ARTICLE 795 executed for the purpose that these parcels of
land had been erroneously included in the sale
G.R. No. L-23770 February 18, 1926
MAGIN RIOSA, plaintiff-appellant,
vs.
PABLO ROCHA, MARCELINA CASAS,
MARIA CORRAL and CONSOLACION R. DE
CALLEJA, defendants-appellees.
Domingo Imperial for appellant
Mariano Locsin for appellees.
AVANCEÑA, C.J.:
Maria Corral was united in marriage with the
deceased Mariano Riosa, it being her first and
only marriage and during which time she bore
him three children named Santiago, Jose and
Severina. The latter died during infancy and
the other two survived their father, Mariano
Riosa. Santiago Riosa, no deceased, married
Francisca Villanueva, who bore him two
children named Magin and Consolacion Riosa.
Jose Riosa, also deceased, married Marcelina
Casas and they had one child who died before
the father, the latter therefore leaving no issue.
Mariano Riosa left a will dividing his property
between his two children, Santiago and Jose
Riosa, giving the latter the eleven parcels of
land described in the complaint. Upon the
death of Jose Riosa he left a will in which he
named his wife, Marcelina Casas, as his only
heir.
On May 16, 1917, the will of Jose Riosa was
filed for probate. Notwithstanding the fact that
Marcelina Casas was the only heir named in
the will, on account of the preterition of Maria
Corral who, being the mother of Jose Riosa,
was his legitimate heir, I Marcelina Casas and
Maria Corral, on the same date of the filing of
the will for probate, entered into a contract by
which they divided between themselves the
property left by Jose Riosa, the eleven parcels
of land described in the complaint being
assigned to Maria Corral.
On October 26, 1920, Maria Corral sold
parcels Nos. 1, 2, 3, 4, 5, 6, 10 and 11 to
Marcelina Casas for the sum of P20,000 in a
public instrument which was recorded in the
registry of deeds on November 6, 1920. On
November 3, 1920, Marcelina Casas sold
these eight parcels of land to Pablo Rocha for
the sum of P60,000 in a public document which
was recorded in the registry of deeds on
November 6, 1920. On September 24, 1921,
Pablo Rocha returned parcels No. 1, 2, 3, 4,
and 6 to Maria Corral stating in the deed
made by Maria Corral to Marcelina Casas.
The Court of first Instance denied the probate
of the will of Jose Riosa, but on appeal this
court reversed the decision of the lower court
and allowed the will to probate. 1 The legal
proceedings for the probate of the will and the
settlement of the testate estate of Jose Riosa
were followed; and, at the time of the partition,
Maria Corral and Marcelina Casas submitted to
the court the contract of extrajudicial partition
which they had entered into on May 16, 1917,
and which was approved by the court, by order
of November 12, 1920, as though it had been
made within the said testamentary
proceedings.
From the foregoing is appears that the eleven
parcels of land described in the complaint were
acquired by Jose Riosa, by lucrative title, from
his father Mariano Riosa and that after the
death of Jose Riosa, by operation of law, they
passed to his mother Maria Corral. By virtue of
article 811 of the Civil Code these eleven
parcels of land are reservable property. It
results, furthermore, that parcels 1, 2, 3, 4, 5,
6, 7, 8 and 9 still belong in fee simple to Maria
Corral, and that parcels 10 and 11 were
successively sold by Maria Corral to Marcelina
Casas and by the latter to Pablo Rocha. Lastly,
it appears that Magin and Consolacion Riosa
are the nearest relatives within the third degree
of the line from which this property came.
This action was brought by Magin Riosa, for
whom the property should have been reserved,
against Maria Corral, whose duty it was to
reserve it, and against Marcelina Casas and
Pablo Rocha as purchasers of parcels 10 and
11. Consolacion Riosa de Calleja who was
also bound to make the reservation was
included as a defendant as she refused to join
as plaintiff.
The complaint prays that the property therein
described be declared reservable property and
that the plaintiffs Jose and Consolacion Riosa
be declared reservees; that this reservation be
noted in the registry of deeds; that the sale of
parcels 10 and 11 to Marcelina Casas and
Pablo Rocha be declared valid only in so far as
it saves the right of reservation in favor of the
plaintiff Magin Riosa and of the defendant
Consolacion Riosa, and that this right of
reservation be also noted on the deeds of sale
executed in favor of Marcelina Casas and
Pablo Rocha; that Maria Corral, Marcelina
Casas and Pablo Rocha give a bond of
1
P50,000, with good and sufficient sureties, in
Page
favor of the reservees as surety for the
conservation and maintenance of the
improvements existing on the said reservable
property. The dispositive part of the court's
decision reads as follows:
For the foregoing reasons it is held:
1. That the eleven parcels of land
described in paragraph 6 of the
complaint have the character of
reservable property; 2. That the
defendant Maria Corral, being
compelled to make the reservation,
must reserve them in favor of the
plaintiff Magin Riosa and the defendant
Consolacion Riosa de Calleja in case
that either of these should survive her;
3. That Magin Riosa and Consolacion
Riosa de Calleja have the right, in case
that Maria Corral should die before
them, to receive the said parcels or their
equivalent.
In virtue whereof, the defendant Maria
Corral is ordered: 1. To acknowledge
the right of Magin Riosa and
Consolacion Riosa de Calleja to the
reservation of the said parcels of lands
described in the complaint, which she
shall expressly record in the registration
of said lands in the office of the register
of deeds of this province; 2. To insure
the delivery of said parcels of lands, or
their equivalent, to Magin Riosa and
Consolacion Riosa de Calleja, should
either of them survive her, either by a
mortgage thereon or by a bond in the
amount of P30,000, without express
pronouncement as to costs.
The other defendants are absolved from
the complaint.
Inasmuch as the reservation from its inception
imposes obligations upon the reservor
(reservista) and creates rights in favor of the
reservation (reservatarios) it is of the utmost
importance to determine the time when the
land acquired the character of reservable
property.
It will be remembered that on May 16, 1917,
Maria Corral and Marcelina Casas entered into
a contract of extrajudicial partition of the
property left by Jose Riosa, in which they
assigned to Maria Corral, as her legitime, the
parcels of land here in question, and at the
same time petitioned for the probate of the will
of Jose Riosa and instituted the testamentary
proceeding. In support of the legality of the
extrajudicial partition between Maria Corral and
Marcelina Casas the provision of section 596
of the Code of Civil Procedure is invoked,
which authorizes the heirs of a person dying
without a will to make a partition without the
intervention of the courts whenever the heirs
are all of age and the deceased has left no
debts. But this legal provisions refers expressly
to intestate estates and, of course, excludes
testate estates like the one now before us.
When the deceased has left a will the partition
of his property must be made in accordance
therewith. According to section 625 of the
same Code no will can pass property until it is
probated. And even after being probated it
cannot pass any property if its provisions
impair the legitime fixed by law in favor of
certain heirs. Therefore, the probate of the will
and the validity of the testamentary provisions
must be passed upon by the court.
For the reasons stated, and without making
any express finding as to the efficacy of the
extrajudicial partition made by Maria Corral and
Marcelina Casas, we hold that for the purposes
of the reservation and the rights and
obligations arising thereunder in connection
with the favored relatives, the property cannot
be considered as having passed to Maria
Corral but from the date when the said partition
was approved by the court, that is, on
November 12, 1920. In the case of Pavia vs.
De la Rosa (8 Phil., 70), this court laid down
the same doctrine in the following language:
The provisions of Act No. 190 (Code of
Civil Procedure) have annulled the
provisions of article 1003 and others of
the Civil Code with regard to the pure or
simple acceptance of the inheritance of
a deceased person or that made with
benefit of inventory and the
consequences thereof.
xxx xxx xxx
The heir legally succeeds the deceased
from whom he derives his right and title,
but only after the liquidation of the
estate, the payment of the debts of
same, and the adjudication of the
residue of the estate of the deceased,
and in the meantime the only person in
charge by law to attend to all claims
against the estate of the deceased
debtor is the executor or administrator
appointed by a competent court.
As has been indicated, parcels 10 and 11
2
described in the complaint were first sold by
Page
Maria Corral to Marcelina Casas who later sold
them to Pablo Rocha. In this appeal it is urged
that Marcelina Casas and Pablo Rocha, who
were absolved by the court below, be ordered
to acknowledge the reservation as to parcels
10 and 11, acquired by them, and to have the
said reservation noted on their titles. This
argument, of course, is useless as to Marcelina
Casas for the reason that she transferred all
her rights to Pablo Rocha.
It has been held by jurisprudence that the
provisions of the law referred to in article 868
tending to assure the efficacy of the
reservation by the surviving spouse are
applicable to the reservation known as "reserva
troncal," referred to in article 811, which is the
reservation now under consideration.
In accordance with article 977, Maria Corral,
reservor, is obliged to have the reservation
noted in the registry of deeds in accordance
with the provisions of the Mortgage Law which
fixes the period of ninety days for
accomplishing it (article 199, in relation with
article 191, of the Mortgage Law). According to
article 203 of the General Regulation for the
application of the Mortgage Law, this time must
be computed from the acceptance of the
inheritance. But as this portion of the Civil
Code, regarding the acceptance of the
inheritance, has been repealed, the time, as
has been indicated, must be computed from
the adjudication of the property by the court to
the heirs, in line with the decision of this court
hereinabove quoted. After the expiration of this
period the reservees may demand compliance
with this obligation.
If Maria Corral had not transferred parcels 10
and 11 to another there would be no doubt that
she could be compelled to cause the
reservable character of this property to be
noted in the registry of deeds. This land having
been sold to Marcelina Casas who, in turn,
sold it to Pablo Rocha the question arises
whether the latter can be compelled to have
this reservation noted on his title. This
acquisition by Pablo Rocha took place when it
was the duty of Maria Corral to make the
notation of the reservation in the registry and at
the time when the reservees had no right to
compel Maria Corral to make such notation,
because this acquisition was made before the
expiration of the period of ninety days from
November 12, 1920, the date of the
adjudication by the court, after which the right
of the reservees to commence an action for the
fulfillment of the obligation arose. But the land
first passed to Marcelina Casas and later to
Pablo Rocha together with the obligation that
the law imposes upon Maria Corral. They could
not have acquired a better title than that held
by Maria Corral and if the latter's title was
limited by the reservation and the obligation to
note it in the registry of deeds, this same
limitation is attached to the right acquired by
Marcelina Casas and Pablo Rocha.
In the transmission of reservable property the
law imposes the reservation as a resolutory
condition for the benefit of the reservees
(article 975, Civil Code). The fact that the
resolvable character of the property was not
recorded in the registry of deed at the time that
it was acquired by Marcelina Casas and Pablo
Rocha cannot affect the right of the reservees,
for the reason that the transfers were made at
the time when it was the obligation of the
reservor to note only such reservation and the
reservees did not them have any right to
compel her to fulfill such an obligation.
Marcelina Casas, as well as Pablo Rocha,
Knew of the reservable character of the
property when they bought it. They had
knowledge of the provisions of the last will and
testament of Mariano Riosa by virtue of which
these parcels were transferred to Jose Riosa.
Pablo Rocha was one of the legatees in the
will. Marcelina Casas was the one who entered
into the contract of partition with Maria Corral,
whereby these parcels were adjudicated to the
latter, as a legitimate heir of Jose Riosa. Pablo
Rocha was the very person who drafted the
contracts of sale of these parcels of land by
Maria Corral to Marcelina Casas and by the
latter to himself. These facts, together with the
relationship existing between Maria Corral and
Marcelina Casas and Pablo Rocha, the former
a daughter-in-law and the latter a nephew of
Maria Corral, amply support the conclusion that
both of them knew that these parcels of land
had been inherited by Maria Corral, as her
legitime from her son Jose Riosa who had
inherited them, by will, from his father Mariano
Riosa, and were reservable property.
Wherefore, the duty of Maria Corral of
recording the reservable character of lots 10
and 11 has been transferred to Pablo Rocha
and the reservees have an action against him
to compel him to comply with this obligation.
The appellant also claims that the obligation
imposed upon Maria Corral of insuring the
return of these parcels of land, or their value, to
the reservees by means of a mortgage or a
bond in the amount of P30,000, also applies to
Pablo Rocha. The law does not require that the
reservor give this security, the recording of the
reservation in the registry of deeds being
3
sufficient (art. 977 of the Civil Code). There is
Page
no ground for this requirement inasmuch as, reservation will follow the property,
the notation once is made, the property will without prejudice to the contrary
answer for the efficacy of the reservation. This provisions of the Mortgage Law and the
security for the value of the property is required rights of innocent purchasers, there
by law (art. 978, paragraph 4, of the Civil being no need to secure the value of the
Code) in the case of a reservation by the property since it is liable for the efficacy
surviving spouse when the property has been of the reservation by a widowed spouse
sold before acquiring the reservable character to secure the value of the property sold
(art 968 of the Civil Code), but is not applicable by the widower, before becoming
to reservation known as reserva troncal (art reservable are not applicable to
811 of the Civil Code). In the case of Dizon and the reserva troncal where the property
Dizon vs. Galang (page 601, ante), this court goes to the ascendant already
held that: reservable in character. A sale in the
case of reserva troncal might be
* * * As already intimated, the provisions analogous to a sale made by the
of the law tending to give efficacy to a widower after contacting a second
reservation by the widowed spouse marriage in the case of a reservation by
mentioned in article 968 are applicable the widowed spouse.
to the reserva troncal provided for in
article 811. But as these two Since Maria Corral did not appeal, we cannot
reservations vary in some respects, modify the appealed judgment in so far as it is
these rules may be applied to unfavorable to her. As she has been ordered to
the reserva troncal only in so far as the record in the registry the reservable character
latter is similar to a reservation by the of the other parcels of land, the subject of this
widowed spouse. In the reserva action, the questions raised by the appellant as
troncal the property goes to the reservor to her are decided.
as reservable property and it remains so
until the reservation takes place or is The judgment appealed from is modified and
extinguished. In a reservation by the Pablo Rocha is ordered to record in the registry
widowed spouse there are two distinct of deeds the reservable character of parcels 10
stages, one when the property goes to 11, the subject of this complaint, without
the widower without being reservable, special pronouncement as to costs. So
and the other when the widower ordered.
contracts a second marriage,
whereupon the property, which
theretofore has been in his possession
free of any encumbrance, becomes
reservable. These two stages also affect
differently the transfer that may be made
of the property. If the property is sold
during the first stage, before becoming
reservable, it is absolutely free and is
transferred to the purchaser
unencumbered. But if the sale is made
during the second stage, that is, when
the duty to reserve has arisen, the
property goes to the purchaser subject
to the reservation, without prejudice to
the provisions of the Mortgage Law.
This is the reason why the law provides
that should the property be sold before it
becomes reservable, or before the
widower contracts another marriage, he
will be compelled to secure the value of
the property by a mortgage upon
contracting a new marriage, so that the
reservation may not lose its efficacy and
that the rights of those for whom the
reservation is made may be assured.
This mortgage is not required by law
4

when the sale is made after the

Page
G.R. No. L-7188 August 9, 1954
In re: Will and Testament of the deceased
REVEREND SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET
AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-
appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A.
Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia,
parish priest of Talisay, Cebu, executed a
document purporting to be his Last Will and
Testament now marked Exhibit "A". Resident of
the City of Cebu, he died on January 14, 1943,
in the municipality of Aloguinsan, Cebu, where
he was an evacuee. He left properties
estimated at P8,000 in value. On October 2,
1946, one Andres Enriquez, one of the
legatees in Exhibit "A", filed a petition for its
probate in the Court of First Instance of Cebu.
Some cousins and nephews who would inherit
the estate of the deceased if he left no will,
filed opposition.
During the hearing one of the attesting
witnesses, the other two being dead, testified
without contradiction that in his presence and
in the presence of his co-witnesses, Father
Sancho wrote out in longhand Exhibit "A" in
Spanish which the testator spoke and
understood; that he (testator) signed on he left
hand margin of the front page of each of the
three folios or sheets of which the document is
composed, and numbered the same with
Arabic numerals, and finally signed his name at
the end of his writing at the last page, all this,
in the presence of the three attesting witnesses
after telling that it was his last will and that the
said three witnesses signed their names on the
last page after the attestation clause in his
presence and in the presence of each other.
The oppositors did not submit any evidence.
The learned trial court found and declared
Exhibit "A" to be a holographic will; that it was
in the handwriting of the testator and that
although at the time it was executed and at the
time of the testator's death, holographic wills
were not permitted by law still, because at the
time of the hearing and when the case was to
be decided the new Civil Code was already in
force, which Code permitted the execution of
holographic wills, under a liberal view, and to
carry out the intention of the testator which
according to the trial court is the controlling
factor and may override any defect in form,
said trial court by order dated January 24,
1952, admitted to probate Exhibit "A", as the
Last Will and Testament of Father Sancho
Abadia. The oppositors are appealing from that
decision; and because only questions of law
are involved in the appeal, the case was
certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386)
under article 810 thereof provides that a
person may execute a holographic will which
must be entirely written, dated and signed by
the testator himself and need not be witnessed.
It is a fact, however, that at the time that
Exhibit "A" was executed in 1923 and at the
time that Father Abadia died in 1943,
holographic wills were not permitted, and the
law at the time imposed certain requirements
for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in
letters and signing on the left hand margin by
the testator and by the three attesting
witnesses, requirements which were not
complied with in Exhibit "A" because the back
pages of the first two folios of the will were not
signed by any one, not even by the testator
and were not numbered, and as to the three
front pages, they were signed only by the
testator.
Interpreting and applying this requirement this
Court in the case of In re Estate of Saguinsin,
41 Phil., 875, 879, referring to the failure of the
testator and his witnesses to sign on the left
hand margin of every page, said:
. . . . This defect is radical and totally
vitiates the testament. It is not enough
that the signatures guaranteeing
authenticity should appear upon two
folios or leaves; three pages having
been written on, the authenticity of all
three of them should be guaranteed by
the signature of the alleged testatrix and
her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil.,
700, referring to the same requirement, this
Court declared:
From an examination of the document in
question, it appears that the left margins
of the six pages of the document are
signed only by Ventura Prieto. The
noncompliance with section 2 of Act No.
2645 by the attesting witnesses who
omitted to sign with the testator at the
left margin of each of the five pages of
5
the document alleged to be the will of
Page
 Ventura Prieto, is a fatal defect that defective will and thereby divest the heirs of
constitutes an obstacle to its probate. their vested rights in the estate by intestate
succession. The general rule is that the
What is the law to apply to the probate of Exh. Legislature can not validate void wills (57 Am.
"A"? May we apply the provisions of the new Jur., Wills, Sec. 231, pp. 192-193).
Civil Code which not allows holographic wills,
like Exhibit "A" which provisions were invoked In view of the foregoing, the order appealed
by the appellee-petitioner and applied by the from is reversed, and Exhibit "A" is denied
lower court? But article 795 of this same new probate. With costs.
Civil Code expressly provides: "The validity of
a will as to its form depends upon the
observance of the law in force at the time it is
made." The above provision is but an
expression or statement of the weight of
authority to the affect that the validity of a will is
to be judged not by the law enforce at the time
of the testator's death or at the time the
supposed will is presented in court for probate
or when the petition is decided by the court but
at the time the instrument was executed. One
reason in support of the rule is that although
the will operates upon and after the death of
the testator, the wishes of the testator about
the disposition of his estate among his heirs
and among the legatees is given solemn
expression at the time the will is executed, and
in reality, the legacy or bequest then becomes
a completed act. This ruling has been laid
down by this court in the case of In re Will of
Riosa, 39 Phil., 23. It is a wholesome doctrine
and should be followed.

Of course, there is the view that the intention of

the testator should be the ruling and controlling
factor and that all adequate remedies and
interpretations should be resorted to in order to
carry out said intention, and that when statutes
passed after the execution of the will and after
the death of the testator lessen the formalities
required by law for the execution of wills, said
subsequent statutes should be applied so as to
validate wills defectively executed according to
the law in force at the time of execution.
However, we should not forget that from the
day of the death of the testator, if he leaves a
will, the title of the legatees and devisees
under it becomes a vested right, protected
under the due process clause of the
constitution against a subsequent change in
the statute adding new legal requirements of
execution of wills which would invalidate such
a will. By parity of reasoning, when one
executes a will which is invalid for failure to
observe and follow the legal requirements at
the time of its execution then upon his death he
should be regarded and declared as having
died intestate, and his heirs will then inherit by
intestate succession, and no subsequent law
with more liberal requirements or which
dispenses with such requirements as to
6

execution should be allowed to validate a

Page
G.R. No. L-5064 February 27, 1953
BIENVENIDO A. IBARLE, plaintiff-appellant,
vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel
appellee.
TUASON, J.:
This action commenced in the Court of First
Instance of Cebu to annul a deed of sale
conveying to the defendant, in consideration of
P1,700, one undivided half of a parcel of land
which previously had been sold, along with the
other half, by the same vendor to the plaintiff's
grantors. judgment was against the plaintiff.
The case was submitted for decision upon an
agreed statement of facts, the pertinent parts
of which are thus summarized in the appealed
decision:
1st. — That Leonard j. Winstanley and
Catalina Navarro were husband and
wife, the former having died on June 6,
1946 leaving heir the surviving spouse
and some minor children;
2nd. — hat upon the death of L.J.
Winstanley, he left a parcel of land
described under Transfer Certificate of
title No. 2391 of the Registry of Deeds
of the Province of Cebu;
3rd. — That the above mentioned
property was a conjugal property;
4th. — That on April 15, 1946, the
surviving spouse Catalina Navarro Vda.
de Winstanley sold the entire parcel of
land to the spouses Maria Canoy,
alleging among other things, that she
needed money for the support of her
children;
5th. — That on May 24, 1947, the
spouses Maria Canoy and Roberto
Canoy sold the same parcel of land to
the plaintiff in this case named
Bienvenido A. Ebarle;
6th. — That the two deeds of sale
referred to above were not registered
and have never been registered up to
the date;
7th. — That on January 17, 1948
surviving spouse Catalina Navarro Vda.
de Winstanley, after her appointment as
guardian of her children by this court
(Special proceeding no. 212-R) sold
one-half of the land mentioned above to
Esperanza M. Po, defendant in the
instant case, which portion belongs to
the children of the above named
spouses.
As stated by the trial Judge, the sole question
for determination is the validity of the sale to
Esperanza M. Po, the last purchaser. This
question in turn depends upon the validity of
the prior ale to Maria Canoy and Roberto
Canoy.
Article 657 of the old Civil Code provides: "The
rights to the succession of a person are
transmitted from the moment of his death." in a
slightly different language, this article is
incorporated in the new Civil Code as article
777.
Manresa, commending on article 657 of the
Civil Code of Spain, says:
The moment of death is the determining
factor when the heirs acquire a definite
right to the inheritance, whether such
right be pure or contingent. It is
immaterial whether a short or long
period of time lapses between the death
of the predecessor and the entry into
possession of the property of the
inheritance because the right is always
deemed to be retroactive from the
moment of death. (5 Manresa, 317.)
The above provision and comment make it
clear that when Catalina Navarro Vda. de
Winstanley sold the entire parcel to the Canoy
spouses, one-half of it already belonged to the
seller's children. No formal or judicial
declaration being needed to confirm the
children's title, it follows that the first sale was
null and void in so far as it included the
children's share.
On the other hand, the sale to the defendant
having been made by authority of the
competent court was undeniably legal and
effective. The fact that it has not been recorded
is of no consequence. If registration were
necessary, still the non-registration would not
avail the plaintiff because it was due to no
other cause than his own opposition.
The decision will be affirmed subject to the
reservation, made in said decision, of the right
of the plaintitff and/or the Canoy spouses to
7
bring such action against Catalina Navarro
Page
Vda. de Winstanley as may be appropriate for
such damages as they may have incurred by
reason of the voiding of the sale in their favor.

8
Page
 [G.R. No. 147145. January 31, 2005]
TESTATE ESTATE OF THE LATE ALIPIO
ABADA, BELINDA CAPONONG-
NOBLE, petitioner, vs. ALIPIO ABAJA
and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for
review[1] assailing the Decision[2] of the Court of
Appeals of 12 January 2001 in CA-G.R. CV
No. 47644. The Court of Appeals sustained the
Resolution[3] of the Regional Trial Court of
Kabankalan, Negros Occidental, Branch 61
(RTC-Kabankalan), admitting to probate the
last will and testament of Alipio Abada (Abada).
The Antecedent Facts
Abada died sometime in May 1940.[4] His
widow Paula Toray (Toray) died sometime in
September 1943. Both died without legitimate
children.
On 13 September 1968, Alipio C. Abaja
(Alipio) filed with the then Court of First
Instance of Negros Occidental (now RTC-
Kabankalan) a petition,[5] docketed as SP No.
070 (313-8668), for the probate of the last will
and testament (will) of Abada. Abada allegedly
named as his testamentary heirs his natural
children Eulogio Abaja (Eulogio) and Rosario
Cordova. Alipio is the son of Eulogio.
Nicanor Caponong (Caponong) opposed
the petition on the ground that Abada left no
will when he died in 1940. Caponong further
alleged that the will, if Abada really executed it,
should be disallowed for the following reasons:
(1) it was not executed and attested as
required by law; (2) it was not intended as the
last will of the testator; and (3) it was procured
by undue and improper pressure and influence
on the part of the beneficiaries. Citing the same
grounds invoked by Caponong, the alleged
intestate heirs of Abada, namely, Joel, Julian,
Paz, Evangeline, Geronimo, Humberto,
Teodora and Elena Abada (Joel Abada, et al.),
and Levi, Leandro, Antonio, Florian, Hernani
and Carmela Tronco (Levi Tronco, et al.), also
opposed the petition. The oppositors are the
nephews, nieces and grandchildren of Abada
and Toray.
On 13 September 1968, Alipio filed another
petition[6] before the RTC-Kabankalan,
docketed as SP No. 071 (312-8669), for the
probate of the last will and testament of Toray.
Caponong, Joel Abada, et al., and Levi Tronco,
et al. opposed the petition on the same
grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a
petition[7] before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the
issuance in his name of letters of
administration of the intestate estate of Abada
and Toray.
In an Order dated 14 August 1981, the
RTC-Kabankalan admitted to probate the will
of Toray. Since the oppositors did not file any
motion for reconsideration, the order allowing
the probate of Torays will became final and
executory.[8]
In an order dated 23 November 1990, the
RTC-Kabankalan designated Belinda
Caponong-Noble (Caponong-Noble) Special
Administratrix of the estate of Abada and
Toray.[9]Caponong-Noble moved for the
dismissal of the petition for probate of the will
of Abada. The RTC-Kabankalan denied the
motion in an Order dated 20 August 1991.[10]
Sometime in 1993, during the proceedings,
Presiding Judge Rodolfo S. Layumas
discovered that in an Order dated 16 March
1992, former Presiding Judge Edgardo Catilo
had already submitted the case for decision.
Thus, the RTC-Kabankalan rendered a
Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs
as required by law; that there is substantial
compliance with the formalities of a Will as the
law directs and that the petitioner through his
testimony and the deposition of Felix Gallinero
was able to establish the regularity of the
execution of the said Will and further, there
being no evidence of bad faith and fraud, or
substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932
is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar[11] is
appointed administrator of the estate of Paula
Toray who shall discharge his duties as such
after letters of administration shall have been
issued in his favor and after taking his oath and
filing a bond in the amount of Ten Thousand
(P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present
administratrix of the estate of Alipio Abada
shall continue discharging her duties as such
9
until further orders from this Court.
Page
SO ORDERED.[12]
The RTC-Kabankalan ruled on the only
issue raised by the oppositors in their motions
to dismiss the petition for probate, that is,
whether the will of Abada has an attestation
clause as required by law. The RTC-
Kabankalan further held that the failure of the
oppositors to raise any other matter forecloses
all other issues.
Not satisfied with the Resolution,
Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January
2001, the Court of Appeals affirmed the
Resolution of the RTC-Kabankalan. The
appellate court found that the RTC-Kabankalan
properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-
Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of
the last will of Abada;
2. Whether the will of Abada requires
acknowledgment before a notary
public;[13]
3. Whether the will must expressly
state that it is written in a language
or dialect known to the testator;
4. Whether the will of Abada has an
attestation clause, and if so,
whether the attestation clause
complies with the requirements of
the applicable laws;
5. Whether Caponong-Noble is
precluded from raising the issue of
whether the will of Abada is written
in a language known to Abada;
6. Whether evidence aliunde may be
resorted to in the probate of the will
of Abada.
The Ruling of the Court
The Court of Appeals did not err in
sustaining the RTC-Kabankalan in admitting to
probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932.
The laws in force at that time are the Civil
Code of 1889 or the Old Civil Code, and Act
No. 190 or the Code of Civil
[14]
Procedure which governed the execution of
wills before the enactment of the New Civil
Code.
The matter in dispute in the present case is
the attestation clause in the will of Abada.
Section 618 of the Code of Civil Procedure, as
amended by Act No. 2645,[15] governs the form
of the attestation clause of Abadas
will.[16] Section 618 of the Code of Civil
Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as
provided in the preceding section,[17] shall be
valid to pass any estate, real or personal, nor
charge or affect the same, unless it be written
in the language or dialect known by the testator
and signed by him, or by the testators name
written by some other person in his presence,
and by his express direction, and attested and
subscribed by three or more credible witnesses
in the presence of the testator and of each
other. The testator or the person requested by
him to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the
left margin, and said pages shall be numbered
correlatively in letters placed on the upper part
of each sheet. The attestation shall state the
number of sheets or pages used, upon which
the will is written, and the fact that the testator
signed the will and every page thereof, or
caused some other person to write his name,
under his express direction, in the presence of
three witnesses, and the latter witnessed and
signed the will and all pages thereof in the
presence of the testator and of each other.
Requisites of a Will under the Code of Civil
Procedure
Under Section 618 of the Code of Civil
Procedure, the requisites of a will are the
following:
(1) The will must be written in the
language or dialect known by the
testator;
(2) The will must be signed by the
testator, or by the testators name
written by some other person in
his presence, and by his express
direction;
10
(3) The will must be attested and
subscribed by three or more
Page
 credible witnesses in the presence
of the testator and of each other;
(4) The testator or the person
requested by him to write his
name and the instrumental
witnesses of the will must sign
each and every page of the will on
the left margin;
(5) The pages of the will must be
numbered correlatively in letters
placed on the upper part of each
sheet;
(6) The attestation shall state the
number of sheets or pages used,
upon which the will is written, and
the fact that the testator signed the
will and every page of the will, or
caused some other person to write
his name, under his express
direction, in the presence of three
witnesses, and the witnesses
witnessed and signed the will and
all pages of the will in the
presence of the testator and of
each other.
Caponong-Noble asserts that the will of
Abada does not indicate that it is written in a
language or dialect known to the testator.
Further, she maintains that the will is not
acknowledged before a notary public. She cites
in particular Articles 804 and 805 of the Old
Civil Code, thus:
Art. 804. Every will must be in writing and
executed in [a] language or dialect known to
the testator.
Art. 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. xxx[18]
Caponong-Noble actually cited Articles 804
and 806 of the New Civil Code.[19] Article 804
of the Old Civil Code is about the rights and
obligations of administrators of the property of
an absentee, while Article 806 of the Old Civil
Code defines a legitime.
Articles 804 and 806 of the New Civil Code
are new provisions. Article 804 of the New Civil
Code is taken from Section 618 of the Code of
Civil Procedure.[20] Article 806 of the New Civil
Code is taken from Article 685 of the Old Civil
Code[21] which provides:
Art. 685. The notary and two of the witnesses
who authenticate the will must be acquainted
with the testator, or, should they not know him,
he shall be identified by two witnesses who are
acquainted with him and are known to the
notary and to the attesting witnesses. The
notary and the witnesses shall also endeavor
to assure themselves that the testator has, in
their judgment, the legal capacity required to
make a will.
Witnesses authenticating a will without the
attendance of a notary, in cases falling under
Articles 700 and 701, are also required to know
the testator.
However, the Code of Civil
Procedure[22] repealed Article 685 of the Old
Civil Code. Under the Code of Civil Procedure,
the intervention of a notary is not necessary in
the execution ofany will.[23] Therefore, Abadas
will does not require acknowledgment before a
notary public.
Caponong-Noble points out that nowhere
in the will can one discern that Abada knew the
Spanish language. She alleges that such
defect is fatal and must result in the
disallowance of the will. On this issue, the
Court of Appeals held that the matter was not
raised in the motion to dismiss, and that it is
now too late to raise the issue on appeal. We
agree with Caponong-Noble that the doctrine
of estoppel does not apply in probate
proceedings.[24] In addition, the language used
in the will is part of the requisites under Section
618 of the Code of Civil Procedure and the
Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Nobles
contention must still fail. There is no statutory
requirement to state in the will itself that the
testator knew the language or dialect used in
the will.[25] This is a matter that a party may
establish by proof aliunde.[26] Caponong-Noble
further argues that Alipio, in his testimony, has
failed, among others, to show that Abada knew
or understood the contents of the will and the
Spanish language used in the will. However,
Alipio testified that Abada used to gather
Spanish-speaking people in their place. In
these gatherings, Abada and his companions
would talk in the Spanish language.[27] This
sufficiently proves that Abada speaks the
Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has
an attestation clause. The attestation clause of
Abadas will reads:
Suscrito y declarado por el testador Alipio
11
Abada como su ultima voluntad y testamento
en presencia de nosotros, habiendo tambien el
Page
testador firmado en nuestra presencia en el
margen izquierdo de todas y cada una de las
hojas del mismo. Y en testimonio de ello, cada
uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este
documento y en el margen izquierdo de todas
y cada una de las dos hojas de que esta
compuesto el mismo, las cuales estan
paginadas correlativamente con las letras UNO
y DOS en la parte superior de la carrilla.[28]
Caponong-Noble proceeds to point out
several defects in the attestation
clause. Caponong-Noble alleges that the
attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase en
el margen izquierdo de todas y cada una de
las dos hojas de que esta compuesto el
mismo which means in the left margin of each
and every one of the two pages consisting of
the same shows that the will consists of two
pages. The pages are numbered correlatively
with the letters ONE and TWO as can be
gleaned from the phrase las cuales estan
paginadas correlativamente con las letras UNO
y DOS.
Caponong-Noble further alleges that the
attestation clause fails to state expressly that
the testator signed the will and its every page
in the presence of three witnesses. She then
faults the Court of Appeals for applying to the
present case the rule on substantial
compliance found in Article 809 of the New
Civil Code.[29]
The first sentence of the attestation clause
reads: Suscrito y declarado por el testador
Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros,
habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de
todas y cada una de las hojas del mismo. The
English translation is: Subscribed and
professed by the testator Alipio Abada as his
last will and testament in our presence, the
testator having also signed it in our presence
on the left margin of each and every one of the
pages of the same. The
attestationclause clearly states that Abada
signed the will and its every page in
the presence of the witnesses.
However, Caponong-Noble is correct in
saying that the attestation clause does not
indicate the number of witnesses. On this
point, the Court agrees with the appellate court
in applying the rule on substantial compliance
in determining the number of witnesses. While
the attestation clause does not state the
number of witnesses, a close inspection of the
will shows that three witnesses signed it.
This Court has applied the rule on
substantial compliance even before the
effectivity of the New Civil Code. In Dichoso
de Ticson v. De Gorostiza,[30] the Court
recognized that there are two divergent
tendencies in the law on wills, one being based
on strict construction and the other on liberal
construction. In Dichoso, the Court noted
that Abangan v. Abangan,[31] the basic case on
the liberal construction, is cited with approval in
later decisions of the Court.
In Adeva vda. De Leynez v.
Leynez,[32] the petitioner, arguing for liberal
construction of applicable laws, enumerated a
long line of cases to support her argument
while the respondent, contending that the rule
on strict construction should apply, also cited a
long series of cases to support his view. The
Court, after examining the cases invoked by
the parties, held:
x x x It is, of course, not possible to lay down a
general rule, rigid and inflexible, which would
be applicable to all cases. More than anything
else, the facts and circumstances of record are
to be considered in the application of any given
rule. If the surrounding circumstances point to
a regular execution of the will, and the
instrument appears to have been executed
substantially in accordance with the
requirements of the law, the inclination should,
in the absence of any suggestion of bad faith,
forgery or fraud, lean towards its admission to
probate, although the document may suffer
from some imperfection of language, or other
non-essential defect. x x x.
An attestation clause is made for the purpose
of preserving, in permanent form, a record of
the facts attending the execution of the will, so
that in case of failure of the memory of the
subscribing witnesses, or other casualty, they
may still be proved. (Thompson on Wills, 2d
ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the
purpose of the law. x x x [33]
We rule to apply the liberal construction in
the probate of Abadas will. Abadas will clearly
shows four signatures: that of Abada and of
three other persons. It is reasonable to
conclude that there are three witnesses to the
will. The question on the number of the
witnesses is answered by an examination of
the will itself and without the need for
presentation of evidencealiunde. The Court
explained the extent and limits of the rule on
liberal construction, thus:
12
[T]he so-called liberal rule does not offer any
Page
puzzle or difficulty, nor does it open the door to
serious consequences. The later decisions do
tell us when and where to stop; they draw the
dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of
the document or supply missing details that
should appear in the will itself. They only
permit a probe into the will, an exploration
within its confines, to ascertain its meaning
or to determine the existence or absence of
the requisite formalities of law. This clear,
sharp limitation eliminates uncertainty and
ought to banish any fear of dire
results.[34] (Emphasis supplied)

The phrase en presencia de nosotros or in our

presence coupled with the signatures
appearing on the will itself and after the
attestation clause could only mean that: (1)
Abada subscribed to and professed before the
three witnesses that the document was his last
will, and (2) Abada signed the will and the left
margin of each page of the will in the presence
of these three witnesses.
Finally, Caponong-Noble alleges that the
attestation clause does not expressly state the
circumstances that the
witnesses witnessed and signed the will and
all its pages in the presence of the testator and
of each other. This Court has ruled:

Precision of language in the drafting of an

attestation clause is desirable. However, it is
not imperative that a parrot-like copy of the
words of the statute be made. It is sufficient if
from the language employed it can reasonably
be deduced that the attestation clause fulfills
what the law expects of it.[35]

The last part of the attestation clause

states en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros
y del testador. In English, this means in its
witness, every one of us also signed in our
presence and of the testator. This clearly
shows that the attesting witnesses witnessed
the signing of the will of the testator, and that
each witness signed the will in the presence of
one another and of the testator.
WHEREFORE, we AFFIRM the Decision
of the Court of Appeals of 12 January 2001 in
CA-G.R. CV No. 47644.
SO ORDERED.
13
Page
 ARTICLE 16
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN
MICIANO, administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased
Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a
scheme of partition. Andre Brimo, one of the
brothers of the deceased, opposed it. The
court, however, approved it.
The errors which the oppositor-appellant
assigns are:
(1) The approval of said scheme of partition;
(2) denial of his participation in the inheritance;
(3) the denial of the motion for reconsideration
of the order approving the partition; (4) the
approval of the purchase made by the Pietro
Lana of the deceased's business and the deed
of transfer of said business; and (5) the
declaration that the Turkish laws are
impertinent to this cause, and the failure not to
postpone the approval of the scheme of
partition and the delivery of the deceased's
business to Pietro Lanza until the receipt of the
depositions requested in reference to the
Turkish laws.
The appellant's opposition is based on the fact
that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are
not in accordance with the laws of his Turkish
nationality, for which reason they are void as
being in violation or article 10 of the Civil Code
which, among other things, provides the
following:
Nevertheless, legal and testamentary
successions, in respect to the order of
succession as well as to the amount of
the successional rights and the intrinsic
validity of their provisions, shall be
regulated by the national law of the
person whose succession is in question,
whatever may be the nature of the
property or the country in which it may
be situated.
But the fact is that the oppositor did not prove
that said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as
he did not present any evidence showing what
the Turkish laws are on the matter, and in the
absence of evidence on such laws, they are
presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of
Customs, 36 Phil., 472.)
It has not been proved in these proceedings
what the Turkish laws are. He, himself,
acknowledges it when he desires to be given
an opportunity to present evidence on this
point; so much so that he assigns as an error
of the court in not having deferred the approval
of the scheme of partition until the receipt of
certain testimony requested regarding the
Turkish laws on the matter.
The refusal to give the oppositor another
opportunity to prove such laws does not
constitute an error. It is discretionary with the
trial court, and, taking into consideration that
the oppositor was granted ample opportunity to
introduce competent evidence, we find no
abuse of discretion on the part of the court in
this particular. There is, therefore, no evidence
in the record that the national law of the
testator Joseph G. Brimo was violated in the
testamentary dispositions in question which,
not being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of
partition in this respect was not erroneous.
In regard to the first assignment of error which
deals with the exclusion of the herein appellant
as a legatee, inasmuch as he is one of the
persons designated as such in will, it must be
taken into consideration that such exclusion is
based on the last part of the second clause of
the will, which says:
Second. I like desire to state that
although by law, I am a Turkish citizen,
this citizenship having been conferred
upon me by conquest and not by free
choice, nor by nationality and, on the
other hand, having resided for a
considerable length of time in the
Philippine Islands where I succeeded in
acquiring all of the property that I now
possess, it is my wish that the
distribution of my property and
14
everything in connection with this, my
will, be made and disposed of in
Page
 accordance with the laws in force in the
Philippine islands, requesting all of my
relatives to respect this wish, otherwise,
I annul and cancel beforehand whatever
disposition found in this will favorable to
the person or persons who fail to comply
with this request.
include the herein appellant Andre Brimo as
one of the legatees, and the scheme of
partition submitted by the judicial administrator
is approved in all other respects, without any
pronouncement as to costs.
So ordered.

The institution of legatees in this will is

conditional, and the condition is that the
instituted legatees must respect the testator's
will to distribute his property, not in accordance
with the laws of his nationality, but in
accordance with the laws of the Philippines.

If this condition as it is expressed were legal

and valid, any legatee who fails to comply with
it, as the herein oppositor who, by his attitude
in these proceedings has not respected the will
of the testator, as expressed, is prevented from
receiving his legacy.

The fact is, however, that the said condition is

void, being contrary to law, for article 792 of
the civil Code provides the following:

Impossible conditions and those

contrary to law or good morals shall be
considered as not imposed and shall not
prejudice the heir or legatee in any
manner whatsoever, even should the
testator otherwise provide.

And said condition is contrary to law because it

expressly ignores the testator's national law
when, according to article 10 of the civil Code
above quoted, such national law of the testator
is the one to govern his testamentary
dispositions.

Said condition then, in the light of the legal

provisions above cited, is considered unwritten,
and the institution of legatees in said will is
unconditional and consequently valid and
effective even as to the herein oppositor.

It results from all this that the second clause of

the will regarding the law which shall govern it,
and to the condition imposed upon the
legatees, is null and void, being contrary to
law.

All of the remaining clauses of said will with all

their dispositions and requests are perfectly
valid and effective it not appearing that said
clauses are contrary to the testator's national
law.

Therefore, the orders appealed from are

15

modified and it is directed that the distribution

of this estate be made in such a manner as to
Page
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS,
deceased.
PEOPLE'S BANK and TRUST
COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM
PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for
oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for
heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S.
Bellis, et al.
J. R. Balonkita for appellee People's Bank &
Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B.
Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question
purely of law, from an order of the Court of
First Instance of Manila dated April 30, 1964,
approving the project of partition filed by the
executor in Civil Case No. 37089
therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of
the State of Texas and of the United States."
By his first wife, Mary E. Mallen, whom he
divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-
deceased him in infancy), Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman; by
his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G.
Bellis, Walter S. Bellis and Dorothy Bellis; and
finally, he had three illegitimate children: Amos
Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a
will in the Philippines, in which he directed that
after all taxes, obligations, and expenses of
administration are paid for, his distributable
estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to
his first wife, Mary E. Mallen; (b) P120,000.00
to his three illegitimate children, Amos Bellis,
Jr., Maria Cristina Bellis, Miriam Palma Bellis,
or P40,000.00 each and (c) after the foregoing
two items have been satisfied, the remainder
shall go to his seven surviving children by his
first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and
Anna Bellis Allsman, Edwin G. Bellis, Walter S.
Bellis, and Dorothy E. Bellis, in equal
shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G.
Bellis died a resident of San Antonio, Texas,
U.S.A. His will was admitted to probate in the
Court of First Instance of Manila on September
15, 1958.
The People's Bank and Trust Company, as
executor of the will, paid all the bequests
therein including the amount of $240,000.00 in
the form of shares of stock to Mary E. Mallen
and to the three (3) illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis, various amounts totalling
P40,000.00 each in satisfaction of their
respective legacies, or a total of P120,000.00,
which it released from time to time according
as the lower court approved and allowed the
various motions or petitions filed by the latter
three requesting partial advances on account
of their respective legacies.
On January 8, 1964, preparatory to closing its
administration, the executor submitted and filed
its "Executor's Final Account, Report of
Administration and Project of Partition" wherein
it reported, inter alia, the satisfaction of the
legacy of Mary E. Mallen by the delivery to her
of shares of stock amounting to $240,000.00,
and the legacies of Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of
P120,000.00. In the project of partition, the
executor — pursuant to the "Twelfth" clause of
the testator's Last Will and Testament —
divided the residuary estate into seven equal
portions for the benefit of the testator's seven
legitimate children by his first and second
marriages.
On January 17, 1964, Maria Cristina Bellis and
Miriam Palma Bellis filed their respective
oppositions to the project of partition on the
ground that they were deprived of their
legitimes as illegitimate children and, therefore,
compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition
despite notice to him, proof of service of which
is evidenced by the registry receipt submitted
on April 27, 1964 by the executor.1
After the parties filed their respective
memoranda and other pertinent pleadings, the
lower court, on April 30, 1964, issued an order
overruling the oppositions and approving the
16
executor's final account, report and
administration and project of partition. Relying
Page
upon Art. 16 of the Civil Code, it applied the
national law of the decedent, which in this case
is Texas law, which did not provide for
legitimes.
Their respective motions for reconsideration
having been denied by the lower court on June
11, 1964, oppositors-appellants appealed to
this Court to raise the issue of which law must
apply — Texas law or Philippine law.
In this regard, the parties do not submit the
case on, nor even discuss, the doctrine of
renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31,
1963. Said doctrine is usually pertinent where
the decedent is a national of one country, and
a domicile of another. In the present case, it is
not disputed that the decedent was both a
national of Texas and a domicile thereof at the
time of his death.2 So that even assuming
Texas has a conflict of law rule providing that
the domiciliary system (law of the domicile)
should govern, the same would not result in a
reference back (renvoi) to Philippine law, but
would still refer to Texas law. Nonetheless, if
Texas has a conflicts rule adopting the situs
theory (lex rei sitae) calling for the application
of the law of the place where the properties are
situated, renvoi would arise, since the
properties here involved are found in the
Philippines. In the absence, however, of proof
as to the conflict of law rule of Texas, it should
not be presumed different from
ours.3 Appellants' position is therefore not
rested on the doctrine of renvoi. As stated, they
never invoked nor even mentioned it in their
arguments. Rather, they argue that their case
falls under the circumstances mentioned in the
third paragraph of Article 17 in relation to
Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil
Code, render applicable the national law of the
decedent, in intestate or testamentary
successions, with regard to four items: (a) the
order of succession; (b) the amount of
successional rights; (e) the intrinsic validity of
the provisions of the will; and (d) the capacity
to succeed. They provide that —
ART. 16. Real property as well as
personal property is subject to the law of
the country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the intrinsic
validity of testamentary provisions, shall
be regulated by the national law of the
person whose succession is under
consideration, whatever may he the
nature of the property and regardless of
the country wherein said property may
be found.
ART. 1039. Capacity to succeed is
governed by the law of the nation of the
decedent.
Appellants would however counter that Art. 17,
paragraph three, of the Civil Code, stating that
—
Prohibitive laws concerning persons,
their acts or property, and those which
have for their object public order, public
policy and good customs shall not be
rendered ineffective by laws or
judgments promulgated, or by
determinations or conventions agreed
upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of
the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase,
"notwithstanding the provisions of this and the
next preceding article" when they incorporated
Art. 11 of the old Civil Code as Art. 17 of the
new Civil Code, while reproducing without
substantial change the second paragraph of
Art. 10 of the old Civil Code as Art. 16 in the
new. It must have been their purpose to make
the second paragraph of Art. 16 a specific
provision in itself which must be applied in
testate and intestate succession. As further
indication of this legislative intent, Congress
added a new provision, under Art. 1039, which
decrees that capacity to succeed is to be
governed by the national law of the decedent.
It is therefore evident that whatever public
policy or good customs may be involved in our
System of legitimes, Congress has not
intended to extend the same to the succession
of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of
successional rights, to the decedent's national
law. Specific provisions must prevail over
general ones.
Appellants would also point out that the
decedent executed two wills — one to govern
his Texas estate and the other his Philippine
estate — arguing from this that he intended
Philippine law to govern his Philippine estate.
Assuming that such was the decedent's
intention in executing a separate Philippine will,
it would not alter the law, for as this Court ruled
17
in Miciano v. Brimo, 50 Phil. 867, 870, a
provision in a foreigner's will to the effect that
Page
his properties shall be distributed in
accordance with Philippine law and not with his
national law, is illegal and void, for his national
law cannot be ignored in regard to those
matters that Article 10 — now Article 16 — of
the Civil Code states said national law should
govern.

The parties admit that the decedent, Amos G.

Bellis, was a citizen of the State of Texas,
U.S.A., and that under the laws of Texas, there
are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the
will and the amount of successional rights are
to be determined under Texas law, the
Philippine law on legitimes cannot be applied
to the testacy of Amos G. Bellis.

Wherefore, the order of the probate court is

hereby affirmed in toto, with costs against
appellants. So ordered.

18
Page
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE
OF EDWARD E. CHRISTENSEN,
DECEASED.
ADOLFO C. AZNAR, Executor and LUCY
CHRISTENSEN, Heir of the
deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-
appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for
oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court
of First Instance of Davao, Hon. Vicente N.
Cusi, Jr., presiding, in Special Proceeding No.
622 of said court, dated September 14, 1949,
approving among things the final accounts of
the executor, directing the executor to
reimburse Maria Lucy Christensen the amount
of P3,600 paid by her to Helen Christensen
Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the
property to be enjoyed during her lifetime, and
in case of death without issue, one-half of said
residue to be payable to Mrs. Carrie Louise C.
Borton, etc., in accordance with the provisions
of the will of the testator Edward E.
Christensen. The will was executed in Manila
on March 5, 1951 and contains the following
provisions:
3. I declare ... that I have but ONE (1)
child, named MARIA LUCY
CHRISTENSEN (now Mrs. Bernard
Daney), who was born in the Philippines
about twenty-eight years ago, and who
is now residing at No. 665 Rodger
Young Village, Los Angeles, California,
U.S.A.
4. I further declare that I now have no
living ascendants, and no descendants
except my above named daughter,
MARIA LUCY CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto
MARIA HELEN CHRISTENSEN, now
married to Eduardo Garcia, about
eighteen years of age and who,
notwithstanding the fact that she was
baptized Christensen, is not in any way
related to me, nor has she been at any
time adopted by me, and who, from all
information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine
Currency the same to be deposited in
trust for the said Maria Helen
Christensen with the Davao Branch of
the Philippine National Bank, and paid
to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per
month until the principal thereof as well
as any interest which may have accrued
thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath,
unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY
(Mrs. Bernard Daney), now residing as
aforesaid at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A.,
all the income from the rest, remainder,
and residue of my property and estate,
real, personal and/or mixed, of
whatsoever kind or character, and
wheresoever situated, of which I may be
possessed at my death and which may
have come to me from any source
whatsoever, during her lifetime: ....
It is in accordance with the above-quoted
provisions that the executor in his final account
and project of partition ratified the payment of
only P3,600 to Helen Christensen Garcia and
proposed that the residue of the estate be
transferred to his daughter, Maria Lucy
Christensen.
Opposition to the approval of the project of
partition was filed by Helen Christensen
Garcia, insofar as it deprives her (Helen) of her
legitime as an acknowledged natural child, she
having been declared by Us in G.R. Nos. L-
11483-84 an acknowledged natural child of the
deceased Edward E. Christensen. The legal
grounds of opposition are (a) that the
distribution should be governed by the laws of
the Philippines, and (b) that said order of
distribution is contrary thereto insofar as it
denies to Helen Christensen, one of two
acknowledged natural children, one-half of the
estate in full ownership. In amplification of the
above grounds it was alleged that the law that
should govern the estate of the deceased
Christensen should not be the internal law of
California alone, but the entire law thereof
because several foreign elements are involved,
that the forum is the Philippines and even if the
19
case were decided in California, Section 946 of
the California Civil Code, which requires that
Page
the domicile of the decedent should apply,
should be applicable. It was also alleged that
Maria Helen Christensen having been declared
an acknowledged natural child of the decedent,
she is deemed for all purposes legitimate from
the time of her birth.
The court below ruled that as Edward E.
Christensen was a citizen of the United States
and of the State of California at the time of his
death, the successional rights and intrinsic
validity of the provisions in his will are to be
governed by the law of California, in
accordance with which a testator has the right
to dispose of his property in the way he
desires, because the right of absolute dominion
over his property is sacred and inviolable (In re
McDaniel's Estate, 77 Cal. Appl. 2d 877, 176
P. 2d 952, and In re Kaufman, 117 Cal. 286, 49
Pac. 192, cited in page 179, Record on
Appeal). Oppositor Maria Helen Christensen,
through counsel, filed various motions for
reconsideration, but these were denied. Hence,
this appeal.
The most important assignments of error are
as follows:
I first arrival in the Philippines, as an
THE LOWER COURT ERRED IN IGNORING
THE DECISION OF THE HONORABLE
SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF
EDWARD E. CHRISTENSEN AND,
CONSEQUENTLY, IN DEPRIVING HER OF
HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY
IGNORING AND/OR FAILING TO
RECOGNIZE THE EXISTENCE OF SEVERAL
FACTORS, ELEMENTS AND
CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO
RECOGNIZE THAT UNDER INTERNATIONAL
LAW, PARTICULARLY UNDER THE RENVOI
DOCTRINE, THE INTRINSIC VALIDITY OF
THE TESTAMENTARY DISPOSITION OF
THE DISTRIBUTION OF THE ESTATE OF
THE DECEASED EDWARD E.
CHRISTENSEN SHOULD BE GOVERNED BY
THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT
DECLARING THAT THE SCHEDULE OF
DISTRIBUTION SUBMITTED BY THE
EXECUTOR IS CONTRARY TO THE
PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT
DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS
ENTITLED TO ONE-HALF (1/2) OF THE
ESTATE IN FULL OWNERSHIP.
There is no question that Edward E.
Christensen was a citizen of the United States
and of the State of California at the time of his
death. But there is also no question that at the
time of his death he was domiciled in the
Philippines, as witness the following facts
admitted by the executor himself in appellee's
brief:
In the proceedings for admission of the
will to probate, the facts of record show
that the deceased Edward E.
Christensen was born on November 29,
1875 in New York City, N.Y., U.S.A.; his
appointed school teacher, was on July
1, 1901, on board the U.S. Army
Transport "Sheridan" with Port of
Embarkation as the City of San
Francisco, in the State of California,
U.S.A. He stayed in the Philippines until
1904.
In December, 1904, Mr. Christensen
returned to the United States and stayed
there for the following nine years until
1913, during which time he resided in,
and was teaching school in Sacramento,
California.
Mr. Christensen's next arrival in the
Philippines was in July of the year 1913.
However, in 1928, he again departed
the Philippines for the United States and
came back here the following year,
1929. Some nine years later, in 1938,
he again returned to his own country,
and came back to the Philippines the
following year, 1939.
Wherefore, the parties respectfully pray
that the foregoing stipulation of facts be
admitted and approved by this
Honorable Court, without prejudice to
the parties adducing other evidence to
20
prove their case not covered by this
stipulation of facts. 1äwphï1.ñët
Page
 Being an American citizen, Mr.
Christensen was interned by the
Japanese Military Forces in the
Philippines during World War II. Upon
liberation, in April 1945, he left for the
United States but returned to the
Philippines in December, 1945.
Appellees Collective Exhibits "6", CFI
Davao, Sp. Proc. 622, as Exhibits "AA",
"BB" and "CC-Daney"; Exhs. "MM",
"MM-l", "MM-2-Daney" and p. 473, t.s.n.,
July 21, 1953.)
In April, 1951, Edward E. Christensen
returned once more to California shortly
after the making of his last will and
testament (now in question herein)
which he executed at his lawyers' offices
in Manila on March 5, 1951. He died at
the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of
the deceased is the Philippines, we are
persuaded by the fact that he was born in New
York, migrated to California and resided there
for nine years, and since he came to the
Philippines in 1913 he returned to California
very rarely and only for short visits (perhaps to
relatives), and considering that he appears
never to have owned or acquired a home or
properties in that state, which would indicate
that he would ultimately abandon the
Philippines and make home in the State of
California.
Sec. 16. Residence is a term used with
many shades of meaning from mere
temporary presence to the most
permanent abode. Generally, however,
it is used to denote something more
than mere physical presence. (Goodrich
on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the
citizenship that he acquired in California when
he resided in Sacramento, California from 1904
to 1913, was never lost by his stay in the
Philippines, for the latter was a territory of the
United States (not a state) until 1946 and the
deceased appears to have considered himself
as a citizen of California by the fact that when
he executed his will in 1951 he declared that
he was a citizen of that State; so that he
appears never to have intended to abandon his
California citizenship by acquiring another. This
conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict
of Laws.
The terms "'residence" and "domicile"
might well be taken to mean the same
thing, a place of permanent abode. But
domicile, as has been shown, has
acquired a technical meaning. Thus one
may be domiciled in a place where he
has never been. And he may reside in a
place where he has no domicile. The
man with two homes, between which he
divides his time, certainly resides in
each one, while living in it. But if he went
on business which would require his
presence for several weeks or months,
he might properly be said to have
sufficient connection with the place to be
called a resident. It is clear, however,
that, if he treated his settlement as
continuing only for the particular
business in hand, not giving up his
former "home," he could not be a
domiciled New Yorker. Acquisition of a
domicile of choice requires the exercise
of intention as well as physical
presence. "Residence simply requires
bodily presence of an inhabitant in a
given place, while domicile requires
bodily presence in that place and also
an intention to make it one's domicile."
Residence, however, is a term used with
many shades of meaning, from the
merest temporary presence to the most
permanent abode, and it is not safe to
insist that any one use et the only
proper one. (Goodrich, p. 29)
The law that governs the validity of his
testamentary dispositions is defined in Article
16 of the Civil Code of the Philippines, which is
as follows:
ART. 16. Real property as well as
personal property is subject to the law of
the country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the amount
of successional rights and to the intrinsic
validity of testamentary provisions, shall
be regulated by the national law of the
person whose succession is under
consideration, whatever may be the
nature of the property and regardless of
the country where said property may be
found.
The application of this article in the case at bar
requires the determination of the meaning of
the term "national law" is used therein.
21
Page
There is no single American law governing the
validity of testamentary provisions in the United
States, each state of the Union having its own
private law applicable to its citizens only and in
force only within the state. The "national law"
indicated in Article 16 of the Civil Code above
quoted can not, therefore, possibly mean or
apply to any general American law. So it can
refer to no other than the private law of the
State of California.
The next question is: What is the law in
California governing the disposition of personal
property? The decision of the court below,
sustains the contention of the executor-
appellee that under the California Probate
Code, a testator may dispose of his property by
will in the form and manner he desires, citing
the case of Estate of McDaniel, 77 Cal. Appl.
2d 877, 176 P. 2d 952. But appellant invokes
the provisions of Article 946 of the Civil Code
of California, which is as follows:
If there is no law to the contrary, in the
place where personal property is
situated, it is deemed to follow the
person of its owner, and is governed by
the law of his domicile.
The existence of this provision is alleged in
appellant's opposition and is not denied. We
have checked it in the California Civil Code and
it is there. Appellee, on the other hand, relies
on the case cited in the decision and testified
to by a witness. (Only the case of Kaufman is
correctly cited.) It is argued on executor's
behalf that as the deceased Christensen was a
citizen of the State of California, the internal
law thereof, which is that given in the
abovecited case, should govern the
determination of the validity of the
testamentary provisions of Christensen's will,
such law being in force in the State of
California of which Christensen was a citizen.
Appellant, on the other hand, insists that Article
946 should be applicable, and in accordance
therewith and following the doctrine of
therenvoi, the question of the validity of the
testamentary provision in question should be
referred back to the law of the decedent's
domicile, which is the Philippines.
The theory of doctrine of renvoi has been
defined by various authors, thus:
The problem has been stated in this
way: "When the Conflict of Laws rule of
the forum refers a jural matter to a
foreign law for decision, is the reference
to the purely internal rules of law of the
foreign system; i.e., to the totality of the
foreign law minus its Conflict of Laws
rules?"
On logic, the solution is not an easy
one. The Michigan court chose to
accept the renvoi, that is, applied the
Conflict of Laws rule of Illinois which
referred the matter back to Michigan
law. But once having determined the the
Conflict of Laws principle is the rule
looked to, it is difficult to see why the
reference back should not have been to
Michigan Conflict of Laws. This would
have resulted in the "endless chain of
references" which has so often been
criticized be legal writers. The
opponents of the renvoi would have
looked merely to the internal law of
Illinois, thus rejecting the renvoi or the
reference back. Yet there seems no
compelling logical reason why the
original reference should be the internal
law rather than to the Conflict of Laws
rule. It is true that such a solution avoids
going on a merry-go-round, but those
who have accepted the renvoitheory
avoid this inextricabilis circulas by
getting off at the second reference and
at that point applying internal law.
Perhaps the opponents of the renvoi are
a bit more consistent for they look
always to internal law as the rule of
reference.
Strangely enough, both the advocates
for and the objectors to the renvoi plead
that greater uniformity will result from
adoption of their respective views. And
still more strange is the fact that the only
way to achieve uniformity in this choice-
of-law problem is if in the dispute the
two states whose laws form the legal
basis of the litigation disagree as to
whether the renvoi should be accepted.
If both reject, or both accept the
doctrine, the result of the litigation will
vary with the choice of the forum. In the
case stated above, had the Michigan
court rejected the renvoi, judgment
would have been against the woman; if
the suit had been brought in the Illinois
courts, and they too rejected the renvoi,
judgment would be for the woman. The
same result would happen, though the
courts would switch with respect to
which would hold liability, if both courts
accepted the renvoi.
The Restatement accepts
22
the renvoi theory in two instances:
where the title to land is in question, and
Page
where the validity of a decree of divorce
is challenged. In these cases the
Conflict of Laws rule of the situs of the
land, or the domicile of the parties in the
divorce case, is applied by the forum,
but any further reference goes only to
the internal law. Thus, a person's title to
land, recognized by the situs, will be
recognized by every court; and every
divorce, valid by the domicile of the
parties, will be valid everywhere.
(Goodrich, Conflict of Laws, Sec. 7, pp.
13-14.)
X, a citizen of Massachusetts, dies
intestate, domiciled in France, leaving
movable property in Massachusetts,
England, and France. The question
arises as to how this property is to be
distributed among X's next of kin.
Assume (1) that this question arises in a
Massachusetts court. There the rule of
the conflict of laws as to intestate
succession to movables calls for an
application of the law of the deceased's
last domicile. Since by hypothesis X's
last domicile was France, the natural
thing for the Massachusetts court to do
would be to turn to French statute of
distributions, or whatever corresponds
thereto in French law, and decree a
distribution accordingly. An examination
of French law, however, would show
that if a French court were called upon
to determine how this property should
be distributed, it would refer the
distribution to the national law of the
deceased, thus applying the
Massachusetts statute of distributions.
So on the surface of things the
Massachusetts court has open to it
alternative course of action: (a) either to
apply the French law is to intestate
succession, or (b) to resolve itself into a
French court and apply the
Massachusetts statute of distributions,
on the assumption that this is what a
French court would do. If it accepts the
so-called renvoidoctrine, it will follow the
latter course, thus applying its own law.
This is one type of renvoi. A jural matter
is presented which the conflict-of-laws
rule of the forum refers to a foreign law,
the conflict-of-laws rule of which, in turn,
refers the matter back again to the law
of the forum. This is renvoi in the
narrower sense. The German term for
this judicial process is
'Ruckverweisung.'" (Harvard Law
Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that
a foreign law is to be resorted to as
governing a particular case, the further
question may arise: Are the rules as to
the conflict of laws contained in such
foreign law also to be resorted to? This
is a question which, while it has been
considered by the courts in but a few
instances, has been the subject of
frequent discussion by textwriters and
essayists; and the doctrine involved has
been descriptively designated by them
as the "Renvoyer" to send back, or the
"Ruchversweisung", or the
"Weiterverweisung", since an affirmative
answer to the question postulated and
the operation of the adoption of the
foreign law in toto would in many cases
result in returning the main controversy
to be decided according to the law of the
forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine
of renvoi", has been advanced. The
theory of the doctrine of renvoiis that the
court of the forum, in determining the
question before it, must take into
account the whole law of the other
jurisdiction, but also its rules as to
conflict of laws, and then apply the law
to the actual question which the rules of
the other jurisdiction prescribe. This may
be the law of the forum. The doctrine of
therenvoi has generally been repudiated
by the American authorities. (2 Am. Jur.
296)
The scope of the theory of renvoi has also
been defined and the reasons for its
application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal,
Vol. 27, 1917-1918, pp. 529-531. The pertinent
parts of the article are quoted herein below:
The recognition of the renvoi theory
implies that the rules of the conflict of
laws are to be understood as
incorporating not only the ordinary or
internal law of the foreign state or
country, but its rules of the conflict of
laws as well. According to this theory
'the law of a country' means the whole
of its law.
xxx xxx xxx
23
Von Bar presented his views at the
meeting of the Institute of International
Page
 Law, at Neuchatel, in 1900, in the form
of the following theses:
(1) Every court shall observe the law of
its country as regards the application of
foreign laws.
(2) Provided that no express provision to
the contrary exists, the court shall
respect:
(a) The provisions of a foreign
law which disclaims the right to
bind its nationals abroad as
regards their personal statute,
and desires that said personal
statute shall be determined by
the law of the domicile, or even
by the law of the place where the
act in question occurred.
(b) The decision of two or more
foreign systems of law, provided
it be certain that one of them is
necessarily competent, which
agree in attributing the
determination of a question to the
same system of law.
xxx xxx xxx
If, for example, the English law directs
its judge to distribute the personal estate
of an Englishman who has died
domiciled in Belgium in accordance with
the law of his domicile, he must first
inquire whether the law of Belgium
would distribute personal property upon
death in accordance with the law of
domicile, and if he finds that the Belgian
law would make the distribution in
accordance with the law of nationality —
that is the English law — he must
accept this reference back to his own
law.
We note that Article 946 of the California Civil
Code is its conflict of laws rule, while the rule
applied in In re Kaufman, Supra, its internal
law. If the law on succession and the conflict of
laws rules of California are to be enforced
jointly, each in its own intended and
appropriate sphere, the principle cited In re
Kaufman should apply to citizens living in the
State, but Article 946 should apply to such of
its citizens as are not domiciled in California
but in other jurisdictions. The rule laid down of
resorting to the law of the domicile in the
determination of matters with foreign element
involved is in accord with the general principle
of American law that the domiciliary law should
govern in most matters or rights which follow
the person of the owner.
When a man dies leaving personal
property in one or more states, and
leaves a will directing the manner of
distribution of the property, the law of
the state where he was domiciled at the
time of his death will be looked to in
deciding legal questions about the will,
almost as completely as the law of situs
is consulted in questions about the
devise of land. It is logical that, since the
domiciliary rules control devolution of
the personal estate in case of intestate
succession, the same rules should
determine the validity of an attempted
testamentary dispostion of the property.
Here, also, it is not that the domiciliary
has effect beyond the borders of the
domiciliary state. The rules of the
domicile are recognized as controlling
by the Conflict of Laws rules at the situs
property, and the reason for the
recognition as in the case of intestate
succession, is the general convenience
of the doctrine. The New York court has
said on the point: 'The general principle
that a dispostiton of a personal property,
valid at the domicile of the owner, is
valid anywhere, is one of the universal
application. It had its origin in that
international comity which was one of
the first fruits of civilization, and it this
age, when business intercourse and the
process of accumulating property take
but little notice of boundary lines, the
practical wisdom and justice of the rule
is more apparent than ever. (Goodrich,
Conflict of Laws, Sec. 164, pp. 442-
443.)
Appellees argue that what Article 16 of the Civil
Code of the Philippines pointed out as
the national law is the internal law of California.
But as above explained the laws of California
have prescribed two sets of laws for its
citizens, one for residents therein and another
for those domiciled in other jurisdictions.
Reason demands that We should enforce the
California internal law prescribed for its citizens
residing therein, and enforce the conflict of
laws rules for the citizens domiciled abroad. If
we must enforce the law of California as in
comity we are bound to go, as so declared in
Article 16 of our Civil Code, then we must
enforce the law of California in accordance with
the express mandate thereof and as above
explained, i.e., apply the internal law for
24
residents therein, and its conflict-of-laws rule
for those domiciled abroad.
Page
It is argued on appellees' behalf that the clause WHEREFORE, the decision appealed from is
"if there is no law to the contrary in the place hereby reversed and the case returned to the
where the property is situated" in Sec. 946 of lower court with instructions that the partition
the California Civil Code refers to Article 16 of be made as the Philippine law on succession
the Civil Code of the Philippines and that the provides. Judgment reversed, with costs
law to the contrary in the Philippines is the against appellees.
provision in said Article 16 that the national
law of the deceased should govern. This
contention can not be sustained. As explained
in the various authorities cited above the
national law mentioned in Article 16 of our Civil
Code is the law on conflict of laws in the
California Civil Code, i.e., Article 946, which
authorizes the reference or return of the
question to the law of the testator's domicile.
The conflict of laws rule in California, Article
946, Civil Code, precisely refers back the case,
when a decedent is not domiciled in California,
to the law of his domicile, the Philippines in the
case at bar. The court of the domicile can not
and should not refer the case back to
California; such action would leave the issue
incapable of determination because the case
will then be like a football, tossed back and
forth between the two states, between the
country of which the decedent was a citizen
and the country of his domicile. The Philippine
court must apply its own law as directed in the
conflict of laws rule of the state of the
decedent, if the question has to be decided,
especially as the application of the internal law
of California provides no legitime for children
while the Philippine law, Arts. 887(4) and 894,
Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of
the parent recognizing them.

The Philippine cases (In re Estate of Johnson,

39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock
Templeton vs. Rider Babcock, 52 Phil. 130;
and Gibbs vs. Government, 59 Phil. 293.) cited
by appellees to support the decision can not
possibly apply in the case at bar, for two
important reasons, i.e., the subject in each
case does not appear to be a citizen of a state
in the United States but with domicile in the
Philippines, and it does not appear in each
case that there exists in the state of which the
subject is a citizen, a law similar to or identical
with Art. 946 of the California Civil Code.

We therefore find that as the domicile of the

deceased Christensen, a citizen of California,
is the Philippines, the validity of the provisions
of his will depriving his acknowledged natural
child, the appellant, should be governed by the
Philippine Law, the domicile, pursuant to Art.
946 of the Civil Code of California, not by the
25

internal law of California..

Page
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity
as the Presiding Judge of Branch XXXVIII,
Court of First Instance of Manila and
NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari,
seeking to annul the order of the respondent
judge of the Court of First Instance of Manila,
Branch XXXVIII, which admitted to and allowed
the probate of the last will and testament of
Adoracion C. Campos, after an ex-parte
presentation of evidence by herein private
respondent.
On January 31, 1977, Adoracion C. Campos
died, leaving her father, petitioner Hermogenes
Campos and her sisters, private respondent
Nenita C. Paguia, Remedios C. Lopez and
Marieta C. Medina as the surviving heirs. As
Hermogenes Campos was the only compulsory
heir, he executed an Affidavit of Adjudication
under Rule 74, Section I of the Rules of Court
whereby he adjudicated unto himself the
ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977,
Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the
United States and for her appointment as
administratrix of the estate of the deceased
testatrix.
In her petition, Nenita alleged that the testatrix
was an American citizen at the time of her
death and was a permanent resident of 4633
Ditman Street, Philadelphia, Pennsylvania,
U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing
with her sister at 2167 Leveriza, Malate,
Manila; that during her lifetime, the testatrix
made her last wig and testament on July 10,
1975, according to the laws of Pennsylvania,
U.S.A., nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix
death, her last will and testament was
presented, probated, allowed, and registered
with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L.
McLaughlin, the administrator who was
appointed after Dr. Barzaga had declined and
waived his appointment as executor in favor of
the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent
need for the appointment of an administratrix to
administer and eventually distribute the
properties of the estate located in the
Philippines.
On January 11, 1978, an opposition to the
reprobate of the will was filed by herein
petitioner alleging among other things, that he
has every reason to believe that the will in
question is a forgery; that the intrinsic
provisions of the will are null and void; and that
even if pertinent American laws on intrinsic
provisions are invoked, the same could not
apply inasmuch as they would work injustice
and injury to him.
On December 1, 1978, however, the petitioner
through his counsel, Atty. Franco Loyola, filed
a Motion to Dismiss Opposition (With Waiver of
Rights or Interests) stating that he "has been
able to verify the veracity thereof (of the will)
and now confirms the same to be truly the
probated will of his daughter Adoracion."
Hence, an ex-partepresentation of evidence for
the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge
issued an order, to wit:
At the hearing, it has been
satisfactorily established that
Adoracion C. Campos, in her
lifetime, was a citizen of the
United States of America with a
permanent residence at 4633
Ditman Street, Philadelphia, PA
19124, (Exhibit D) that when
alive, Adoracion C. Campos
executed a Last Will and
Testament in the county of
Philadelphia, Pennsylvania,
U.S.A., according to the laws
thereat (Exhibits E-3 to E-3-b)
that while in temporary sojourn in
the Philippines, Adoracion C.
Campos died in the City of Manila
(Exhibit C) leaving property both
in the Philippines and in the
United States of America; that the
Last Will and Testament of the
late Adoracion C. Campos was
admitted and granted probate by
the Orphan's Court Division of the
26
Court of Common Pleas, the
probate court of the
Page
 Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A.,
and letters of administration were
issued in favor of Clement J.
McLaughlin all in accordance with
the laws of the said foreign
country on procedure and
allowance of wills (Exhibits E to
E-10); and that the petitioner is
not suffering from any
disqualification which would
render her unfit as administratrix
of the estate in the Philippines of
the late Adoracion C. Campos.
WHEREFORE, the Last Will and
Testament of the late Adoracion
C. Campos is hereby admitted to
and allowed probate in the
Philippines, and Nenita Campos
Paguia is hereby appointed
Administratrix of the estate of
said decedent; let Letters of
Administration with the Will
annexed issue in favor of said
Administratrix upon her filing of a
bond in the amount of P5,000.00
conditioned under the provisions
of Section I, Rule 81 of the Rules
of Court.
Another manifestation was filed by the
petitioner on April 14, 1979, confirming the
withdrawal of his opposition, acknowledging
the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a
petition for relief, praying that the order
allowing the will be set aside on the ground
that the withdrawal of his opposition to the
same was secured through fraudulent means.
According to him, the "Motion to Dismiss
Opposition" was inserted among the papers
which he signed in connection with two Deeds
of Conditional Sales which he executed with
the Construction and Development Corporation
of the Philippines (CDCP). He also alleged that
the lawyer who filed the withdrawal of the
opposition was not his counsel-of-record in the
special proceedings case.
The petition for relief was set for hearing but
the petitioner failed to appear. He made
several motions for postponement until the
hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another
motion entitled "Motion to Vacate and/or Set
Aside the Order of January 10, 1979, and/or
dismiss the case for lack of jurisdiction. In this
motion, the notice of hearing provided:
Please include this motion in your
calendar for hearing on May 29,
1980 at 8:30 in the morning for
submission for reconsideration
and resolution of the Honorable
Court. Until this Motion is
resolved, may I also request for
the future setting of the case for
hearing on the Oppositor's motion
to set aside previously filed.
The hearing of May 29, 1980 was re-set by the
court for June 19, 1980. When the case was
called for hearing on this date, the counsel for
petitioner tried to argue his motion to vacate
instead of adducing evidence in support of the
petition for relief. Thus, the respondent judge
issued an order dismissing the petition for relief
for failure to present evidence in support
thereof. Petitioner filed a motion for
reconsideration but the same was denied. In
the same order, respondent judge also denied
the motion to vacate for lack of merit. Hence,
this petition.
Meanwhile, on June 6,1982, petitioner
Hermogenes Campos died and left a will,
which, incidentally has been questioned by the
respondent, his children and forced heirs as,
on its face, patently null and void, and a
fabrication, appointing Polly Cayetano as the
executrix of his last will and testament.
Cayetano, therefore, filed a motion to
substitute herself as petitioner in the instant
case which was granted by the court on
September 13, 1982.
A motion to dismiss the petition on the ground
that the rights of the petitioner Hermogenes
Campos merged upon his death with the rights
of the respondent and her sisters, only
remaining children and forced heirs was denied
on September 12, 1983.
Petitioner Cayetano persists with the
allegations that the respondent judge acted
without or in excess of his jurisdiction when:
1) He ruled the petitioner lost his
standing in court deprived the
Right to Notice (sic) upon the
filing of the Motion to Dismiss
opposition with waiver of rights or
interests against the estate of
deceased Adoracion C. Campos,
thus, paving the way for the
hearing ex-parte of the petition
for the probate of decedent will.
27
2) He ruled that petitioner can
waive, renounce or repudiate (not
Page
 made in a public or authenticated
instrument), or by way of a
petition presented to the court but
by way of a motion presented
prior to an order for the
distribution of the estate-the law
especially providing that
repudiation of an inheritance
must be presented, within 30
days after it has issued an order
for the distribution of the estate in
accordance with the rules of
Court.
3) He ruled that the right of a
forced heir to his legitime can be
divested by a decree admitting a
will to probate in which no
provision is made for the forced
heir in complete disregard of Law
of Succession
4) He denied petitioner's petition
for Relief on the ground that no
evidence was adduced to support
the Petition for Relief when no
Notice nor hearing was set to
afford petitioner to prove the
merit of his petition — a denial of
the due process and a grave
abuse of discretion amounting to
lack of jurisdiction.
5) He acquired no jurisdiction
over the testate case, the fact
that the Testator at the time of
death was a usual resident of
Dasmariñas, Cavite,
consequently Cavite Court of
First Instance has exclusive
jurisdiction over the case (De
Borja vs. Tan, G.R. No. L-7792,
July 1955).
The first two issues raised by the petitioner are
anchored on the allegation that the respondent
judge acted with grave abuse of discretion
when he allowed the withdrawal of the
petitioner's opposition to the reprobate of the
will.
We find no grave abuse of discretion on the
part of the respondent judge. No proof was
adduced to support petitioner's contention that
the motion to withdraw was secured through
fraudulent means and that Atty. Franco Loyola
was not his counsel of record. The records
show that after the firing of the contested
motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary
act and deed. Moreover, at the time the motion
was filed, the petitioner's former counsel, Atty.
Jose P. Lagrosa had long withdrawn from the
case and had been substituted by Atty. Franco
Loyola who in turn filed the motion. The
present petitioner cannot, therefore, maintain
that the old man's attorney of record was Atty.
Lagrosa at the time of filing the motion. Since
the withdrawal was in order, the respondent
judge acted correctly in hearing the probate of
the will ex-parte, there being no other
opposition to the same.
The third issue raised deals with the validity of
the provisions of the will. As a general rule, the
probate court's authority is limited only to the
extrinsic validity of the will, the due execution
thereof, the testatrix's testamentary capacity
and the compliance with the requisites or
solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the
court has declared that the will has been duly
authenticated. However, where practical
considerations demand that the intrinsic validity
of the will be passed upon, even before it is
probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA
478).
In the case at bar, the petitioner maintains that
since the respondent judge allowed the
reprobate of Adoracion's will, Hermogenes C.
Campos was divested of his legitime which
was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have
preterited the petitioner and thus, the
respondent judge should have denied its
reprobate outright, the private respondents
have sufficiently established that Adoracion
was, at the time of her death, an American
citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore,
under Article 16 par. (2) and 1039 of the Civil
Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and
testamentary successions, both
with respect to the order of
succession and to the amount of
successional rights and to the
intrinsic validity of testamentary
provisions, shall be regulated by
28
the national law of the person
whose succession is under
Page
 consideration, whatever may be
the nature of the property and
regardless of the country wherein
said property may be found.
Art. 1039.
Capacity to succeed is governed
by the law of the nation of the
decedent.
the law which governs Adoracion Campo's will
is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the
parties admit that the Pennsylvania law does
not provide for legitimes and that all the estate
may be given away by the testatrix to a
complete stranger, the petitioner argues that
such law should not apply because it would be
contrary to the sound and established public
policy and would run counter to the specific
provisions of Philippine Law.
It is a settled rule that as regards the intrinsic
validity of the provisions of the will, as provided
for by Article 16(2) and 1039 of the Civil Code,
the national law of the decedent must apply.
This was squarely applied in the case ofBellis
v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that
whatever public policy or good
customs may be involved in our
system of legitimes, Congress
has not intended to extend the
same to the succession of foreign
nationals. For it has specifically
chosen to leave, inter alia, the
amount of successional rights, to
the decedent's national law.
Specific provisions must prevail
over general ones.
xxx xxx xxx
The parties admit that the
decedent, Amos G. Bellis, was a
citizen of the State of Texas,
U.S.A., and under the law of
Texas, there are no forced heirs
or legitimes. Accordingly, since
the intrinsic validity of the
provision of the will and the
amount of successional rights are
to be determined under Texas
law, the Philippine Law on
legitimes cannot be applied to the
testacy of Amos G. Bellis.
As regards the alleged absence of notice of
hearing for the petition for relief, the records
wig bear the fact that what was repeatedly
scheduled for hearing on separate dates until
June 19, 1980 was the petitioner's petition for
relief and not his motion to vacate the order of
January 10, 1979. There is no reason why the
petitioner should have been led to believe
otherwise. The court even admonished the
petitioner's failing to adduce evidence when his
petition for relief was repeatedly set for
hearing. There was no denial of due process.
The fact that he requested "for the future
setting of the case for hearing . . ." did not
mean that at the next hearing, the motion to
vacate would be heard and given preference in
lieu of the petition for relief. Furthermore, such
request should be embodied in a motion and
not in a mere notice of hearing.
Finally, we find the contention of the petition as
to the issue of jurisdiction utterly devoid of
merit. Under Rule 73, Section 1, of the Rules of
Court, it is provided that:
SECTION 1. Where estate of
deceased persons settled. — If
the decedent is an inhabitant of
the Philippines at the time of his
death, whether a citizen or an
alien, his will shall be proved, or
letters of administration granted,
and his estate settled, in the
Court of First Instance in the
province in which he resided at
the time of his death, and if he is
an inhabitant of a foreign country,
the Court of First Instance of any
province in which he had estate.
The court first taking cognizance
of the settlement of the estate of
a decedent, shall exercise
jurisdiction to the exclusion of all
other courts. The jurisdiction
assumed by a court, so far as it
depends on the place of
residence of the decedent, or of
the location of his estate, shall
not be contested in a suit or
proceeding, except in an appeal
from that court, in the original
case, or when the want of
jurisdiction appears on the
record.
Therefore, the settlement of the estate of
Adoracion Campos was correctly filed with the
Court of First Instance of Manila where she
had an estate since it was alleged and proven
that Adoracion at the time of her death was a
citizen and permanent resident of
29
Pennsylvania, United States of America and
not a "usual resident of Cavite" as alleged by
Page
the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of
the probate court in the petition for relief. It is a
settled rule that a party cannot invoke the
jurisdiction of a court to secure affirmative
relief, against his opponent and after failing to
obtain such relief, repudiate or question that
same jurisdiction. (See Saulog Transit, Inc. vs.
Hon. Manuel Lazaro, et al., G. R. No. 63 284,
April 4, 1984).

WHEREFORE, the petition for certiorari and

prohibition is hereby dismissed for lack of
merit.

SO ORDERED.

30
Page
 PCIB vs. ESCOLIN
Philippine Commercial and Industrial Bank,
Administrator of the Testate Estate of Charles
Newton Hodges, vs. Hon. Venicio Escolin (CFI-
Iloilo) and Avelina A. Magno; Testate Estate of
the late Linnie Jane Hodges. Testate Estate of
the late Charles Newton Hodges. PCIB,
administrator-appellant, vs. Lorenzo Carles,
Jose Pablico, Alfredo Catedral, Salvador
Guzman, Belcesar Causing, Florenia Barrido,
Purificacion Coronado, Graciano Lucero, Ariteo
Thomas Jamir, Melquiades Batisanan, Pepito
Iyulores, Esperidion Partisala, Winifredo
Espada, Rosario Alingasa, Adelfa Premaylon,
Santiago Pacaonsis, and Avelina A. Magno,
appellees, Western Institute of Technology,
Inc., movant-appellee
March 29, 1974; Barredo, J.
*This case has the length of a PIL case. Court
admitted several times that it was clueless as
to some facts so it copied into the decision
entire pleadings. (!!!) Plus, PCIB raised 78
assignment of errors! We’ll probably read the
case again in Spec Pro.
Short version: The Hodges lived in the
Philippines for almost half a century and died
leaving substantial properties in Iloilo and in
the US. The missus died 5 years before the
husband, providing in her will that while her
estate would go to him, upon his death, the
remainder should pass to her siblings. (They
were childless.) The court held that this
testamentary provision, while probably
ineffectual as a substitution under the Civil
Code, is not actually a substitution, but is a
valid and simultaneous institution of heirs,
though the passing of title to the inheritance to
the others (the siblings) was made to depend
on a resolutory condition (the husband’s
death). Case was remanded to the trial court
for the determination of the proper application
of the renvoi principle (conflict of laws between
Philippines and Texas law), and the proper
distribution of Linnie’s, Charles’, and their
conjugal estates.
Facts:
Charles Newton Hodges and Linnie Jane
Hodges were originally from Texas, USA.
During their marriage, they had acquired and
accumulated considerable assets and
properties in the Philippines and in Oklahoma
and Texas in the US. They both lived, worked
and were domiciled in Iloilo City for around 50
years. Before her death, Linnie Jane executed
a will leaving her estate, less her debts and
funeral expenses, to her husband Charles.
Should Charles die, the will provided that the
remainder of her estate go to her brothers and
sisters, share and share alike. Should any of
the brothers and sisters die before the
husband, Linnie willed that the heirs of the said
sibling be substituted in the deceased’s
sibling’s place.
When Linnie died, Charles took the will to
probate court, and was appointed Executor,
then later, Special Administrator. He moved to
be allowed to continue administering the family
business, as per Linnie Jane’s wishes, and to
engage in sales, conveyances, leases,
mortgages and other necessary transactions.
He also filed the necessary and appurtenant
administration/accounting records, and income
tax returns for the estate. Charles named
seven brothers and sisters of Linnie Jane as
her heirs (Esta, Emma, Leonard, Aline, David,
Sadie, Era and Nimroy), but the order admitting
the will to probate unfortunately omitted one of
the heirs, Roy (Nimroy?) Higdon, so Charles
filed a verified motion to have Roy’s name
included.
As an executor, he was bound to file tax
returns for the estate he was administering
under American law. He did file such as estate
tax return on August 8, 1958. In Schedule "M"
of such return, he answered "Yes" to the
question as to whether he was contemplating
"renouncing the will". On the question as to
what property interests passed to him as the
surviving spouse, he answered:
“None, except for purposes of
administering the Estate, paying debts,
taxes and other legal charges. It is the
intention of the surviving husband of
deceased to distribute the remaining
property and interests of the deceased
in their Community estate to the
devisees and legatees named in the will
when the debts, liabilities, taxes and
expenses of administration are finally
determined and paid.”
Charles died in Iloilo in December 1962 without
having liquidated Linnie’s estate, which
includes her share in the conjugal partnership.
A longtime employee of the Hodges, Avelina
Magno, was appointed Administratrix (for
Linnie’s estate) and a Special Administratrix
(for Charles’). Magno was appointed, but later
Harold Davies (representative of Charles’ heirs
in the US) was designated Co-Special
Administrator, who was then replaced by one
31
Joe Hodges, Charles’ nephew. One Atty.
Mirasol was also appointed as co-
Page
administrator, and an order of probate and
letters of administration were issued to Hodges
and Mirasol.
At this point, the SC was already very much
confused about the gaps in the facts,
convinced that the parties representing both
estates had cooked up a modus operandi to
settle money matters (a settlement with
records the Court never saw)—which,
however, went awry, with more and more heirs
from the US flocking to the Iloilo shores, and
lawyers (Ozaetas! Mabantas! Manglapuses!)
filing their respective claims for retainer fees.
Much much later, PCIB became the
administrator of Charles’ estate, asserting a
claim to all of his estate, including those
properties/assets that passed to him upon
Linnie Jane’s death. Avelina naturally opposed
this, as Linnie Jane’s other heirs (the
HIGDONS) would be prejudiced, so she
continued acting in her capacity as
administrator (entering into sales and other
such conveyances). For these acts, the PCIB
dismissed her as an employee of Charles’
estate, to which she responded by locking up
the premises being used by PCIB as offices,
which were among the estate’s properties.
PCIB’s Claims
Linnie Jane’s will should be governed by
Philippine Law, with respect to the order of
succession, the amount of successional rights,
and the intrinsic validity of its testamentary
provisions.
 Linnie intended Philippine laws to
govern her Will.
 Article 16, CC, provides that "the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the country
wherein said property may be found",
shall prevail. However, the Conflict of
Law of Texas, which is the "national law"
of the testatrix, Linnie Jane Hodges,
provide that the domiciliary law
(Philippine law) should govern the
testamentary dispositions and
successional rights over movables, and
the law of the situs of the property (also
Philippine law as to properties located in
the Philippines) as regards immovables.
 Thus applying the "Renvoi Doctrine", as
approved and applied in the Christensen
case (1963), Philippine law should
apply.
 Under Philippine and Texas law, the
conjugal or community estate of
spouses shall, upon dissolution, be
divided equally between them. Thus,
upon Linnie’s death, ½ of the entirety of
the assets of the Hodges spouses
constituting their conjugal estate
pertained automatically to Charles, not
by way of inheritance, but in his own
right as partner in the conjugal
partnership.
 The other one-half (1/2) portion forming
part of Linnie’s estate, cannot, under a
clear and specific provision of her Will,
be enhanced or increased by income,
earnings, rents, or emoluments accruing
after her death. “All rents, emoluments
and income from said estate shall
belong to him (C. N. Hodges) and he is
further authorized to use any part of the
principal of said estate as he may need
or desire."
 Articles 900, 995 and 1001 provide that
the surviving spouse of a deceased
leaving no ascendants or descendants
is entitled, as a matter of right and by
way of irrevocable legitime, to at least
one-half (1/2) of the estate of the
deceased, and no testamentary
disposition by the deceased can legally
and validly affect this right of the
surviving spouse. In fact, her husband is
entitled to said one-half (1/2) portion of
her estate by way of legitime. (Article
886)
 Clearly, therefore, immediately upon the
death of Linnie Jane Hodges, C. N.
Hodges was the owner of at least 3/4 or
75% percent of all of the conjugal assets
of the spouses, 50% by way of conjugal
partnership share and 1/4 or 25% by
way of inheritance and legitime) plus all
"rents, emoluments and income"
accruing to said conjugal estate from the
moment of Linnie Jane Hodges' death.
 In his capacity as sole heir and
successor to Linnie’s estate, Charles
appropriated to himself the entirety of
her estate. He operated all the assets,
engaged in business and performed all
acts in connection with the entirety of
the conjugal estate, in his own name
alone, just as he had been operating,
engaging and doing while the late Linnie
Jane Hodges was still alive. Upon his
death on December 25, 1962, therefore,
all said conjugal assets were in his sole
32
possession and control, and registered
Page
 in his name alone, not as executor, but
as exclusive owner of all said assets.
 As the sole and exclusive heir, Charles
did not need to liquidate the estate.
Neither was there any asset left to
Linnie’s estate at the time of Charles’
death, though Linnie’s estate may have
referred to “all of the rest, residue and
remainder of my estate” which would go
to her siblings in the event of Charles
death. The provision is thus void and
invalid at least as to Philippine assets.
 There are generally only two kinds of
substitution provided for and authorized
by our Civil Code (Articles 857-870),
namely, (1) simple or
common substitution, sometimes
referred to as vulgar substitution (Article
859), and (2) fideicommissary
substitution (Article 863). All other
substitutions are merely variations of
these. The substitution provided for by
paragraph four of the Will of Linnie Jane
Hodges is not fideicommissary
substitution, because there is clearly no
obligation on the part of C. N. Hodges
as the first heir designated, to preserve
the properties for the substitute heirs. At
most, it is
a vulgar or simple substitution.
However, in order that
a vulgar orsimple substitution can be
valid, three alternative conditions must
be present, namely, that the first
designated heir (1) should die before the
testator; or (2) should not wish to accept
the inheritance; or (3) should be
incapacitated to do so. None of these
conditions apply to C. N. Hodges, and,
therefore, the substitution provided for
by the above-quoted provision of the
Will is not authorized by the Code, and,
therefore, it is void. Manresa even said,
“when another heir is designated to
inherit upon the death of a first heir, the
second designation can have effect only
in case the first instituted heir dies
before the testator, whether or not that
was the true intention of said testator.”
 The remedy of the Higdons, then, who
are claiming dubious rights to ¼ of the
conjugal estate of the Hodges, is to file
a claim against the estate of Charles.
 It also follows that the conveyances
executed by Avelina, claiming to be
merely in continuation of the Hodges’
businesses, and which corresponding
deeds of sale were confirmed by the
probate court, are null and void and
should be subject to reconveyance.
Avelina’s Claims
(At one point, even Linnie’s heirs wanted to
have Avelina removed from her capacity as
administrator, but the lower court reversed its
earlier grant of the motion, on account of a
previous injunction it issued.)
 Linnie Jane merely gave Charles a life-
estate or a usufruct over all her estate,
and gave a vested remainder-estate or
the naked title over the same estate, to
her relatives.
 After Linnie’s death, Charles, as
administrator and executor of the will,
unequivocably and clearly through oral
and written declarations and sworn
public statements, renounced,
disclaimed and repudiated his life-estate
and usufruct.
 Since there was no separation or
segregation of the interests of Linnie
and Charles in the combined conjugal
estate, as there has been no such
separation or segregation, and because
of Charles’ repudiation, both interests
have continually earned exactly the
same amount of rents, emoluments and
income.
Issue:
1. Is Linnie’s disposition in favor of her siblings
void? – NO
2. How should the estate be
partitioned/liquidated? – REMAND!
Reasoning:
1. To a certain extent, PCIB’s contention that
Linnie’s testamentary substitution, when
viewed as a substitution, may not be given
effect, is correct. Indeed, legally speaking,
Linnie’s will provides neither for a simple or
vulgar substitution under Article 859 of the Civil
Code nor for a fideicommissary substitution
under Article 863 thereof. There is no vulgar
substitution because there is no provision for
either (1) predecease of the testator by the
designated heir or (2) refusal or (3) incapacity
of the latter to accept the inheritance, as
required by Article 859; and neither is there a
fideicommissary substitution therein because
no obligation is imposed thereby upon Hodges
to preserve the estate or any part thereof for
anyone else. But from these premises, it is not
correct to jump to the conclusion, as PCIB
does, that the testamentary dispositions in
question are therefore inoperative and invalid.
33
Page
The error in PCIB's position lies simply in the
fact that it views the said disposition
exclusively in the light of substitutions covered
by the Civil Code section on that subject,
(Section 3, Chapter 2, Title IV, Book III) when it
is obvious that substitution occurs only when
another heir is appointed in a will "so that he
may enter into inheritance in default of the heir
originally instituted," (Article 857) and, in the
present case, no such possible default is
contemplated. The brothers and sisters of Mrs.
Hodges are not substitutes for Hodges
because, under her will, they are not to inherit
what Hodges cannot, would not or may not
inherit, but what he would not dispose of from
his inheritance; rather, therefore, they are also
heirs instituted simultaneously with Hodges,
subject, however, to certain conditions, partially
resolutory insofar as Hodges was concerned
and correspondingly suspensive with reference
to his brothers and sisters-in-law. It is partially
resolutory, since it bequeaths unto Hodges the
whole of her estate to be owned and enjoyed
by him as universal and sole heir with absolute
dominion over them only during his lifetime,
which means that while he could completely
and absolutely dispose of any portion
thereof inter vivos to anyone other than
himself, he was not free to do so mortis causa,
and all his rights to what might remain upon his
death would cease entirely upon the
occurrence of that contingency, inasmuch as
the right of his brothers and sisters-in-law to
the inheritance, although vested already upon
the death of Mrs. Hodges, would automatically
become operative upon the occurrence of the
death of Hodges in the event of actual
existence of any remainder of her estate then.
Contrary to Avelina’s view, however, it was not
the usufruct alone of Linnie’s estate, as
contemplated in Article 869, that she
bequeathed to Charles during his lifetime, but
the full ownership thereof, although the same
was to last also during his lifetime only, even
as there was no restriction whatsoever against
his disposing or conveying the whole or any
portion thereof to anybody other than himself.
The Court saw no legal impediment to this kind
of institution, except that it cannot apply to the
legitime of Charles as the surviving spouse,
consisting of one-half of the estate, considering
that Linnie had no surviving ascendants nor
descendants. (Arts. 872, 900, and 904.)
Hodges’ acts of administration and accounting
strongly negate PCIB’s claims that he had
adjudicated to himself all of Linnie’s estate.
While he may have used language like “herein
executor (being) the only devisee or legatee of
the deceased, in accordance with the last will
and testament already probated… there is no
other person interested in the Philippines of the
time and place of examining herein account to
be given notice,” he would’ve known that doing
so would impute bad faith unto him. Also, in his
very motions, Hodges asserted the rights of
Linnie’s named heirs. He even moved to
include Roy’s name included in the probate
court’s order, lest Roy’s heirs think that they
had been omitted.
Thus, he recognized, in his own way, the
separate identity of his wife’s estate from his
own share of the conjugal partnership up to the
time of his death, more than 5 years after that
of his wife. He never considered the whole
estate as a single one belonging exclusively to
himself. The only conclusion one can gather
from this is that he could have been preparing
the basis for the eventual transmission of his
wife's estate, or, at least, so much thereof as
he would not have been able to dispose of
during his lifetime, to her brothers and sisters
in accordance with her expressed desire, as
intimated in his tax return in the US. And
assuming that he did pay the corresponding
estate and inheritance taxes in the Philippines
on the basis of his being sole heir, such
payment is not necessarily inconsistent with his
recognition of the rights of his co-heirs. The
Court thus viewed that under the peculiar
provisions of his wife's will, and for purposes of
the applicable inheritance tax laws, Hodges
had to be considered as her sole heir, pending
the actual transmission of the remaining
portion of her estate to her other heirs, upon
the eventuality of his death, and whatever
adjustment might be warranted should there be
any such remainder then is a matter that could
well be taken care of by the internal revenue
authorities in due time. The Court also
considered as basis of Charles’ intentions
several questionnaires in solemn forms in filing
estate taxes abroad, though they have not
been introduced in evidence (!!!), only referred
to several times by the parties.
It is obvious, though, that Charles’
procrastinating in settling Linnie’s estate, and
his sole administration of it, commingled his
and his co-heirs interests, making it difficult to
properly make an accounting of their shares.
PCIB, then, cannot administer the properties
on its own. What would be just and proper is
for both administrators of the two estates to act
conjointly until after said estates have been
34
segregated from each other.
Page
2. The parties were in disagreement as to how
Article 16 of the Civil Code should be applied.
On the one hand, PCIB claimed that inasmuch
as Linnie was a resident of the Philippines at
the time of her death, under said Article 16,
construed in relation to the pertinent laws of
Texas and the principle of renvoi, what should
be applied here should be the rules of
succession under the Civil Code, and,
therefore, her estate could consist of no more
than one-fourth of the said conjugal properties,
the other fourth being, as already explained,
the legitime of her husband (Art. 900) which
she could not have disposed of nor burdened
with any condition (Art. 872). On the other
hand, Avelina denied that Linnie died a
resident of the Philippines, since allegedly she
never changed nor intended to change her
original residence of birth in Texas, United
States of America, and contends that, anyway,
regardless of the question of her residence,
she being indisputably a citizen of Texas,
under said Article 16 of the Civil Code, the
distribution of her estate is subject to the laws
of said State which, according to her, do not
provide for any legitime, hence, Linnie’s
brothers and sisters are entitled to the
remainder of the whole of her share of the
conjugal partnership properties consisting of
one-half thereof. Avelina further maintained
that, in any event, Charles had renounced his
rights under the will in favor of his co-heirs, as
allegedly proven by the documents touching on
the point already mentioned earlier, the
genuineness and legal significance of which
PCIB questioned.
The Court cannot decide on the claims,
though, for neither the evidence submitted by
the parties appeared to be adequate enough
for it to render an intelligent comprehensive
and just resolution. No clear and reliable proof
of what in fact the possibly applicable laws of
Texas are, was presented (Remember judicial
notice in case of foreign laws?). Then also, the
genuineness of documents relied upon by
Avelina is disputed. In Justice, therefore, to all
the parties concerned, these and all other
relevant matters should first be threshed out
fully in the trial court in the proceedings
thereafter to be held for the purpose of
ascertaining and adjudicating and/or
distributing the estate of Mrs. Hodges to her
heirs in accordance with her duly probated will.
Linnie’s estate is the remainder of 1/4 of the
conjugal partnership properties, considering
that even PCIB did not maintain that the
application of the laws of Texas would result in
the other heirs of Mrs. Hodges not inheriting
anything under her will. And since PCIB's
representations in regard to the laws of Texas
virtually constitute admissions of fact which the
other parties and the Court are being made to
rely and act upon, PCIB is not permitted to
contradict them or subsequently take a position
contradictory to or inconsistent with them.
The only question that remains to be settled in
the remand to the court below are:
(1) whether or not the applicable laws of Texas
do provide in effect for more, such as, when
there is no legitime provided therein
(2) whether or not Hodges has validly waived
his whole inheritance from Mrs. Hodges.
In the course of the deliberations, it was
brought out by some members of the Court
that to avoid or, at least, minimize further
protracted legal controversies between the
respective heirs of the Hodges spouses, it is
imperative to elucidate on the possible
consequences of dispositions made by Charles
after Linnie’s death, from the mass of the
unpartitioned estates without any express
indication in the pertinent documents as to
whether his intention is to dispose of part of his
inheritance from his wife or part of his own
share of the conjugal estate as well as of those
made by PCIB after the death of Hodges. After
a long discussion, the consensus arrived at
was as follows:
(1) any such dispositions made gratuitously in
favor of third parties, whether these be
individuals, corporations or foundations, shall
be considered as intended to be of properties
constituting part of Hodges' inheritance from
his wife, it appearing from the tenor of his
motions of May 27 and December 11, 1957
that in asking for general authority to make
sales or other disposals of properties under the
jurisdiction of the court, which include his own
share of the conjugal estate, he was not
invoking particularly his right over his own
share, but rather his right to dispose of any part
of his inheritance pursuant to the will of his
wife;
(2) as regards sales, exchanges or
other remunerative transfers, the proceeds of
such sales or the properties taken in by virtue
of such exchanges, shall be considered as
merely the products of "physical changes" of
the properties of her estate which the will
expressly authorizes Hodges to make,
provided that whatever of said products should
35
remain with the estate at the time of the death
Page
of Hodges should go to her brothers and
sisters;
(3) the dispositions made by PCIB after the
death of Hodges must naturally be deemed as
covering only the properties belonging to his
estate considering that being only the
administrator of the estate of Hodges, PCIB
could not have disposed of properties
belonging to the estate of his wife. Neither
could such dispositions be considered as
involving conjugal properties, for the simple
reason that the conjugal partnership
automatically ceased when Linnie died, and by
the peculiar provision of her will, under
discussion, the remainder of her share
descended also automatically upon the death
of Hodges to her brothers and sisters, thus
outside of the scope of PCIB's administration.
Accordingly, these constructions of Linnie’s will
should be adhered to by the trial court in its
final order of adjudication and distribution
and/or partition of the two estates in question.
Disposition
Remand for determination of proper application
of Art. 16, CC (renvoi), and of Charles’ alleged
renunciation of his ineritance under Linnie’s
will. Avelina remains to be the administrator of
Linnie’s estate. The said estate consists of ¼
of the community properties of the said
spouses, as of the time of Linnie’s death on
May 23, 1957, minus whatever the husband
had already gratuitously disposed of in favor of
third persons from said date until his death,
provided, first, that with respect to
remunerative dispositions, the proceeds
thereof shall continue to be part of the wife's
estate, unless subsequently disposed of
gratuitously to third parties by the husband,
and second, that should the purported
renunciation be declared legally effective, no
deductions whatsoever are to be made from
said estate. PCIB and Avelina should act
thenceforth always conjointly, never
independently from each other, as
administrators.
CONCURRING OPINIONS
Fernando—concurred with procedural aspect
of the decision.
Teehankee—agreed with most parts but had
substantial differences in the reasoning:
C. N. Hodges could not validly
make gratuitous dispositions of any part or all
of his wife's estate — "completely and
absolutely dispose of any portion thereof inter
vivos to anyone other than himself" in the
language of the main opinion — and thereby
render ineffectual and nugatory her institution
of her brothers and sisters as her designated
heirs to succeed to her whole estate "at the
death of (her) husband."
If according to the main opinion, Hodges
could not make such gratuitous "complete and
absolute dispositions" of his wife Linnie's
estate "mortis causa," it would seem that by the
same token and rationale he was likewise
proscribed by the will from making such
dispositions of Linnie's estate inter vivos.
I believe that the two questions
of renvoi and renunciation should be
resolved preferentially and expeditiously by the
probate court ahead of the partition and
segregation of the minimum one-fourth of the
conjugal or community properties constituting
Linnie Jane Hodges' separate estate, which
task considering that it is now seventeen (17)
years since Linnie Jane Hodges' death and her
conjugal estate with C. N. Hodges has
remained unliquidated up to now might take a
similar number of years to unravel with the
numerous items, transactions and details of the
sizable estates involved.
Such partition of the minimum one-fourth
would not be final, since if the two prejudicial
questions of renvoi and renunciation were
resolved favorably to Linnie's estate meaning
to say that if it should be held that C. N.
Hodges is not entitled to any legitime of her
estate and at any rate he had totally renounced
his inheritance under the will), then Linnie's
estate would consist not only of the minimum
one-fourth but one-half of the conjugal or
community properties of the Hodges spouses,
which would require again the partition and
segregation of still another one-fourth of said
properties to complete Linnie's separate estate.
Justice Teehankee also drew up suggested
guidelines for application in the probate court.
Please see original case.
Makalintal, CJ. –
Regardless of whether or not C. N. Hodges
was entitled to a legitime in his deceased wife's
estate — which question, still to be decided by
the said probate court, may depend upon what
is the law of Texas and upon its applicability in
the present case — the said estate consists of
one-half, not one-fourth, of the conjugal
properties. There is neither a minimum of one-
fourth nor a maximum beyond that. It is
important to bear this in mind because the
estate of Linnie Hodges consists of her share
36
in the conjugal properties, is still under
Page
administration and until now has not been
distributed by order of the court.

The reference in both the main and separate

opinions to a one-fourth portion of the conjugal
properties as Linnie Hodges’ minimum share is
a misnomer and is evidently meant only to
indicate that if her husband should eventually
be declared entitled to a legitime, then the
disposition made by Linnie Hodges in favor of
her collateral relatives would be valid only as to
one-half of her share, or one-fourth of the
conjugal properties, since the remainder, which
constitutes such legitime, would necessarily go
to her husband in absolute ownership,
unburdened by any substitution, term or
condition, resolutory or otherwise. And until the
estate is finally settled and adjudicated to the
heirs who may be found entitled to it, the
administration must continue to cover Linnie's
entire conjugal share.

37
Page
 [G.R. No. 119064. August 22, 2000] Hadji Abdula then migrated to Tambunan
where, in 1972, he married petitioner Neng
Kagui Kadiguia Malang, his fourth wife,
excluding the wives he had divorced. They
NENG KAGUI KADIGUIA MALANG, established residence in Cotabato City but they
petitioner, vs. HON. COROCOY were childless. For a living, they relied on
MOSON, Presiding Judge of 5th farming and on the business of buying and
Sharia District Court, Cotabato City, selling of agricultural products. Hadji Abdula
HADJI MOHAMMAD ULYSSIS acquired vast tracts of land in Sousa and
MALANG, HADJI ISMAEL Talumanis, Cotabato City, some of which were
MALINDATU MALANG, FATIMA cultivated by tenants. He deposited money in
MALANG, DATULNA MALANG, such banks as United Coconut Planters Bank,
LAWANBAI MALANG, JUBAIDA Metrobank and Philippine Commercial and
KADO MALANG, NAYO OMAL Industrial Bank.
MALANG and MABAY GANAP
MALANG, respondents. On December 18, 1993, while he was
living with petitioner in Cotabato City, Hadji
DECISION Abdula died without leaving a will. On January
21, 1994, petitioner filed with the Sharia District
GONZAGA-REYES, J.: Court in Cotabato City a petition for the
settlement of his estate with a prayer that
Presented for resolution in this special civil letters of administration be issued in the name
action of certiorari is the issue of whether or of her niece, Tarhata Lauban.
not the regime of conjugal partnership of gains
governed the property relationship of two Petitioner claimed in that petition that she
Muslims who contracted marriage prior to the was the wife of Hadji Abdula; that his other
effectivity of the Code of Muslim Personal legal heirs are his three children named Teng
Laws of the Philippines (hereafter, P.D. 1083 Abdula, Keto Abdula and Kueng Malang, and
or Muslim Code). The question is raised in that he left seven (7) parcels of land, five (5) of
connection with the settlement of the estate of which are titled in Hadji Abdulas name married
the deceased husband. to Neng P. Malang, and a pick-up jeepney.
Hadji Abdula Malang, a Muslim, contracted On February 7, 1994, the Sharia District
marriage with Aida (Kenanday) Limba. They Court ordered the publication of the
begot three sons named Hadji Mohammad petition.[1] After such publication[2] or on March
Ulyssis, Hadji Ismael Malindatu and Datulna, 16, 1994, Hadji Mohammad Ulyssis Malang
and a daughter named Lawanbai. Hadji Abdula (Hadji Mohammad, for brevity), the eldest son
Malang was engaged in farming, tilling the land of Hadji Abdula, filed his opposition to the
that was Aidas dowry (mahr or petition. He alleged among other matters that
majar). Thereafter, he bought a parcel of land his fathers surviving heirs are as follows: (a)
in Sousa, Cotabato.Hadji Abdula and Aida Jubaida Malang, surviving spouse; (b) Nayo
already had two children when he married for Malang, surviving spouse; (c) Mabay Malang,
the second time another Muslim named surviving spouse; (d) petitioner Neng Malang,
Jubaida Kado in Kalumamis, Talayan, surviving spouse; (e) oppositor Hadji
Maguindanao. No child was born out of Hadji Mohammad Ulyssis Malang who is also known
Abdulas second marriage. When Aida, the first as Teng Abdula, son; (f) Hadji Ismael
wife, was pregnant with their fourth child, Hadji Malindatu Malang, also known as Keto Abdula,
Abdula divorced her. son, (g) Fatima Malang, also known as Kueng
Malang, daughter; (h) Datulna Malang, son,
In 1965, Hadji Abdula married another and (i) Lawanbai Malang, daughter. Oppositor
Muslim, Nayo H. Omar but they were Hadji Mohammad Ulyssis Malang alleged that
childless. Thereafter, Hadji Abdula contracted since he and his brother, Hadji Ismael
marriage with Hadji Mabai (Mabay) H. Adziz in Malindatu Malang, had helped their father in
Kalumamis, Talayan, Maguindanao and soon his business, then they were more competent
they had a daughter named Fatima to be administrators of his estate.[3]
(Kueng). Hadji Abdula and Hadji Mabai stayed
in that place to farm while Hadji Abdula On March 30, 1994, Jubaida Malang,
engaged in the business of buying and selling Ismael Malindatu Malang, Nayo Malang,
of rice, corn and other agricultural Fatima Malang, Mabay Malang, Datulna
products. Not long after, Hadji Abdula married Malang and Lawanbai Malang filed an
three other Muslim women named Saaga, opposition to the petition, adopting as their own
38

Mayumbai and Sabai but he eventually the written opposition of Hadji Mohammad.[4]
Page

divorced them.
 On April 7, 1994, the Sharia District Court
issued an Order appointing Hadji Mohammad
administrator of his fathers properties outside
Cotabato City. The same order named
petitioner and Hadji Ismael Malindatu Malang
as joint administrators of the estate in Cotabato
City. Each administrator was required to post a
bond in the amount of P100,000.00.[5] On April
13, 1994, letters of administration were issued
to Hadji Mohammad after he had posted the
required bond. He took his oath on the same
day.[6] The following day, Hadji Ismael and
petitioner likewise filed their respective bonds
and hence, they were allowed to take their oath
as administrators.[7]
On April 25, 1994 and May 3, 1994,
petitioner filed two motions informing the court
that Hadji Abdula had outstanding deposits
with nine (9) major banks.[8] Petitioner prayed
that the managers of each of those banks be
ordered to submit a bank statement of the
outstanding deposit of Hadji Abdula.[9] The
Sharia District Court having granted the
motions,[10] Assistant Vice President Rockman
O. Sampuha of United Coconut Planters Bank
informed the court that as of April 24, 1994, the
outstanding deposit of Hadji Abdula amounted
to one million five hundred twenty thousand
four hundred pesos and forty-eight centavos
(P1,520,400.48).[11] The Senior Manager of the
Cotabato branch of Metrobank also certified
that as of December 18, 1993, Hadji Abdula
Malang or Malindatu Malang had on savings
deposit the balance of three hundred seventy-
eight thousand four hundred ninety-three
pesos and 32/100 centavos
[12]
(P378,493.32). PCIB likewise issued a
certification that Hadji Abdula had a balance of
eight hundred fifty pesos (P850.00) in his
current account as of August 11, 1994.[13]
During the pendency of the case, petitioner
suffered a congestive heart failure that required
immediate medical treatment. On May 5, 1994,
she filed a motion praying that on account of
her ailment, she be allowed to withdraw from
UCPB the amount of three hundred thousand
pesos (P300,000.00) that shall constitute her
advance share in the estate of Hadji
Abdula.[14]After due hearing, the Sharia District
Court allowed petitioner to withdraw the sum of
two hundred fifty thousand pesos
(P250,000.00).[15]
On May 12, 1994, the Sharia District Court
required petitioner and Hadji Ismael as joint
administrators to submit an inventory and
appraisal of all properties of Hadji Abdula.[16] In
compliance therewith, Hadji Ismael submitted
an inventory showing that in Cotabato City,
Hadji Abdula had seven (7) residential lots with
assessed value ranging from P5,020.00 to
P25,800.00, an agricultural land with assessed
value of P860.00, three (3) one-storey
residential buildings, and one (1) two-storey
residential building.[17] All these properties were
declared for taxation purposes in Hadji Abdulas
name.
For her part, petitioner submitted an
inventory showing that Hadji Abdula married to
Neng Malang had seven (7) residential lots
with a total assessed value of P243,840.00 in
Cotabato City, an Isuzu pick-up jeepney valued
at P30,000.00 and bank deposits.[18]
In the Memorandum that she filed with the
Sharia District Court, petitioner asserted that all
the properties located in Cotabato City,
including the vehicle and bank deposits, were
conjugal properties in accordance with Article
160 of the Civil Code and Article 116 of the
Family Code while properties located outside
of Cotabato City were exclusive properties of
the decedent.[19]
On the other hand, the oppositors
contended in their own Memorandum that all
the properties left by Hadji Abdula were his
exclusive properties for various reasons. First,
Hadji Abdula had no conjugal partnership with
petitioner because his having contracted eight
(8) marriages with different Muslim women was
in violation of the Civil Code that provided for a
monogamous marriage; a conjugal partnership
presupposes a valid civil marriage, not a
bigamous marriage or a common-law
relationship. Second, the decedent adopted a
complete separation of property regime in his
marital relations; while his wives Jubaida
Kado, Nayo Hadji Omal and Mabay Ganap Ha
dji Adzis contributed to the decedents
properties, there is no evidence that petitioner
had contributed funds for the acquisition of
such properties. Third, the presumption that
properties acquired during the marriage are
conjugal properties is inapplicable because at
the time he acquired the properties, the
decedent was married to four (4)
women. Fourth, the properties are not conjugal
in nature notwithstanding that some of these
properties were titled in the name of the
decedent married to Neng Malang because
such description is not conclusive of the
conjugal nature of the property. Furthermore,
because petitioner admitted in her verified
petition that the properties belonged to the
estate of decedent, she was estopped from
claiming, after formal offer of evidence, that the
properties were conjugal in nature just because
some of the properties were titled in Hadji
Abdulas name married to Neng Malang. Fifth, if
39
it is true that the properties were conjugal
properties, then these should have been
Page
registered in the names of both petitioner and
the decedent.[20]
In its Order of September 26, 1994, the
Sharia District Court presided by Judge
Corocoy D. Moson held that there was no
conjugal partnership of gains between
petitioner and the decedent primarily because
the latter married eight times. The Civil Code
provision on conjugal partnership cannot be
applied if there is more than one wife because
conjugal partnership presupposes a valid civil
marriage, not a plural marriage or a common-
law relationship. The court further found that
the decedent was the chief, if not the sole,
breadwinner of his families and that petitioner
did not contribute to the properties unlike the
other wives named Jubaida, Nayo and
Mabay. The description married to Neng
Malang in the titles to the real properties is no
more than that -- the description of the
relationship between petitioner and the
decedent. Such description is insufficient to
prove that the properties belong to the conjugal
partnership of gains. The court stated:
In the instant case, decedent had four (4)
wives at the time he acquired the properties in
question. To sustain the contention of the
petitioner that the properties are her conjugal
property with the decedent is doing violence to
the provisions of the Civil Code. Be it noted
that at the time of the marriage of the petitioner
with the decedent, there were already three (3)
existing marriages. Assuming for the moment
that petitioner and the decedent had agreed
that the property regime between them will be
governed by the regime of conjugal partnership
property, that agreement is null and void for it
is against the law, public policy, public order,
good moral(s) and customs.
Under Islamic law, the regime of property
relationship is complete separation of property,
in the absence of any stipulation to the contrary
in the marriage settlements or any other
contract (Article 38, P.D. 1083). There being no
evidence of such contrary stipulation or
contract, this Court concludes as it had begun,
that the properties in question, both real and
personal, are not conjugal, but rather,
exclusive property of the decedent.[21]
Thus, the Sharia District Court held that the
Islamic law should be applied in the distribution
of the estate of Hadji Abdula and accordingly
disposed of the case as follows:
WHEREFORE, premises considered, the Court
orders the following:
1) That the estate shall pay the
corresponding estate tax, reimburse
the funeral expenses in the amount
of P50,000.00, and the judicial
expenses in the amount of
P2,040.80;
2) That the net estate, consisting of
real and personal properties,
located in Talayan, Maguindanao
and in Cotabato City, is hereby
ordered to be distributed and
adjudicated as follows:
a) Jubaida Kado Malang -------------------------
2/64 of the estate
b) Nayo Omar Malang -------------------------
2/64 - do -
c) Mabai Aziz Malang ------------------------- 2/64 -
do -
d) Neng Kagui Kadiguia Malang -------------------
2/64 - do -
e) Mohammad Ulyssis Malang----------------------
---14/64 - do -
f) Ismael Malindatu Malang---------------------------
14/64 - do -
g) Datulna Malang ------------------------- 14/64 -
do -
h) Lawanbai Malang ------------------------- 7/64 -
do -
i) Fatima (Kueng) Malang -------------------------
7/64 - do -
Total------------------------ 64/64
3) That the amount of P250,000.00
given to Neng Kagui Kadiguia
Malang by way of advance be
charged against her share and if her
share is not sufficient, to return the
excess; and
4) That the heirs are hereby ordered to
submit to this court their Project of
Partition for approval, not later than
three (3) months from receipt of this
order.
SO ORDERED.
On October 4, 1994, petitioner filed a
motion for the reconsideration of that
40
Order. The oppositors objected to that
Page
motion. On January 10, 1995, the Sharia
District Court denied petitioners motion for
reconsideration.[22] Unsatisfied, petitioner filed
a notice of appeal.[23] However, on January 19,
1995, she filed a manifestation withdrawing the
notice of appeal on the strength of the following
provisions of P.D. No. 1083:
Art. 145. Finality of Decisions The decisions of
the Sharia District Courts whether on appeal
from the Sharia Circuit Court or not shall be
final. Nothing herein contained shall affect the
original and appellate jurisdiction of the
Supreme Court as provided in the Constitution.
Petitioner accordingly informed the court that
she would be filing an original action
of certiorari with the Supreme Court.[24]
On March 1, 1995, petitioner filed the
instant petition for certiorari with preliminary
injunction and/or restraining order. She
contends that the Sharia District Court gravely
erred in: (a) ruling that when she married Hadji
Abdula Malang, the latter had three existing
marriages with Jubaida Kado Malang, Nayo
Omar Malang and Mabay Ganap Malang and
therefore the properties acquired during her
marriage could not be considered conjugal,
and (b) holding that said properties are not
conjugal because under Islamic Law, the
regime of relationship is complete separation of
property, in the absence of stipulation to the
contrary in the marriage settlement or any
other contract.[25]
As petitioner sees it, the law applicable on
issues of marriage and property regime is the
New Civil Code, under which all property of the
marriage is presumed to belong to the conjugal
partnership. The Sharia Court, meanwhile,
viewed the Civil Code provisions on conjugal
partnership as incompatible with plural
marriage, which is permitted under Muslim law,
and held the applicable property regime to be
complete separation of property under P.D.
1083.
Owing to the complexity of the issue
presented, and the fact that the case is one of
first impression --- this is a singular situation
where the issue on what law governs the
property regime of a Muslim marriage
celebrated prior to the passage of the Muslim
Code has been elevated from a Sharia court
for the Courts resolution --- the Court decided
to solicit the opinions of two amici curiae,
Justice Ricardo C. Puno[26] and former
Congressman Michael O. Mastura[27]. The
Court extends its warmest thanks to the amici
curiae for their valuable inputs in their written
memoranda[28] and in the hearing of June 27,
2000.
Resolution of the instant case is made
more difficult by the fact that very few of the
pertinent dates of birth, death, marriage and
divorce are established by the record. This is
because, traditionally, Muslims do not register
acts, events or judicial decrees affecting civil
status.[29] It also explains why the evidence in
the instant case consisted substantially of oral
testimonies.
What is not disputed is that: Hadji Abdula
contracted a total of eight marriages, counting
the three which terminated in divorce; all eight
marriages were celebrated during the
effectivity of the Civil Code and before the
enactment of the Muslim Code; Hadji Abdula
divorced four wives --- namely, Aida, Saaga,
Mayumbai and Sabai --- all divorces of which
took place before the enactment of the Muslim
Code; and, Hadji Abdula died on December 18,
1993, after the Muslim Code and Family Code
took effect, survived by four wives (Jubaida,
Nayo, Mabay and Neng) and five children, four
of whom he begot with Aida and one with
Mabay. It is also clear that the following laws
were in force, at some point or other, during
the marriages of Hadji Abdula: the Civil Code,
which took effect on August 30, 1950; Republic
Act No. 394 (R.A. 394), authorizing Muslim
divorces, which was effective from June 18,
1949 to June 13, 1969; the Muslim Code,
which took effect February 4, 1977; and the
Family Code, effective August 3, 1988.
Proceeding upon the foregoing, the Court
has concluded that the record of the case is
simply inadequate for purposes of arriving at a
fair and complete resolution of the petition. To
our mind, any attempt at this point to dispense
with the basic issue given the scantiness of the
evidence before us could result in grave
injustice to the parties in this case, as well as
cast profound implications on Muslim families
similarly or analogously situated to the parties
herein. Justice and accountability dictate a
remand; trial must reopen in order to supply
the factual gaps or, in Congressman Masturas
words, missing links, that would be the bases
for judgment and accordingly, allow respondent
court to resolve the instant case. In ordering
thus, however, we take it as an imperative on
our part to set out certain guidelines in the
interpretation and application of pertinent laws
to facilitate the task of respondent court.
It will also be recalled that the main issue
presented by the petition --- concerning the
property regime applicable to two Muslims
married prior to the effectivity of the Muslim
Code --- was interposed in relation to the
41
settlement of the estate of the deceased
husband. Settlement of estates of Muslims
Page
whose civil acts predate the enactment of the
Muslim Code may easily result in the
application of the Civil Code and other
personal laws, thus convincing the Court that it
is but propitious to go beyond the issue
squarely presented and identify such collateral
issues as are required to be resolved in a
settlement of estate case. As amicus
curiae Congressman Mastura puts it, the Court
does not often come by a case as the one
herein, and jurisprudence will be greatly
enriched by a discussion of the watershed of
collateral issues that this case presents.[30]
The Court has identified the following
collateral issues, which we hereby present in
question form: (1) What law governs the
validity of a Muslim marriage celebrated under
Muslim rites before the effectivity of the Muslim
Code? (2) Are multiple marriages celebrated
before the effectivity of the Muslim Code valid?
(3) How do the Courts pronouncements
in People vs. Subano, 73 Phil. 692 (1942),
and People vs. Dumpo, 62 Phil. 246 (1935),
affect Muslim marriages celebrated before the
effectivity of the Muslim Code? (4) What laws
govern the property relationship of Muslim
multiple marriages celebrated before the
Muslim Code? (5) What law governs the
succession to the estate of a Muslim who died
after the Muslim Code and the Family Code
took effect? (6) What laws apply to the
dissolution of property regimes in the cases of
multiple marriages entered into before the
Muslim Code but dissolved (by the husbands
death) after the effectivity of the Muslim Code?
and (7) Are Muslim divorces effected before
the enactment of the Muslim Code valid?
The succeeding guidelines, which derive
mainly from the Compliance of amicus
curiae Justice Puno, are hereby laid down by
the Court for the reference of respondent court,
and for the direction of the bench and bar:
First Collateral Issue: The Law(s) Governing Validity of Muslim
Marriages Celebrated Before the Muslim Code
The time frame in which all eight marriages
of Hadji Abdula were
celebrated was during the effectivity of the Civil
Code which, accordingly, governs the
marriages. Article 78 of the Civil
Code[31] recognized the right of Muslims to
contract marriage in accordance with their
customs and rites, by providing that ---
Marriages between Mohammedans or pagans
who live in the non-Christian provinces may be
performed in accordance with their customs,
rites or practices. No marriage license or
formal requisites shall be necessary. Nor shall
the persons solemnizing these marriages be
obliged to comply with article 92.
However, thirty years after the approval of this
Code, all marriages performed between
Muslims or other non-Christians shall be
solemnized in accordance with the provisions
of this Code.But the President of the
Philippines, upon recommendation of the
Commissioner of National Integration, may at
any time before the expiration of said period,
by proclamation, make any of said provisions
applicable to the Muslims and non-Christian
inhabitants of any of the non-Christian
provinces.
Notably, before the expiration of the thirty-
year period after which Muslims are enjoined to
solemnize their marriages in accordance with
the Civil Code, P.D. 1083 or the Muslim Code
was passed into law. The enactment of the
Muslim Code on February 4, 1977 rendered
nugatory the second paragraph of Article 78 of
the Civil Code which provides that marriages
between Muslims thirty years after the approval
of the Civil Code shall be solemnized in
accordance with said Code.
Second and Third Collateral Issues: The Validity of Muslim Multiple
Marriages Celebrated Before the Muslim Code; The Effect of People
vs. Subano and People vs. Dumpo
Prior to the enactment of P.D. 1083, there
was no law in this jurisdiction which sanctioned
multiple marriages.[32] It is also not to be
disputed that the only law in force governing
marriage relations between Muslims and non-
Muslims alike was the Civil Code of 1950.
The Muslim Code, which is the first
comprehensive codification[33] of Muslim
[34]
personal laws, also provides in respect of
acts that transpired prior to its enactment:
Art. 186. Effect of code on past acts. --- (1)
Acts executed prior to the effectivity of this
Code shall be governed by the laws in force at
the time of their execution, and nothing herein
except as otherwise specifically provided, shall
affect their validity or legality or operate to
extinguish any right acquired or liability
incurred thereby.
The foregoing provisions are consistent with
the principle that all laws operate prospectively,
unless the contrary appears or is clearly,
plainly and unequivocably expressed or
necessarily implied;[35] accordingly, every case
42
of doubt will be resolved against the retroactive
opertion of laws.[36] Article 186 aforecited
Page
enunciates the general rule of the Muslim Code
to have its provisions applied prospectively,
and implicitly upholds the force and effect of a
pre-existing body of law, specifically, the Civil
Code --- in respect of civil acts that took place
before the Muslim Codes enactment.
Admittedly, an apparent antagonism arises
when we consider that what the provisions of
the Civil Code contemplate and nurture is a
monogamous marriage. Bigamous or
polygamous marriages are considered void
and inexistent from the time of their
performance.[37] The Family Code which
superseded the Civil Code provisions on
marriage emphasizes that a subsequent
marriage celebrated before the registration of
the judgment declaring a prior marriage void
shall likewise be void.[38] These provisions
illustrate that the marital relation perceived by
the Civil Code is one that is monogamous, and
that subsequent marriages entered into by a
person with others while the first one is
subsisting is by no means countenanced.
Thus, when the validity of Muslim plural
marriages celebrated before the enactment of
the Muslim Code was touched upon in two
criminal cases, the Court applied the
perspective in the Civil Code that only one
valid marriage can exist at any given time.
In People vs. Subano, supra, the Court
convicted the accused of homicide, not
parricide, since ---
(f)rom the testimony of Ebol Subano, father
of the deceased, it appears that the
defendant has three wives and that the
deceased was the last in point of
time. Although the practice of polygamy is
approved by custom among these non-
Christians, polygamy, however, is not
sanctioned by the Marriage Law[39], which
merely recognizes tribal marriage
rituals. The deceased, under our law, is not
thus the lawful wife of the defendant and
this precludes conviction for the crime of
parricide.
In People vs. Dumpo, supra, Mora Dumpo
was prosecuted for bigamy when, legally
married to Moro Hassan, she allegedly
contracted a second marriage with Moro
Sabdapal. The Court acquitted her on the
ground that it was not duly proved that the
alleged second marriage had all the essential
requisites to make it valid were it not for the
subsistence of the first marriage. As it appears
that the consent of the brides father is an
indispensable requisite to the validity of a
Muslim marriage, and as Mora Dumpos father
categorically affirmed that he did not give his
consent to her union with Moro Sabdapal, the
Court held that such union could not be a
marriage otherwise valid were it not for the
existence of the first one, and resolved to
acquit her of the charge of bigamy.
The ruling in Dumpo indicates that, had it
been proven as a fact that the second marriage
contained all the essential requisites to make it
valid, a conviction for bigamy would have
prospered. [40]
Fourth Collateral Issue: Law(s) Governing Property Relations of
Muslim Marriages Celebrated Before the Muslim Code
This is the main issue presented by the
instant petition. In keeping with our holding that
the validity of the marriages in the instant case
is determined by the Civil Code, we hold that it
is the same Code that determines and governs
the property relations of the marriages in this
case, for the reason that at the time of the
celebration of the marriages in question the
Civil Code was the only law on marriage
relations, including property relations between
spouses, whether Muslim or non-
Muslim. Inasmuch as the Family Code makes
substantial amendments to the Civil Code
provisions on property relations, some of its
provisions are also material, particularly to
property acquired from and after August 3,
1988.
Which law would govern depends upon: (1)
when the marriages took place; (2) whether the
parties lived together as husband and wife; and
(3) when and how the subject properties were
acquired.
Following are the pertinent provisions of
the Civil Code:
Art. 119. The future spouses may in the
marriage settlements agree upon absolute or
relative community of property, or upon
complete separation of property, or upon any
other regime. In the absence of marriage
settlements, or when the same are void, the
system of relative community or conjugal
partnership of gains as established in this
Code shall govern the property relations
between husband and wife.
Art. 135. All property brought by the wife to the
marriage, as well as all property she acquires
during the marriage, in accordance with article
148, is paraphernal.
Art. 136. The wife retains the ownership of the
43
paraphernal property.
Page
Art. 142. By means of the conjugal partnership
of gains the husband and wife place in a
common fund the fruits of their separate
property and the income from their work or
industry, and divide equally, upon the
dissolution of the marriage or of the
partnership, the net gains or benefits obtained
indiscriminately by either spouse during the
marriage.
Art. 143. All property of the conjugal
partnership of gains is owned in common by
the husband and wife.
The Civil Code also provides in Article 144:
When a man and a woman live together as
husband and wife, but they are not married, or
their marriage is void from the beginning, the
property acquired by either or both of them
through their work or industry or their wages
and salaries shall be governed by the rules on
co-ownership.
In a long line of cases, this Court has
interpreted the co-ownership provided in Article
144 of the Civil Code to require that the man
and woman living together as husband and
wife without the benefit of marriage or under a
void marriage must not in any way be
incapacitated to marry.[41] Situating these
rulings to the instant case, therefore, the co-
ownership contemplated in Article 144 of the
Civil Code cannot apply to Hadji Abdulas
marriages celebrated subsequent to a valid
and legally existing marriage, since from the
point of view of the Civil Code Hadji Abdula is
not capacitated to marry. However, the wives
in such marriages are not precluded from
proving that property acquired during their
cohabitation with Hadji Abdula is
their exclusive property, respectively.[42] Absent
such proof, however, the presumption is that
property acquired during the subsistence of a
valid marriage --- and in the Civil Code, there
can only be one validly existing marriage at
any given time --- is conjugal property of such
subsisting marriage. [43]
With the effectivity of the Family Code on
August 3, 1988, the following provisions of the
said Code are pertinent:
Art. 147. When a man and a woman who are
capacitated to marry each other live exclusively
with each other as husband and wife without
the benefit of marriage or under a void
marriage, their wages and salaries shall be
owned by them in equal shares and the
property acquired by both of them through their
work or industry shall be governed by the rules
on co-ownership.
In the absence of proof to the contrary,
properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes
of this Article, a party who did not participate in
the acquisition of the other party of any
property shall be deemed to have contributed
jointly in the acquisition thereof if the formers
efforts consisted in the care and maintenance
of the family and of the household.
Neither party can encumber or dispose by
acts inter vivos of his or her share in the
property acquired during cohabitation and
owned in common, without the consent of the
other, until after the termination of the
cohabitation.
When only one of the parties to a void
marriage is in good faith, the share of the party
in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
case of default or of waiver by any or all of the
common children or their descendants, each
vacant share shall belong to the respective
surviving descendants. In the absence of
descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall
take place upon termination of the
cohabitation.
Art. 148. In cases of cohabitation not falling
under the preceding Article, only the properties
acquired by both of the parties through their
actual joint contribution of money, property, or
industry shall be owned by them in common in
proportion to their respective contributions. In
the absence of proof to the contrary, their
contributions and corresponding shares are
presumed to be equal. The same rule and
presumption shall apply to joint deposits of
money and evidences of credit.
If one of the parties is validly married to
another, his or her share in the co-ownership
shall accrue to the absolute community or
conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is
not validly married to another, his or her share
shall be forfeited in the manner provided in the
last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise
apply even if both parties are in bad faith.
It will be noted that while the Civil Code
merely requires that the parties live together as
husband and wife the Family Code in Article
44
147 specifies that they live exclusively with
each other as husband and wife. Also, in
Page
contrast to Article 144 of the Civil Code as
interpreted by jurisprudence, Article 148 of the
Family Code allows for co-ownership in cases
of cohabitation where, for instance, one party
has a pre-existing valid marriage, provided that
the parties prove their actual joint contribution
of money, property, or industry and only to the
extent of their proportionate interest
therein. The rulings in Juaniza vs. Jose, 89
SCRA 306, Camporodendo vs. Garcia, 102
Phil. 1055, and related cases are embodied in
the second paragraph of Article 148, which
declares that the share of the party validly
married to another shall accrue to the property
regime of such existing marriage.
Fifth and Sixth Collateral Issues: Law(s) on Succession and
Dissolution of Property Regimes
Hadji Abdula died intestate on December
16, 1993. Thus, it is the Muslim Code which
should determine the identification of the heirs
in the order of intestate succession and the
respective shares of the heirs.
Meanwhile, the status and capacity to
succeed on the part of the individual parties
who entered into each and every marriage
ceremony will depend upon the law in force at
the time of the performance of the marriage
rite.
The status and capacity to succeed of the
children will depend upon the law in force at
the time of conception or birth of the child. If
the child was conceived or born during the
period covered by the governance of the Civil
Code, the Civil Code provisions on the
determination of the legitimacy or illegitimacy
of the child would appear to be in point. Thus,
the Civil Code provides:
Art. 255. Children born after one hundred and
eighty days following the celebration of the
marriage, and before three hundred days
following its dissolution or the separation of the
spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be
admitted other than that of the physical
impossibility of the husbands having access to
his wife within the first one hundred and twenty
days of the three hundred which preceded the
birth of the child.
This physical impossibility may be caused:
(1) By the impotence of the
husband;
(2) By the fact that the husband
and wife were living
separately, in such a way that
access was not possible;
(3) By the serious illness of the
husband.
Art. 256. The child shall be presumed
legitimate, although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.
If the child was conceived or born during
the period covered by the governance of the
Muslim Code, i.e., from February 4, 1977 up to
the death of Hadji Abdula on December 18,
1993, the Muslim Code determines the
legitimacy or illegitimacy of the child. Under the
Muslim Code:
Art. 58. Legitimacy, how established. ---
Legitimacy of filiation is established by the
evidence of valid marriage between the father
and the mother at the time of the conception of
the child.
Art. 59. Legitimate children. ---
(1) Children conceived in lawful
wedlock shall be presumed to be
legitimate. Whoever claims
illegitimacy of or impugns such
filiation must prove his allegation.
(2) Children born after six months
following the consummation of
marriage or within two years after
the dissolution of the marriage shall
be presumed to be
legitimate. Against this presumption
no evidence shall be admitted other
than that of physical impossibility of
access between the parents at or
about the time of the conception of
the child.
Art. 60. Children of subsequent marriage. ---
Should the marriage be dissolved and the wife
contracts another marriage after the expiration
of her idda, the child born within six months
from the dissolution of the prior marriage shall
be presumed to have been conceived during
the former marriage, and if born thereafter,
during the latter.
Art. 61. Pregnancy after dissolution. --- If, after
the dissolution of marriage, the wife believes
that she is pregnant by her former husband,
she shall, within thirty days from the time she
45
became aware of her pregnancy, notify the
former husband or his heirs of that fact. The
Page
husband or his heirs may ask the court to take
measures to prevent a simulation of birth.
Upon determination of status and capacity
to succeed based on the foregoing provisions,
the provisions on legal succession in the
Muslim Code will apply. Under Article 110 of
the said Code, the sharers to an inheritance
include:
(a) The husband, the wife;
(b) The father, the mother,
grandfather, the grandmother;
(c) The daughter and the
daughter in the direct line;
(d) The full sister, the consanguine
sister, the uterine sister and the
uterine brother.
When the wife survives with a legitimate
child or a child of the decedents son, she is
entitled to one-eighth of the hereditary estate;
in the absence of such descendants, she shall
inherit one-fourth of the estate.[44] The
respective shares of the other sharers, as set
out in Article 110 abovecited, are provided for
in Articles 113 to 122 of P.D. 1083.
Seventh Collateral Issue: Muslim Divorces Before the Effectivity of the
Muslim Code
R.A. 394 authorized absolute divorce
among Muslims residing in non-Christian
provinces, in accordance with Muslim custom,
for a period of 20 years from June 18, 1949
(the date of approval of R.A. 394) to June 13,
1969.[45] Thus, a Muslim divorce under R.A.
394 is valid if it took place from June 18, 1949
to June 13, 1969.
From the seven collateral issues that we
discussed, we identify four corollary issues as
to further situate the points of controversy in
the instant case for the guidance of the lower
court.Thus:
1. Which of the several marriages was
validly and legally existing at the time of the
opening of the succession of Hadji Abdula
when he died in 1993? The validly and legally
existing marriage would be that marriage which
was celebrated at a time when there was no
other subsisting marriage standing undissolved
by a valid divorce or by death. This is because
all of the marriages were celebrated during the
governance of the Civil Code, under the rules
of which only one marriage can exist at any
given time.
Whether or not the marriage was validly
dissolved by a Muslim divorce depends upon
the time frame and the applicable law. A
Muslim divorce under R.A. No. 394 is valid if it
took place from June 18, 1949 to June 13,
1969, and void if it took place from June 14,
1969. [46]
2. There being a dispute between the
petitioner and the oppositors as regards the
heirship of the children begotten from different
marriages, who among the surviving children
are legitimate and who are illegitimate? The
children conceived and born of a validly
the
existing marriage as determined by the first
corollary issue are legitimate. The fact and time
sons of conception or birth may be determined
by proof or presumption depending upon the
time frame and the applicable law.
3. What properties constituted the estate of
Hadji Abdula at the time of his death on
December 18, 1993? The estate of Hadji
Abdula consists of the following:
a. Properties acquired during the existence
of a valid marriage as determined by the first
corollary issue are conjugal properties and
should be liquidated and divided between the
spouses under the Muslim Code, this being the
law in force at the time of Hadji Abdulas death.
b. Properties acquired under the conditions
prescribed in Article 144 of the Civil Code
during the period August 30, 1950 to August 2,
1988 are conjugal properties and should be
liquidated and divided between the spouses
under the Muslim Code. However, the wives
other than the lawful wife as determined under
the first corollary issue may submit their
respective evidence to prove that any of such
property is theirs exclusively.
c. Properties acquired under the conditions
set out in Articles 147 and 148 of the Family
Code during the period from and after August
3, 1988 are governed by the rules on co-
ownership.
d. Properties acquired under conditions not
covered by the preceding paragraphs and
obtained from the exclusive efforts or assets of
Hadji Abdula are his exclusive properties.
4. Who are the legal heirs of Hadji Abdula,
and what are their shares in intestacy? The
following are Hadji Abdulas legal heirs: (a) the
lawful wife, as determined under the first
corollary issue, and (2) the children, as
determined under the second corollary
issue. The Muslim Code, which was already in
force at the time of Hadji Abdulas death, will
govern the determination of their respective
shares.
46
As we have indicated early on, the
Page
evidence in this case is inadequate to resolve
in its entirety the main, collateral and corollary additional evidence and the resolution of the
issues herein presented and a remand to the issues of the case based on the guidelines set
lower court is in order. Accordingly, evidence out in this Decision.
should be received to supply the following
SO ORDERED.
proofs: (1) the exact dates of the marriages
performed in accordance with Muslim rites or
practices; (2) the exact dates of the
dissolutions of the marriages terminated by
death or by divorce in accordance with Muslim
rites and practices, thus indicating which
marriage resulted in a conjugal partnership
under the criteria prescribed by the first,
second, and third collateral issues and the first
corollary issue; (3) the exact periods of actual
cohabitation (common life under a common
roof) of each of the marriages during which
time the parties lived together; (4) the
identification of specific properties acquired
during each of the periods of cohabitation
referred to in paragraph 3 above, and the
manner and source of acquisition, indicating
joint or individual effort, thus showing the asset
as owned separately, conjugally or in co-
ownership; and (5) the identities of the children
(legitimate or illegitimate) begotten from the
several unions, the dates of their respective
conceptions or births in relation to paragraphs
1 and 2 above, thereby indicating their status
as lawful heirs.
Amicus curiae Congressman Mastura
agrees that since the marriage of petitioner to
decedent took place in 1972 the Civil Code is
the law applicable on the issue of marriage
settlement, [47] but espouses that customs or
established practices among Muslims in
Mindanao must also be applied with the force
of law to the instant case.[48] Congressman
Masturas disquisition has proven extremely
helpful in impressing upon us the background
in which Islamic law and the Muslim Code
need to be interpreted, particularly the
interconnectedness of law and religion for
Muslims[49] and the impracticability of a strict
application of the Civil Code to plural marriages
recognized under Muslim law.[50] Regrettably,
the Court is duty-bound to resolve the instant
case applying such laws and rights as are in
existence at the time the pertinent civil acts
took place. Corollarily, we are unable to
supplant governing law with customs, albeit
how widely observed. In the same manner, we
cannot supply a perceived hiatus in P.D. 1083
concerning the distribution of property between
divorced spouses upon one of the spouses
death.51
WHEREFORE, the decision dated
September 26, 1994 of the Fifth Sharia District
Court of Cotabato City in Special Proceeding
47

No. 94-40 is SET ASIDE, and the instant

petition is REMANDED for the reception of
Page
 [G.R. No. 124371. November 23, 2000]
PAULA T. LLORENTE, petitioner,
vs. COURT OF APPEALS and ALICIA
F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the
decision of the Court of Appeals[1] modifying
that of the Regional Trial Court, Camarines
Sur, Branch 35, Iriga City[2] declaring
respondent Alicia F. Llorente (herinafter
referred to as Alicia), as co-owners of whatever
property she and the deceased Lorenzo N.
Llorente (hereinafter referred to as Lorenzo)
may have acquired during the twenty-five (25)
years that they lived together as husband and
wife.
The Facts
The deceased Lorenzo N. Llorente was an
enlisted serviceman of the United States Navy
from March 10, 1927 to September 30, 1957.[3]
On February 22, 1937, Lorenzo and
petitioner Paula Llorente (hereinafter referred
to as Paula) were married before a parish
priest, Roman Catholic Church, in Nabua,
Camarines Sur.[4]
Before the outbreak of the Pacific War,
Lorenzo departed for the United States and
Paula stayed in the conjugal home in barrio
Antipolo, Nabua, Camarines Sur.[5]
On November 30, 1943, Lorenzo was
admitted to United States citizenship and
Certificate of Naturalization No. 5579816 was
issued in his favor by the United States District
Court, Southern District of New York.[6]
Upon the liberation of the Philippines by
the American Forces in 1945, Lorenzo was
granted an accrued leave by the U. S. Navy, to
visit his wife and he visited the
[7]
Philippines. He discovered that his wife Paula
was pregnant and was living in and having an
adulterous relationship with his brother,
Ceferino Llorente.[8]
On December 4, 1945, Paula gave birth to
a boy registered in the Office of the Registrar
of Nabua as Crisologo Llorente, with the
certificate stating that the child was not
legitimate and the line for the fathers name
was left blank.[9]
Lorenzo refused to forgive Paula and live
with her. In fact, on February 2, 1946, the
couple drew a written agreement to the effect
that (1) all the family allowances allotted by the
United States Navy as part of Lorenzos salary
and all other obligations for Paulas daily
maintenance and support would be
suspended; (2) they would dissolve their
marital union in accordance with judicial
proceedings; (3) they would make a separate
agreement regarding their conjugal property
acquired during their marital life; and (4)
Lorenzo would not prosecute Paula for her
adulterous act since she voluntarily admitted
her fault and agreed to separate from Lorenzo
peacefully. The agreement was signed by both
Lorenzo and Paula and was witnessed by
Paulas father and stepmother. The agreement
was notarized by Notary Public Pedro
Osabel.[10]
Lorenzo returned to the United States and
on November 16, 1951 filed for
divorce with the Superior Court of the State of
California in and for the County of San
Diego. Paula was represented by counsel,
John Riley, and actively participated in the
proceedings. On November 27, 1951, the
Superior Court of the State of California, for the
County of San Diego found all factual
allegations to be true and issued an
interlocutory judgment of divorce.[11]
On December 4, 1952, the divorce decree
became final.[12]
In the meantime, Lorenzo returned to the
Philippines.
On January 16, 1958, Lorenzo married
Alicia F. Llorente in Manila.[13] Apparently,
Alicia had no knowledge of the first marriage
even if they resided in the same town as Paula,
who did not oppose the marriage or
cohabitation.[14]
From 1958 to 1985, Lorenzo and Alicia
lived together as husband and wife.[15] Their
twenty-five (25) year union produced three
children, Raul, Luz and Beverly, all surnamed
Llorente.[16]
On March 13, 1981, Lorenzo executed a
Last Will and Testament. The will was
notarized by Notary Public Salvador M.
Occiano, duly signed by Lorenzo with attesting
witnesses Francisco Hugo, Francisco Neibres
48
and Tito Trajano. In the will, Lorenzo
bequeathed all his property to Alicia and their
Page
three children, to wit:
(1) I give and bequeath to my wife ALICIA R.
FORTUNO exclusively my residential house
and lot, located at San Francisco, Nabua,
Camarines Sur, Philippines, including ALL the
personal properties and other movables or
belongings that may be found or existing
therein;
(2) I give and bequeath exclusively to my wife
Alicia R. Fortuno and to my children, Raul F.
Llorente, Luz F. Llorente and Beverly F.
Llorente, in equal shares, all my real properties
whatsoever and wheresoever located,
specifically my real properties located at
Barangay Aro-Aldao, Nabua, Camarines Sur;
Barangay Paloyon, Nabua, Camarines Sur;
Barangay Baras, Sitio Puga, Nabua,
Camarines Sur; and Barangay Paloyon, Sitio
Nalilidong, Nabua, Camarines Sur;
(3) I likewise give and bequeath exclusively
unto my wife Alicia R. Fortuno and unto my
children, Raul F. Llorente, Luz F. Llorente and
Beverly F. Llorente, in equal shares, my real
properties located in Quezon City Philippines,
and covered by Transfer Certificate of Title No.
188652; and my lands in Antipolo, Rizal,
Philippines, covered by Transfer Certificate of
Title Nos. 124196 and 165188, both of the
Registry of Deeds of the province of Rizal,
Philippines;
(4) That their respective shares in the above-
mentioned properties, whether real or personal
properties, shall not be disposed of, ceded,
sold and conveyed to any other persons, but
could only be sold, ceded, conveyed and
disposed of by and among themselves;
(5) I designate my wife ALICIA R. FORTUNO
to be the sole executor of this my Last Will and
Testament, and in her default or incapacity of
the latter to act, any of my children in the order
of age, if of age;
(6) I hereby direct that the executor named
herein or her lawful substitute should served
(sic) without bond;
(7) I hereby revoke any and all my other wills,
codicils, or testamentary dispositions
heretofore executed, signed, or published, by
me;
(8) It is my final wish and desire that if I die, no
relatives of mine in any degree in the Llorentes
Side should ever bother and disturb in any
manner whatsoever my wife Alicia R. Fortunato
and my children with respect to any real or
personal properties I gave and bequeathed
respectively to each one of them by virtue of
this Last Will and Testament.[17]
On December 14, 1983, Lorenzo filed with
the Regional Trial Court, Iriga, Camarines Sur,
a petition for the probate and allowance of his
last will and testament wherein Lorenzo moved
that Alicia be appointed Special Administratrix
of his estate.[18]
On January 18, 1984, the trial court denied
the motion for the reason that the testator
Lorenzo was still alive.[19]
On January 24, 1984, finding that the will
was duly executed, the trial court admitted the
will to probate.[20]
On June 11, 1985, before the proceedings
could be terminated, Lorenzo died.[21]
On September 4, 1985, Paula filed with the
same court a petition[22] for letters of
administration over Lorenzos estate in her
favor. Paula contended (1) that she was
Lorenzos surviving spouse, (2) that the various
property were acquired during their marriage,
(3) that Lorenzos will disposed of all his
property in favor of Alicia and her children,
encroaching on her legitime and 1/2 share in
the conjugal property.[23]
On December 13, 1985, Alicia filed in the
testate proceeding (Sp. Proc. No. IR-755), a
petition for the issuance of letters
testamentary.[24]
On October 14, 1985, without terminating
the testate proceedings, the trial court gave
due course to Paulas petition in Sp. Proc. No.
IR-888.[25]
On November 6, 13 and 20, 1985, the
order was published in the newspaper Bicol
Star.[26]
On May 18, 1987, the Regional Trial Court
issued a joint decision, thus:
Wherefore, considering that this court has so
found that the divorce decree granted to the
late Lorenzo Llorente is void and inapplicable
in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16,
1958 at Manila is likewise void. This being so
the petition of Alicia F. Llorente for the
issuance of letters testamentary is
denied. Likewise, she is not entitled to receive
any share from the estate even if the will
especially said so her relationship with Lorenzo
having gained the status of paramour which is
under Art. 739 (1).
49
On the other hand, the court finds the petition
Page
of Paula Titular Llorente, meritorious, and so
declares the intrinsic disposition of the will of
Lorenzo Llorente dated March 13, 1981 as void
and declares her entitled as conjugal partner
and entitled to one-half of their conjugal
properties, and as primary compulsory heir,
Paula T. Llorente is also entitled to one-third of
the estate and then one-third should go to the
illegitimate children, Raul, Luz and Beverly, all
surname (sic) Llorente, for them to partition in
equal shares and also entitled to the remaining
free portion in equal shares.
Petitioner, Paula Llorente is appointed legal
administrator of the estate of the deceased,
Lorenzo Llorente. As such let the
corresponding letters of administration issue in
her favor upon her filing a bond in the amount
(sic) of P100,000.00 conditioned for her to
make a return to the court within three (3)
months a true and complete inventory of all
goods, chattels, rights, and credits, and estate
which shall at any time come to her possession
or to the possession of any other person for
her, and from the proceeds to pay and
discharge all debts, legacies and charges on
the same, or such dividends thereon as shall
be decreed or required by this court; to render
a true and just account of her administration to
the court within one (1) year, and at any other
time when required by the court and to perform
all orders of this court by her to be performed.
On the other matters prayed for in respective
petitions for want of evidence could not be
granted.
SO ORDERED.[27]
In time, Alicia filed with the trial court a
motion for reconsideration of the aforequoted
decision.[28]
On September 14, 1987, the trial court
denied Alicias motion for reconsideration but
modified its earlier decision, stating that Raul
and Luz Llorente are not children legitimate or
otherwise of Lorenzo since they were not
legally adopted by him.[29] Amending its
decision of May 18, 1987, the trial court
declared Beverly Llorente as the only
illegitimate child of Lorenzo, entitling her to
one-third (1/3) of the estate and one-third (1/3)
of the free portion of the estate.[30]
On September 28, 1987, respondent
appealed to the Court of Appeals.[31]
On July 31, 1995, the Court of Appeals
promulgated its decision, affirming with
modification the decision of the trial court in
this wise:
WHEREFORE, the decision appealed from is
hereby AFFIRMED with the MODIFICATION
that Alicia is declared as co-owner of whatever
properties she and the deceased may have
acquired during the twenty-five (25) years of
cohabitation.
SO ORDERED.[32]
On August 25, 1995, petitioner filed with
the Court of Appeals a motion for
reconsideration of the decision.[33]
On March 21, 1996, the Court of
Appeals,[34] denied the motion for lack of merit.
Hence, this petition.[35]
The Issue
Stripping the petition of its legalese and
sorting through the various arguments
raised,[36] the issue is simple. Who are entitled
to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the
Court of Appeals. We remand the case to the
trial court for ruling on the intrinsic validity of
the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente
became an American citizen long before and at
the time of: (1) his divorce from Paula; (2)
marriage to Alicia; (3) execution of his will; and
(4) death, is duly established, admitted and
undisputed.
Thus, as a rule, issues arising from these
incidents are necessarily governed by foreign
law.
The Civil Code clearly provides:
Art. 15. Laws relating to family rights and
duties, or to the status, condition and legal
capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
Art. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate and testamentary
succession, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
50
testamentary provisions, shall be regulated
by the national law of the person whose
Page
succession is under consideration,
whatever may be the nature of the property
and regardless of the country wherein said
property may be found. (emphasis ours)
True, foreign laws do not prove themselves
in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like
any other fact, they must be alleged and
proved.[37]
While the substance of the foreign law was
pleaded, the Court of Appeals did not admit the
foreign law. The Court of Appeals and the trial
court called to the fore the renvoi doctrine,
where the case was referred back to the law of
the decedents domicile, in this case, Philippine
law.
We note that while the trial court stated
that the law of New York was not sufficiently
proven, in the same breath it made the
categorical, albeit equally unproven statement
that American law follows the domiciliary
theory hence, Philippine law applies when
determining the validity of Lorenzos will.[38]
First, there is no such thing as one
American law. The "national law" indicated in
Article 16 of the Civil Code cannot possibly
apply to general American law. There is no
such law governing the validity of testamentary
provisions in the United States. Each State of
the union has its own law applicable to its
citizens and in force only within the State. It
can therefore refer to no other than the law of
the State of which the decedent was a
resident.[39] Second, there is no showing that
the application of the renvoi doctrine is called
for or required by New York State law.
The trial court held that the will was
intrinsically invalid since it contained
dispositions in favor of Alice, who in the trial
courts opinion was a mere paramour. The trial
court threw the will out, leaving Alice, and her
two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the
will. It declared Alice entitled to one half (1/2) of
whatever property she and Lorenzo acquired
during their cohabitation, applying Article 144
of the Civil Code of the Philippines.
The hasty application of Philippine law and
the complete disregard of the will, already
probated as duly executed in accordance with
the formalities of Philippine law, is
fatal, especially in light of the factual and
legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.[40] we held that
owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against
absolute divorces, the same being considered
contrary to our concept of public policy and
morality. In the same case, the Court ruled
that aliens may obtain divorces abroad,
provided they are valid according to their
national law.
Citing this landmark case, the Court held
in Quita v. Court of Appeals,[41] that once
proven that respondent was no longer a
Filipino citizen when he obtained the divorce
from petitioner, the ruling in Van Dorn would
become applicable and petitioner could very
well lose her right to inherit from him.
In Pilapil v. Ibay-Somera,[42] we recognized
the divorce obtained by the respondent in his
country, the Federal Republic of
Germany. There, we stated that divorce and its
legal effects may be recognized in the
Philippines insofar as respondent is concerned
in view of the nationality principle in our civil
law on the status of persons.
For failing to apply these doctrines, the
decision of the Court of Appeals must be
reversed.[43] We hold that the divorce obtained
by Lorenzo H. Llorente from his first wife Paula
was valid and recognized in this jurisdiction as
a matter of comity. Now, the effects of this
divorce (as to the succession to the estate of
the decedent) are matters best left to the
determination of the trial court.
Validity of the Will
The Civil Code provides:
Art. 17. The forms and solemnities of
contracts, wills, and other public instruments
shall be governed by the laws of the country
in which they are executed.
When the acts referred to are executed before
the diplomatic or consular officials of the
Republic of the Philippines in a foreign country,
the solemnities established by Philippine laws
shall be observed in their execution.
(underscoring ours)
The clear intent of Lorenzo to bequeath his
property to his second wife and children by her
is glaringly shown in the will he executed. We
do not wish to frustrate his wishes, since he
was a foreigner, not covered by our laws on
51
family rights and duties, status, condition and
legal capacity.[44]
Page
 Whether the will is intrinsically valid and
who shall inherit from Lorenzo are issues best
proved by foreign law which must be pleaded
and proved. Whether the will was executed in
accordance with the formalities required is
answered by referring to Philippine law. In fact,
the will was duly probated.
As a guide however, the trial court should
note that whatever public policy or good
customs may be involved in our system of
legitimes, Congress did not intend to extend
the same to the succession of foreign
nationals. Congress specifically left the amount
of successional rights to the decedent's
national law.[45]
Having thus ruled, we find it unnecessary
to pass upon the other issues raised.

The Fallo

WHEREFORE, the petition is

GRANTED. The decision of the Court of
Appeals in CA-G. R. SP No. 17446
promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the
decision of the Regional Trial Court and
RECOGNIZES as VALID the decree of divorce
granted in favor of the deceased Lorenzo N.
Llorente by the Superior Court of the State of
California in and for the County of San Diego,
made final on December 4, 1952.
Further, the Court REMANDS the cases to
the court of origin for determination of the
intrinsic validity of Lorenzo N. Llorentes will
and determination of the parties successional
rights allowing proof of foreign law with
instructions that the trial court shall proceed
with all deliberate dispatch to settle the estate
of the deceased within the framework of the
Rules of Court.
No costs.
SO ORDERED.
52
Page
G.R. Nos. L-3087 and L-3088 July 31,
1954
In re: Testate Estate of the deceased JOSE
B. SUNTAY. SILVINO SUNTAY, petitioner-
appellant,
vs.
In re: Intestate Estate of the deceased JOSE
B. SUNTAY,
FEDERICO C. SUNTAY, administrator-
appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of
First Instance of Bulacan disallowing the
alleged will and testament executed in Manila
on November 1929, and the alleged last will
and testament executed in Kulangsu, Amoy,
China, on 4 January 1931, by Jose B. Suntay.
The value of the estate left by the deceased is
more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino
citizen and resident of the Philippines, died in
the city of Amoy, Fookien province, Republic of
China, leaving real and personal properties in
the Philippines and a house in Amoy, Fookien
province, China, and children by the first
marriage had with the late Manuela T. Cruz
namely, Apolonio, Concepcion, Angel, Manuel,
Federico, Ana, Aurora, Emiliano, and Jose, Jr.
and a child named Silvino by the second
marriage had with Maria Natividad Lim Billian
who survived him. Intestate proceedings were
instituted in the Court of First Instance of
Bulacan (special proceedings No. 4892) and
after hearing letters of administration were
issued to Apolonio Suntay. After the latter's
death Federico C. Suntay was appointed
administrator of the estate. On 15 October
1934 the surviving widow filed a petition in the
Court of First Instance of Bulacan for the
probate of a last will and testament claimed to
have been executed and signed in the
Philippines on November 1929 by the late Jose
B. Suntay. This petition was denied because of
the loss of said will after the filing of the petition
and before the hearing thereof and of the
insufficiency of the evidence to establish the
loss of the said will. An appeal was taken from
said order denying the probate of the will and
this Court held the evidence before the probate
court sufficient to prove the loss of the will and
remanded the case to the Court of First
Instance of Bulacan for the further proceedings
(63 Phil., 793). In spite of the fact that a
commission from the probate court was issued
on 24 April 1937 for the taking of the deposition
of Go Toh, an attesting witness to the will, on 7
February 1938 the probate court denied a
motion for continuance of the hearing sent by
cablegram from China by the surviving widow
and dismissed the petition. In the meantime the
Pacific War supervened. After liberation,
claiming that he had found among the files,
records and documents of his late father a will
and testament in Chinese characters executed
and signed by the deceased on 4 January
1931 and that the same was filed, recorded
and probated in the Amoy district court,
Province of Fookien, China, Silvino Suntay
filed a petition in the intestate proceedings
praying for the probate of the will executed in
the Philippines on November 1929 (Exhibit B)
or of the will executed in Amoy, Fookien,
China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the
petitioner Silvino Suntay and his mother Maria
Natividad Lim Billian are estopped from asking
for the probate of the lost will or of the foreign
will because of the transfer or assignment of
their share right, title and interest in the estate
of the late Jose B. Suntay to Jose G. Gutierrez
and the spouses Ricardo Gutierrez and
Victoria Goño and the subsequent assignment
thereof by the assignees to Francisco Pascual
and by the latter to Federico C. Suntay, for the
validity and legality of such assignments
cannot be threshed out in this proceedings
which is concerned only with the probate of the
will and testament executed in the Philippines
on November 1929 or of the foreign will
allegedly executed in Amoy on 4 January 1931
and claimed to have been probated in the
municipal district court of Amoy, Fookien
province, Republic of China.
As to prescription, the dismissal of the petition
for probate of the will on 7 February 1938 was
no bar to the filing of this petition on 18 June
1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or
destroyed will unless the execution and
validity of the same be established, and
the will is proved to have been in
existence at the time of the death of the
testator, or is shown to have been
fraudulently or accidentally destroyed in
the lifetime of the testator without his
knowledge, nor unless its provisions are
clearly and distinctly proved by at least
two credible witnesses. When a lost will
53
is proved, the provisions thereof must
be distinctly stated and certified by the
Page
 judge, under the seal of the court, and
the certificate must be filed and
recorded as other wills are filed and
recorded.
The witnesses who testified to the provisions of
the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel
Lopez, who was an attesting witness to the lost
will, was dead at the time of the hearing of this
alternative petition. In his deposition Go Toh
testifies that he was one of the witnesses to the
lost will consisting of twenty-three sheets
signed by Jose B. Suntay at the bottom of the
will and each and every page thereof in the
presence of Alberto Barretto, Manuel Lopez
and himself and underneath the testator's
signature the attesting witnesses signed and
each of them signed the attestation clause and
each and every page of the will in the presence
of the testator and of the other witnesses
(answers to the 31st, 41st, 42nd, 49th, 50th,
55th and 63rd interrogatories, Exhibit D-1), but
did not take part in the drafting thereof (answer
to the 11th interrogatory,Id.); that he knew the
contents of the will written in Spanish although
he knew very little of that language (answers to
the 22nd and 23rd interrogatories and to X-2
cross-interrogatory, Id.) and all he knows about
the contends of the lost will was revealed to
him by Jose B. Suntay at the time it was
executed (answers to the 25th interrogatory
and to X-4 and X-8 cross-interrogatories, Id.);
that Jose B. Suntay told him that the contents
thereof are the same as those of the draft
(Exhibit B) (answers to the 33rd interrogatory
and to X-8 cross-interrogatory, Id.) which he
saw in the office of Alberto Barretto in
November 1929 when the will was signed
(answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto
handed the draft and said to Jose B. Suntay:
"You had better see if you want any correction"
(answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose
B. Suntay put the "Exhibit B" in his pocket and
had the original signed and executed"
(answers to the 91st interrogatory, and to X-18
cross-interrogatory, Id.); that Mrs. Suntay had
the draft of the will (Exhibit B) translated into
Chinese and he read the translation (answers
to the 67th interrogatory, Id.); that he did not
read the will and did not compare it (check it
up) with the draft (Exhibit B) (answers to X-6
and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in
September 1934 in the house of her brother
Apolonio Suntay she learned that her father left
a will "because of the arrival of my brother
Manuel Suntay, who was bringing along with
him certain document and he told us or he was
telling us that it was the will of our father Jose
B. Suntay which was taken from Go Toh. ..."
(p. 524, t. s. n., hearing of 24 February 1948);
that she saw her brother Apolonio Suntay read
the document in her presence and of Manuel
and learned of the adjudication made in the will
by her father of his estate, to wit: one-third to
his children, one-third to Silvino and his mother
and the other third to Silvino, Apolonio,
Concepcion and Jose, Jr. (pp. 526-8, 530-1,
542, t. s. n. Id.); that "after Apolonio read that
portion, then he turned over the document to
Manuel, and he went away," (p. 528, t. s.
n., Id.). On cross-examination, she testifies that
she read the part of the will on adjudication to
know what was the share of each heir (pp. 530,
544, t. s. n., Id.) and on redirect she testifies
that she saw the signature of her father, Go
Toh, Manuel Lopez and Alberto Barretto (p.
546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in
November 1934 (p. 273, t. s. n., hearing of 19
January 1948), before the last postponement
of the hearing granted by the Court, Go Toh
arrived at his law office in the De los Reyes
Building and left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n., hearing
of 13 October 1947); that he checked up the
signatures on the envelope Exhibit A with
those on the will placed in the envelope (p. 33,
t. s. n., Id.); that the will was exactly the same
as the draft Exhibit B (pp. 32, 47, 50, t. s.
n., Id.).
If the will was snatched after the delivery
thereof by Go Toh to Anastacio Teodoro And
returned by the latter to the former because
they could not agree on the amount of fees, the
former coming to the latter's office straight from
the boat (p. 315, t. s. n., hearing of 19 January
1948) that brought him to the Philippines from
Amoy, and that delivery took place in
November 1934 (p. 273, t. s. n., Id.), then the
testimony of Ana Suntay that she saw and
heard her brother Apolonio Suntay read the will
sometime in September 1934 (p. 524, t. s. n.,
hearing of 24 February 1948), must not be
true.
Although Ana Suntay would be a good witness
because she was testifying against her own
interest, still the fact remains that she did not
read the whole will but only the adjudication
(pp. 526-8, 530-1, 542, t. s. n., Id.) and saw
only the signature, of her father and of the
witnesses Go Toh, Manuel Lopez and Alberto
Barretto (p. 546, t. s. n.,Id.). But her testimony
54
on cross-examination that she read the part of
the will on adjudication is inconsistent with her
Page
testimony in chief that after Apolonio had read
that part of the will he turned over or handed
the document to Manuel who went away (p.
528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B
in the office of Alberto Barretto in November
1929 when the will was signed, then the part of
his testimony that Alberto Barretto handed the
draft to Jose B. Suntay to whom he said: "You
had better see if you want any correction" and
that "after checking Jose B. Suntay put the
"Exhibit B" in his pocket and had the original
signed and executed" cannot be true, for it was
not the time for correcting the draft of the will,
because it must have been corrected before
and all corrections and additions written in lead
pencil must have been inserted and copied in
the final draft of the will which was signed on
that occasion. The bringing in for the draft
(Exhibit B) on that occasion is just to fit it within
the framework of the appellant's theory. At any
rate, all of Go Toh's testimony by deposition on
the provisions of the alleged lost will is
hearsay, because he came to know or he
learned to them from information given him by
Jose B. Suntay and from reading the
translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of
Federico C. Suntay who testifies that he read
the supposed will or the alleged will of his
father and that the share of the surviving
widow, according to the will, is two-thirds of the
estate (p. 229, t. s. n., hearing of 24 October
1947). But this witness testified to oppose the
appointment of a co-administrator of the estate,
for the reason that he had acquired the interest
of the surviving widow not only in the estate of
her deceased husband but also in the conjugal
property (pp. 148, 205, 228, 229, 231, t. s.
n., Id.) Whether he read the original will or just
the copy thereof (Exhibit B) is not clear. For
him the important point was that he had
acquired all the share, participation and
interest of the surviving widow and of the only
child by the second marriage in the estate of
his deceased father. Be that as it may, his
testimony that under the will the surviving
widow would take two-thirds of the estate of
the late Jose B. Suntay is at variance with
Exhibit B and the testimony of Anastacio
Teodoro. According to the latter, the third for
strict legitime is for the ten children; the third
for betterment is for Silvino, Apolonio,
Concepcion and Jose Jr.; and the third for free
disposal is for the surviving widow and her
child Silvino.
Hence, granting that there was a will duly
executed by Jose B. Suntay placed in the
envelope (Exhibit A) and that it was in
existence at the time of, and not revoked
before, his death, still the testimony of
Anastacio Teodoro alone falls short of the legal
requirement that the provisions of the lost will
must be "clearly and distinctly proved by at
least two credible witnesses." Credible
witnesses mean competent witnesses and
those who testify to facts from or upon hearsay
are neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies
that in the early part of 1929 he prepared or
drew up two mills for Jose B. Suntay at the
latter's request, the rough draft of the first will
was in his own handwriting, given to Manuel
Lopez for the final draft or typing and returned
to him; that after checking up the final with the
rough draft he tore it and returned the final
draft to Manuel Lopez; that this draft was in
favor of all the children and the widow (pp.
392-4, 449, t. s. n., hearing of 21 February
1948); that two months later Jose B. Suntay
and Manuel Lopez called on him and the
former asked him to draw up another will
favoring more his wife and child Silvino; that he
had the rough draft of the second will typed
(pp. 395, 449 t. s. n., Id.) and gave it to Manuel
Lopez (p. 396, t. s. n., Id.); that he did not sign
as witness the second will of Jose B. Suntay
copied from the typewritten draft [Exhibit B] (p.
420, t. s. n., Id.); that the handwritten insertions
or additions in lead pencil to Exhibit B are not
his (pp. 415-7 435-6, 457, t. s. n., Id.); that the
final draft of the first will made up of four or five
pages (p. 400, t. s. n., Id.) was signed and
executed, two or three months after Suntay
and Lopez had called on him (pp. 397-8, 403,
449, t. s. n., Id.) in his office at the Cebu
Portland Cement in the China Banking Building
on Dasmariñas street by Jose B. Suntay,
Manuel Lopez and a Chinaman who had all
come from Hagonoy (p. 398, t. s. n., Id.); that
on that occasion they brought an envelope
(Exhibit A) where the following words were
written: "Testamento de Jose B. Suntay" (pp.
399, 404, t. s. n., Id.); that after the signing of
the will it was placed inside the envelope
(Exhibit A) together with an inventory of the
properties of Jose B. Suntay and the envelope
was sealed by the signatures of the testator
and the attesting witnesses (pp. 398, 401, 441,
443, 461, t. s. n., Id.); that he again saw the
envelope (Exhibit A) in his house one Saturday
in the later part of August 1934, brought by Go
Toh and it was then in perfect condition (pp.
405-6, 411, 440-2, t. s. n., Id.); that on the
following Monday Go Toh went to his law office
bringing along with him the envelope (Exhibit
55
A) in the same condition; that he told Go Toh
that he would charge P25,000 as fee for
Page
probating the will (pp. 406, 440-2, Id.); that Go
Toh did not leave the envelope (Exhibit A)
either in his house or in his law office (p. 407, t.
s. n., Id.); that Go Toh said he wanted to keep
it and on no occasion did Go Toh leave it to
him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by
Assistant Fiscal F. B. Albert in connection with
the complaint for estafa filed against Manuel
Suntay for the alleged snatching of the
envelope (Exhibit A), corroborates the
testimony of Alberto Barretto to the effect that
only one will was signed by Jose B. Suntay at
his office in which he (Alberto Barretto),
Manuel Lopez and Go Toh took part as
attesting witnesses (p. 15, t. s. n., Exhibit 6).
Go Toh testified before the same assistant
fiscal that he did not leave the will in the hands
of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6).
He said, quoting his own words, "Because I
can not give him this envelope even though the
contract (on fees) was signed. I have to bring
that document to court or to anywhere else
myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed
on 4 January 1931 in Amoy, China, the law on
the point in Rule 78. Section 1 of the rule
provides:
Wills proved and allowed in a foreign
country, according to the laws of such
country, may be allowed, filed, and
recorded by the proper Court of First
Instance in the Philippines.
Section 2 provides:
When a copy of such will and the
allowance thereof, duly authenticated, is
filed with a petition for allowance in the
Philippines, by the executor or other
person interested, in the court having
jurisdiction, such court shall fix a time
and place for the hearing, and cause
notice thereof to be given as in case of
an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will
should be allowed in the Philippines, the
court shall so allow it, and a certificate of
its allowance, signed by the Judge, and
attested by the seal of the courts, to
which shall be attached a copy of the
will, shall be filed and recorded by the
clerk, and the will shall have the same
effect as if originally proved and allowed
in such court.
The fact that the municipal district court of
Amoy, China, is a probate court must be
proved. The law of China on procedure in the
probate or allowance of wills must also be
proved. The legal requirements for the
execution of a valid will in China in 1931 should
also be established by competent evidence.
There is no proof on these points. The
unverified answers to the questions
propounded by counsel for the appellant to the
Consul General of the Republic of China set
forth in Exhibits R-1 and R-2, objected to by
counsel for the appellee, are inadmissible,
because apart from the fact that the office of
Consul General does not qualify and make the
person who holds it an expert on the Chinese
law on procedure in probate matters, if the
same be admitted, the adverse party would be
deprived of his right to confront and cross-
examine the witness. Consuls are appointed to
attend to trade matters. Moreover, it appears
that all the proceedings had in the municipal
district court of Amoy were for the purpose of
taking the testimony of two attesting witnesses
to the will and that the order of the municipal
district court of Amoy does not purport to
probate the will. In the absence of proof that
the municipal district court of Amoy is a
probate court and on the Chinese law of
procedure in probate matters, it may be
presumed that the proceedings in the matter of
probating or allowing a will in the Chinese
courts are the a deposition or to a perpetuation
of testimony, and even if it were so it does not
measure same as those provided for in our
laws on the subject. It is a proceedings in rem
and for the validity of such proceedings
personal notice or by publication or both to all
interested parties must be made. The
interested parties in the case were known to
reside in the Philippines. The evidence shows
that no such notice was received by the
interested parties residing in the Philippines
(pp. 474, 476, 481, 503-4, t. s. n., hearing of 24
February 1948). The proceedings had in the
municipal district court of Amoy, China, may be
likened toe or come up to the standard of such
proceedings in the Philippines for lack of notice
to all interested parties and the proceedings
were held at the back of such interested
parties.
The order of the municipal district court of
Amoy, China, which reads as follows:
ORDER:
SEE BELOW
56
The above minutes were satisfactorily
confirmed by the interrogated parties,
Page
 who declare that there are no errors,
after said minutes were loudly read and
announced actually in the court.
Done and subscribed on the Nineteenth
day of the English month of the 35th
year of the Republic of China in the Civil
Section of the Municipal District Court of
Amoy, China.
HUANG KUANG CHENG
Clerk of Court
CHIANG TENG HWA
Judge
(Exhibit N-13, p. 89 Folder of Exhibits.).
does not purport to probate or allow the will
which was the subject of the proceedings. In
view thereof, the will and the alleged probate
thereof cannot be said to have been done in
accordance with the accepted basic and
fundamental concepts and principles followed
in the probate and allowance of wills.
Consequently, the authenticated transcript of
proceedings held in the municipal district court
of Amoy, China, cannot be deemed and
accepted as proceedings leading to the
probate or allowance of a will and, therefore,
the will referred to therein cannot be allowed,
filed and recorded by a competent court of this
country.
The decree appealed from is affirmed, without
pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and
Concepcion, JJ., concur.
Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer
to the case of Maria Natividad Lim Billian,
petitioner and appellant,vs. Apolonio Suntay,
Angel Suntay, Manuel Suntay, and Jose
Suntay, oppositors and appellees, 63 Phil.,
793-797, in which the following decision was
rendered by this Court on November 25, 1936,
holding that the will executed by Jose B.
Suntay who died in the City of Amoy, China, on
May 14, 1934, was lost under the
circumstances pointed out therein, and
ordering the return of the case to the Court of
First Instance of Bulacan for further
proceedings:
On May 14, 1934, Jose B. Suntay died
in the City of Amoy, China. He married
twice, the first time to Manuela T. Cruz
with whom he had several children now
residing in the Philippines, and the
second time to Maria Natividad Lim
Billian with whom he had a son.
On the same date, May 14, 1934,
Apolonio Suntay, eldest son of the
deceased by his first marriage, filed the
latter's intestate in the Court of First
Instance of Manila (civil case No. 4892).
On October 15, 1934, and in the same
court, Maria Natividad Lim Billian also
instituted the present proceedings for
the probate of a will allegedly left by the
deceased.
According to the petitioner, before the
deceased died in China he left with her
a sealed envelope (Exhibit A) containing
his will and, also another document
(Exhibit B of the petitioner) said to be a
true copy of the original contained in the
envelope. The will in the envelope was
executed in the Philippines, with
Messrs. Go Toh, Alberto Barretto and
Manuel Lopez as attesting witnesses.
On August 25, 1934, Go Toh, as
attorney-in-fact of the petitioner, arrived
in the Philippines with the will in the
envelope and its copy Exhibit B. While
Go Toh was showing this envelope to
Apolonio Suntay and Angel Suntay,
children by first marriage of the
deceased, they snatched and opened it
and, after getting its contents and
throwing away the envelope, they fled.
Upon this allegation, the petitioner asks
in this case that the brothers Apolonio,
Angel, Manuel and Jose Suntay,
children by the first marriage of the
deceased, who allegedly have the
document contained in the envelope
which is the will of the deceased, be
ordered to present it in court, that a day
be set for the reception of evidence on
the will, and that the petitioner be
appointed executrix pursuant to the
designation made by the deceased in
the will.
In answer to the court's order to present
the alleged will, the brothers Apolonio,
Angel, Manuel and Jose Suntay stated
that they did not have the said will and
57
denied having snatched it from Go Toh.
Page
In view of the allegations of the petition
and the answer of the brothers
Apolonio, Angel, Manuel and Jose
Suntay, the questions raised herein are:
The loss of the alleged will of the
deceased, whether Exhibit B
accompanying the petition is an
authentic copy thereof, and whether it
has been executed with all the essential
and necessary formalities required by
law for its probate.
At the trial of the case on March 26,
1934, the petitioner put two witnesses
upon the stand, Go Toh and Tan Boon
Chong, who corroborated the allegation
that the brothers Apolonio and Angel
appropriated the envelope in the
circumstances above-mentioned. The
oppositors have not adduced any
evidence counter to the testimony of
these two witnesses. The court, while
making no express finding on this fact,
took it for granted in its decision; but it
dismissed the petition believing that the
evidence is insufficient to establish that
the envelope seized from Go Toh
contained the will of the deceased, and
that the said will was executed with all
the essential and necessary formalities
required by law for its probate.
In our opinion, the evidence is sufficient
to establish the loss of the document
contained in the envelope. Oppositors'
answer admits that, according to
Barretto, he prepared a will of the
deceased to which he later become a
witness together with Go Toh and
Manuel Lopez, and that this will was
placed in an envelope which was signed
by the deceased and by the
instrumental witnesses. In court there
was presented and attached to the case
an open and empty envelope signed by
Jose B. Suntay, Alberto Barretto, Go
Toh and Manuel Lopez. It is thus
undeniable that this envelope Exhibit A
is the same one that contained the will
executed by the deceased-drafted by
Barretto and with the latter, Go Toh and
Manuel Lopez as attesting witnesses.
These tokens sufficiently point to the
loss of the will of the deceased, a
circumstance justifying the presentation
of secondary evidence of its contents
and of whether it was executed with all
the essential and necessary legal
formalities.
The trial of this case was limited to the
proof of loss of the will, and from what
has taken place we deduce that it was
not petitioner's intention to raise, upon
the evidence adduced by her, the other
points involved herein, namely, as we
have heretofore indicated, whether
Exhibit B is a true copy of the will and
whether the latter was executed with all
the formalities required by law for its
probate. The testimony of Alberto
Barretto bears importantly in this
connection.
Wherefore, the loss of the will executed
by the deceased having been
sufficiently established, it is ordered that
this case be remanded to the court of
origin for further proceedings in
obedience to this decision, without any
pronouncement as to the costs. So
ordered
On June 18, 1947, Silvino Suntay, the herein
petitioner, filed a petition in the Court of First
Instance of Bulacan praying "that an order be
issued (a) either directing the continuation of
the proceedings in the case remanded by the
Supreme Court by virtue of its decision in G. R.
No. 44276 and fixing a date for the reception of
evidence of the contents of the will declared
lost, or the allowance, filing and recording of
the will of the deceased which had been duly
probated in China, upon the presentation of the
certificates and authentications required by
Section 41, Rule 123 (Yu
Chengco vs. Tiaoqui supra), or both
proceedings concurrently and simultaneously;
(b) that letters of administration be issued to
herein petitioner as co-administrator of the
estate of the deceased together with Federico
Suntay; and (c) that such other necessary and
proper orders be issued which this Honorable
Court deems appropriate in the premises."
While this petition was opposed by Federico C.
Suntay, son of the deceased Jose B. Suntay
with his first wife, Manuela T. Cruz, the other
children of the first marriage, namely, Ana
Suntay, Aurora Suntay, Concepcion Suntay,
Lourdes Guevara Vda. de Suntay, Manuel
Suntay and Emiliano Suntay, filed the following
answer stating that they had no opposition
thereto; "Come now the heirs Concepcion
Suntay, Ana Suntay, Aurora Suntay, Lourdes
Guevara Vda. de Suntay, Manuel Suntay, and
Emiliano Suntay, through their undersigned
attorney, and, in answer to the alternative
petition filed in these proceedings by Silvino
Suntay, through counsel, dated June 18, 1947,
58
to this Honorable Court respectfully state that,
since said alternative petition seeks only to put
Page
into effect the testamentary disposition and
wishes of their late father, they have no
opposition thereto."
After hearing, the Court of First Instance of
Bulacan rendered on April 19, 1948, the
following decision:
This action is for the legalization of the
alleged will of Jose B. Suntay,
deceased.
In order to have a comprehensive
understanding of this case, it is
necessary to state the background on
which the alternative petition of the
herein petitioner Silvino Suntay has
been based.
The decision of the Supreme Court
(Exhibit O), in re will of the deceased
Jose B. Suntay, 63 Phil., 793-797, is
hereunder produced:
(As quoted above)
The above quoted decision of the
Supreme Court was promulgated on
November 25, 1936 (Exhibit O).
The Clerk of the Court of Court of First
Instance of Bulacan notified the parties
of the decision on December 15, 1936;
and the case was set for hearing on
February 12, 1937, but it was
transferred to March 29, 1937 (Exhibit
O), on motion of the then petitioner
Maria Natividad Lim Billian (Exhibit F).
Again, it was postponed until "further
setting" in the order of court dated
March 18, 1937, upon motion of the
petitioner (Exhibit H).
In the meantime, the deposition of Go
Toh was being sought (Exhibit H).
The hearing of the case was again set
for February 7, 1936, by order of the
court dated January 5, 1938, upon
motion of Emiliano Suntay and Jose
Suntay, Jr. On the same day of the
hearing which had been set, the
petitioner, then, Maria Natividad Lim
Billian, sent a telegram from Amoy,
China, addressed to the Court of First
Instance of Bulacan moving for the
postponement of the hearing on the
ground that Atty. Eriberto de Silva who
was representing her died (Exhibit K).
The court, instead of granting the
telegraphic motion for postponement,
dismissed the case in the order dated
February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino
Suntay filed a motion for the
consolidation of the intestate Estate of
the deceased Jose B. Suntay, Special
Proceeding No. 4892 and the Testate
Estate of Jose B. Suntay, Special
Proceeding No. 4952, which latter case
is the subject of the said alternative
petition. The motion for the merger and
consolidation of the two cases was
granted on July 3, 1947.
That oppositor, Federico C. Suntay, in
the Testate Proceeding filed a motion to
dismiss the alternative petition on
November 14, 1947, which was denied
by the court in its resolution of
November 22, 1947. The said oppositor
not being satisfied with the ruling of this
court denying the motion to dismiss,
filed before the Supreme Court a
petition for a writ of certiorari with
preliminary injunction, which was
dismissed for lack of merit on January
27, 1948.
In obedience to the decision of the
Supreme Court (Exhibit O) and upon the
alternative petition of Silvino Suntay,
and, further, upon the dismissal of the
petition for a writ of certiorari with
preliminary injunction, the court was
constrained to proceed with the hearing
of the probate of the lost will, the draft of
which is Exhibit B, or the admission and
recording of the will which had been
probated in Amoy, China.
The evidence for the petitioner, Silvino
Suntay, shows that Jose B. Suntay
married twice; first to Manuela T. Cruz
who died on June 15, 1920 and had
begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel,
Federico, Ana, Aurora, Emiliano and
Jose, Jr., all surnamed Suntay, and
second, to Maria Natividad Lim Billian
with whom he had as the only child
Silvino Suntay, the petitioner herein.
Some time in November 1929, Jose B.
Suntay executed his last will and
testament in the office of Atty. Alberto
Barretto in Manila, which was witnessed
by Alberto Barretto, Manuel Lopez and
Go Toh. The will was prepared by said
59
Alberto Barretto upon the instance of
Jose B. Suntay, and it was written in the
Page
Spanish language which was
understood and spoken by said testator.
After the due execution of the will, that is
signing every page and the attestation
clause by the testator and the witnesses
in the presence of each other, the will
was placed inside the envelope (Exhibit
A), sealed and on the said envelope the
testator and the three subscribing
witnesses also signed, after which it was
delivered to Jose B. Suntay.
A year or so after the execution of the
will, Jose B. Suntay together with his
second wife Maria Natividad Lim Billian
and Silvino Suntay who was then of
tender age went to reside in Amoy,
Fookien, China, where he died on May
14, 1934. The will was entrusted to the
widow, Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on
May 14, 1934, Apolonio Suntay, the
oldest son now deceased, instituted the
Intestate Proceedings No. 4892, upon
the presumption that no will existed.
Maria Natividad Lim Billian who
remained in Amoy, China, had with her
the will and she engaged the services of
the law firm of Barretto and Teodoro for
the probate of the will. Upon the request
of the said attorneys the will was
brought to the Philippines by Go Toh
who was one of the attesting witnesses,
and it was taken to the law office of
Barretto and Teodoro. The law firm of
Barretto and Teodoro was composed of
Atty. Alberto Barretto and Judge
Anastacio Teodoro. The probate of the
will was entrusted to the junior partner
Judge Anastacio Teodoro; and, upon
the presentation of the sealed envelope
to him, he opened it and examined the
said will preparatory to the filing of the
petition for probate. There was a
disagreement as to the fees to be paid
by Maria Natividad Lim Billian, and as
she (through Go Toh) could not agree to
pay, P20,000 as fees, the will was
returned to Go Toh by Judge Anastacio
Teodoro after the latter had kept it in his
safe, in his office, for three days.
Subsequently, the will inside the
envelope was snatched from Go Toh by
Manuel Suntay and Jose, Jr., which fact
has been established in the decision of
the Supreme Court at the beginning of
this decision. Go Toh could recover the
envelope (Exhibit A) and the piece of
cloth with which the envelope was
wrapped (Exhibit C).
The Testate Proceeding was filed
nevertheless and in lien of the lost will a
draft of the will (Exhibit B) was
presented as secondary evidence for
probate. It was disallowed by this court
through Judge Buenaventura Ocampo,
but on appeal the Supreme Court
remanded the case to this court for
further proceeding (Exhibit C).
In the meantime, a Chinese will which
was executed in Amoy Fookien, China,
on January 4, 1931, by Jose B. Suntay,
written in Chinese characters (Exhibit P)
was discovered in Amoy, China, among
the papers left by Jose B. Suntay, and
said will had been allowed to probate in
the Amoy District Court, China, which is
being also presented by Silvino Suntay
for allowance and recording in this court.
The said petition is opposed by Federico
C. Suntay on the main ground that
Maria Natividad Lim Billian and Silvino
Suntay have no more interest in the
properties left by Jose B. Suntay,
because they have already sold their
respective shares, interests and
participations. But such a ground of
opposition is not of moment in the
instant case, because the proposition
involved herein in the legalization of the
lost will or the allowance and recording
of the will which had been probated in
Amoy, China.
It is now incumbent upon this court to
delve into the evidence whether or not
Jose B. Suntay, deceased, left a will
(the draft of which is Exhibit B) and
another will which was executed and
another will which was executed and
probated in Amoy, China.
There is no longer any doubt that Jose
B. Suntay while he was still residing in
the Philippines, had executed a will;
such is the conclusion of the Supreme
Court in its decision (Exhibit O). That the
will was snatched and it has never been
produced in court by those who
snatched it, and consequently
considered lost, is also an established
fact.
The contention of the oppositor,
60
Federico C. Suntay, is that the will that
was executed by Jose B. Suntay in the
Page
Philippines contained provisions which
provided for equal distribution of the
properties among the heirs; hence, the
draft (Exhibit B) cannot be considered
as secondary evidence, because it does
not provide for equal distribution, but if
favors Maria Natividad Lim Billian and
Silvino Suntay. He relies on the
testimony of Atty. Alberto Barretto who
declared that the first will which he
drafted and reduced into a plain copy
was the will that was executed by Jose
B. Suntay and placed inside the
envelope (Exhibit A).
Granting that the first will which Atty.
Alberto Barretto had drafted became the
will of Jose B. Suntay and it was
snatched by, and, therefore, it had fallen
into the hands of, Manuel Suntay and
the brothers of the first marriage, it
stands to reason that said Manuel
Suntay and brothers would have been
primarily interested in the production of
said will in court, for obvious reasons,
namely, that they would have been
favored. But it was suppressed and
"evidence willfully suppressed would be
adverse if produced" (Section 69 (e),
Rule 123 of the Rules of Court). The
contention, therefore, that the first will
which was drafted by Atty. Barretto was
the one placed inside the envelope
(Exhibit A) is untenable.
It might be said in this connection that
the draft of the will (Exhibit B) has been
admitted by Atty. Alberto Barretto as
identical in substance and form to the
second draft which he prepared in
typewriting; it differs only, according to
him, in style. He denied that the
insertions in long hand in the said draft
are in his own handwriting; however,
Judge Anastacio Teodoro averred that
the said insertions are the handwriting of
Atty. Alberto Barretto. But when Atty.
Alberto Barretto was asked to show any
manuscript of his for purposes of
comparison, he declined to do so
alleging that he did not have any
document in his possession showing his
handwriting notwithstanding the fact that
he was testifying in his own house at
188 Sta. Mesa Boulevard, Manila. He
further testified that the first will be
drafted contained four or five pages, but
the second draft contained twenty-three
pages; that he declared in one breath
that he did not read the will any more
when it was signed by the testator and
the attesting witnesses because it would
take up much time, and in the same
breath he declared that he checked it
before it was signed; and that he
destroyed the draft of the first will which
was in his own handwriting, but he
delivered the draft of the second will
which he prepared to Jose B. Suntay in
the presence of Manuel Lopez, now
deceased.
Whether or not the final plain copy of the
draft of the will (Exhibit B) was executed
by the testator, Jose B. Suntay, and
attested by the subscribing witnesses,
Atty. Alberto Barretto, Manuel Lopez
and Go Toh, is the pivotal point in this
instant case. Judge Anastacio Teodoro
testified that he opened the sealed
envelope when it was given to him by
Go Toh preparatory to the presentation
of the petition for the probate of the said
will. As the lawyer entrusted with that
task, he had to examine the will and
have it copied to be reproduced or
appended to the petition. He could not
do otherwise if he is worth salt as a
good lawyer; he could not perform the
stunt of "blind flying" in the judicial
firmament. Every step must be taken
with certainty and precision under any
circumstances. He could not have talked
about the attorney's fees with Go Toh,
unless he has not examined the will
beforehand. And, declaring that it was
the exact draft of the will that was inside
the envelope (Exhibit A), the testimony
of Atty. Alberto Barretto to the contrary
notwithstanding.
The testimony of Judge Anastacio
Teodoro is corroborated by Go Toh, one
of the attesting witnesses, in his
deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who
would be affected adversely by the
legalization of the will in question, also
testified on rebuttal that she saw the
original will in the possession of Manuel
Suntay, immediately after the snatching.
She read it and she particularly
remembers the manner in which the
properties were to be distributed. Exhibit
B was shown to her on the witness
stand and she declared that the
provision regarding the distribution of
the properties in said Exhibit B is the
same as that contained in the original
61
will. Said testimony of Ana Suntay,
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therefore, belies the testimony of Atty.
Alberto Barretto.
With respect to the proof of lost or
destroyed will, Section 6 of Rule 77
provides as follows:
"No will shall be proved as a lost or
destroyed will unless the execution and
validity of the same be established, and
the will is proved to have been in
existence at the time of the death of the
testator, or it is shown to have been
fraudulently or accidentally destroyed in
the lifetime of the testator without his
knowledge, nor unless its provisions are
clearly and distinctly proved by at least
two credible witnesses. When a lost will
is proved, the provisions thereof must
be distinctly stated and certified by the
judge, under the seal of the court, and
the certificate must be filed and
recorded as other wills are filed and
recorded."
Section 8 of the same Rule provides as
follows:
"If it appears at the time fixed for the
hearing that the subscribing witnesses
are dead or insane, or that none of them
resides in the Philippines the court may
admit the testimony of other witnesses
to prove the sanity of the testator, and
the due execution of the will; and as
evidence of the due execution of the
will, it may admit proof of the
handwriting of the testator and of the
subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing
witnesses is dead. Atty. Alberto Barretto
and Go Toh are still living. The former
testified during the hearing, while Go
Toh's deposition was introduced in
evidence which was admitted. In the
absence of the testimony of Manuel
Lopez, deceased, the testimony of
Judge Anastacio Teodoro and Ana
Suntay was received.
It is an established fact that the will,
draft of which is Exhibit B, was lost or
destroyed; that it was executed and
valid and that it existed at the time of the
death of Jose B. Suntay. These
circumstances also apply to the will
(Exhibit P) which was executed in
Amoy, China.
The contents of the Chinese will is
substantially the same as the draft
(Exhibit B). Granting that the will
executed in the Philippines is non-
existent as contended by the oppositor,
although the findings of this court is
otherwise, the will executed and
probated in China should be allowed
and recorded in this court. All the
formalities of the law in China had been
followed in its execution, on account of
which it was duly probated in the Amoy
District Court. There is no cogent
reason, therefore, why it should not be
admitted and recorded in this
jurisdiction.
The said will (Exhibit P) in Chinese
characters is presented as an alternate
in case the will executed in the
Philippines would not be allowed to
probate, or as a corroborative evidence
that the will, the draft of which is Exhibit
B, has been duly executed in the
Philippines by Jose B. Suntay.
Rule 78 of the Rules of Court covers the
allowance of will proved outside of the
Philippines and administration of estate
thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United
States, or any state or territory thereof,
or in foreign country, according to the
laws of such state, territory, or country,
may be allowed, filed, and recorded by
the proper Court of First Instance in the
Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the
allowance thereof, duly authenticated, is
filed with a petition for allowance in the
Philippines, by the executor or other
person interested, in the court having
jurisdiction, such court shall fix a time
and place for the hearing, and cause
notice thereof to be given as in case of
an original will presented for allowance."
This court has delved deep into the
evidence adduced during the hearing
with that penetrating scrutiny in order to
discovery the real facts; it had used
unsparingly the judicial scapel; and it
has winnowed the evidenced to
62
separate the grain from the chaff. All the
facts lead to the inevitable conclusion
Page
 that Jose B. Suntay, in his sound and
disposing mind and not acting under
duress or undue influence, executed the
will which is lost, the draft of which is
Exhibit B, with all the necessary
formalities prescribed by law. He,
likewise, executed the second will
(Exhibit P) in Amoy, China, which has
been duly probated in Amoy District
Court,-a corroborative evidence that the
testator really executed the will. Copies
of the said wills duly certified and under
the seal of the court are appended
hereto, marked Exhibits B and P, and
they form part of this decision.
In view of the foregoing considerations,
the court is of the opinion and so
declares that the draft of the will (Exhibit
B) is, to all legal intents and purposes,
and testament of the deceased Jose B.
Suntay. With costs against the
oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20,
1948, a motion for new trial and to set aside
the decision rendered on April 19, 1948, to
which the petitioner filed an opposition,
followed by a reply filed by the oppositor and
an answer on the part of the petitioner. Without
reopening the case and receiving any new or
additional evidence, the Court of First Instance
of Bulacan, on September 29, 1948,
promulgated the following resolution setting
aside his first decision and disallowing the wills
sought to be probated by the petitioner in his
alternative petition filed on June 18, 1947:
This is a motion for new trial and to set
aside the decision legalizing the will of
Jose B. Suntay and allowing and
recording another will executed by him
in Amoy, China.
By virtue of this motion, this court is
constrained to go over the evidence and
the law applicable thereto with the view
of ascertaining whether or not the
motion is well founded. Both parties
have presented extensive memoranda
in support of their respective
contentions.
This court has gone over the evidence
conscientiously, and it reiterates its
findings of the same facts in this
resolution, whether or not the facts
established by the petitioner, Silvino
Suntay, warrant the legalization of the
lost will and the allowance and recording
of the will that was executed in Amoy,
China, is therefore, the subject of this
instant motion.
A. As to the legalization of the Lost Will.
— There is no question in the mind of
this court that the original will which
Jose B. Suntay, deceased executed in
the Philippines in the year 1929 was lost
(Exhibit O, Decision of the Supreme
Court). The evidence adduced by the
petitioner during the hearing has
established through the testimony of
Judge Anastacio Teodoro and that of
Go Toh (an attesting witness) that the
will was executed by Jose B. Suntay,
deceased, with all the formalities
required by law. For the purpose of
legalizing an original and existing will,
the evidence on record is sufficient as to
the execution and attesting in the
manner required by law.
Section 8 of Rule 77 provides as
follows:
"SEC. 8. Proof when witnesses dead or
insane or do not reside in
the Philippines. — If it appears at the
time fixed for the hearing that the
subscribing witnesses are dead or
insane, or that none of them resides in
the Philippines, the court may admit the
testimony of other witnesses to prove
the sanity of the testator, and the due
execution of the will; and as evidence of
the execution of the will, may admit
proof of the handwriting of the testator
and of the subscribing witnesses, or any
of them."
Section 11 of said rule also provides as
follows:
"SEC. 11. Subscribing witnesses
produced or accounted for where
contest. — If the will is contested, all the
subscribing witnesses present in the
Philippines and not insane, must be
produced and examined, and the death,
absence, or insanity of any of them must
be satisfactorily shown to the court. If all
or some of the subscribing witnesses
are present in the Philippines, but
outside the province where the will has
been filed, their deposition must be
taken. If all or some of the subscribing
witnesses produced and examined
testify against the due execution of the
will, or do not remember having attested
63
to it, or are otherwise of doubtful
credibility, the will may be allowed if the
Page
court is satisfied from the testimony of
other witnesses and from all the
evidence presented that the will was
executed and attested in the manner
required by law."
The three attesting witnesses were
Manuel Lopez, deceased Alberto
Barretto and Go Toh. The last two
witnesses are still living; the former
testified against and the latter in favor.
In other words, the attesting witness, Go
Toh, only, testified in his deposition in
favor of the due execution of the will.
Hence, the petitioner presented another
witness, Judge Anastacio Teodoro, to
establish and prove the due execution of
the said will. Ana Suntay was also
presented as a witness in rebuttal
evidence. The testimony of Go Toh in
his deposition as an attesting witness,
coupled with the testimony of Judge
Anastacio Teodoro who was able to
examine the original will that was
executed by Jose B. Suntay, deceased,
when it was given to him by Go Toh for
the purpose of filing the petition in court
for its legalization, and could recognize
the signatures of the testator as well as
of the three attesting witnesses on the
said original will is sufficient to convince
the court that the original will was
executed by the deceased Jose B.
Suntay with all the formalities required
by law. The original will, therefore, if it
was presented in court to probate would
be allowed to all legal intents and
purposes. But it was not the original will
that was presented, because it was lost,
but an alleged draft (Exhibit B) of the
said original will which does not bear the
signature of the testator and any of the
attesting witness. The original will was
duly executed with all the formalities
required by law, but it was unfortunately
lost; and the curtain falls for the next
setting.
The Court is now confronted with the
legalization of the lost will — whether or
not the draft (Exhibit B) should be
admitted as secondary evidence in lieu
of the lost will and allowed to probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will
— Certificate thereupon. — No will shall
be proved as a lost will or destroyed will
unless the execution and validity of the
same be established, and the will is
proved to have been in existence at the
time of the death of the testator, or is
shown to have been fraudulently or
accidentally destroyed in the lifetime of
the testator without his knowledge, nor
unless its provisions are clearly and
distinctly proved by at least two credible
witnesses. When a lost will is proved,
the provisions thereof must be distinctly
stated and certified by the Judge, under
the seal of the court and the certificate
must be filed and recorded as other wills
are filed and recorded." (Emphasis
Court's)
From the above quoted provision of the
law, it is clear that the petitioner should
not only establish the execution and
validity of the will, its existence at the
time of the death of the testator or its
fraudulent and accidental destruction in
the lifetime of the testator without his
knowledge, but also must prove its
provisions clearly and distinctly by at
least two credible witnesses. The exact
language of the clause in the above
quoted provision of the law is "nor
unless its provisions are clearly and
distinctly proved by at least two credible
witnesses." The legalization of a lost will
is not so easy, therefore, as that of an
original will. The question, therefore, is
boiled down to, and projected on the
screen, in a very sharp focus; namely,
the execution and validity must be
established and the provisions must be
clearly and distinctly proved by at least
credible witnesses.
Granting that the execution and validity
of the lost will have been established
through the testimony of Judge
Anastacio Teodoro and Go Toh, and
perhaps superficially by the rebuttal
witness, Ana Suntay, does it follow that
the provisions of the lost will have been
clearly and distinctly proved by at least
two credible witnesses? A careful review
of the evidence has revealed that at
most the only credible witness who
testified as to the provisions of the will
was Judge Anastacio Teodoro, and yet
he testified on the provisions of the lost
will with the draft (Exhibit B) in his hands
while testifying. It may be granted,
however, that with or without the draft of
the will (Exhibit B) in his hands, he could
have testified clearly and distinctly on
the provisions of the said lost will,
64
because he had kept the will in his safe,
in his office, for three days, after
Page
opening it, and he is well versed in
Spanish language in which the will as
written. But did the attesting witness Go
Toh, testify in his deposition and prove
clearly and distinctly the provisions of
the lost will? He did not, and he could
not have done so even if he tried
because the original will was not read to
him nor by him before or at the signing
of the same. It was written in Spanish
and he did not and does not understand
the Spanish language. Neither was
there any occasion for him to have the
contents of the said will, after its
execution and sealing inside the
envelope (Exhibit A), read to him
because it was opened only when
Judge Teodoro had examined it and
then subsequently snatched from Go
Toh. Ana Suntay on rebuttal did not,
likewise, prove clearly and distinctly the
provisions of the said lost will because
she has not had enough schooling and
she does possess adequate knowledge
of the Spanish language as shown by
the fact that she had to testify in
Tagalog on the witness standing.
It is evident, therefore, that although the
petitioner has established the execution
and validity of the lost will, yet he had
not proved clearly and distinctly the
provisions of the will by at least two
credible witnesses.
B. As to the Allowance and Recording of
the will Executed in Amoy, China. —
Jose B. Suntay, while he was residing in
China during the remaining years of his
life, executed also a will, written in
Chinese characters, the translation of
which is marked Exhibit P. It was
allowed to probate in the District Court
of Amoy, China. The question is
whether or not the said will should be
allowed and recorded in this jurisdiction.
Section 1 of Rule 78 provides as
follows:
"SEC. 1. Will proved outside Philippines
any be allowed here. — Will proved and
allowed in the United States, or any
state or territory thereof, or in a foreign
country, according to the laws of such
state, territory, or country, may be
allowed, filed, and recorded by the
proper court of First Instance in the
Philippines."
Section 2 of the same Rule also
provides:
"SEC. 2. Notice of hearing for
allowance. — When a copy of such will
and the allowance thereof, duly
authenticated, is filed with a petition for
allowance in the Philippines by the
executor or other persons interested, in
the Court having jurisdiction, such court
shall fix a time and place for the hearing,
and cause notice thereof to be given as
in case of an original will presented for
allowance."
Sections 41 and 42 of Rule 123
provides as follows:
"SEC. 41. Proof of Public or official
record. — An official record or an entry
therein, when admissible for any
purpose, may be evidenced by an
official publication thereof or by a copy
attested by the officer having the legal
custody of the record, or by his deputy,
and accompanied, if the record is not
kept in the Philippines, with a certificate
that such officer has the custody. If the
office in which the record is kept is
within the United States or its territory,
the certificate may be made by a judge
of a court of record of the district or
political subdivision in which the record
is kept, authenticated by the seal of the
court, or may be made by any public
officer having a seal of the office and
having official duties in the district or
political subdivision in which the record
is kept, authenticated by the seal of his
office. If the office in which the record is
kept is in a foreign country, the
certificate may be made by a secretary
of embassy or legation, consul general,
consul, vice consul, or consular agent or
by any officer in the foreign service of
the United States stationed in the
foreign country in which the record is
kept, and authenticated by the seal of
his office."
F. "SEC. 42. What attestation of copy
must state. — Whenever a copy of
writing is attested for the purpose of
evidence, the attestation must state, in
substance, that the copy is a correct
copy of the original, or a specific part
thereof, as the case may be. The
attestation must be under the official
seal of the attesting officer, if there be
65
any, or if he be the clerk of a court
Page
having a seal, under the seal of such
court."
In the case of Yu Changco vs. Tiaoqui,
11 Phil. 598, 599, 600, our Supreme
Court said:
"Section 637 of the Code of Civil
Procedure says that will proved and
allowed in a foreign country, according
to the laws of such country, may be
allowed, filed, and recorded in the Court
of First Instance of the province in which
the testator has real or personal estate
on which such will may operate; but
section 638 requires that the proof of the
authenticity of a will executed in a
foreign country must be
duly"authenticated". Such
authentication, considered as a foreign
judicial record, is prescribed by section
304, which requires the attestation of
the clerk or of the legal keeper of the
records with the seal of the court
annexed, if there be a seal, together
with a certificate of the chief judge or
presiding magistrate that the signature
of either of the functionaries attesting
the will is genuine, and, finally, the
certification of the authenticity of the
signature of such judge or presiding
magistrate, by the ambassador,
minister, consul, vice consul or consular
agent of the United States in such
foreign country. And, should the will be
considered, from an administrative point
of view, as a mere official document 'of
a foreign country', it may be proved, 'by
the original, or by a copy certified by the
legal keeper thereof, with a certificate,
under the seal of the country or
sovereign, that the document is a valid
and subsisting document of such
country, and that the copy is duly
certified by the officer having the legal
custody of the original. (Sec. 313, par.
8)."
In the case of Fluemer vs. Hix, 54 Phil.
610, 611, 612, and 613, our Supreme
Court said:
"It is the theory of the petitioner that the
alleged will was executed in Elkins,
West Virginia, on November 3, 1925, by
Hix who had his residence in that
jurisdiction, and that the laws of West
Virginia govern. To this end, there was
submitted a copy of section 3868 of Acts
1882, c. 84 as found in West Virginia
Code, Annotated, by Hogg, Charles E.,
Vol. 2, 1914, p. 1690, and as certified to
by the Director of the National Library.
But this was far from compliance with
the law. The laws of a foreign
jurisdiction do not prove themselves in
our courts. The courts of the Philippine
Islands are not authorized to take
judicial notice of the laws of the various
States of the American Union. Such
laws must be proved as facts. (In re
Estate of Johnson (1918), 39 Phil., 156.)
Here the requirements of the law were
not met. There was not showing that the
book from which an extract was taken
was printed or published under the
authority of the State of West Virginia,
as provided in section 300 of the Code
of Civil Procedure. Nor was the extract
from the law attested by the certificate of
the officer having charge of the original
under the seal of the State of West
Virginia, as provided in section 301 of
the Code of Civil Procedure. No
evidence was introduced to show that
the extract from the laws of West
Virginia was in force at the time the
alleged will was executed.
"It was also necessary for the petitioner
to prove that the testator had his
domicile in West Virginia and not in the
Philippine Islands. The only evidence
introduced to establish this fact
consisted of the recitals in the alleged
will and the testimony of the petitioner.
"While the appeal was pending
submission in this court, the attorney for
the appellant presented an unverified
petition asking the court to accept as
part of the evidence the documents
attached to the petition. One of these
documents discloses that a paper
writing purporting to be the last will and
testament of Edward Randolph Hix,
deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph
County, State of West Virginia, in
vacation, and was duly proven by the
oaths of Dana Vansley and Joseph L.
Madden, the subscribing witnesses
thereto, and ordered to be recorded and
filed. It was shown by another document
that in vacation, on June 8, 1929, the
clerk of court of Randolph County, West
Virginia, appointed Claude E. Maxwell
as administrator, cum testamento
annexo, of the estate of Edward
Randolph Hix, deceased ... However
66
this may be no attempt has been made
to comply with the provisions of sections
Page
637, 638, and 639 of the Code of Civil
Procedure, for no hearing on the
question of the allowance of a will said
to have been proved and allowed in
West Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay
which was executed in Amoy, China,
was validly done in accordance with the
law of the Republic of China on the
matter, is it necessary to prove in this
jurisdiction the existence of such law in
China as a prerequisite to the allowance
and recording of said will? The answer
is in the affirmative as enunciated in
Fluemer vs. Hix, supra, and in Yanez de
Barnuevo vs. Fuster, 29 Phil., 606. In
the latter case, the Supreme Court said:
"A foreign law may be proved by the
certificate of the officer having in charge
of the original, under the seal of the
state or country. It may also be proved
by an official copy of the same
published under the authority of the
particular state and purporting to contain
such law. (Secs. 300 and 301, Act No.
190.), (Syllabus.)
The provisions of section 300 and 301
of the Code of Civil Procedure (Act No.
190) are as follows:
"SEC. 300. Printed laws of the State or
Country. — Books printed or published
under the authority of the United States,
or one of the States of the United
States, or a foreign country, and
purporting to contain statutes, codes, or
other written law of such State or
country or proved to be commonly
admitted in the tribunals of such State or
country an evidence of the written law
thereof, are admissible in the Philippine
Islands are evidence of such law."
"SEC. 301. Attested copy of foreign
laws. — A copy of the written law or
other public writing of any state or
country, attested by the certificate of the
officer having charge of the original,
under the seal of the state or country, is
admissible as evidence of such law or
writing."
The petitioner has presented in
evidence the certification of the Chinese
Consul General, Tsutseng T. Shen, of
the existence of the law in China
(Exhibit B-3), relative to the execution
and probate of the will executed by Jose
B. Suntay in Amoy, China (Exhibit P). Is
that evidence admissible, in view of the
provisions of Sections 41 and 42 of the
Rules of the Rules of Court. Is the said
certification of the Chinese Consul
General in the Philippines a substantial
compliance with the provisions of the
above mentioned section 41 and 42 of
our Rules of Court?
This court has its doubts as to the
admissibility in evidence of the Chinese
Consul General in the Philippines of the
existence of the laws of Republic of
China relative to the execution and
probate of a will executed in China.
Such law may exist in China, but —
"An official record or an entry therein,
when admissible for any purpose, may
be evidence by an official publication
thereof or by a copy attested by the
officer having the legal custody of the
record, or by his deputy, and
accompanied, if the record is not kept in
the Philippines, with a certificate that
such officer has the custody. ... If the
office in which the record is kept is in a
foreign country, the certificate may be
made by a secretary of embassy or
legation, consul general, consul, vice
consul, or consular agent or by any
officer in the foreign service of the
United States stationed in the foreign
country in which the record is kept, and
authenticated by the seal of his office."
(Sec. 41 of Rule 123.)
The law of the Republic of China is a
public or official record and it must be
proved in this jurisdiction through the
means prescribed by our Rules of Court.
It is, therefore, obvious that the Chinese
Counsel General in the Philippines who
certified as to the existence of such law
is not the officer having the legal
custody of the record, nor is he a deputy
of such officer. And, if the office in which
the record is kept is in a foreign country,
the certificate may be made by a
secretary of embassy or legation, consul
general, consul, vice consul, or consular
agent or by any officer in the foreign
service of the United States stationed in
the foreign country in which the record is
kept, and authenticated by the seal of
his office.
It is clear, therefore, that the above
67
provisions of the Rules of Court (Rule
123, sec. 41) not having been complied
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 with, the doubt of this court has been
dissipated, and it is of the opinion and
so holds that the certification of the
Chinese Consul General alone is not
admissible as evidence in the
jurisdiction.
The evidence of record is not clear as to
whether Jose B. Suntay, who was born
in China, but resided in the Philippines
for a long time, has become a Filipino
citizen by naturalization, or he remained
a citizen of the Republic of China. The
record does not, likewise, show with
certainty whether or not he had changed
his permanent domicile from the
Philippines to Amoy, China. His change
of permanent domicile could only be
inferred. But the question of his
permanent domicile pales into
insignificance in view of the
overtowering fact that the law of China
pertinent to the allowance and recording
of the said will in this jurisdiction has
been satisfactorily established by the
petitioner.
Both the petitioner and the oppositor
have extensively urged in their
respective memorandum and in the oral
argument in behalf of the oppositor the
question of estoppel. The consideration
of the points raised by them would open
the door to the appreciation of the
intrinsic validity of the provisions of the
will which is not of moment at the
present stage of the proceeding. While
the probate of a will is conclusive as to
the compliance with all formal requisites
necessary to the lawful execution of the
will, such probate does not affect the
intrinsic validity of the provisions of the
will. With respect to the latter the will in
governed by the substantive law relative
to descent and distribution. (In re
Johnson, 39 Phil., 157).
IN VIEW OF THE FOREGOING, and
upon reconsideration, the previous
decision rendered in this case allowing
the will (Exhibit B) and allowing and
recording the foreign will (Exhibit P) is
set aside; and this court is of the opinion
and so holds that the said two wills
should be, as they are hereby
disallowed. Without special
pronouncement as to costs.
It is very significant that in the foregoing
resolution, the Court of First Instance of
Bulacan "reiterates its finding of the same facts
in this resolution," and merely proceeds to
pose the sole question "whether or not the
facts established by the petitioner, Silvino
Suntay, warrant the legalization of the lost will
and allowance and recording of the will that
was executed in Amoy, China." The somersault
executed by the trial court is premised on the
ground that "although the petitioner has
established the execution and validity of the
lost will, yet he has not proved clearly and
distinctly the provisions of the will by the least
two credible witnesses"; and that, assuming
that the will of Jose B. Suntay executed in
Amoy, China, was in accordance with the law
of the Republic of China, the certification of the
Chinese Consul General in the Philippines as
the existence of such law is not admissible
evidence in this jurisdiction. In effect the
resolution on the motion for reconsideration
promulgated by the trial court, and the decision
of the majority herein, adopt the position that
the testimony of Judge Anastacio Teodoro as
to the provisions of the lost will, while credible
and perhaps sufficient in extent, is not
corroborated by the witnesses Go Toh and Ana
Suntay and, therefore, falls short of the
requirement in section 6, Rule 77, of the Rules
of Court that the provisions of the lost will must
be "clearly and distinctly proved by at least two
witnesses." That this requirement was
obviously construed, to mean that the exact
provisions are to be established, may be
deduced from the following dialogue between
his Honor, Judge Potenciano Pecson, and
attorney Teofilo Sison, new counsel for
oppositor Federico C. Suntay, who appeared
for the first time at the ex parte hearing of the
oppositor's motion for new trial on September
1, 1949:
COURT: However, Rule 77, Section 6,
provides in proving a lost will, the
provisions of the lost will must be
distinctly stated and certified by the
Judge.
ATTY. TEOFILO SISON: Yes, Your
Honor.
COURT: That presupposes that the
judge could only certify to the exact
provisions of the will from the evidence
presented.
ATTY. TEOFILO SISON: That is our
contention, provided that provision is
clearly established by two credible
witnesses so that the Court could state
that in the decision, we agree, that is the
68
very point.
Page
 (t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it
to be, as to the degree of proof required to
establish the contents of a lost or destroyed
will, is that there is sufficient compliance if two
witnesses have substantiated the provisions
affecting the disposition of the testator's
properties; and this is especially necessary to
prevent the "perpetration of fraud by permitting
a presumption to supply the suppressed proof,"
to keep a wrong-doer from utilizing the rule as
his "most effective weapon," or to avoid the
enjoyment of a "premium from the rascality of
one whose interests might suggest the
destruction of a will."
Section 1865 of the Code requires that
the provisions of a lost will must be
clearly and distinctly proved by at least
two credible witnesses before it can be
admitted to probate; but this section
must receive a liberal construction
(Hook vs. Pratt, 8 Hun. 102-109) and its
spirit is complied with by holding that it
applies only to those provisions which
affect the disposition of the
testator's property and which are of the
substance of the will.
The allegations of the contents of the
will are general, and under ordinary
circumstances, would be in sufficient;
but the fact alleged, if proven as alleged,
would certainly authorize the
establishment of the will so far as its
bequests are concerned. To require that
a copy of the will or the language of the
bequests, in detail, should be pleaded,
where no copy has been preserved, and
where the memory of the witnesses
does not hold the exact words, would
not only deny the substance for mere
form, but would offer a premium upon
the rascality of one whose interests
might suggest the destruction of a will.
As said in Anderson vs. Irwin, 101 Ill.
411: "The instrument in controversy
having been destroyed without the fault
of the defendant in error ... and there not
appearing to be any copy of it in
existence, it would be equivalent to
denying the complainant relief
altogether to require her to prove the
very terms in which it was conceived. All
that could reasonably be required of her
under the circumstances could be to
show in general terms the disposition
which the testator made of his property
by the instruments; that it purported to
be his will and was duly attested by the
requisite number of witnesses." In
Allison vs. Allison, 7 Dana 91, it was
said in speaking of the character and
extent of proof required in such a case:"
nor is there any just ground to object to
the proof because the witnesses have
not given the language of the will or the
substance thereof.They have given the
substance of the different devises as to
the property or interest devised, and to
whom devised and we would not stop, in
the case of a destroyed will, to scan with
rigid scrutiny the form of the proof,
provided we are satisfied of the
substance of its provisions."
(Jose vs. Casler 139 Ind. 392, 38 N. E.
812).
The evidence in the case falls short of
establishing the existence of such a
writing, except as it may be presumed,
under the maxim Omnia preasumuntur
in odium spoliateris." There was
evidence tending to show that the
second will of Anne Lambie was in the
possession of Francis Lambie, and that
it came to the hands of the proponents,
warranting the inference that it has been
suppressed or destroyed. If from this
evidence the jury found such paper
destroyed the law permits the
presumption that it was legally drawn
and executed, notwithstanding the terms
of the statute, which requires the
revoking instrument to be formally
executed. If a will be lost, secondary
evidence may be given of its contents; if
suppressed or destroyed, the same is
true; and, if necessary the law will
prevent the perpetration of a fraud by
permitting a presumption to supply the
suppressed proof. We cannot assent to
the proposition that the statute is so
right as to be the wrongdoer's most
effective weapons. The misconduct
once established to the satisfaction of
the jury, it is no hardship to the
wrongdoer to say. "Produce the
evidence in your possession, or we will
presume that your opponent's
contention is true." When one
deliberately destroys, or purposely
induces another to destroy, a written
instrument subsequently become a
matter of judicial inquiry between the
spoliator and an innocent party, the
latter will not be required to make strict
proof of the contents of such instrument
in order to establish a right founded
69
thereon. Brook, Leg. Max. 576,
Preston vs. Preston, 132, Atl. 55, 61.
Page
 (Re Lambie's Estate, 97 Mich, 55,56 N.
W. 225)
Judged from the standard set forth in the
foregoing authorities, and bearing in mind that
the circumstances of this case lead to the only
conclusion that the loss of the will in question is
of course imputable to those whose interests
are adverse to the petitioner and the widow
Lim Billian, we have no hesitancy in holding the
view that the dispositions of the properties left
by the deceased Jose B. Suntay is provided in
his will which was lost or snatched in the
manner recited in the decision of this Court in
the case of Lim Billian vs. Suntay, 63 Phil.,
798-797, had been more than sufficiently
proved by the testimony of Judge Anastacio
Teodoro, Go Toh, and Ana Suntay, supported
conclusively by the draft of the lost will
presented in evidence as Exhibit "B", and even
by the testimony of oppositor Federico C.
Suntay himself.
It is to be recalled that the trial Judge, in his
first decision of April 19, 1948, made the
following express findings with respect to the
testimony of Judge Teodoro: "Judge Anastacio
Teodoro testified that he opened the sealed
envelope when it was given to him by Go Toh
preparatory to the presentation of the petition
for the probate of the said will. As the lawyer
entrusted with that task, he had to examine the
will and have it copied to be reproduced or
appended to the petition. He could not do
otherwise if he is worth his salt as a good
lawyer. He could not perform the stunt of "blind
flying" in the judicial firmament. Every step
must be taken with certainty and precision
under any circumstances. He could not have
talked about the attorney's fees with Go Toh,
unless he has not examined the will
beforehand. And, when he was shown Exhibit
B, he did not hesitate in declaring that it was
the exact draft of the will that was inside the
envelope (Exhibit A), the testimony of Atty.
Alberto Barretto to the contrary
notwithstanding."
We should not forget, in this connection, that in
the resolution on the motion for reconsideration
the trial Judge reiterated the findings in his
decision, although as regards the testimony of
Judge Teodoro admittedly "the only credible
witness who testified as to the provisions of the
will," he observed that Judge Teodoro had the
draft Exhibit "B" in his hands while testifying.
We cannot see any justifying for the
observation, assuming that Judge Teodoro
consulted the draft, since even the trial Judge
granted that he "could have testified clearly
and distinctly on the provisions of the said lost
will, because he had kept the will in his safe, in
his office, for three days, after opening it, and
he is well versed in Spanish language in which
the will was written." As a matter of fact,
however, it is not true that Judge Teodoro had
the draft in question before him while testifying
as may be seen from the following passages of
the transcript:
Q. And, have you read that will which
was inside this envelope, Exhibit A? —
"A. Yes.
Q. Do you remember more or less the
contents of the will?
ATTY. FERRIN: With our objection, the
best evidence is original will itself, Your
Honor.
ATTY. RECTO: We are precisely
proving by means of secondary
evidence, the contents of the will,
because according to the Supreme
Court, and that is a fact already decided,
that the will of Jose B. Suntay was lost
and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main
features of the will because as I said I
was the one fighting for the
postponement of the hearing of the
intestate case because I was asked by
Don Alberto Barretto to secure the
postponement until the will that was
executed by the deceased is sent here
by the widow from China, with whom we
communicated with several letters, and
when the will arrived. I had to check the
facts as appearing in the will, and
examined fully in connection with the
facts alleged in the intestate, and there
was a striking fact in the intestate that
Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we
ask that the witness answer
categorically the questions of Atty.
Recto, it seems that the answers of the
witness are kilometric ...
ATTY. RECTO: Sometimes the question
cannot be answered fully unless the
witness would relate and give all the
facts.
COURT: The Attorney for the
70
Administrator may move for the striking
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out of any testimony that is not
responsive to the question.
ATTY. FERRIN: That is why, our
objection, the answer is out of the
question.
COURT: Atty. Recto may propound
another question.
ATTY. RECTO: I heard the witness was
saying something and he has not
finished the sentence, and I want to ask
the Court just to allow the witness to
finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence,
the point I was trying to check first was
whether the value of the estate left by
the deceased was SIXTY THOUSAND
PESOS (P60,000.00) as Apolonio
Suntay made it appear in his petition,
and when I looked at the original will, I
found out that it was several hundred
thousand pesos, several thousands of
pesos, hundreds of pesos, that was very
striking fact to me because the petition
for intestate was for SIXTY THOUSAND
PESOS (P60,000.00), and I came to
know that it was worth more than
SEVEN HUNDRED THOUSAND
(P700,000.00) PESOS.
Q. Do you remember, Judge, the
disposition of the will, the main
disposition of the will? — "A. Yes,
because our client were the widow,
Maria Natividad Lim Billian, and his son,
Silvino, the only son in the second
marriage, that was very important for me
to know.
Q. How were the properties distributed
according to that will?- "A. The
properties were distributed into three (3)
parts, one part which we call legitima
corta, were equally distributed to the ten
(10) children, nine (9) in the first
marriage, and one (1) in the second
marriage with Maria Natividad Lim
Billian. The other third, the betterment
was given to four (4) children,
Concepcion, and Apolonio getting a
quiet substantial share in the
betterment, around SIXTY THOUSAND
(P60,000.00) for Concepcion, Apolonio
the amount of SEVENTY THOUSAND
(70,000,00) PESOS or little over, and
then about ONE HUNDRED
THOUSAND (P100,000.00) PESOS of
the betterment in favor of Silvino, the
minor of the second marriage, and to
Jose equal to Concepcion.
Q. So the betterment, as I understand
from you went to four (4) children?-"A.
Yes.
Q. Silvino in the second marriage,
Concepcion, Apolonio and Jose in the
first marriage? — " A. Yes.
Q. What about the free disposal?-" A.
The free disposal was disposed in favor
of the widow, Maria Natividad Lim Billian
and Silvino, his minor son in equal
parts..
Q. What about, if you remember, if there
was something in the will in connection
with that particular of the usufruct of the
widow? — "A. It was somewhat
incorporated into the assets of the
estate left by the deceased.
Q. Do you remember the number of
pages of which that will consisted? —
"A. Twenty-three (23) pages.
Q. Do you remember if the pages were
signed by the testator? — "A. Yes, sir, it
was signed.
Q. And the foot of the testament or the
end of the testament, was it signed by
the testator? — "A. Yes, sir, and the
attestation clause was the last page
signed by the three instrumental
witnesses, Alberto Barretto, one
Chinaman Go Toh, and Manuel Lopez,
my former Justice of the Peace of
Hagonoy.
Q. Do you remember if there witnesses
signed on the different pages of the will?
— "A. Yes, sir, they signed with their
name signatures.
Q. Showing you this document
consisting of twenty-three (23) pages in
Spanish and which document appears
already attached to this same
testamentary proceedings and already
marked as EXHIBIT B, will you please
tell the Court if and for instance on page
eight (8) of this document, pagina
octavo, it says, there are handwritings in
pencil, some of which read as follows:
71
"Los cinco-octavos (5/8) partes
corresponds a mi hijo Emiliano", can
Page
 you recognize whose handwriting is
that? — "A. From my best estimate it is
the handwriting of Don Alberto Barretto.
Q. About the end of the same page
eight (8) pagina octavo, of the same
document Exhibit B, there is also the
handwriting in pencil which reads: "La
otra sexta parte (6.a) corresponde a
Bonifacio Lopez", can you recognize
that handwriting? — "A. Yes, sir, this is
the handwriting of Don Alberto Barretto,
and I wish to call the attention of the
Court to compare letter "B" which is in
capital letter with the signature of Don
Alberto Barretto in the envelope,
"Alberto Barretto" and stroke identifies
one hand as having written those words.
Q. Will you please go over cursorily this
document, Exhibit B composed of
twenty-three (23) pages and please tell
the Court if this document had anything
to do with the will which according to
you was contained in the envelope,
Exhibit A? — "A. This is exactly the
contents of the original will which I
received and kept in my office inside the
safe for three (3) days, and I precisely
took special case in the credits left by
the deceased, and I remember among
them, were the De Leon family, and
Sandiko, well known to me, and then the
disposition of the estate, divided into
three (3) equal parts, and I noticed that
they are the contents of the will read.
His Honor, Judge Pecson, was positive in his
first decision that "the testimony of Judge
Anastacio Teodoro is corroborated by Go Toh,
one of the attesting witnesses, in his deposition
(Exhibit D-1)." Yet in setting aside his first
decision, he remarked that Go Toh's testimony
did not prove clearly and distinctly the provision
of the lost will, because: "He did not, and he
could not have done so even if he tried
because the original will was not read to him
nor by him before or at the signing of the same.
It was written in Spanish and he did not and
does not understand the Spanish language.
Neither was there any occasion for him to have
the contents of the said will, after its execution
and sealing inside the envelope (Exhibit A),
read to him, because it was opened only when
Judge Teodoro had examined it and then
subsequently snatched from Go Toh."
The later position thus taken by Judge Pecson
is palpably inconsistent with the following
unequivocal statements of Go Toh contained in
hid disposition taken in Amoy, China, on April
17, 1938, and in oppositor's Exhibit "6":
26. State what you know of the contents
of that will.
. . . . Regarding (1) expenditures (2)
Philippine citizenship; (3) Distribution of
estates among children (4) Taking care
of grave lot; (5) guardianship of Silvino
Suntay and (6) after paying his debts he
will have approximately 720,000 pesos
left. This amount will be divided into
three equal parts of 240,000 pesos
each. The first part is to be divided
equally among the ten children born by
the first and second wives and the
second part among the three sons
Silvino Suntay, 75,000 approximately;
Apolonio Suntay, 50,000 pesos
approximately; Jose Suntay and
Concepcion Suntay, 36,000 each
approximately. The third part is to be
divided between Maria Lim Billian and
Silvino Suntay; each will get
approximately 110,000 pesos. Silvino
Suntay will get a total of 210,000 pesos
approximately, Maria Natividad Lim
Billian a total of 290,000 approximately,
and Apolonio Suntay a total of 80,000
approximately, Concepcion Suntay and
Jose Suntay will get 60,000 pesos each
approximately. The rest of the children
will get approximately 29,000 each. The
way of distribution of the property of
Jose B. Suntay, movable and
immovable, and the outstanding debts
to be collected was arranged by Jose B.
Suntay.
xxx xxx xxx
78. On the occasion of the execution of
the testament of Jose B. Suntay, state
whether or not you say Exhibit B — ...
Yes.
79. In the affirmative case, state if you
know who had the possession of Exhibit
B and the testament the first time you
saw them on that occasion. — ... Yes, I
know who had possession of them.
80. Can you say whether or not Jose B.
Suntay happened to get those
documents later on, on that same
occasion? — ... He got them after the
execution.
72
81. Please name the person who gave
those documents to Mr. Suntay. — ...
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Alberto Barretto gave the documents to
Jose B. Suntay.
82. Did the person who gave those
documents to Suntay say anything to
him (Suntay) at the time of giving them?
— ... Yes.
83. If so what was it that he said, if he
said any? — ... He said, "You had better
see if you want any correction."
84. What did Mr. Suntay do after those
documents were given to him? — ...
Jose B. Suntay looked at them and then
gave one copy to Manuel Lopez for
checking.
85. State whether or not Mr. Suntay
gave one of those documents to another
man. — ... Yes.
86. In the affirmative case, can you say
which of the two documents was given
and who the man was? — ... Yes he
gave Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said
something to the man to whom he gave
one of those documents. — ... Yes.
88. In the affirmative case can you
repeat more or less what Mr. Suntay
said to that man? — ... He told him to
read it for checking.
89. State if you know what did the man
do with one of those documents given to
him. — ... He took it and read it for
checking.
90. What did in turn Mr. Suntay do with
the other one left with him? — ... Jose
B. Suntay looked at the original and
checked them.
91. What was done with those
documents later on if there was anything
done with them? — ... After checking,
Jose B. Suntay put Exhibit B in his
pocket and had the original signed and
executed.
92. What was done with the testament
of Jose B. Suntay after it was signed by
the testator and its witnesses? — ... It
was taken away by Jose B. Suntay.
(Exhibit D, D-1.)
Q. Did you know the contents of this
envelope? — "A. I knew that it was a
will.
Q. But did you know the provisions of
the will? — "A. It is about the distribution
of the property to the heirs.
Q. Did you know how the property was
distributed according to the will? — "A. I
know that more than P500,000 was for
the widow and her son, more than
P100,000 for the heirs that are in the
family. (Exhibit "6", p. 28).
Q. You stated that you were one of the
witnesses to the will and that the will
was written in Spanish. Was it written in
typewriting or in handwriting of
somebody? — "A. That will was written
in typewriting.
Q. Did you read the contents of that will,
or do you know the contents of that will?
— A. No, sir, because I do not know
Spanish.
Q. How do you know that it was the will
of Jose B. Suntay ? — "A. Because I
was one of the signers and I saw it."
(Exhibit "6", p. 19.)
22. Do you understand the language in
which that will was written? — ... I know
a little Spanish.
23. Do you talk or write that language? I
can write and talk a little Spanish.
(Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony,
Judge Pecson aptly made the following
findings: "Ana Suntay, one of the heirs and
who would be affected adversely by the
legalization of the will in question, also testified
on rebuttal that she saw the original will in the
possession of Manuel Suntay immediately after
the snatching. She read it and she particularly
remembers the manner in which the properties
were to be distributed. Exhibit B was shown to
her on the witness stand and she declared that
the provision regarding the distribution of the
properties in said Exhibit B is the same as that
contained in the original will. Said testimony of
Ana Suntay, therefore, belies the testimony of
Atty. Alberto Barretto." And yet in the resolution
on the motion for new trial, the trial Judge had
to state that "Ana Suntay on rebuttal did not,
likewise, prove clearly and distinctly the
73
provisions of the said lost will, because she
has not had enough schooling and she does
Page
not possess adequate knowledge of the
Spanish language as shown by the fact that
she had to testify in Tagalog on the witness
stand." The potent error committed by Judge
Pecson in reversing his views as regards Ana's
testimony, is revealed readily in the following
portions of the transcript:
P. Cuantas paginas tenia aquel
documento a que usted se refiere? —
"R. Probablemente seria mas de veinte
(20) paginas.
P. No serian treinta (30) paginas? —
"Abogado Recto: La testigo ha
contestado ya que mas de veinte (20).
Juzgado: Se estima
Abogado Mejia:
P. Usted personalmente leyo el
documento" — "R. Yo leyo mi hermano
en presencia mia.
P. La pregunta es, si usted
personalmente ha leido el documento?
— " R. Si, lo he visto.
P. No solamente le pregunto a usted si
Vd. ha visto el testamento sino si usted
ha leido personalmente el testamento?
— "R. Si la parte de la adjudicacion lo
he leido para asegurarme a que porcion
corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o
menos esa porcion a que se hacia la
distribucion del alegado testamento? —
"R. Como ya he declarado, que las
propiedades de mi difunto padre se
habian dividido en tres partes, una
tercera parte se nos adjudica a nosotros
diez (1) hijos en primeros nupcias y
segunda nupcia, la segunda tercera
parte los adjudica a la viuda y a Silvino,
y la otra tercera parte se lo adjudica a
sus hijos como mejora a Silvino,
Apolonio, Concepcion y Jose.
P. Eso, tal como usted personalmente lo
leyo en el documento? — "R. Si Señor.
P. Quiere usted tener la bondad,
señora, de repetir poco mas o menos
las palabras en ese documento que se
distribuia las propiedades del defundo
padre usted como usted relata aqui?
"Abogado Recto: Objetamos a la
pregunta por falta de base, porque elle
solamente se fijo en la parte como se
distribuian las propiedades pero no ha
dicho la testigo que ella lo ha puesto de
memoria, ni Vd. ha preguntado en que
lenguaje estaba escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba
redactado el documento que usted leyo
personalmente? — "R. En Castellano.
P. Puede usted repetirnos ahora en
Castellano algunas frases o palabras
como se hizo la distribucion en aquel
supuesto testamento? —
Abogado Recto: Objecion, por falta de
base, uno puede entender el español y
sin embargo no podra repetir lo que ha
leido, y no se sabe todavia si ha
estudiado el español bastante hasta el
punto de poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en
castellano el supuesto testamento que
Vda. leyo, usted poso el castellano? —
"R. Yo entiendo el castellano, pero no
puedo hablar bien.
P. Usted estudio el castellano en algun
colegio? — "Rj. Si, señor, En Sta.
Catalina.
P. Cuantos años? — "R. Nuestros
estudios no han sido continuous porque
mi padre nos ingresaba en el colegio y
despues nos sacaba para estar afuera,
y no era continuo nuestro estudio.
P. Pero en total, como cuantos meses o
años estaba usted en el colegio
aprendiendo el castelano? — "R. Unos
cuatro o cinco años.
P. Entonces usted puede leer el
castellano con facilidad, señora? — "R.
Si, castellano sencillo puedo entender y
lo puedo leer.
P. Usted entiende las preguntas que se
le dirigian aqui en castellano sin
interpretacion o sin el interprete? — "R.
Si, Señor.
74
Page
 P. Puede usted contestar en castellano?
— "R. Bueno, pero como de contestar,
por eso quiero que la pregunta se me
traduzca antes. asi puedo contestar
debidamente. (t.s.n. pp. 533-534.)
We are really at a loss to understand why,
without any change whatsoever in the
evidence, the trial Judge reversed his first
decision, particularly when he announced
therein that "it is now incumbent upon this court
to delve into the evidence whether or not Jose
B. Suntay, deceased, left a will (the draft of
which is Exhibit B) and another will which was
executed and probated in Amoy, China." His
action is indeed surprising when we take into
account the various circumstancial features
presently to be stated, that clearly confirm the
testimony of Judge Anastacio Teodoro, G. Toh
and Ana Suntay, or otherwise constitute
visible indicia of oppositor's desire to frustrate
the wishes of his father, Jose B. Suntay.
In our opinion the most important piece of
evidence in favor of the petitioner's case is the
draft of the lost will, Exhibit "B." Its authenticity
cannot be seriously questioned, because
according to the trial Judge himself, oppositor's
own witness, Atty. Alberto Barretto, admitted it
to be "identical in substance and form to the
second draft which he prepared in typewriting."
Indeed, all the "A's" and "B's" in the
handwritten insertions of the draft are very
similar to those in Barretto's admittedly genuine
signature on the envelope, Exhibit "A." The
finding of Judge Pecson on the point in his first
decision (reiterated expressly in the resolution
on the motion for new trial), should control, not
only because it is in accordance with the
evidence but because the oppositor had failed
and did not even attempt to have the trial
Judge reconsider or reverse his factual
conclusions. The draft, Exhibit "B," having been
positively identified by the witnesses for the
petitioner to be an exact copy of the lost will of
Jose B. Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was
never signed in final form, and was thought of
merely to deceive petitioner's mother, Lim
Billian, and that the will actually executed and
put in the envelope, Exhibit "A", provided that
the testator's estate would be divided equally
among his heirs, as in the case of intestacy,
was necessarily futile because, if this allegation
is true, the will would not have been "snatched"
from Go Toh — and the loss certainly cannot
be imputed to the widow Lim Billian or the
petitioner; the snatched will would have been
produced to put an end to petitioner's and his
mother's claim for greater inheritance or
participation under the lost will; and the
envelope containing the first will providing for
equal shares, would not have been entrusted
to the care and custody of the widow Lim
Billian.
It is very noteworthy that out of the nine
children of the first marriage, only Angel, Jose
and Federico Suntay had opposed the probate
of the will in question; the rest, namely, Ana,
Aurora, Concepcion, Lourdes, Manuel and
Emiliano Suntay, having expressly manifested
in their answer that they had no opposition
thereto, since the petitioner's alternative
petition "seeks only to put into effect the
testamentary disposition and wishes of their
late father." This attitude is significantly an
indication of the justness of petitioner's claim,
because it would have been to their greater
advantage if they had sided with oppositor
Federico Suntay in his theory of equal
inheritance for all the children of Jose B.
Suntay. Under the lost will or its draft Exhibit
"B", each of the Suntay children would receive
only some P 25,000.00, whereas in case of
intestacy or under the alleged will providing for
equal shares, each of them would receive
some P100,000.00. And yet the Suntay
children other than Angel, Jose and Federico
had chosen to give their conformity to the
alternative petition in this case.
Another unequivocal confirmation of the lost
will is the will which Jose B. Suntay executed in
Amoy, Fookien, China, on January 4, 1931,
and probated in Amoy District Court, China,
containing virtually the same provisions as
those in the draft Exhibit "B". What better
evidence is there of an man's desire or
insistence to express his last wishes than the
execution of a will reiterating the same
provisions contained in an earlier will.
Assuming that the Chinese will cannot be
probated in the jurisdiction, its probative value
as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read
the will in question under which the widow Lim
Billian was favored; and this again in a way
goes to corroborate the evidence for the
petitioner as to the contents of the will sought
to be probated.
COURT:
Q. Have you read the supposed will or
the alleged will of your father? — "A.
Yes, sir.
COURT:
75
Page
 Q. Can you tell the court the share or
participation in the inheritance of Maria
Natividad Lim Billian according to the
will? —
A. Yes sir, she will inherit, I think, two-
thirds (2/3) of the estate, in other words
she is the most favored in the will, so
when they sold that, they sold
everything, they are selling everything
even the conjugal property. (t. s. n. 228-
229.)
The decision of the majority leans heavily on
the testimony of Atty. Alberto Barretto, forgetful
perhaps of the fact that the trial Judge gave no
credence to said witness. It should be repeated
that Judge Pecson reiterated in the resolution
on the motion for new trial all his findings in the
first decision. If as Atty. Barretto testified, Lim
Billian was entitled under the will actually
signed by Jose Suntay only to P10,000.00, in
addition to properties in China value at
P15,000.00, the fees of P25,000.00 admittedly
asked by him would absorb her entire
inheritance; and this would normally not be
done by any law practitioner. Upon the other
hand, there is evidence to the effect that Atty.
Barretto might have become hostile to the
petitioner and his mother Lim Billian in view of
the latter's refusal to agree to the amount of
P25,000.00 and her offer to pay only P100.00.
There is also evidence tending to show that as
early as 1942, Atty. Barretto was paid by
oppositor Federico Suntay the sum of
P16,000.00 which, although allegedly for
services in the testate proceedings, was paid
out of the personal funds of said oppositors to
supply Atty. Barretto's needs. This
circumstances perhaps further explains why
the latter had to support the side of Federico
Suntay.
We have quoted in full the decision of this court
in the "snatching" case and the first decision of
Judge Pecson in this case, both in the hope
and in the belief (1) that the first would reveal
the manner by which those adversely affected
had planned to prevent the last wishes of the
deceased Jose B. Suntay from being carried
on, and (2) that the second, by the facts
correctly recited therein and by the force and
accuracy of its logic would amply show the
weakness and utter lack of foundation of the
resolution on the motion for reconsideration.
We have set forth at length pertinent portions
of the testimony of various witnesses to
demonstrate more plainly the plausibility of the
original decision of Judge Pecson, and the
latter's consequent bad judgment in having
forced himself to accomplish a somersault, a
feat which the majority, in my opinion, have
mistakenly commended. We have found this to
be one of the cases of this court in which we
have had occasion to participate, where there
can be absolutely no doubt as to the result —
outright reversal — for which, with due respect
to the majority opinion, we vote without
hesitancy.
Montemayor and Jugo, JJ., concur.
RESOLUTION
5 November 1954
PADILLA, J.:
This is a motion for reconsideration of the
decision promulgated on 31 July 1954,
affirming the decree of the Court of First
Instance of Bulacan which disallowed the
alleged last will and testament executed in
November 1929 and the alleged last will and
testament executed in Kulangsu, Amoy, China,
on 4 January 1931, by Jose B. Suntay, without
pronouncement as to costs, on grounds that
will presently be taken up and discussed.
Appellant points to an alleged error in the
decision where it states that —
. . . This petition was denied because of
the loss of said will after the filing of the
petition and before the hearing thereof, .
..
because according to him the "will was lost
before not after (the) filing of the petition." This
slight error, if it is an error at all, does not, and
cannot, after the conclusions and
pronouncements made in the judgment
rendered in the case. In his alternative petition
the appellant alleges:
4. That on October 15, 1934, Marian
Natividad Lim Billian, the mother of
herein petitioner filed a petition in this
court for the allowance and probate of a
last will and testament executed, and
signed in the Philippines in the year
1929 by said deceased Jose B. Suntay.
(P. 3, amended record on appeal.)
If such will and testament was already lost or
destroyed at the time of the filing of the petition
76
by Maria Natividad Lim Billian (15 October
1934), the appellant would have so stated and
Page
alleged. If Anastacio Teodoro, a witness for the
appellant, is to be believed when he testified —
. . . that one day in November 1934 (p.
273, t. s. n., hearing of 19 January
1948), ... Go Toh arrived at his law
office in the De Los Reyes Building and
left an envelope wrapped in red
handkerchief [Exhibit C] (p. 32, t. s. n.,
hearing of 13 October 19470 . . .
and —
If the will was snatched after the delivery
thereof by Go Toh to Anastacio Teodoro
and returned by the latter to the former
because they could not agree on the
amount of fees, . . .
then on 15 October 1934, the date of the filing
of the petition, the will was not yet lost. And if
the facts alleged in paragraph 5 of the
appellant's alternative petition which states:
That this Honorable Court, after hearing,
denied the aforesaid petition for probate
filed by Maria Natividad Lim Billian in
view of the loss and/or destruction of
said will subsequent to the filing of said
petition and priorto the hearing thereof,
and the alleged insufficiency of the
evidence adduced to established the
loss and/or destruction of the said will,
(Emphasis supplied, P. 3, amended
record on appeal.)
may be relied upon, then the alleged error
pointed out by the appellant, if it is an error, is
due to the allegation in said paragraph of his
alternative petition. Did the appellant allege the
facts in said paragraph with reckless abandon?
Or, did the appellant make the allegation as
erroneously as that which he made in
paragraph 10 of the alternative petition that "his
will which was lost and ordered probated by
our Supreme Court in G. R. No. 44276, above
referred to?" (P. 7, amended record on
appeal.) This Court did not order the probate of
the will in said case because if it did, there
would have been no further and subsequent
proceedings in the case after the decision of
this Court referred to had been rendered and
had become final. Be that as it may, whether
the loss of the will was before or subsequent to
the filing of the petition, as already stated, the
fact would not affect in the slightest degree the
conclusions and pronouncements made by this
Court.
The appellant advances the postulate that the
decision of this Court in the case of Lim Billian
vs. Suntay, G. R. No. 44276, 63 Phil., 793,
constitutes res judicata on these points: (a) that
only one will was prepared by attorney
Barretto, and (b) that the issue to be resolved
by the trial court was whether the draft (Exhibit
B) is a true copy or draft of the snatched will,
and contends that these points already
adjudged were overlooked in the majority
opinion. The decision of this Court in the case
referred to does not constitute res judicata on
the points adverted to by the appellant. The
only point decided in that case is that "the
evidence is sufficient to establish the loss of
the document contained in the envelope." In
the opinion of this Court, this circumstance
justified "the presentation of secondary
evidence of its contents and of whether it was
executed with all the essential and necessary
legal formalities." That is all that was decided.
This Court further said:
The trial of this case was limited to the
proof of loss of the will, and from what
has taken place we deduce that it was
not petitioner's intention to raise, upon
the evidence adduced by her, and other
points involved herein, namely, as we
have heretofore indicated, whether
Exhibit B is a true copy of the will and
whether the latter was executed with all
the formalities required by law for its
probate. The testimony of Alberto
Barretto bears importantly in this
connection. (P. 796, supra.)
Appellant's contention that the question before
the probate court was whether the draft
(Exhibit B) is a true copy or draft of the
snatched will is a mistaken interpretation and
view of the decision of this Court in the case
referred to, for if this Court did make that
pronouncement, which, of course, it did not,
such pronouncement would be contrary to law
and would have been a grievous and
irreparable mistake, because what the Court
passed upon and decided in that case, as
already stated, is that there was sufficient
evidence to prove the loss of the of the will and
that the next step was to prove by secondary
evidence its due execution in accordance with
the formalities of the law and its contents,
clearly and districtly, by the testimony of at
least two credible witnesses.1
The appellant invokes Rule 133 to argue that
Rule 77 should not have been applied to the
case but the provisions of section 623 of the
Code of Civil Procedure (Act No. 190), for the
reason that this case had been commenced
77
before the Rules of Court took effect. But Rule
133 cited by the appellant provides:
Page
 These rules shall take effect on July 1,
1940. They shall govern all cases
brought after they take effect, andalso
all further proceedings in cases then
pending, except to the extent that in the
opinion of the court their application
would not be feasible or would work
injustice, in which event the former
procedure shall apply.(Emphasis
supplied.)
So, Rule 77 applies to this case because it was
a further proceedings in a case then pending.
But even if section 623 of the Code of Civil
Procedure were to be applied, still the
evidence to prove the contents and due
execution of the will and the fact of its
unauthorized destruction, cancellation, or
obliteration must be established "by full
evidence to the satisfaction of the Court." This
requirement may even be more strict and
exacting than the two-witness rule provided for
in section 6, Rule 77. The underlying reason
for the exacting provisions found in section 623
of Act No. 190 and section 6, Rule 77, the
product of experience and wisdom, is to
prevent imposters from foisting, or at least to
make for them difficult to foist, upon probate
courts alleged last wills or testaments that were
never executed.
In commenting unfavorably upon the decree
disallowing the lost will, both the appellant and
the dissenting opinion suffer from an infirmity
born of a mistaken premise that all the
conclusions and pronouncements made by the
probate court in the first decree which allowed
the probate of the lost will of the late Jose B.
Suntay must be accepted by this Court. This is
an error. It must be borne in mind that this is
not a petition for a writ of certiorari to review a
judgment of the Court of Appeals on questions
of law where the findings of fact by said Court
are binding upon this Court. This is an appeal
from the probate court, because the amount
involved in the controversy exceeds P50,000,
and this Court in the exercise of its appellate
jurisdiction must review the evidence and the
findings of fact and legal pronouncements
made by the probate court. If such conclusions
and pronouncements are unjustified and
erroneous this Court is in duty bound to correct
them. Not long after entering the first decree
the probate court was convinced that it had
committed a mistake, so it set aside the decree
and entered another. This Court affirmed the
last decree not precisely upon the facts found
by the probate court but upon facts found by it
after a careful review and scrutiny of the
evidence, parole and documentary. After such
review this Court has found that the provisions
of the will had not been established clearly and
distinctly by at least two credible witnesses and
that conclusion is unassailable because it is
solidly based on the established facts and in
accordance with law.
The appellant and the dissent try to make
much out of a pleading filed by five (5) children
and the widow of Apolonio Suntay, another
child of the deceased by the first marriage,
wherein they state that —
. . . in answer to the alternative petition
filed in these proceedings by Silvino
Suntay, through counsel, dated June 18,
1947, to this Honorable Court
respectfully state that, since said
alternative petition seeks only to put into
effect the testamentary disposition and
wishes of their late father, they have no
opposition thereto. (Pp. 71-72, amended
record on appeal.)
Does that mean that they were consenting to
the probate of the lost will? Of course not. If the
lost will sought to be probated in the alternative
petition was really the will of their late father,
they, as good children, naturally had, could
have, no objection to its probate. That is all that
their answer implies and means. But such lack
of objection to the probate of the lost will does
not relieve the proponent thereof or the party
interested in its probate from establishing its
due execution and proving clearly and distinctly
the provisions thereof at least two credible
witnesses. It does not mean that they accept
the draft Exhibit B as an exact and true copy of
the lost will and consent to its probate. Far
from it. In the pleading copied in the dissent,
which the appellant has owned and used as
argument in the motion for reconsideration,
there is nothing that may bolster up his
contention. Even if all the children were
agreeable to the probate of said lost will, still
the due execution of the lost will must be
established and the provisions thereof proved
clearly and distinctly by at least two credible
witnesses, as provided for in section 6, Rule
77. The appellant's effort failed to prove what is
required by the rule. Even if the children of the
deceased by the first marriage, out of
generosity, were willing to donate their shares
in the estate of their deceased father or parts
thereof to their step mother and her only child,
the herein appellant, still the donation, if validly
made, would not dispense with the
proceedings for the probate of the will in
accordance with section 6, Rule 77, because
the former may convey by way of donation
78
their shares in the state of their deceased
father or parts thereof to the latter only after the
Page
decree disallowing the will shall have been
rendered and shall have become final. If the
lost will is allowed to probate there would be no
room for such donation except of their
respective shares in the probated will.
The part of the deposition of Go Toh quoted in
the motion for reconsideration which appellant
underscores does not refer to Go Toh but to
Manuel Lopez. Even if Go Toh heard Manuel
Lopez read the draft (Exhibit B) for the purpose
of checking it up with the original held and read
by Jose B. Suntay, Go Toh should not have
understood the provisions of the will because
he knew very little of the Spanish language in
which the will was written (answer to 22nd and
23rd interrogatories and to X-2 cross-
interrogatory). In fact, he testifies in his
deposition that all he knows about the contents
of the lost will was revealed to him by Jose B.
Suntay at the time it was executed (answers to
25th interrogatory and to X-4 and X-8 cross-
interrogatories); that Jose B. Suntay told him
that the contents thereof are the same as those
of the draft [Exhibit B] (answers to 33rd
interrogatory and to X-8 cross-interrogatory);
that Mrs. Suntay had the draft of the will
(Exhibit B) translated into Chinese and he read
the translation (answer to the 67th
interrogatory); that he did not read the will and
did not compare it (check it up) with the draft
[Exhibit B] (answers to X-6 and X-20 cross-
interrogatories). We repeat that —
. . . all of Go Toh's testimony by
deposition on the provisions of the
alleged lost will is hearsay, because he
came to know or he learned of them
from information given him by Jose B.
Suntay and from reading the translation
of the draft (Exhibit B) into Chinese.
This finding cannot be contested and assailed.
The appellant does not understand how the
Court came to the conclusion that Ana Suntay,
a witness for the appellant could not have read
the part of the will on adjudication. According to
her testimony "she did not read the whole will
but only the adjudication," which, this Court
found, "is inconsistent with her testimony in
chief (to the effect) that "after Apolonio read
that portion, then he turned over the document
of Manuel, and he went away." (P. 528, t. s. n.,
hearing of 24 February 1948.) And appellant
asks the question: "Who went away? Was it
Manuel or Apolonio?" In answer to his own
question the appellant says: "The more
obvious inference is that it was Apolonio and
not Manuel who went away." This inference
made by the appellant not only is not obvious
but it is also illogical, if it be borne in mind that
Manuel came to the house of Apolonio and it
happened that Ana was there, according to her
testimony. So the sentence "he went away" in
Ana's testimony must logically and reasonably
refer to Manuel, who was a caller or visitor in
the house of his brother Apolonio and not to
the latter who was in his house. If it was
Apolonio who "went away," counsel for the
appellant could have brought that out by a
single question. As the evidence stands could
it be said that the one who went away was
Apolonio and not Manuel? The obvious answer
is that it was Manuel. That inference is the
result of a straight process of reasoning and
clear thinking.
There is a veiled insinuation in the dissent that
Alberto Barretto testified as he did because he
had been paid by Federico C. Suntay the sum
of P16,000. Federico C. Suntay testifies on the
point thus —
Q. You mentioned in your direct
testimony that you paid certain amount
to Atty. Alberto Barretto for services
rendered, how much did you pay? — A.
Around SIXTEEN THOUSAND
(P16,000.00).
Q. When did you make the payment? —
A. During the Japanese time.
Q. Did you state that fact in any
accounts you presented to the Court? —
A. I do not quite remember that.
. . . (P. 180, t. s. n., hearing of 24
October 1947.)
Q. When you made that payment, was
(it) your intention to charge it to the state
or to collect it later from the estate? —
A. Yes, sir.
Q. More or less when was such
payment made, during the Japanese
time, what particular month and year, do
you remember? — A. I think in 1942.
Q. And you said you paid him because
of services he rendered? — A. Upon the
order to the Court.
Q. And those services were precisely
because he made a will and he made a
will which was lost, the will of Jose B.
Suntay? ... (P. 181, t. s. n., supra.) — A.
I think I remember correctly according to
79
ex-Representative Vera who is the
administrator whom I followed at that
Page
 time, that was paid according to the
services rendered by Don Alberto
Barretto with regard to our case in
the testamentaria but he also rendered
services to my father.

Q. At least your Counsel said that there

was an order of the Court ordering you
to pay that, do you have that copy of the
order? — A. Yes, sir, I have, but I think
that was burned. (P. 184, t. s.
n., supra.).

So the sum of P16,000 was paid upon

recommendation of the former administrator
and order of the probate court for services
rendered by Alberto Barretto not only in the
probate proceedings that also for services
rendered to his father. But if this sum of
P16,000 paid to Alberto Barretto upon
recommendation of the previous administrator
and order of the probate court for professional
services rendered in the probate proceedings
and to the deceased in his lifetime be taken
against his truthfulness and veracity as to
affect adversely his testimony, what about the
professional services of Anastacio Teodoro
who appeared in this case as one of the
attorneys for the petitioner-appellant? (P. 2, t.
s. n., hearing of 13 October 1947.)Would that
not likewise or by the same token affect his
credibility? It is the latter's interest more
compelling than the former's?

For the foregoing reasons, the motion for

reconsideration is denied.

80
Page
G.R. No. 139868 June 8, 2006
ALONZO Q. ANCHETA, Petitioner,
vs.
CANDELARIA GUERSEY-
DALAYGON, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Spouses Audrey O’Neill (Audrey) and W.
Richard Guersey (Richard) were American
citizens who have resided in the Philippines for
30 years. They have an adopted daughter,
Kyle Guersey Hill (Kyle). On July 29, 1979,
Audrey died, leaving a will. In it, she
bequeathed her entire estate to Richard, who
was also designated as executor.1 The will was
admitted to probate before the Orphan’s Court
of Baltimore, Maryland, U.S.A, which named
James N. Phillips as executor due to Richard’s
renunciation of his appointment.2 The court
also named Atty. Alonzo Q. Ancheta
(petitioner) of the Quasha Asperilla Ancheta
Pena & Nolasco Law Offices as ancillary
administrator.3
In 1981, Richard married Candelaria Guersey-
Dalaygon (respondent) with whom he has two
children, namely, Kimberly and Kevin.
On October 12, 1982, Audrey’s will was also
admitted to probate by the then Court of First
Instance of Rizal, Branch 25, Seventh Judicial
District, Pasig, in Special Proceeding No.
9625.4 As administrator of Audrey’s estate in
the Philippines, petitioner filed an inventory and
appraisal of the following properties: (1)
Audrey’s conjugal share in real estate with
improvements located at 28 Pili Avenue,
Forbes Park, Makati, Metro Manila, valued
atP764,865.00 (Makati property); (2) a current
account in Audrey’s name with a cash balance
of P12,417.97; and (3) 64,444 shares of stock
in A/G Interiors, Inc. worth P64,444.00.5
On July 20, 1984, Richard died, leaving a will,
wherein he bequeathed his entire estate to
respondent, save for his rights and interests
over the A/G Interiors, Inc. shares, which he
left to Kyle.6 The will was also admitted to
probate by the Orphan’s Court of Ann Arundel,
Maryland, U.S.A, and James N. Phillips was
likewise appointed as executor, who in turn,
designated Atty. William Quasha or any
member of the Quasha Asperilla Ancheta Pena
& Nolasco Law Offices, as ancillary
administrator.
Richard’s will was then submitted for probate
before the Regional Trial Court of Makati,
Branch 138, docketed as Special Proceeding
No. M-888.7 Atty. Quasha was appointed as
ancillary administrator on July 24, 1986.8
On October 19, 1987, petitioner filed in Special
Proceeding No. 9625, a motion to declare
Richard and Kyle as heirs of
Audrey.9 Petitioner also filed on October 23,
1987, a project of partition of Audrey’s estate,
with Richard being apportioned the ¾
undivided interest in the Makati property,
48.333 shares in A/G Interiors, Inc.,
andP9,313.48 from the Citibank current
account; and Kyle, the ¼ undivided interest in
the Makati property, 16,111 shares in A/G
Interiors, Inc., and P3,104.49 in cash.10
The motion and project of partition was granted
and approved by the trial court in its Order
dated February 12, 1988.11 The trial court also
issued an Order on April 7, 1988, directing the
Register of Deeds of Makati to cancel TCT No.
69792 in the name of Richard and to issue a
new title in the joint names of the Estate of W.
Richard Guersey (¾ undivided interest) and
Kyle (¼ undivided interest); directing the
Secretary of A/G Interiors, Inc. to transfer
48.333 shares to the Estate of W. Richard
Guersey and 16.111 shares to Kyle; and
directing the Citibank to release the amount
of P12,417.97 to the ancillary administrator for
distribution to the heirs.12
Consequently, the Register of Deeds of Makati
issued on June 23, 1988, TCT No. 155823 in
the names of the Estate of W. Richard Guersey
and Kyle.13
Meanwhile, the ancillary administrator in
Special Proceeding No. M-888 also filed a
project of partition wherein 2/5of Richard’s ¾
undivided interest in the Makati property was
allocated to respondent, while 3/5 thereof were
allocated to Richard’s three children. This was
opposed by respondent on the ground that
under the law of the State of Maryland, "a
legacy passes to the legatee the entire
interest of the testator in the property
subject of the legacy."14 Since Richard left his
entire estate to respondent, except for his
rights and interests over the A/G Interiors, Inc,
shares, then his entire ¾ undivided interest in
the Makati property should be given to
respondent.
The trial court found merit in respondent’s
opposition, and in its Order dated December 6,
81
1991, disapproved the project of partition
insofar as it affects the Makati property. The
Page
trial court also adjudicated Richard’s entire ¾
undivided interest in the Makati property to
respondent.15
On October 20, 1993, respondent filed with the
Court of Appeals (CA) an amended complaint
for the annulment of the trial court’s Orders
dated February 12, 1988 and April 7, 1988,
issued in Special Proceeding No.
9625.16Respondent contended that petitioner
willfully breached his fiduciary duty when he
disregarded the laws of the State of Maryland
on the distribution of Audrey’s estate in
accordance with her will. Respondent argued
that since Audrey devised her entire estate to
Richard, then the Makati property should be
wholly adjudicated to him, and not merely ¾
thereof, and since Richard left his entire estate,
except for his rights and interests over the A/G
Interiors, Inc., to respondent, then the entire
Makati property should now pertain to
respondent.
Petitioner filed his Answer denying
respondent’s allegations. Petitioner contended
that he acted in good faith in submitting the
project of partition before the trial court in
Special Proceeding No. 9625, as he had no
knowledge of the State of Maryland’s laws on
testate and intestate succession. Petitioner
alleged that he believed that it is to the "best
interests of the surviving children that
Philippine law be applied as they would receive
their just shares." Petitioner also alleged that
the orders sought to be annulled are already
final and executory, and cannot be set aside.
On March 18, 1999, the CA rendered the
assailed Decision annulling the trial court’s
Orders dated February 12, 1988 and April 7,
1988, in Special Proceeding No. 9625.17 The
dispositive portion of the assailed Decision
provides:
WHEREFORE, the assailed Orders of
February 12, 1998 and April 7, 1988 are
hereby ANNULLED and, in lieu thereof, a new
one is entered ordering:
(a) The adjudication of the entire estate
of Audrey O’Neill Guersey in favor of the
estate of W. Richard Guersey; and
(b) The cancellation of Transfer
Certificate of Title No. 15583 of the
Makati City Registry and the issuance of
a new title in the name of the estate of
W. Richard Guersey.
18
SO ORDERED.
Petitioner filed a motion for reconsideration, but
this was denied by the CA per Resolution
dated August 27, 1999.19
Hence, the herein petition for review on
certiorari under Rule 45 of the Rules of Court
alleging that the CA gravely erred in not
holding that:
A) THE ORDERS OF 12 FEBRUARY
1988 AND 07 APRIL 1988 IN SPECIAL
PROCEEDINGS NO. 9625 "IN THE
MATTER OF THE PETITION FOR
PROBATE OF THE WILL OF THE
DECEASED AUDREY GUERSEY,
ALONZO Q. ANCHETA, ANCILLARY
ADMINISTRATOR", ARE VALID AND
BINDING AND HAVE LONG BECOME
FINAL AND HAVE BEEN FULLY
IMPLEMENTED AND EXECUTED AND
CAN NO LONGER BE ANNULLED.
B) THE ANCILLARY ADMINISTRATOR
HAVING ACTED IN GOOD FAITH, DID
NOT COMMIT FRAUD, EITHER
EXTRINSIC OR INTRINSIC, IN THE
PERFORMANCE OF HIS DUTIES AS
ANCILLARY ADMINISTRATOR OF
AUDREY O’NEIL GUERSEY’S ESTATE
IN THE PHILIPPINES, AND THAT NO
FRAUD, EITHER EXTRINSIC OR
INTRINSIC, WAS EMPLOYED BY [HIM]
IN PROCURING SAID ORDERS.20
Petitioner reiterates his arguments before the
CA that the Orders dated February 12, 1988
and April 7, 1988 can no longer be annulled
because it is a final judgment, which is
"conclusive upon the administration as to all
matters involved in such judgment or order,
and will determine for all time and in all courts,
as far as the parties to the proceedings are
concerned, all matters therein determined,"
and the same has already been executed.21
Petitioner also contends that that he acted in
good faith in performing his duties as an
ancillary administrator. He maintains that at the
time of the filing of the project of partition, he
was not aware of the relevant laws of the State
of Maryland, such that the partition was made
in accordance with Philippine laws. Petitioner
also imputes knowledge on the part of
respondent with regard to the terms of
Aubrey’s will, stating that as early as 1984, he
already apprised respondent of the contents of
the will and how the estate will be divided.22
Respondent argues that petitioner’s breach of
82
his fiduciary duty as ancillary administrator of
Aubrey’s estate amounted to extrinsic fraud.
Page
According to respondent, petitioner was duty-
bound to follow the express terms of Aubrey’s
will, and his denial of knowledge of the laws of
Maryland cannot stand because petitioner is a
senior partner in a prestigious law firm and it
was his duty to know the relevant laws.
Respondent also states that she was not able
to file any opposition to the project of partition
because she was not a party thereto and she
learned of the provision of Aubrey’s will
bequeathing entirely her estate to Richard only
after Atty. Ancheta filed a project of partition in
Special Proceeding No. M-888 for the
settlement of Richard’s estate.
A decree of distribution of the estate of a
deceased person vests the title to the land of
the estate in the distributees, which, if
erroneous may be corrected by a timely
appeal. Once it becomes final, its binding effect
is like any other judgment in rem.23 However, in
exceptional cases, a final decree of distribution
of the estate may be set aside for lack of
jurisdiction or fraud.24 Further, in Ramon v.
Ortuzar,25 the Court ruled that a party
interested in a probate proceeding may have a
final liquidation set aside when he is left out by
reason of circumstances beyond his control or
through mistake or inadvertence not imputable
to negligence.26
The petition for annulment was filed before the
CA on October 20, 1993, before the issuance
of the 1997 Rules of Civil Procedure; hence,
the applicable law is Batas Pambansa Blg. 129
(B.P. 129) or the Judiciary Reorganization Act
of 1980. An annulment of judgment filed under
B.P. 129 may be based on the ground that a
judgment is void for want of jurisdiction or that
the judgment was obtained by extrinsic
fraud.27 For fraud to become a basis for
annulment of judgment, it has to be extrinsic or
actual,28 and must be brought within four years
from the discovery of the fraud.29
In the present case, respondent alleged
extrinsic fraud as basis for the annulment of
the RTC Orders dated February 12, 1988 and
April 7, 1988. The CA found merit in
respondent’s cause and found that petitioner’s
failure to follow the terms of Audrey’s will,
despite the latter’s declaration of good faith,
amounted to extrinsic fraud. The CA ruled that
under Article 16 of the Civil Code, it is the
national law of the decedent that is applicable,
hence, petitioner should have distributed
Aubrey’s estate in accordance with the terms
of her will. The CA also found that petitioner
was prompted to distribute Audrey’s estate in
accordance with Philippine laws in order to
equally benefit Audrey and Richard Guersey’s
adopted daughter, Kyle Guersey Hill.
Petitioner contends that respondent’s cause of
action had already prescribed because as early
as 1984, respondent was already well aware of
the terms of Audrey’s will,30 and the complaint
was filed only in 1993. Respondent, on the
other hand, justified her lack of immediate
action by saying that she had no opportunity to
question petitioner’s acts since she was not a
party to Special Proceeding No. 9625, and it
was only after Atty. Ancheta filed the project of
partition in Special Proceeding No. M-888,
reducing her inheritance in the estate of
Richard that she was prompted to seek
another counsel to protect her interest.31
It should be pointed out that the prescriptive
period for annulment of judgment based on
extrinsic fraud commences to run from
the discovery of the fraud or fraudulent
act/s. Respondent’s knowledge of the terms of
Audrey’s will is immaterial in this case since it
is not the fraud complained of. Rather, it is
petitioner’s failure to introduce in evidence the
pertinent law of the State of Maryland that is
the fraudulent act, or in this case, omission,
alleged to have been committed against
respondent, and therefore, the four-year period
should be counted from the time of
respondent’s discovery thereof.
Records bear the fact that the filing of the
project of partition of Richard’s estate, the
opposition thereto, and the order of the trial
court disallowing the project of partition in
Special Proceeding No. M-888 were all done in
1991.32 Respondent cannot be faulted for
letting the assailed orders to lapse into finality
since it was only through Special Proceeding
No. M-888 that she came to comprehend the
ramifications of petitioner’s acts. Obviously,
respondent had no other recourse under the
circumstances but to file the annulment case.
Since the action for annulment was filed in
1993, clearly, the same has not yet prescribed.
Fraud takes on different shapes and faces. In
Cosmic Lumber Corporation v. Court of
Appeals,33 the Court stated that "man in his
ingenuity and fertile imagination will always
contrive new schemes to fool the unwary."
There is extrinsic fraud within the meaning of
Sec. 9 par. (2), of B.P. Blg. 129, where it is one
the effect of which prevents a party from
hearing a trial, or real contest, or from
presenting all of his case to the court, or where
83
it operates upon matters, not pertaining to the
judgment itself, but to the manner in which it
Page
was procured so that there is not a fair
submission of the controversy. In other words,
extrinsic fraud refers to any fraudulent act of
the prevailing party in the litigation which is
committed outside of the trial of the case,
whereby the defeated party has been
prevented from exhibiting fully his side of the
case by fraud or deception practiced on him by
his opponent. Fraud is extrinsic where the
unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception
practiced on him by his opponent, as by
keeping him away from court, a false promise
of a compromise; or where the defendant
never had any knowledge of the suit, being
kept in ignorance by the acts of the plaintiff; or
where an attorney fraudulently or without
authority connives at his defeat; these and
similar cases which show that there has never
been a real contest in the trial or hearing of the
case are reasons for which a new suit may be
sustained to set aside and annul the former
judgment and open the case for a new and fair
hearing.34
The overriding consideration when extrinsic
fraud is alleged is that the fraudulent scheme
of the prevailing litigant prevented a party from
having his day in court.35
Petitioner is the ancillary administrator of
Audrey’s estate. As such, he occupies a
position of the highest trust and confidence,
and he is required to exercise reasonable
diligence and act in entire good faith in the
performance of that trust. Although he is not a
guarantor or insurer of the safety of the estate
nor is he expected to be infallible, yet the same
degree of prudence, care and judgment which
a person of a fair average capacity and ability
exercises in similar transactions of his own,
serves as the standard by which his conduct is
to be judged.36
Petitioner’s failure to proficiently manage the
distribution of Audrey’s estate according to the
terms of her will and as dictated by the
applicable law amounted to extrinsic fraud.
Hence the CA Decision annulling the RTC
Orders dated February 12, 1988 and April 7,
1988, must be upheld.
It is undisputed that Audrey Guersey was an
American citizen domiciled in Maryland, U.S.A.
During the reprobate of her will in Special
Proceeding No. 9625, it was shown, among
others, that at the time of Audrey’s death, she
was residing in the Philippines but is domiciled
in Maryland, U.S.A.; her Last Will and
Testament dated August 18, 1972 was
executed and probated before the Orphan’s
Court in Baltimore, Maryland, U.S.A., which
was duly authenticated and certified by the
Register of Wills of Baltimore City and attested
by the Chief Judge of said court; the will was
admitted by the Orphan’s Court of Baltimore
City on September 7, 1979; and the will was
authenticated by the Secretary of State of
Maryland and the Vice Consul of the Philippine
Embassy.
Being a foreign national, the intrinsic validity of
Audrey’s will, especially with regard as to who
are her heirs, is governed by her national law,
i.e., the law of the State of Maryland, as
provided in Article 16 of the Civil Code, to wit:
Art. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate and testamentary
succession, both with respect to the order of
succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property
and regardless of the country wherein said
property may be found. (Emphasis supplied)
Article 1039 of the Civil Code further provides
that "capacity to succeed is governed by the
law of the nation of the decedent."
As a corollary rule, Section 4, Rule 77 of the
Rules of Court on Allowance of Will Proved
Outside the Philippines and Administration of
Estate Thereunder, states:
SEC. 4. Estate, how administered.—When a
will is thus allowed, the court shall grant letters
testamentary, or letters of administration with
the will annexed, and such letters testamentary
or of administration, shall extend to all the
estate of the testator in the Philippines. Such
estate, after the payment of just debts and
expenses of administration, shall be
disposed of according to such will, so far
as such will may operate upon it; and the
residue, if any, shall be disposed of as is
provided by law in cases of estates in the
Philippines belonging to persons who are
inhabitants of another state or country.
(Emphasis supplied)
While foreign laws do not prove themselves in
our jurisdiction and our courts are not
authorized to take judicial notice of
84
them;37 however, petitioner, as ancillary
administrator of Audrey’s estate, was duty-
Page
bound to introduce in evidence the pertinent
law of the State of Maryland.38
Petitioner admitted that he failed to introduce in
evidence the law of the State of Maryland on
Estates and Trusts, and merely relied on the
presumption that such law is the same as the
Philippine law on wills and succession. Thus,
the trial court peremptorily applied Philippine
laws and totally disregarded the terms of
Audrey’s will. The obvious result was that there
was no fair submission of the case before the
trial court or a judicious appreciation of the
evidence presented.
Petitioner insists that his application of
Philippine laws was made in good faith. The
Court cannot accept petitioner’s protestation.
How can petitioner honestly presume that
Philippine laws apply when as early as the
reprobate of Audrey’s will before the trial court
in 1982, it was already brought to fore that
Audrey was a U.S. citizen, domiciled in the
State of Maryland. As asserted by respondent,
petitioner is a senior partner in a prestigious
law firm, with a "big legal staff and a large
library."39 He had all the legal resources to
determine the applicable law. It was incumbent
upon him to exercise his functions as ancillary
administrator with reasonable diligence, and to
discharge the trust reposed on him faithfully.
Unfortunately, petitioner failed to perform his
fiduciary duties.
Moreover, whether his omission was
intentional or not, the fact remains that the trial
court failed to consider said law when it issued
the assailed RTC Orders dated February 12,
1988 and April 7, 1988, declaring Richard and
Kyle as Audrey’s heirs, and distributing
Audrey’s estate according to the project of
partition submitted by petitioner. This
eventually prejudiced respondent and deprived
her of her full successional right to the Makati
property.
In GSIS v. Bengson Commercial Bldgs.,
Inc.,40 the Court held that when the rule that
the negligence or mistake of counsel binds the
client deserts its proper office as an aid to
justice and becomes a great hindrance and
chief enemy, its rigors must be relaxed to admit
exceptions thereto and to prevent a
miscarriage of justice, and the court has the
power to except a particular case from the
operation of the rule whenever the purposes of
justice require it.
The CA aptly noted that petitioner was remiss
in his responsibilities as ancillary administrator
of Audrey’s estate. The CA likewise observed
that the distribution made by petitioner was
prompted by his concern over Kyle, whom
petitioner believed should equally benefit from
the Makati property. The CA correctly stated,
which the Court adopts, thus:
In claiming good faith in the performance of his
duties and responsibilities, defendant Alonzo
H. Ancheta invokes the principle which
presumes the law of the forum to be the same
as the foreign law (Beam vs. Yatco, 82 Phil.
30, 38) in the absence of evidence adduced to
prove the latter law (Slade Perkins vs. Perkins,
57 Phil. 205, 210). In defending his actions in
the light of the foregoing principle, however, it
appears that the defendant lost sight of the fact
that his primary responsibility as ancillary
administrator was to distribute the subject
estate in accordance with the will of Audrey
O’Neill Guersey. Considering the principle
established under Article 16 of the Civil Code
of the Philippines, as well as the citizenship
and the avowed domicile of the decedent, it
goes without saying that the defendant was
also duty-bound to prove the pertinent laws of
Maryland on the matter.
The record reveals, however, that no clear
effort was made to prove the national law of
Audrey O’Neill Guersey during the proceedings
before the court a quo. While there is claim of
good faith in distributing the subject estate in
accordance with the Philippine laws, the
defendant appears to put his actuations in a
different light as indicated in a portion of his
direct examination, to wit:
xxx
It would seem, therefore, that the eventual
distribution of the estate of Audrey O’Neill
Guersey was prompted by defendant Alonzo
H. Ancheta’s concern that the subject realty
equally benefit the plaintiff’s adopted daughter
Kyle Guersey.
Well-intentioned though it may be, defendant
Alonzo H. Ancheta’s action appears to have
breached his duties and responsibilities as
ancillary administrator of the subject
estate. While such breach of duty
admittedly cannot be considered extrinsic
fraud under ordinary circumstances, the
fiduciary nature of the said defendant’s
position, as well as the resultant frustration
of the decedent’s last will, combine to
create a circumstance that is tantamount to
extrinsic fraud. Defendant Alonzo H.
Ancheta’s omission to prove the national laws
85
of the decedent and to follow the latter’s last
will, in sum, resulted in the procurement of the
Page
subject orders without a fair submission of the
real issues involved in the case.41 (Emphasis
supplied)
This is not a simple case of error of judgment
or grave abuse of discretion, but a total
disregard of the law as a result of petitioner’s
abject failure to discharge his fiduciary duties.
It does not rest upon petitioner’s pleasure as to
which law should be made applicable under
the circumstances. His onus is clear.
Respondent was thus excluded from enjoying
full rights to the Makati property through no
fault or negligence of her own, as petitioner’s
omission was beyond her control. She was in
no position to analyze the legal implications of
petitioner’s omission and it was belatedly that
she realized the adverse consequence of the
same. The end result was a miscarriage of
justice. In cases like this, the courts have the
legal and moral duty to provide judicial aid to
parties who are deprived of their rights.42
The trial court in its Order dated December 6,
1991 in Special Proceeding No. M-888 noted
the law of the State of Maryland on Estates
and Trusts, as follows:
Under Section 1-301, Title 3, Sub-Title 3 of the
Annotated Code of the Public General Laws of
Maryland on Estates and Trusts, "all property
of a decedent shall be subject to the estate of
decedents law, and upon his death shall pass
directly to the personal representative, who
shall hold the legal title for administration and
distribution," while Section 4-408 expressly
provides that "unless a contrary intent is
expressly indicated in the will, a legacy passes
to the legatee the entire interest of the testator
in the property which is the subject of the
legacy". Section 7-101, Title 7, Sub-Title 1, on
the other hand, declares that "a personal
representative is a fiduciary" and as such he is
"under the general duty to settle and distribute
the estate of the decedent in accordance with
the terms of the will and the estate of
decedents law as expeditiously and with as
little sacrifice of value as is reasonable under
the circumstances".43
In her will, Audrey devised to Richard her
entire estate, consisting of the following: (1)
Audrey’s conjugal share in the Makati property;
(2) the cash amount of P12,417.97; and (3)
64,444 shares of stock in A/G Interiors, Inc.
worth P64,444.00. All these properties passed
on to Richard upon Audrey’s death.
Meanwhile, Richard, in his will, bequeathed his
entire estate to respondent, except for his
rights and interests over the A/G Interiors, Inc.
shares, which he left to Kyle. When Richard
subsequently died, the entire Makati property
should have then passed on to respondent.
This, of course, assumes the proposition that
the law of the State of Maryland which allows
"a legacy to pass to the legatee the entire
estate of the testator in the property which is
the subject of the legacy," was sufficiently
proven in Special Proceeding No. 9625.
Nevertheless, the Court may take judicial
notice thereof in view of the ruling in Bohanan
v. Bohanan.44 Therein, the Court took judicial
notice of the law of Nevada despite failure to
prove the same. The Court held, viz.:
We have, however, consulted the records of
the case in the court below and we have found
that during the hearing on October 4, 1954 of
the motion of Magdalena C. Bohanan for
withdrawal of P20,000 as her share, the foreign
law, especially Section 9905, Compiled
Nevada Laws, was introduced in evidence by
appellants' (herein) counsel as Exhibit "2" (See
pp. 77-79, Vol. II, and t.s.n. pp. 24-44,
Records, Court of First Instance). Again said
law was presented by the counsel for the
executor and admitted by the Court as Exhibit
"B" during the hearing of the case on January
23, 1950 before Judge Rafael Amparo (see
Records, Court of First Instance, Vol. 1).
In addition, the other appellants, children of the
testator, do not dispute the above-quoted
provision of the laws of the State of Nevada.
Under all the above circumstances, we are
constrained to hold that the pertinent law of
Nevada, especially Section 9905 of the
Compiled Nevada Laws of 1925, can be taken
judicial notice of by us, without proof of such
law having been offered at the hearing of the
project of partition.
In this case, given that the pertinent law of the
State of Maryland has been brought to record
before the CA, and the trial court in Special
Proceeding No. M-888 appropriately took note
of the same in disapproving the proposed
project of partition of Richard’s estate, not to
mention that petitioner or any other interested
person for that matter, does not dispute the
existence or validity of said law, then Audrey’s
and Richard’s estate should be distributed
according to their respective wills, and not
according to the project of partition submitted
by petitioner. Consequently, the entire Makati
property belongs to respondent.
Decades ago, Justice Moreland, in his
dissenting opinion in Santos v.
Manarang,45 wrote:
86
Page
A will is the testator speaking after death. Its
provisions have substantially the same force
and effect in the probate court as if the testator
stood before the court in full life making the
declarations by word of mouth as they appear
in the will. That was the special purpose of the
law in the creation of the instrument known as
the last will and testament. Men wished to
speak after they were dead and the law, by the
creation of that instrument, permitted them to
do so x x x All doubts must be resolved in favor
of the testator's having meant just what he
said.
Honorable as it seems, petitioner’s motive in
equitably distributing Audrey’s estate cannot
prevail over Audrey’s and Richard’s wishes. As
stated in Bellis v. Bellis:46
x x x whatever public policy or good customs
may be involved in our system of legitimes,
Congress has not intended to extend the same
to the succession of foreign nationals. For it
has specifically chosen to leave, inter alia, the
amount of successional rights, to the
decedent's national Law. Specific provisions
must prevail over general ones.47
Before concluding, the Court notes the fact that
Audrey and Richard Guersey were American
citizens who owned real property in the
Philippines, although records do not show
when and how the Guerseys acquired the
Makati property.
except only by way of legal succession or if the
acquisition was made by a former natural-born
citizen.
In any case, the Court has also ruled that if
land is invalidly transferred to an alien who
subsequently becomes a citizen or transfers it
to a citizen, the flaw in the original transaction
is considered cured and the title of the
transferee is rendered valid.49 In this case,
since the Makati property had already passed
on to respondent who is a Filipino, then
whatever flaw, if any, that attended the
acquisition by the Guerseys of the Makati
property is now inconsequential, as the
objective of the constitutional provision to keep
our lands in Filipino hands has been achieved.
WHEREFORE, the petition is denied. The
Decision dated March 18, 1999 and the
Resolution dated August 27, 1999 of the Court
of Appeals are AFFIRMED.
Petitioner is ADMONISHED to be more
circumspect in the performance of his duties as
an official of the court.
No pronouncement as to costs.
SO ORDERED.

Under Article XIII, Sections 1 and 4 of the 1935

Constitution, the privilege to acquire and
exploit lands of the public domain, and other
natural resources of the Philippines, and to
operate public utilities, were reserved to
Filipinos and entities owned or controlled by
them. In Republic v. Quasha,48 the Court
clarified that the Parity Rights Amendment of
1946, which re-opened to American citizens
and business enterprises the right in the
acquisition of lands of the public domain, the
disposition, exploitation, development and
utilization of natural resources of the
Philippines, does not include the acquisition or
exploitation of private agricultural lands. The
prohibition against acquisition of private lands
by aliens was carried on to the 1973
Constitution under Article XIV, Section 14, with
the exception of private lands acquired by
hereditary succession and when the transfer
was made to a former natural-born citizen, as
provided in Section 15, Article XIV. As it now
stands, Article XII, Sections 7 and 8 of the
1986 Constitution explicitly prohibits non-
87

Filipinos from acquiring or holding title to

private lands or to lands of the public domain,
Page
 ARTICLE 798
[G.R. No. 108581. December 8, 1999]
LOURDES L. DOROTHEO, petitioner, vs.
COURT OF APPEALS, NILDA D.
QUINTANA, for Herself and as
Attorney-in-Fact of VICENTE
DOROTHEO and JOSE
DOROTHEO, respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted to
probate but declared intrinsically void in an
order that has become final and executory still
be given effect? This is the issue that arose
from the following antecedents:
Private respondents were the legitimate
children of Alejandro Dorotheo and Aniceta
Reyes. The latter died in 1969 without her
estate being settled. Alejandro died
thereafter. Sometime in 1977, after Alejandros
death, petitioner, who claims to have taken
care of Alejandro before he died, filed a special
proceeding for the probate of the latters last
will and testament. In 1981, the court issued an
order admitting Alejandros will to
probate. Private respondents did not appeal
from said order. In 1983, they filed a Motion To
Declare The Will Intrinsically Void. The trial
court granted the motion and issued an order,
the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order
is hereby issued declaring Lourdes Legaspi not
the wife of the late Alejandro Dorotheo, the
provisions of the last will and testament of
Alejandro Dorotheo as intrinsically void, and
declaring the oppositors Vicente Dorotheo,
Jose Dorotheo and Nilda Dorotheo Quintana
as the only heirs of the late spouses Alejandro
Dorotheo and Aniceta Reyes, whose
respective estates shall be liquidated and
distributed according to the laws on intestacy
upon payment of estate and other taxes due to
the government.[1]
Petitioner moved for reconsideration
arguing that she is entitled to some
compensation since she took care of Alejandro
prior to his death although she admitted that
they were not married to each other.Upon
denial of her motion for reconsideration,
petitioner appealed to the Court of Appeals, but
the same was dismissed for failure to file
appellants brief within the extended period
granted.[2] This dismissal became final and
executory on February 3, 1989 and a
corresponding entry of judgment was forthwith
issued by the Court of Appeals on May 16,
1989. A writ of execution was issued by the
lower court to implement the final and
executory Order. Consequently, private
respondents filed several motions including a
motion to compel petitioner to surrender to
them the Transfer Certificates of Titles (TCT)
covering the properties of the late
Alejandro. When petitioner refused to
surrender the TCTs, private respondents filed a
motion for cancellation of said titles and for
issuance of new titles in their names. Petitioner
opposed the motion.
An Order was issued on November 29,
1990 by Judge Zain B. Angas setting aside the
final and executory Order dated January 30,
1986, as well as the Order directing the
issuance of the writ of execution, on the ground
that the order was merely interlocutory, hence
not final in character. The court added that the
dispositive portion of the said Order even
directs the distribution of the estate of the
deceased spouses. Private respondents filed a
motion for reconsideration which was denied in
an Order dated February 1, 1991. Thus, private
respondents filed a petition before the Court of
Appeals, which nullified the two assailed
Orders dated November 29, 1990 and
February 1, 1991.
Aggrieved, petitioner instituted a petition
for review arguing that the case filed by private
respondents before the Court of Appeals was a
petition under Rule 65 on the ground of grave
abuse of discretion or lack of
jurisdiction. Petitioner contends that in issuing
the two assailed orders, Judge Angas cannot
be said to have no jurisdiction because he was
particularly designated to hear the
case. Petitioner likewise assails the Order of
the Court of Appeals upholding the validity of
the January 30, 1986 Order which declared the
intrinsic invalidity of Alejandros will that was
earlier admitted to probate.
Petitioner also filed a motion to reinstate
her as executrix of the estate of the late
Alejandro and to maintain the status quo or
lease of the premises thereon to third
parties.[3] Private respondents opposed the
motion on the ground that petitioner has no
interest in the estate since she is not the lawful
wife of the late Alejandro.
The petition is without merit. A final and
88
executory decision or order can no longer be
disturbed or reopened no matter how
Page
erroneous it may be. In setting aside the
January 30, 1986 Order that has attained
finality, the trial court in effect nullified the entry
of judgment made by the Court of Appeals. It is
well settled that a lower court cannot reverse or
set aside decisions or orders of a superior
court, for to do so would be to negate the
hierarchy of courts and nullify the essence of
review. It has been ruled that a final judgment
on probated will, albeit erroneous, is binding on
the whole world.[4]
It has been consistently held that if no
appeal is taken in due time from a judgment or
order of the trial court, the same attains finality
by mere lapse of time. Thus, the order allowing
the will became final and the question
determined by the court in such order can no
longer be raised anew, either in the same
proceedings or in a different motion. The
matters of due execution of the will and the
capacity of the testator acquired the character
of res judicata and cannot again be brought
into question, all juridical questions in
connection therewith being for once and
forever closed.[5] Such final order makes the
will conclusive against the whole world as to its
extrinsic validity and due execution.[6]
It should be noted that probate
proceedings deals generally with the extrinsic
validity of the will sought to be
probated,[7] particularly on three aspects:
whether the will submitted is indeed, the
decedents last will and testament;
compliance with the prescribed formalities for
the execution of wills;
the testamentary capacity of the testator;[8]
and the due execution of the last will and
testament.[9]
Under the Civil Code, due execution
includes a determination of whether the
testator was of sound and disposing mind at
the time of its execution, that he had freely
executed the will and was not acting under
duress, fraud, menace or undue influence and
that the will is genuine and not a
forgery,[10] that he was of the proper
testamentary age and that he is a person not
expressly prohibited by law from making a
will.[11]
The intrinsic validity is another matter and
questions regarding the same may still be
raised even after the will has been
authenticated.[12] Thus, it does not necessarily
follow that an extrinsically valid last will and
testament is always intrinsically valid. Even if
the will was validly executed, if the testator
provides for dispositions that deprives or
impairs the lawful heirs of their legitime or
rightful inheritance according to the laws on
succession,[13] the unlawful
provisions/dispositions thereof cannot be given
effect. This is specially so when the courts had
already determined in a final and executory
decision that the will is intrinsically void. Such
determination having attained that character of
finality is binding on this Court which will no
longer be disturbed. Not that this Court finds
the will to be intrinsically valid, but that a final
and executory decision of which the party had
the opportunity to challenge before the higher
tribunals must stand and should no longer be
reevaluated. Failure to avail of the remedies
provided by law constitutes waiver. And if the
party does not avail of other remedies despite
its belief that it was aggrieved by a decision or
court action, then it is deemed to have fully
agreed and is satisfied with the decision or
order. As early as 1918, it has been declared
that public policy and sound practice demand
that, at the risk of occasional errors, judgments
of courts must at some point of time fixed by
law[14]become final otherwise there will be no
end to litigation. Interes rei publicae ut finis sit
litium - the very object of which the courts were
constituted was to put an end to
controversies.[15] To fulfill this purpose and to
do so speedily, certain time limits, more or less
arbitrary, have to be set up to spur on the
slothful.[16] The only instance where a party
interested in a probate proceeding may have a
final liquidation set aside is when he is left out
by reason of circumstances beyond his control
or through mistake or inadvertence not
imputable to negligence,[17] which
circumstances do not concur herein.
Petitioner was privy to the suit calling for
the declaration of the intrinsic invalidity of the
will, as she precisely appealed from an
unfavorable order therefrom. Although the final
and executory Order of January 30, 1986
wherein private respondents were declared as
the only heirs do not bind those who are not
parties thereto such as the alleged illegitimate
son of the testator, the same constitutes res
judicatawith respect to those who were parties
to the probate proceedings. Petitioner cannot
again raise those matters anew for relitigation
otherwise that would amount to forum-
shopping. It should be remembered that forum
shopping also occurs when the same issue
had already been resolved adversely by some
other court.[18] It is clear from the executory
order that the estates of Alejandro and his
spouse should be distributed according to the
89
laws of intestate succession.
Page
 Petitioner posits that the January 30, 1986 Petitioners motion for appointment as
Order is merely interlocutory, hence it can still administratrix is rendered moot considering
be set aside by the trial court. In support that she was not married to the late Alejandro
thereof, petitioner argues that an order merely and, therefore, is not an heir.
declaring who are heirs and the shares to
WHEREFORE, the petition is DENIED and
which set of heirs is entitled cannot be the
the decision appealed from is AFFIRMED.
basis of execution to require delivery of shares
from one person to another particularly when SO ORDERED.
no project of partition has been filed.[19] The
trial court declared in the January 30, 1986
Order that petitioner is not the legal wife of
Alejandro, whose only heirs are his three
legitimate children (petitioners herein), and at
the same time it nullified the will.But it should
be noted that in the same Order, the trial court
also said that the estate of the late spouses be
distributed according to the laws of
intestacy. Accordingly, it has no option but to
implement that order of intestate distribution
and not to reopen and again re-examine the
intrinsic provisions of the same will.
It can be clearly inferred from Article 960 of
the Civil Code, on the law of successional
rights that testacy is preferred to
intestacy.[20] But before there could be testate
distribution, the will must pass the scrutinizing
test and safeguards provided by law
considering that the deceased testator is no
longer available to prove the voluntariness of
his actions, aside from the fact that the transfer
of the estate is usually onerous in nature and
that no one is presumed to give - Nemo
praesumitur donare.[21] No intestate distribution
of the estate can be done until and unless the
will had failed to pass both its extrinsic and
intrinsic validity. If the will is extrinsically void,
the rules of intestacy apply regardless of the
intrinsic validity thereof. If it is extrinsically
valid, the next test is to determine its intrinsic
validity that is whether the provisions of the will
are valid according to the laws of
succession. In this case, the court had ruled
that the will of Alejandro was extrinsically valid
but the intrinsic provisions thereof were
void. Thus, the rules of intestacy apply as
correctly held by the trial court.
Furthermore, Alejandros disposition in his
will of the alleged share in the conjugal
properties of his late spouse, whom he
described as his only beloved wife, is not a
valid reason to reverse a final and executory
order. Testamentary dispositions of properties
not belonging exclusively to the testator or
properties which are part of the conjugal
regime cannot be given effect. Matters with
respect to who owns the properties that were
disposed of by Alejandro in the void will may
still be properly ventilated and determined in
90

the intestate proceedings for the settlement of

his and that of his late spouses estate.
Page