exhibits 3 and 4) disclose that there were two real properties in
Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at
P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the
Hacienda de Jalajala (Poblacion). To which of these lands did the affidavit of
Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization
of the land as "mi terreno personal y exclusivo" is plainly self-serving, and not
admissible in the absence of cross examination.
It may be true that the inventories relied upon by defendant-appellant (Exhibits
"2", "3", "4" and "7") are not conclusive on the conjugal character of the property
in question; but as already noted, they are clear admissions against the
pecuniary interest of the declarants, Francisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater probative weight than the self-
serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in
favor of the conjugal character of the Hacienda de Jalajala (Poblacion) now in
dispute has not been rebutted but actually confirmed by proof. Hence, the
appealed order should be reversed and the Hacienda de Jalajala (Poblacion)
declared property of the conjugal partnership of Francisco de Borja and Josefa
Tangco.
No error having been assigned against the ruling of the lower court that claims
for damages should be ventilated in the corresponding special proceedings for
the settlement of the estates of the deceased, the same requires no
pronouncement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First
Instance of Rizal in Case No. L-28040 is hereby affirmed; while those involved in
Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the
appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases.
(Tangco v. Vda. de De Borja, G.R. No. L-28040, [August 18, 1972], 150-B PHIL
|||

486-509)

[G.R. No. 45629. September 22, 1938.]

ATILANO G. MERCADO, petitioner, vs. ALFONSO SANTOS,

Judge of First Instance of Pampanga, and IÑIGO S. DAZA,
Provincial Fiscal of Pampanga,respondents. ROSARIO BASA
DE LEON, ET AL., intervenors.

Claro M. Recto and Benigno S. Aquino, for petitioner.

Esperanza de la Cruz and Heracho Abistado, for respondents.
Sotto & Sotto, for intervenors.

SYLLABUS

1. WILLS; CONCLUSIVENESS OF THE DUE EXECUTION OF A

PROBATED WILL. — Section 625 of the Code of Civil Procedure is explicit as
to the conclusiveness of the due execution of a probated will. It provides: "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."
2. ID.; ID. — The probate of a will by the probate court having jurisdiction
thereof is 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.
3. ID.; ID.; PROCEEDING "IN REM". — 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.
4. ID.; ID.; CONCLUSIVE PRESUMPTION. — 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. 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.
5. ID.; ID.; CRIMINAL ACTION AGAINST FORGER OF A DULY
PROBATED WILL. — Upon the facts stated in the opinion of the court, it
was held: That in view of the provisions of sections 306, 333 and 625 of the
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.
6. CRIMINAL LAW; PROSECUTION OF OFFENSES; RIGHT TO A
SPEEDY TRIAL. — 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.
7. ID.; ID. — In Kalaw vs. Apostol (G. R. No. 45591, Oct. 15, 1937), the
Supreme Court observed that the prosecuting officer is in charge and has under
the direction and control all prosecutions for public offenses (sec. 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, 664; United States vs. Fox, 3 Mont., 512.) He cannot be
oppressed by delaying the commencement of trial for an unreasonable length
of time. If the proceedings pending trial are deferred, the trial itself is necessarily
delayed.
8. ID.; ID.; ID. — 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.)

DECISION

LAUREL, J : p

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 petition 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
judgment:
"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 probated 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; Castaneda 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.
Palmaron, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs.
Gmur, 42 Phil., 855; and Chiong Joc-soy 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 that 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 country
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.
Eelss (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; Foster's 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 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. Holdrige's 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
interest 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 Warner's 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 Ass'n., 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, 648 and Dominus Rex vs. Rodes, 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 defendant's 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
names 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 defendant's 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 Massachusetts 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 9103
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, Massachusetts
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 Wharton's 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. 686-689 and note), to
show that in Massachusetts 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 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 reason 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 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 & 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 & 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every
instrument 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 (Ewell's
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. 151-156.) 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, on the ground that the 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 the 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 probated will. We have examined some important
cases and have come to the conclusion that no fixed standard may be
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 unappelable, 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 reluctant to allow the exception in cases of wills, but 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 Story's Eq. Jur. sec. 440.)" (State vs.
McGlyn,, 20 Cl., 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 Code 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 President's 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 provision 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 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 changed, 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 confined 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 discharged 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 juicio que se celebra de acuerdo con la ley de
procedimiento criminal y los reglamentos, libre de dilaciones vejatorias,
caprichosas y opresivas (Burnett vs. State, 76 Ark., 295; 88 S. 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 del asunto sin su consentimiento. A esto debe añadirse que la
primera transferencia de vista era claramente injustificada porque el
motivo que se alego consistio unicamente en la conveniencia personal
del ofendido y su abogado, no habiendose probado suficientemente la
alegacion del primero de que se hallaba enfermo. Es cierto que el
recurrente habia pedido que, en vez de seialarse 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 porque su abogado se oponia
a comparecer por compromisos urgentes contraidos con anterioridad y en
tal circunstancia hubiera quedado indefenso si hubiese sido obligado a
entrar en juicio, aparece que la vista se pospuso por el Juzgado a motu
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 recurrente se le privo 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 ageldao 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 prestar tres 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 Constitucio preceptua que en todo
proceso criminal el 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 es privado de su derecho
fundamental 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 contraApostol, 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 complaint'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 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 is in charge of and
has under his direction and control 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 the 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 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 obsdtante 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 incurrido 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, thereby converting the court into an
instrument of oppression and vengeance on the pat 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 before, had been declared genuine and valid by a court of
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.
||| (Mercado v. Santos, G.R. No. 45629, [September 22, 1938], 66 PHIL 215-236)