G.R. No.
L-23079 February 27, 1970 granted the questioned adoption, and obtained written depositions from two of them denying
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,
vs. HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal
(Special Proceedings 2457) a petition for probate, ante mortem, of her last will and testament.
The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta
and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and nieces of
Basilia. This opposition was, however, dismissed and the probate of the will allowed after due
hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-
Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted
children.
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The
respondent Perfecto Cruz was appointed executor without bond by the same court in
accordance with the provisions of the decedent's will, notwithstanding the blocking attempt
pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition
in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and
that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in
accordance with law, in effect rendering these respondents mere strangers to the decedent and
without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the
court a quo allowed the petitioners' intervention by its order of December 22, 1959, couched in
broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named
oppositors [Ruben Austria, et al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or lack of it of the
several adoption papers produced and presented by the respondents. On motion of the
petitioners Ruben Austria, et al., these documents were referred to the National Bureau of
Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the
documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a
preliminary opinion from a Constabulary questioned-document examiner whose views
undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus
moved the lower court to refer the adoption papers to the Philippine Constabulary for further
study. The petitioners likewise located former personnel of the court which appeared to have
any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the
petitioners Ruben Austria, let al., moved the lower court to set for hearing the matter of the
genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before
the date set by the court for hearing arrived, however, the respondent Benita Cruz-Meñez who
entered an appearance separately from that of her brother Perfecto Cruz, filed on February 28,
1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners'
intervention, should it be permitted, to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides
subsequently submitted their respective memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased
which were not disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an
opposition, from the respondents. On October 25, 1963 the same court denied the petitioners'
motion for reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both
sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October
25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties
that were not included in the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the
estate of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo
Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are
concededly the nearest surviving blood relatives of the decedent. On the other side are the
respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz
and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom
claim kinship with the decedent by virtue of legal adoption. At the heart of the controversy is
Basilia's last will — immaculate in its extrinsic validity since it bears the imprimatur of duly
conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The
lower court had, however, assumed, by its orders in question, that the validity or invalidity of
the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if
the adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless
succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This
ruling apparently finds support in article, 842 of the Civil Code which reads:
 One who has no compulsory heirs may dispose of by will all his estate or any
part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does
not contravene the provisions of this Code with regard to the legitime of said
heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to properties, if any, that have
not been disposed of in the will, for to that extent intestate succession can take place and the
question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should
descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs
embodied in the decedent's will. They have thus raised squarely the issue of whether or not
such institution of heirs would retain efficacy in the event there exists proof that the adoption
of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be
considered as not written, unless it appears from the will that the testator
would not have made such institution if he had known the falsity of such
cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the
lower court and this Court to the following pertinent portions of the will of the deceased which
recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking
itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga
ari-ariang maiiwan, sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,
Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na
parepareho ang kaparti ng bawa't isa at walang lamangan (en partes
iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati (½) ng
aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong
asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng
testamentong ito, ang kalahati (½) ng mga lagay na lupa at palaisdaan na
nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si
Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto
Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the late
Basilia was deceived into believing that she was legally bound to bequeath one-half of her
entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners
further contend that had the deceased known the adoption to be spurious, she would not have
instituted the respondents at all — the basis of the institution being solely her belief that they
were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of
the institution of heirs and the opening of the estate wide to intestacy. Did the lower court then
abuse its discretion or act in violation of the rights of the parties in barring the petitioners
nephews and niece from registering their claim even to properties adjudicated by the decedent
in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the
will; second, the cause must be shown to be false; and third, it must appear from the face of the
will that the testator would not have made such institution if he had known the falsity of the
cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under the law she could not do
otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she
did not make it known in her will. Surely if she was aware that succession to the legitime takes
place by operation of law, independent of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of
the rules on legitimes should very well indicate her complete agreement with that statutory
scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in
the mind of the testatrix when she executed her will. One fact prevails, however, and it is that
the decedent's will does not state in a specific or unequivocal manner the cause for such
institution of heirs. We cannot annul the same on the basis of guesswork or uncertain
implications.
And even if we should accept the petitioners' theory that the decedent instituted the
respondents Perfecto Cruz, et al. solely because she believed that the law commanded her to do
so, on the false assumption that her adoption of these respondents was valid, still such
institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false
cause the testator may have written in his will for the institution of heirs. Such institution may
be annulled only when one is satisfied, after an examination of the will, that the testator clearly
would not have made the institution if he had known the cause for it to be false. Now, would the
late Basilia have caused the revocation of the institution of heirs if she had known that she was
mistaken in treating these heirs as her legally adopted children? Or would she have instituted
them nonetheless?

The decedent's will, which alone should provide the answer, is mute on this point or at best is
vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were
borrowed from the language of the law on succession and were used, respectively, to describe
the class of heirs instituted and the abstract object of the inheritance. They offer no absolute
indication that the decedent would have willed her estate other than the way she did if she had
known that she was not bound by law to make allowance for legitimes. Her disposition of the
free portion of her estate (libre disposicion) which largely favored the respondent Perfecto
Cruz, the latter's children, and the children of the respondent Benita Cruz, shows a perceptible
inclination on her part to give to the respondents more than what she thought the law enjoined
her to give to them. Compare this with the relatively small devise of land which the decedent
had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro
Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents
Perfecto Cruz, et al. from the inheritance, then the petitioners and the other nephews and
nieces would succeed to the bulk of the testate by intestacy — a result which would subvert the
clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit injunctions
in the Civil Code: "The words of a will are to receive an interpretation which will give to every
expression some effect, rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." 1

Testacy is favored and doubts are resolved on its side, especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate,2 as was done in
this case. Moreover, so compelling is the principle that intestacy should be avoided and the
wishes of the testator allowed to prevail, that we could even vary the language of the will for
the purpose of giving it effect.3 A probate court has found, by final judgment, that the late
Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed
free from falsification, fraud, trickery or undue influence. In this situation, it becomes our duty
to give full expression to her will.4

At all events, the legality of the adoption of the respondents by the testatrix can be assailed only
in a separate action brought for that purpose, and cannot be the subject of a collateral attack.5

To the petitioners' charge that the lower court had no power to reverse its order of December
22, 1959, suffice it to state that, as borne by the records, the subsequent orders complained of
served merely to clarify the first — an act which the court could legally do. Every court has the
inherent power to amend and control its processes and orders so as to make them conformable
to law and justices.6 That the court a quo has limited the extent of the petitioners' intervention
is also within its powers as articulated by the Rules of Court.7

ACCORDINGLY, the present petition is denied, at petitioners cost.

 G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid
and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years
before her demise. Petitioner prayed that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will.
Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors — who are compulsory heirs of the deceased in the direct
ascending line — were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a complete nullity and
will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the
petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate
of a will. The court's area of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary
capacity, and the compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said court at this stage of
the proceedings — is not called upon to rule on the intrinsic validity or efficacy of the
provisions of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether
or not the will should be allowed probate. For them, the meat of the case is the intrinsic validity
of the will. Normally, this comes only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled
on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a justiciable controversy crying for
solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that
the will is a complete nullity. This exacts from us a study of the disputed will and the applicable
statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain
amount of property, do hereby give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In
witness whereof, I have signed my name this seventh day of November, nineteen hundred and
fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
the Civil Code of Spain of 1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; but the legacies and betterments4 shall be valid, in so
far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra
siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le
deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado
de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la
herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem
before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343,
204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 —
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to
nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them:
They thus received nothing by the testament; tacitly, they were deprived of their legitime;
neither were they expressly disinherited. This is a clear case of preterition. Such preterition in
the words of Manresa "anulara siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code. 9 The one-
sentence will here institutes petitioner as the sole, universal heir — nothing more. No specific
legacies or bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en
todo o en parte? No se añade limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima
del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que
este articulo como especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en
favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la
generalidad del precepto legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results in totally
abrogating the will. Because, the nullification of such institution of universal heir — without
any other testamentary disposition in the will — amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute.
On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme,
correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion
de heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el
hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o
supuesto, y consiguientemente, en un testamento donde falte la institucion, es
obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los
de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados,
siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no
basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la
forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se
acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto
razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la testamentifaccion, pues no porque parezca
mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo
que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious".
Legacies and devises merit consideration only when they are so expressly given as such in a
will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will — void
because of preterition — would give the heir so instituted a share in the inheritance. As to him,
the will is inexistent. There must be, in addition to such institution, a testamentary disposition
granting him bequests or legacies apart and separate from the nullified institution of heir.
Sanchez Roman, speaking of the two component parts of Article 814, now 854, states that
preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in
reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que
no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner
as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than
one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does not
apply to the case at bar". This argument fails to appreciate the distinction between pretention
and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal
cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply
omits their names altogether. Said will rather than be labeled ineffective disinheritance is
clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those
of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the
institution of heir". This annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put
only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the
case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of
the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in the case of preterition on the
one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code.
If every case of institution of heirs may be made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the provisions of Articles 814 and
851 regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining provisions
contained in said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by Article 817.
Thus, instead of construing, we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a
special provision. With reference to article 814, which is the only provision material
to the disposition of this case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from legacies or betterments. And
they are separate and distinct not only because they are distinctly and separately
treated in said article but because they are in themselves different. Institution of heirs
is a bequest by universal title of property that is undetermined. Legacy refers to
specific property bequeathed by a particular or special title. ... But again an institution
of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854
of the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the
will before us solely provides for the institution of petitioner as universal heir, and nothing
more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive
their legitimes, but that the institution of heir "is not invalidated," although the inheritance of
the heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:
 G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs. HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in
AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of
the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985
(Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special Proceedings No. 591 ACEB No
special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now
Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City
Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance
to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB
(Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his
brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were
instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was
written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by
petitioner without objection raised by private respondents. The will contained provisions on
burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as
the executor of the testament. On the disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming
to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds
for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p.
158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents
filed with the Supreme Court a petition for certiorari and prohibition with preliminary
injunction which was subsequently referred to the Intermediate Appellate Court by Resolution
of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered
the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the
review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents'
Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum
for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition
with preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon
the intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code
refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct
line; their omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention
of the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.
 (F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall annul the institution of heir; but
the devisees and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them
either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966];
Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article
854 of the Civil Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is
not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D.
No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the
same rights and duties as if he were a legitimate child of the adopter and makes the adopted
person a legal heir of the adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and the widow were deprived
of at least their legitime. Neither can it be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession
the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado
mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals,
114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except insofar as the
legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of such
institution of universal heirs-without any other testamentary disposition in the will-amounts to
a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole property of the deceased has
been left by universal title to petitioner and his brothers and sisters. The effect of annulling the
"Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
185 [1943]) except that proper legacies and devises must, as already stated above, be
respected.
We now deal with another matter. In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate and an interested party is one who
would be benefited by the estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor,
neither a devisee or a legatee there being no mention in the testamentary disposition of any gift
of an individual item of personal or real property he is called upon to receive (Article 782, Civil
Code). At the outset, he appears to have an interest in the will as an heir, defined under Article
782 of the Civil Code as a person called to the succession either by the provision of a will or by
operation of law. However, intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in effect not an heir of the
testator. He has no legal standing to petition for the probate of the will left by the deceased and
Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order
is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981];
Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA
308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies
of certiorari and prohibition are not available where the petitioner has the remedy of appeal or
some other plain, speedy and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies
to correct a grave abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137
[1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court,
the general rule is that the probate court's authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testator'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. Said court at
this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the
provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra;
Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522
[1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate
court is not powerless to do what the situation constrains it to do and pass upon certain
provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the
oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate
court acting on the motion held that the will in question was a complete nullity and dismissed
the petition without costs. On appeal the Supreme Court upheld the decision of the probate
court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the will in question.
After all there exists a justiciable controversy crying for solution.
correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial
court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming
the existence of the remedy of appeal, the Court harkens to the rule that in the broader
interests of justice, a petition for certiorari may be entertained, particularly where appeal
would not afford speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition
deals with the validity of the provisions of the will. Respondent Judge allowed the probate of
the will. The Court held that as on its face the will appeared to have preterited the petitioner
the respondent judge should have denied its probate outright. Where circumstances demand
that intrinsic validity of testamentary provisions be passed upon even before the extrinsic
validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court
of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings
No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has
no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the
widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial
court in an order dated January 21, 1985 for the reason that "the grounds for the motion to
dismiss are matters properly to be resolved after a hearing on the issues in the course of the
trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was
denied by the trial court on February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his brothers
and sisters were instituted as universal heirs coupled with the obvious fact that one of the
private respondents had been preterited would have been an exercise in futility. It would have
meant a waste of time, effort, expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of the testamentary
provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra;
Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by
private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had
the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to
 G.R. No. L-47799 May 21, 1943
Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs. IGNACIA AKUTIN AND HER CHILDREN, respondents.
MORAN, J.:
This is a case where the testator in his will left all his property by universal title to the children by his
second marriage, the herein respondents, with preterition of the children by his first marriage, the
herein petitioner. This Court annulled the institution of heirs and declared a total intestacy.
A motion for reconsideration has been filed by the respondents on the ground (1) that there is no
preterition as to the children of the first marriage who have received their shares in the property left
by the testator, and (2) that, even assuming that there has been a preterition, the effect would not be
the annulment of the institution of heirs but simply the reduction of the bequest made to them.
1. The findings of the trial court and those of the Court of Appeals are contrary to respondents' first
contention. The children of the first marriage are Eleuterio, Agripino, Agapita, Getulia (who died a
little less than eight years before the death of her father Agripino Neri, leaving seven children),
Rosario and Celerina.
As to Eleuterio, the trial court said that "it is not, therefore, clear that Eleuterio has received his share
out of the properties left by his father." It is true that Eleuterio appears to have received, as a
donation from his father, parcel of land No. 4, but the question of whether there has been a donation
or not is apparently left for decision in an independent action, and to that effect Ignacia Akutin has
been appointed special administratrix for the purpose of instituting such action.
With respect to Agripino and Agapita, the parcels of land which they have occupied, according to the
trial Court, "are a part of public land which had been occupied by Agripino Neri Chaves, and,
therefore, were not a part of the estate of the latter."
Concerning Getulia who died about eight years before the death of her father Agripino Neri, the trial
Court found that "neither Getulia nor her heirs received any share of the properties."
And with respect to Rosario and Celerina, the trial Court said that "it does not appear clear, therefore,
that Celerina and Rosario received their shares in the estate left by their father Agripino Neri
Chaves."
This is in connection with the property, real or personal, left by the deceased. As to money advances,
the trial Court found:
It is contented, furthermore, that the children of Agripino Neri Chaves in his first marriage
received money from their father. It appears that Nemesio Chaves is indebted in the
amount of P1,000; Agripino, in the amount of P500 as appears in Exhibits 14 and 15;
Getulia, in the amount of P155 as appears in Exhibit 16, 17, and 18; Celerina in the amount
of P120 as appears in Exhibit 19, 19-A and 19-B.
From these findings of the trial Court it is clear that Agapita, Rosario and the children of Getulia had
received from the testator no property whatsoever, personal, real or in cash.
But clause 8 of the will is invoked wherein the testator made the statement that the children by his
first marriage had already received their shares in his property excluding what he had given them as
aid during their financial troubles and the money they had borrowed from him which he condoned in
the will. Since, however, this is an issue of fact tried by the Court of First Instance, and we are
reviewing the decision of the Court of Appeals upon a question of law regarding that issue, we can
rely only upon the findings of fact made by the latter Court, which are as follows:
Since all the parcels that corresponded to Agripino Neri y Chaves are now in the
administrator's possession, as appears in the inventory filed in court, it is clear that the
property of the deceased has remained intact and that no portion thereof has been given to
the children of the first marriage.
xxx xxx xxx
It is stated by the court and practically admitted by the appellants that a child of the first
marriage named Getulia, or her heirs after her death, did not receive any share of the
property of her father.
It is true that in the decision of the Court of Appeals there is also the following paragraphs:
As regards that large parcel of land adjoining parcel No. 1, it is contended that after the
court had denied the registration thereof. Agripino Neri y Chaves abandoned the said land
and that later on some of the children of the first marriage possessed it, thereby acquiring
title and interest therein by virtue of occupation and not through inheritance. It is not true
that this parcel containing 182.6373 hectares is now assessed in the names of some of the
children of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the
owners of the property are Agapita Neri de Chaves y Hermanos. Apparently, the said land
is still claimed to be the property not only of the children of the first marriage but also of
those of the second marriage.
This paragraph is but a corroboration of the finding made by the Court of Appeals that no property
has ever been advanced by the testator to the children by his first marriage. The large parcel of land
adjoining parcel No. 1 was alleged by the children of the second marriage to have been advanced by
the testator to the children by his first marriage; but the Court of Appeals belied this claim. "It is not
true," says that Court, "that this parcel containing 182.6373 hectares is now assessed in the names of
some of the children of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the
owners of the property are Agapita Neri de Chaves y Hermanos," that is, the children of both
marriages. And the Court of Appeals added that "apparently, the said land is still claimed to be the
property not only of the children of the first marriage but also of those of the second marriage,"
which is another way of stating that the property could not have been advanced by the testator to the
children by the first marriage would not lay a claim on it.
We conclude, therefore, that according to the findings of fact made by the Court of Appeals, the
testator left all his property by universal title to the children by his second marriage, and that
without expressly disinheriting the children by his first marriage, he left all his property by universal
title to the children by his second marriage, he left nothing to them or, at least, some of them. This is,
accordingly, a case of preterition governed by article 814 of the Civil Code, which provides that the
institution of heirs shall be annulled and intestate succession should be declared open.
2. Upon the second question propounded in the motion for reconsideration, respondents seem to
agree that article 814 of the Civil Code is the law applicable but, in their discussion as to the effect of
preterition, they confuse article 814 with articles 817 and 851 and other articles of the Civil Code.
These three articles read:
ART. 814. The preterition of one or of all of the forced heirs in the direct line, whether
living at the execution of the will or born after the death of the testator, shall annul the
institution of heirs; but the legacies and betterments shall be valid in so far as they are not
inofficious.
The preterition of the widower or widow does not annul the institution; but the person
omitted shall retain all the rights granted to him by articles 834, 835, 836, and 837 of this
Code.
ART. 817. Testamentary dispositions which diminish the legitimate of the forced heirs shall
be reduced on petition of the same in so far as they are inofficious or excessive.
ART. 851. Disinheritance made without a statement of the cause, or for a cause the truth of
which, if contested, is not shown, or which is not one of those stated in the four following
articles, shall annul the institution of heirs in so far as it is prejudicial to the disinherited
person; but the legacies, betterments, and other testamentary dispositions shall be valid in
so far as they are not prejudicial to said legitime.
The following example will make the question clearer: The testator has two legitimate sons, A and B,
and in his will he leaves all his property to A, with total preterition of B. Upon these facts, shall we
annul entirely the institution of heir in favor of A and declare a total intestacy, or shall we merely
refuse the bequest left A, giving him two-thirds, that is one third of free disposal and one-third of
betterments, plus one-half of the other third as strict legitime, and awarding B only the remaining
one-half of the strict legitime? If we do the first, we apply article 814; if the second, we apply articles
851 or 817. But article 851 applies only in cases of unfounded disinheritance, and all are agreed that
the present case is not one of disinheritance but of preterition. Article 817 is merely a general rule
inapplicable to specific cases provided by law, such as that of preterition or disinheritance. The
meaning of articles 814 and 851, their difference and philosophy, and their relation to article 817, are
lucidly explained by Manresa in the following manner:
Cuando la legitima no es usufructuria, como ocurre en los demas casos, la pretericion no
puede menos de alterar esencialmente la institucion de heredero. Esta ha de anularse, pero
en todo o en parte, esto es, solo en cuanto perjudique el derecho del legitimario preterido?
El articulo 814 opta por la primer solucion, ya que hemos de atenermos estrictmente al
testo de la ley; mientras que el articulo 851, en casos anlogos, opta por la segunda.
En efecto; la desheredacion sin justa causa no produce el efecto de desheredar. El heredero
conserva derecho a su legitima, pero nada mas que a su legitima. Los legados, las merjoras,
si las hay, y aun la institucion de heredero, son validas en cuanto no perjudiquen al
heredero forzoso.
La diferencia se notara perfectamente con un ejemplo. Un solteron, sin decendientes ni
ascendientes legitimos, hace testamento instituyendo por heredero a un pariente lejano.
Despues reconoce un hijo natural, o se casa y tiene descendencia, y muere sin modificar su
disposicion testamentaria. A su muerte, el hijo natural, o los legitimos, fundadose en la
nulidad total de la institucion, con arreglo al articulo 814, piden toda la herencia. En el caso
del articulo 851 solo podrian podrian pedir su legitima. Preterdos, adquieren derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, segun el caso.
En el fondo la cuestion es indentica. El testador puede siempre disponer a su arbitrio de la
parte libre. El legitimario, contra la voluntad expresa del testdor, solo tiene derecho a su
legitima. Preterido o desheredado sin justa causa la legitima. Preterido o desheredado sin
justa causa la legitma es suya. Desheredado o preterido, la porcion libre no le corresponde,
cuando el testador la asigna a otro. Logicamente no cabe que el legitmario, en caso de
pretericion, reciba todos los bienes cuando el testador haya dispuesto de ellos a titulo
de herencia, y no cuando haya dispuesto del tercio lebre a titulo de legado.
Cual es la razon de esta differencia? En la generalidad de los casos puede fundarse el
precepto en la presunta voluntad del testador. Este, al desheredar, revela que existe alguna
razon a motivo que le impulsa a obrar asi; podra no ser bastante para privar al heredero de
su legitima, pero siempre ha de estimarse sufficiente para privarle del resto de la herencia,
pues sobre esta no puede pretender ningun derecho el desheredad. El heredero preterido
no ha sido privado expresamente de nada; el testador, en los casos normales, obra si por
descuido o por error. Hemos visto un testamento en el que no se institula heredera a una
hija monja, por creer la testadora que no podia heredar. En otros caos se ignora la
existencia de un descendiente o de un ascendiente. Cuando el preterido es una persona que
ha nacido despues de muerto el testador o despues de hecho el testamento, la razon es aun
mas clara; la omision ha de presumirse involuntaria; el testador debe suponerse que
hubiera instituido heredero a esa persona si hubiera existido al otorgarse el testamento, y
no solo en cuanto a la legitima, sino en toda la herencia, caso de no haber otros herederos
forzosos, y en iguales terminos que los demas herederos no mejorados de un mode
expreso.
La opinion contraria puede tambien defederse, suponiendo que la ley anula el titulo de
heredero, mas no en absoluto la participacion en el caudal; que asi como al exceptuar la
mejora se refiere a todo el tercio o a la parte de el que haya distribuido el causante, al
exceptuar los legados se refierse a la parte libre de que haya dispuesto el mismo testador,
considerando como un simple legatario de esa porcion a la persona a quien el testador
designo como heredero. Abonaria esta solucion el articulo 817, al declarar que las
disposiciones testamentaria que menguan la legitima de los herederos forzosos han de
reducirse en cuanto fueren inoficiosas, pues amparado en este articulo el heredero
voluntario, puede pretender que la disposicion a su favor sea respetada en cuato no
perjudique a las legitimas.
La jurisprudencia no ha resuelto de frente esta cuestion, porque no se le ha presentado en
los terminos propuestos; pero ha demonstrado su criterio.
Hemos citado las Resoluciones de la Direccion de 30 de octubre de 1896 y de 20 de mayo
de 1893. En la primera se decide con valentia, con arreglo al texto expreso del articulo 814;
la institucion de heredero se anula en absoluto, y se abre para toda la herencia la succesion
intestada. En la segunda se rehuye la cuestion, fundandose en circunstancias secundarias.
En el articulo siguiente examinaremos la sentencia de 16 de enero de 1895.
 La interpretacion que rectamente se deprende del art 814, es la de que solo valen, y eso en
cuanto no sean inoficiosas, las disposiciones hechas a titulo de legado a mejora. En cuanto a
la institucion de heredero, se anula. Lo que se anula deja de existir, en todo, o en parte? No se
añade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara a
institucion de heredero en cuanto perjudique a la legitima del desheredado. Debe, pues,
entenderse que la anulacion es completa o total, y que este articulo, como especial en el caso
que le motiva, rige con preferencia al 817. (6 Manresa, 3.a ed., pags. 351-353.) (Emphasis
supplied).
The following opinion of Sanchez Roman is to the same effect and dispels all possible doubt on the
matter:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion entestada, total
o parcial. Sera total, cuando el testador que comete la pretericion, hubiere dispuesto de
todos los bienes por titulo universal de herencia en favor de los hrederos instituidos, cuya
institucion se anula, porque asi lo exige la generalidad del precepto legal del articulo 814, al
determinar, como efecto de la pretericion, el de que "anularia la institucion de heredero".
Cierto es que la preericion esta intorducida, como remedio juridico, por sus efectos, en
nombre y para garantia de la intergridad de la legitima de los herederos forzosos y como
consecuencia del precepto del 813, de que "el testador no podra privar a los herederos de
su legitima, sino en los casos expresamente determinados por la ley", que son los de
desheredacion con justa causa.
Cierto es, tambien, que en la desheredacion es muy otro el criterio del Codigo y que su
formula legal, en cuanto a sus efectos, es de alcance mas limitado, puesto que, conforme al
articulo 851, la desheredacion hecha sin condiciones de validez, "anulara la institucion de
heredero", lo mismo que la pretericion, pero solo "en cuanto perjudique la desheredado de
modo ilegal e ineficaz; salvedad o limitacion de los efectos de nulidad de la institucion de
los efectos de nulidad de la institucion hecha en el testmento, que no existe, segun se ha
visto en el 814, por el que se declara, en forma general e indistinta, que anulara la
institucion de heredero sin ninguna atencuacion respecto de que perjudique o no, total o
parcialmente, la cuantia de la legitima del heredero forzoso en linea recta, preterido.
El resultado de ambos criterios y formulas legales, manifestamente distintas, tiene que ser
muy diverso. En el caso de la pretericion, propiamente tal o total — pues si fuera parcial y
se la dejara algo al heredero forzoso por cualquier titulo, aunque see algo no fuere
suficiente al pago de sus derechos de legitima, no seria caso de pretericion, regulado por el
articulo 814, sino de complemento, regido por el 815 y la institucion no se anularia sino
que se modificaria o disminuiria en lo necesario para dicho complente — o de institucion
de heredero en toda la herencia, al anularse la institucion, por efecto de la preterido o
preteridos, respecto de toda la herencia, tambien; mientras qeu en el caso de
desheredacion y de institucion en la totalidad de la herencia, tambien; mientras que en el
caso de desheredacion y de institucion en la totalidad de la herencia a favor de otra
persona, solo se anulara en parte precisa pra no perjudicar la legitima del deshersado, que
aun siendo en este caso la lata, si no hubo mejoras, porque no se establecieron o porque los
intituidos eran herederos voluntarios, dejaria subsistente la institucion en la poarte
correspoondiente al tercio de libre disposicion. Asi es que los preteridos, en el supuesto
indicado, suceden abintestato en todo, en concurrencia conlos demas herederos forzosos o
llamados pro la ley al abintestato; los desheredados, unicamente en dos tercios o en uno o
en uno tan solo, en la hipotesis de haberse ordernado mejoras.
En cambio, ni por la desheredacion ni por la pretericion pierde su fuerza el testamento, en
cuanto a dicho tercio libre, is se trata dedescendientes; o la mitad, si se trata de
ascendientes, ya desheredados, ya preteridos, proque, ni por el uno ni por el otro medio, se
anula mas que la institucion de heredero, en general, y totalmente por la pretericion, y solo
en cuanto perjudique a la legitima del desheredado por la desheredacion; pero
subsistiendo, en ambos casos, todas acquellas otras disposiciones que no se refeiren a la
institucion de heredero y se hallen dentro del limite cuantitativo del tercio o mitad de libre
disposicion, segun que se trate de descendientes o ascendientes, preteridos o
desheredados.
La invocacion del articulo 817 para modificar estos efectos de la pretericion, procurando
limitar la anulacion de la institucion de herederos solo en cuanto perjudique a la legitima,
fundadose en que dicho articulo establece que "las disposiciones testamentarias que
menguan la legitma de los herederos forzosos se reduciran, a peticion de estos, en lo que
fueren inoficiosas o excesivas," no es aceptable ni puede variar acquellos resultados,
porque es un precepto de caracter general en toda otra clase de dsiposiciones
testamentarias que produzcan el efecto de menguar la legitima, que no puede anteponerse,
en su aplicacion, a las de indole especial para señalar los efectos de la pretericion o de la
desheredacion, regulados privativa y respectivamente por los articulos 814 y 851.
No obstante la pretericion, "valdran las mandas y legados en cuanto no sean inoficiosas." El
texto es terminante y no necesita mayor explicacion, despues de lo dicho, que su propia
letra, a no ser para observar que constituye una confimacion indudable de los efectos de la
pretericion, en cuanto alcanzan solo, pero totalmente, a la anulacion de la institucion de
heredero, pero no a la de las mandas y mejoras en cuanto no sean preteridos; calficativo de
tales, como sinonimo legal de excessivas, que en otros articulos, como el 817, establece la
ley. (6 Sanchez Roman, Volumen 2.o pags. 1140-1141.)
These comments should be read with care if we are to avoid misunderstanding. Manresa, for
instance, starts expounding the meaning of the law with an illustration. He says that in case of
preterition (article 814). the nullity of the institution of heirs is total, whereas in case of
disinheritance (article 851), the nullity is partial, that is, in so far as the institution affects the
legitime of the disinherited heirs. "Preteridos, adquieren derecho atodo; desheredados, solo les
corresponde un tercio o dos tercios, segun el caso." He then proceeds to comment upon the wisdom
of the distinction made by law, giving two views thereon. He first lays the view contrary to the
distinction made by law, then the arguments in support of the distinction, and lastly a possible
defense against said arguments. And after stating that the Spanish jurisprudence has not as yet
decided squarely the question, with an allusion] to two resolutions of the Spanish Administrative
Direction, one in favor of article 814 and another evasive, he concludes that the construction which
may rightly be given to article 814 is that in case of preterition, the institution of heirs is null in
toto whereas in case of disinheritance the nullity is limited to that portion of the legitime of which the
disinherited heirs have been illegally deprived. He further makes it clear that in cases of preterition,
the property bequeathed by universal titled to the instituted heirs should not be merely reduced
according to article 817, but instead, intestate succession should be opened in connection therewith
under article 814, the reason being that article 814, "como especial en el caso que le motiva, rige con
preferencia al 817." Sanchez Roman is of the same opinion when he said: "La invocacion del articulo
817 para modificar estos efectos de la pretecion, procurando limitar la anulacion de la institucion de
heredero solo en cuanto perjudque a la legitima, fundandose en que dicho articulo establece que "las
disposiciones testmentarias que menguan la legitima de los herederos forzosos se fueren inoficisosas
o excesivas," no es aceptable ni puede variar aquellos resultados, porque es un precepto de caracter
general en toda otra clase de disposiciones testmentarias que produzcan el efecto de menguar la
legitima, que no puede anteponerse, en su aplicacion, a las de indole especial para señalar los efectos
de la pretericon o de la desheredacion, regulados privativa y respectivamente por los articulos 814 y
851.
Of course, the annulment of the institution of heirs in cases of preterition does not always carry with
it the ineffectiveness of the whole will. Neither Manresa nor Sanchez Roman nor this Court has ever
said so. If, aside from the institution of heirs, there are in the will provisions leaving to the heirs so
instituted or to other persons some specific properties in the form of legacies or mejoras, such
testamentary provisions shall be effective and the legacies and mejoras shall be respected in so far as
they are not inofficious or excessive, according to article 814. In the instant case, however, no
legacies or mejoras are provided in the will, the whole property of the deceased having been left by
universal title to the children of the second marriage. The effect, therefore, of annulling the
institution of heirs will be necessarily the opening of a total intestacy.
But the theory is advanced that the bequest made by universal titled in favor of the children by the
second marriage should be treated as legado and mejora and, accordingly, it must not be entirely
annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles
814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept
of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and
851 regarding total or partial nullity of the institution, would be absolutely meaningless and will
never have any application at all. And the remaining provisions contained in said article concerning
the reduction of inofficious legacies or betterments would be a surplusage because they would be
absorbed by article 817. Thus, instead of construing, we would be destroying integral provisions of
the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution
of heirs from legacies and betterments, and a general from a special provision. With reference to
article 814, which is the only provision material to the disposition of this case, it must be observed
that the institution of heirs is therein dealt with as a thing of separate and distinct from legacies or
betterment. And they are separate and distinct not only because they are distinctly and separately
treated in said article but because they are in themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to specific property bequeathed by a
particular or special title. The first is also different from a betterment which should be made
expressly as such (article 828). The only instance of implied betterment recognized by law is where
legacies are made which cannot be included in the free portion (article 828). But again an institution
of heirs cannot be taken as a legacy.
It is clear, therefore, that article 814 refers to two different things which are the two different objects
of its two different provisions. One of these objects cannot be made to merge in the other without
mutilating the whole article with all its multifarious connections with a great number of provisions
spread throughout the Civil Code on the matter of succession. It should be borne in mind, further,
that although article 814 contains who different provisions, its special purpose is to establish a
specific rule concerning a specific testamentary provision, namely, the institution of heirs in a case of
preterition. Its other provision regarding the validity of legacies and betterments if not inofficious is
a mere reiteration of the general rule contained in other provisions (articles 815 and 817) and
signifies merely that it also applies in cases of preterition. As regards testamentary dispositions in
general, the general rule is that all "testamentary disposition which diminish the legitime of the
forced heirs shall be reduced on petition of the same in so far as they are inofficous or excessive"
(article 817). But this general rule does not apply to the specific instance of a testamentary
disposition containing an institution of heirs in a case of preterition, which is made the main and
specific subject of article 814. In such instance, according to article 814, the testamentary disposition
containing the institution of heirs should be not only reduced but annulled in its entirety and all the
forced heirs, including the omitted ones, are entitled to inherit in accordance with the law of intestate
succession. It is thus evident that, if, in construing article 814, the institution of heirs therein dealt
with is to be treated as legacies or betterments, the special object of said article would be destroyed,
its specific purpose completely defeated, and in that wise the special rule therein established would
be rendered nugatory. And this is contrary to the most elementary rule of statutory construction. In
construing several provisions of a particular statute, such construction shall be adopted as will give
effect to all, and when general and particular provisions are inconsistent, the latter shall prevail over
the former. (Act No. 190, secs. 287 and 288.)
The question herein propounded has been squarely decided by the Supreme Court of Spain in a case
wherein a bequest by universal title was made with preterition of heirs and the theory was advanced
that the instituted heirs should be treated as legatarios. The Supreme Court of Spain said:
El articulo 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no
se ha realizado, debiendo, por lo tanto, procederse sobre tal base o supuesto, y
consiguientemente, en un testmento donde fate la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribuido todos sus bienes en legados, siendo tanto mas obligada
esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quein testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpertacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, peo que no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamnetificaion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay rason para convertir este juico en regla de interpretacion, desvirtuando
y anulando por este procedimiento lo que el legislator quiere establecer. (6 Sanchez
Roman, Volumen 2.o, p. 1138.)
It is maintained that the word "heredero" under the Civil Code, is not synonymous with the term
"heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is no longer
personally liable for the debts of the deceased as was the "heredero" under the Civil Code, should his
acceptance be pure and simple, and from all these the conclusion is drawn that the provisions of
article 814 of the Civil Code regarding the total nullity of the institution of heirs has become obsolete.
This conclusion is erroneous. It confuses form with substance. It must be observed, in this
connection, that in construing and applying a provision of the Civil Code, such meaning of its words
and phrases as has been intended by the framers thereof shall be adopted. If thus construed it is
inconsistent with the provisions of the Code of Civil Procedure, then it shall be deemed repealed;
otherwise it is in force. Repeals by implication are not favored by the courts and when there are two
acts upon the same subject, effect should be given to both if possible (Posadas vs. National City Bank,
296 U. S., 497). The word "heir" as used in article 814 of the Civil Code may not have the meaning
that it has under the Code of Civil Procedure, but this in no wise can prevent a bequest from being
made by universal title as is in substance the subject-matter of article 814 of the Civil Code. Again, it
may also be true that heirs under the Code of Civil Procedure may receive that bequest only after
payment of debts left by the deceased and not before as under the Civil Code, but this may have a
bearing only upon the question as to when succession becomes effective and can in no way destroy
the fact that succession may still be by universal or special title. Since a bequest may still be made by
universal title and with preterition of forced heirs, its nullity as provided in article 814 still applies
there being nothing inconsistent with it in the Code of Civil Procedure. What is important and is the
basis for its nullity is the nature and effect of the bequest and not its possible name nor the moment
of its effectiveness under the Code of Civil Procedure.
from the facts in the present case. There is certainly a difference between a case of preterition in
which the whole property is left to a mere friend and a case of preterition in which the whole
property is left to one or some forced heirs. If the testamentary disposition be annulled totally in the
first case, the effect would be a total deprivation of the friend of his share in the inheritance. And this
is contrary to the manifest intention of the testator. It may fairly be presumed that, under such
circumstances, the testator would at leave give his friend the portion of free disposal. In the second
case, the total nullity of the testamentary disposition would have the effect, not of depriving totally
the instituted heir of his share in the inheritance, but of placing him and the other forced heirs upon
the basis of equality. This is also in consonance with the presumptive intention of the testator.
Preterition, generally speaking, is due merely to mistake or inadvertence without which the testator
may be presumed to treat alike all his children.

Furthermore, there were in the Code of Civil Procedure sections Nos. 755 and 756 which read:
SEC. 755. Share of child born after making will. — When a child of a testator is born after
the making of a will, and no provision is therein made for him, such child shall have the
same share in the estate of the testator as if he had died intestate; and share of such child
shall be assigned to him as in cases of intestate estates, unless it is apparent from the will
that it was the intention of the testator that no provision should be made for such child.
And specially is this true in the instant case where the testator omitted the children by his first
marriage upon the erroneous belief that he had given them already more shares in his property than
those given to the children by his second marriage. It was, therefore, the thought of the testator that
the children by his first marriage should not receive less than the children by his second marriage,
and to that effect is the decision of this Court sought to be reconsidered. Motion for reconsideration
is hereby denied.

SEC. 756. Share of child or issue of child omitted from will. — When a testator omits to
provide in his will for any of his children, or for issue of a deceased child, and it appears
that such omission was made by mistake, or accident, such child, or the issue of such child,
shall have the same share in the estate of the testator as if he had died intestate, to be
assigned to him as in the case of intestate estates.

It is these provisions of the Code of Civil Procedure that have affected substantially articles 814 and
851 of the Civil Code, but they have been expressly repealed by Act No. 2141, section 1 of which read
as follows:

Sections seven hundred and fifty-five, seven hundred and fifty-six, seven hundred and fifty-
seven, seven hundred and fifty-eight, and seven hundred and sixty of Act Numbered One
hundred and ninety, entitled `An Act providing a Code of Procedure in Civil Actions and
Special Proceedings in the Philippine Islands are hereby repealed and such provisions of the
Civil Code as may have been amended or repealed by said sections are hereby restored to full
force and effects. (Emphasis ours.)

Among the provisions of the Civil Code which are thus expressly restored to full force are
undoubtedly articles 814 and 851. There can be no possible doubt, therefore, that those two articles
are in force.

Article 1080 of the Civil Code that is also invoked deserves no consideration except for the
observation that it has no relevancy in the instant case.

Our attention is directed to the case of Escuin vs. Escuin (11 Phil., 332). We have never lost sight of
the ruling laid down in that case which has been reiterated in Eleazar vs. Eleazar (37 Off. Gaz., p.
1782). In the Escuin case, the deceased left all his property to his natural father (not a forced heir)
and his wife with total preterition of his father and wife. Without reconsidering the correctness of the
ruling laid down in these two cases, we will note that the doctrine stands on facts which are different
 February 3, 2016 G.R. No. 198994
IRIS MORALES, Petitioner,
vs. ANA MARIA OLONDRIZ, ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO MORENO OLONDRIZ,
ISABEL ROSA OLONDRIZ and FRANCISCO JAVIER MARIA OLONDRIZ, Respondents.
DECISION
BRION, J.:
This is a petition for review on certiorari filed by Iris Morales from the May 27, 2011 decision and
October 12, 2011 resolution of the Court of Appeals (CA) in CA-G.R. SP No. 102358.1 The CA denied
Morales' petition for certiorarifrom the Regional Trial Court's (RTC) July 12, 2007 and October 30,
2007 orders in SP. Proc. No. 03-0060 and SP. Proc. No. 03-0069.2
Antecedents
Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003. He was survived by his widow, Ana
Maria Ortigas de Olondriz, and his children: Alfonso Juan O. Olondriz, Jr., Alejandro Marino O.
Olondriz, Isabel Rosa O. Olondriz, Angelo Jose O. Olondriz, and Francisco Javier Maria Bautista
Olondriz. His widow and children are collectively referred to as the respondent heirs.
Believing that the decedent died intestate, the respondent heirs filed a petition with the Las Piñas
RTC for the partition of the decedent’s estate and the appointment of a special administrator on July
4, 2003. The case was raffled to Branch 254 and docketed as Sp. Proc. Case No. SP-03-0060.
On July 11, 2003, the RTC appointed Alfonso Juan O. Olondriz, Jr. as special administrator.
However, on July 28, 2003, Iris Morales filed a separate petition with the RTC alleging that the
decedent left a will dated July 23, 1991. Morales prayed for the probate of the will and for her
appointment as special administratrix. Her petition was also raffled to Branch 254 and docketed
as Sp. Proc. Case No. SP-03-0069.
The pertinent portions of the decedent’s will reads:
1. Upon my death, IRIS MORALES OLONDRIZ shall be the executor hereof and administrator of my
estate until its distribution in accordance herewith. x x x
2. My entire estate shall be divided into six (6) parts to be distributed equally among and between
(1) IRIS MORALES OLONDRIZ, my children (2) ALFONSO JUAN OLONDRIZ, JR., (3) ALEJANDRO
OLONDRIZ, (4) ISABEL OLONDRIZ, (5) ANGELO OLONDRIZ, and their mother (6) MARIA ORTEGAS
OLONDRIZ, SR.3
Notably, the will omitted Francisco Javier Maria Bautista Olondriz, an illegitimate son of the
decedent.
On September 1, 2003, Morales filed a manifestation in Sp. Proc. Case No. SP-03-0060 and moved to
suspend the intestate proceedings in order to give way to the probate proceedings in Sp. Proc. Case
No. SP-03-0069. The respondent heirs opposed Morales’ motion for suspension and her petition for
allowance of the will.
On November 27, 2003, the RTC consolidated Sp. Proc. Case No. SP-03-0060 with Sp. Proc. Case
No. SP-03-0069.
On January 6, 2004, the respondent heirs moved to dismiss the probate proceedings because
Francisco was preterited from the will.
On January 10, 2006, Morales agreed to the holding of an evidentiary hearing to resolve the issue of
preterition. Thus, the RTC ordered the parties to submit their factual allegations to support or negate
the existence of preterition. Only the respondent heirs complied with this order.
After several postponements at the instance of Morales, the reception of evidence for the evidentiary
hearing was scheduled on May 29, 2006. However, Morales failed to appear, effectively waiving her
right to present evidence on the issue of preterition.
On June 23, 2006, the RTC, through Judge Gloria Butay Aglugub, suspended the intestate proceedings
in Sp. Proc. Case No. SP-03-0060 and set the case for probate. The RTC reasoned that probate
proceedings take precedence over intestate proceedings.
The respondent heirs moved for reconsideration of the suspension order but the RTC denied the
motion on September 1, 2006. The RTC also summarily revoked the Letters of Administration
previously issued to Alfonso Jr.
The respondent heirs moved for reconsideration of the summary revocation of the Letters of
Administration. They also moved for the inhibition of Judge Aglugub of Branch 254.
On November 16, 2006, the RTC granted the motion for inhibition. The case was transferred
to Branch 253 presided by Judge Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the respondent heirs’ motion for reconsideration of the
revocation of the Letters of Administration and (2) Morales’ motion to be appointed Special
Administratrix of the estate. The RTC noted that while testacy is preferred over intestacy, courts will
not hesitate to set aside probate proceedings if it appears that the probate of the will might become
an idle ceremony because the will is intrinsically void.
The RTC observed: (1) that Morales expressly admitted that Francisco Javier Maria Bautista Olondriz
is an heir of the decedent; (2) that Francisco was clearly omitted from the will; and (3) that based on
the evidentiary hearings, Francisco was clearly preterited. Thus, the RTC reinstated Alfonso Jr. as
administrator of the estate and ordered the case to proceed in intestacy.
Morales moved for reconsideration which the RTC denied on October 30, 2007, for lack of merit.
On February 7, 2008, Morales filed a petition for certiorari against the orders of the RTC. Morales
alleged that the RTC acted with grave abuse of discretion in proceeding intestate despite the
existence of the will. The petition was docketed as CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed Morales’ petition for certiorari. The CA reasoned that while
probate proceedings take precedence over intestate proceedings, the preterition of a compulsory
heir in the direct line annuls the institution of heirs in the will and opens the entire inheritance into
intestate succession.4 Thus, the continuation of the probate proceedings would be superfluous and
impractical because the inheritance will be adjudicated intestate. The CA concluded that the RTC did
not act with grave abuse of discretion.
Morales moved for reconsideration which the CA denied on October 12, 2011. Hence, she filed the
present petition for review on certiorari on December 5, 2011.
The Petition
Morales maintains that the RTC committed grave abuse of discretion when it ordered the case to
proceed intestate because: (1) the probate of a decedent’s will is mandatory; (2) the RTC Branch 254
already ordered the case to proceed into probate; (3) the order setting the case for probate already
attained finality; (3) the probate court cannot touch on the intrinsic validity of the will; and (4) there
was no preterition because Francisco received a house and lot inter vivos as an advance on his
legitime.
The respondent heirs counter: (1) that it is within the RTC’s jurisdiction to reverse or modify an
interlocutory order setting the case for probate; (2) that the petitioner failed to mention that she did
not appear in any of the evidentiary hearings to disprove their allegation of preterition; (3) that the
RTC and the CA both found that Francisco was preterited from the will; and (4) that Francisco’s
preterition annulled the institution of heirs and opened the case into intestacy. They conclude that
the RTC did not exceed its jurisdiction or act with grave abuse of discretion when it reinstated
Alfonso Jr. as the administrator of the estate and ordered the case to proceed intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory heir from the will, either because he is not
named or, although he is named as a father, son, etc., he is neither instituted as an heir nor assigned
any part of the estate without expressly being disinherited – tacitly depriving the heir of his
legitime.5 Preterition requires that the omission is total, meaning the heir did not also receive any
legacies, devises, or advances on his legitime. 6
In other words, preterition is the complete and total omission of a compulsory heir from the testator’s
inheritance without the heir’s express disinheritance.
Article 854 of the Civil Code states the legal effects of preterition:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual,
without prejudice to the right of representation. (emphasis supplied)
Under the Civil Code, the preterition of a compulsory heir in the direct line shall annul the
institution of heirs, but the devises and legacies shall remain valid insofar as the legitimes are not
impaired. Consequently, if a will does not institute any devisees or legatees, the preterition of a
compulsory heir in the direct line will result in total intestacy. 7
In the present case, the decedent’s will evidently omitted Francisco Olondriz as an heir, legatee, or
devisee. As the decedent’s illegitimate son, Francisco is a compulsory heir in the direct line. Unless
Morales could show otherwise, Francisco’s omission from the will leads to the conclusion of his
preterition.
During the proceedings in the RTC, Morales had the opportunity to present evidence that Francisco
received donations inter vivos and advances on his legitime from the decedent. However, Morales did
not appear during the hearing dates, effectively waiving her right to present evidence on the issue.
We cannot fault the RTC for reaching the reasonable conclusion that there was preterition.
We will not entertain the petitioner’s factual allegation that Francisco was not preterited because
this Court is not a trier of facts.1âwphi1 Furthermore, the CA concurred with the RTC’s conclusion.
We see no cogent reason to deviate from the factual findings of the lower courts.
The remaining question is whether it was proper for the RTC to (1) pass upon the intrinsic validity of
the will during probate proceedings and (2) order the case to proceed intestate because of
preterition.
The general rule is that in probate proceedings, the scope of the court’s inquiry is limited to
questions on the extrinsic validity of the will; the probate court will only determine the will’s formal
validity and due execution.8However, this rule is not inflexible and absolute. 9 It is not beyond the
probate court’s jurisdiction to pass upon the intrinsic validity of the will when so warranted by
exceptional circumstances.10 When practical considerations demand that the intrinsic validity of the
will be passed upon even before it is probated, the probate court should meet the issue. 11
The decedent’s will does not contain specific legacies or devices and Francisco’s preterition annulled
the institution of heirs.1avvphi1 The annulment effectively caused the total abrogation of the will,
resulting in total intestacy of the inheritance. 12 The decedent’s will, no matter how valid it may
appear extrinsically, is null and void. The conduct of separate proceedings to determine the intrinsic
validity of its testamentary provisions would be superfluous. Thus, we cannot attribute error – much
less grave abuse of discretion – on the RTC for ordering the case to proceed intestate.
Finally, there is no merit in the petitioner’s argument that the previous order setting the case for
probate barred the RTC from ordering the case to proceed intestate. The disputed order is merely
interlocutory and can never become final and executory in the same manner that a final judgment
does.13 An interlocutory order does not result in res judicata.14 It remains under the control of the
court and can be modified or rescinded at any time before final judgment. 15
Certiorari is a limited form of review confined to errors of jurisdiction. An error of jurisdiction is one
where the officer or tribunal acted without or in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction. 16 As discussed, it is well within the jurisdiction
of the probate court to pass upon the intrinsic validity of the will if probate proceedings might
become an idle ceremony due to the nullity of the will.

On the other hand, grave abuse of discretion is the capricious and whimsical exercise of judgment
equivalent to an evasion of positive duty, or a virtual refusal to act at all in contemplation of the
law.17 It is present when power is exercised in a despotic manner by reason, for instance, of passion
and hostility. Morales failed to show that the R TC acted in such a capricious and despotic manner
that would have warranted the CA's grant of her petition for certiorari. On the contrary, the RTC
acted appropriately in accordance with the law and jurisprudence.

WHEREFORE, the petition is DISMISSED. Costs against the petitioner.

SO ORDERED.
 G.R. No. L-41971 November 29, 1983
ZONIA ANA T. SOLANO, petitioner,
vs. THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S.
GARCIA, respondents.
MELENCIO HERRERA, J.
A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming the
judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No.
3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimate
children of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer,
SOLANO denied paternity. On February 3, 1970, during the pendency of the suit, SOLANO died.
Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving
heir mentioned in his Last Will and Testament probated on March 10, 1969, or prior to his
death, in Special Proceedings No. 842 of the same Court. ZONIA entered her formal appearance
as a "substitute defendant" on March 4, 1970 claiming additionally that she was the sole heir of
her father, SOLANO, and asking that she be allowed to assume her duties as executrix of the
probated Will with the least interference from the GARCIAS who were "mere pretenders to be
illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental
Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with
the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT.
ZONIA did not file any responsive pleading and the case proceeded to trial. The GARCIAS
further moved for the impleading of the SOLANO estate in addition to ZONIA, which was
opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1
In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the
parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the correct
status of ZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2
On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment the
dispositive portion of which decrees: têñ.£îhqwâ£
WHEREFORE, judgment is hereby rendered declaring the plaintiffs
Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana
Tuagnon as the illegitimate children of the late Dr. Meliton Solano under the
class of ADULTEROUS CHILDREN, with all the rights granted them by law.
The institution of Sonia Ana Solano as sole and universal heir of the said
deceased in the will is hereby declared null and void and the three (3)
children shall share equally the estate or one- third (1/3) each, without
prejudice to the legacy given to Trinidad Tuagnon and the right of any
creditors of the estate. No pronouncement as to costs.
Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CA-G.R.
No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was given due course.
At the outset, we should state that we are bound by the findings of fact of both the Trial Court
and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact,
illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of
record inevitably point to that conclusion, as may be gleaned from the following background
facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour
he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was
short-lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous
relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931
(Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2").
Their birth certificates and baptismal certificates mention only the mother's name without the
father's name. The facts establish, however, that SOLANO during his lifetime recognized the
GARCIAS as his children by acts of support and provisions for their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this
relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth
Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father
as "P.N.C. " (Exhibit "V"), or "padre no conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on November
29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and Trinidad Tuagnon
executed an "Escritura de Reconocimiento de Unit Hija Natural" (Exhibit "Q"; "7"),
acknowledging ZONIA as a "natural child" and giving her the right to use the name ZONIA Ana
Solano y Tuagnon. The document was registered with the Local Civil Registrar on the same
date.
On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"),
instituting ZONIA as his universal heir to all his personal and real properties in Camalig, Tabaco
and Malinao, all in the province of Albay, except for five parcels of land in Bantayan, Tabaco,
Albay, which were given to Trinidad Tuagnon in usufruct Upon SOLANO's petition (Exhibit
"10"), the Will was duly probated on March 10, 1969 in Special Proceedings No. 842 of the
Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S.
Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that: têñ.£îhqwâ£
I
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano,
 now petitioner, an illegitimate child of the late Dr. Meliton Solano in an
action where private respondents, as plaintiffs in the Court below, sought
recognition as natural children of Dr. Meliton Solano.
II
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in ordering the division of the estate of Dr. Meliton
Solano between the petitioner and private respondents, when said estate is
under the jurisdiction and control of the probate Court in Special
Proceedings No. 842.
III
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring nun and void the institution of heir in
the last will and testament of Dr. Meliton Solano, which was duly probated in
special proceedings No. 842 of the Court of First Instance of Albay, and in
concluding that total intestacy resulted there from. 3
Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to
declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the
same action despite the pendency of Special Proceedings No. 842; and 3) to declare null and
void the institution of heir in the Last Win and Testament of SOLANO, which was duly probated
in the same Special Proceedings No. 842, and concluding that total intestacy resulted.
It is true that the action below was basically one for recognition. However, upon notice of
SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir ...
as of as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano ... Sole and
Universal Heir", ZONIA specifically prayed that she be 6 allowed to assume her duties as
executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano,
under Special Proceedings No. 842, which is already final and executory, with least interference
from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be
illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer already
of record but asserted new rights in her capacity as sole and universal heir, "executrix and
administratrix, "and challenged the right of the GARCIAS to recognition. Thus, she was not
defending the case as a mere representative of the deceased but asserted rights and defenses in
her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA ...
and Supplemental Cause of Action ... "vigorously denying that ZONIA was SOLANO's sole and
universal heir; that ZONIA could not legally be considered as SOLANO's acknowledged natural
child because of a legal impediment; that the admission to probate of SOLANO's Will was
merely conclusive as to its due execution; that the supposed recognition under a notarial
instrument of ZONIA as an acknowledged natural child was fraudulent and a product of
misrepresentation; that ZONIA's recognition in the Will as an acknowledged natural child is
subject to nullification and that at most ZONIA is, like them, an adulterous child of SOLANO with
Trinidad Tuagnon.
During the trial, the GARCIAS presented evidence to prove their allegations not only in their
main complaint but also in their "Reply to Appearance and Supplemental Cause of Action".
ZONIA presented no objection to the presentation by the GARCIAS of their oral and
documentary evidence and even cross-examined their witnesses. ZONIA, for her part,
presented her own testimonial and documentary evidence, denied the relationship of the
GARCIAS' to SOLANO and presented the notarial recognition in her favor as an acknowledged
natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in
their own pleadings and pursuant to their respective evidence during the trial, the litigation
was converted into a contest between the GARCIAS and ZONIA precisely as to their correct
status as heirs and their respective rights as such. No error was committed by either the Trial
Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the
institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and
distributing the shares of the parties in SOLANO's estate when said estate was under the
jurisdiction and control of the Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It
should be recalled that SOLANO himself instituted the petition for probate of the Will during his
lifetime. That proceeding was not one to settle the estate of a deceased person that would be
deemed terminated only upon the final distribution of the residue of the hereditary estate. With
the Will allowed to probate, the case would have terminated except that it appears that the
parties, after SOLANO's death, continued to file pleadings therein. Secondly, upon motion of the
GARCIAS, and over the objection of ZONIA, the Trial Court ordered the impleading of the estate
of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated.
The records further disclose that the action for recognition (Civil Case No. 3956) and Spec.
Procs. No. 842 were pending before the same Branch of the Court and before the same
presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due
execution.5 A probate decree is not concerned with the intrinsic validity or legality of the
provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts,
the GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's
acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad
Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941,
SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and,
therefore, did not have the legal capacity to contract marriage at the time of ZONIA's
conception, 7 that being compulsory heirs, the GARCIAS were, in fact, pretended from SOLANO's
Last' Will and Testament; and that as a result of said preterition, the institution of ZONIA as sole
heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. têñ.£îhqwâ£
The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious. ... 8
As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor of
Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9and should be respected in so far as it is not
inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the
GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding that
the entire Will is void and intestacy ensues, the pretention of the GARCIAS should annul the
institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The
Will, therefore, is valid subject to that limitation. 11 It is a plain that the intention of the testator
was to favor ZONIA with certain portions of his property, which, under the law, he had a right
to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half
(1/2) portion of the property that the testator could freely dispose of. 12 Since the legitime of
illegitimate children consists of one half (1/2) of the hereditary estate, 13 the GARCIAS and
ZONIA each have a right to participation therein in the proportion of one-third (1/3) each.
ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the
GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.
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 the same jurisdiction. The question whether the court has
jurisdiction either of the subject matter of the action or of the parties is not
because the judgment or order of the court is valid and conclusive as an
adjudication but for the reason that such practice cannot be tolerated
obviously for reasons of public policy. After voluntarily submitting a cause
and encountering an adverse decision on the merits, it is too late for the
loser to question the jurisdiction or power of the court.
WHEREFORE, the judgment under review is hereby modified in that the hereditary share in the
estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of
1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria
S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad
Tuagnon shall be respected. The judgment is affirmed in all other respects. No costs.
SO ORDERED.1äwphï1.ñët

As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in
the Will is valid and should be respected.

The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et
al., 15 which held that where the institution of a universal heir is null and void due to pretention,
the Will is a complete nullity and intestate succession ensues, is not applicable herein because
in the Nuguid case, only a one-sentence Will was involved with no other provision except the
institution of the sole and universal heir; there was no specification of individual property;
there were no specific legacies or bequests. It was upon that factual setting that this Court
declared: têñ.£îhqwâ£

The disputed order, we observe, declares the will in question 'a complete
nullity. Article 854 of the Civil Code in turn merely nullifies 'the institution of
heir'. Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null." (at p. 459)

In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the Civil
Code, supra, applies merely annulling the "institution of heir".

Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court
was never questioned before either Court. ZONIA herself had gone, without objection, to trial
on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of
jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held
estopped to repudiate that jurisdiction to which she had voluntarily submitted, after she had
received an unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16 on this point,
declared: têñ.£îhqwâ£
 G.R. No. L-24365 June 30, 1966
IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.
ADOLFO C. AZNAR, executor and appellee,
vs. MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee..
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a
will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance
of Davao in its decision of February 28, 1954. In that same decision the court declared that
Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of
the deceased. The declaration was appealed to this Court, and was affirmed in its decision of
February 14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the deceased's estate, the trial court approved
the project submitted by the executor in accordance with the provisions of the will, which said
court found to be valid under the law of California. Helen Garcia appealed from the order of
approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity
of the provisions of the will should be governed by Philippine law, and returned the case to the
lower court with instructions that the partition be made as provided by said law (G.R. No. L-
16749).
On October 29, 1964, the Court of First Instance of Davao issued an order approving the project
of partition submitted by the executor, dated June 30, 1964, wherein the properties of the
estate were divided equally between Maria Lucy Christensen Duncan (named in the will as
Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the
testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who
had been judicially declared as such after his death. The said order was based on the
proposition that since Helen Garcia had been preterited in the will the institution of Lucy
Duncan as heir was annulled, and hence the properties passed to both of them as if the
deceased had died intestate, saving only the legacies left in favor of certain other persons,
which legacies have been duly approved by the lower court and distributed to the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of
whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in
equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely
reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the
entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are
pertinent to the issue in this case:
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,
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; Provided, however, that should the said MARIA LUCY
CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in
that event, the life interest herein given shall terminate, and if so terminated, then I
give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN
DANEY the rest, remainder and residue of my property with the same force and effect
as if I had originally so given, devised and bequeathed it to her; and provided, further,
that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then,
and in that event, I give, devise and bequeath all the rest, remainder and residue of my
property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON,
now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half
(1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs.
Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen,
of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the
three above named who may predecease me, to go in equal parts to the descendants
of the deceased; and, provided further, that should my sister Mrs. Carol Louise C.
Borton die before my own decease, then, and in that event, the share of my estate
devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de
Treviño, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California,
U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of
them who may die before my own decease, share and share alike.
The trial court ruled, and appellee now maintains, that there has been preterition of Helen
Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir
pursuant to Article 854 of the Civil Code, which provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious.
On the other hand, appellant contends that this is not a case of preterition, but is governed by
Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by
any title less than the legitime belonging to him may demand that the same be fully satisfied."
Appellant also suggests that considering the provisions of the will whereby the testator
expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless
although less than the amount of her legitime, she was in effect defectively disinherited within
the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a cause the truth
of which, if contradicted, is not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may prejudice the person
disinherited; but the devices and legacies and other testamentary dispositions shall be
valid to such extent as will not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to
her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were
intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article
815. Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de
memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se
encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion
de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que
influeye poderosamente en el animo del legislador para decidirle a adoptar una
solucion bien diferente de la señalada para el caso de pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero
haciendo un calculo equivocado, ha repartido en favor de extraños o en favor de otros
legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de
consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco
puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le
falta; al complemento de la porcion que forzosamente la corresponde.
... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo
de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion
de bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio
en al articulo 815, no pugna tampoco con la doctrina de la ley. Cuando en el testamento
se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que
real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6
Manresa, 7th Ed., 1951, p. 437.)
On the difference between preterition of a compulsory heir and the right to ask for completion
of his legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo
pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende
el testador en su testamento a la satisfaccion del derecho a la legitima del heredero
forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en
ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna de la
herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o
nombrara sin dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e
insuficientes para cubrir su legitima, ya no seria caso de pretericion, sino de
complemento de aquella. El primer supuesto o de pretericion se regula por el articulo
814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de
complemento de legitima por el 815 y solo original la accion ad suplementum, para
completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)
Manresa defines preterition as the omission of the heir in the will, either by not naming him at
all or, while mentioning him as father, son, etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to him some part of the properties. Manresa
continues:
Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la
omision sea completa; que el heredero forzoso nada reciba en el
testamento.1äwphï1.ñët
xxx xxx xxx
B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y
resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a
quien el testador deja algo por cualquier titulo en su testamento, no se halla
propiamente omitido pues se le nombra y se le reconoce participacion en los bienes
hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se
reconociese el derecho del heredero como tal heredero, pero el articulo 815
desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la
privacion parcial. Los efectos deben ser y son, como veremos completamente distintos
(6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
 Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de
ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la
legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que
le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla
general, y las consecuencias del que brantamiento de esta regla se determina en los
articulos 814 y 815. (6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo
expreso esta circunstancia de que la pretericion o falta de mencion e institucion o
disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de
no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve
a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero
forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que
la corresponda, podria pedir el complemento de la misma, lo cual ya no son el caso ni
los efectos de la pretericion, que anula la institucion, sino simplemente los del
suplemento necesario para cubrir su legitima. (Sanchez Roman — Tomo VI, Vol. 2.0 p.
1133.)
The question may be posed: In order that the right of a forced heir may be limited only to the
completion of his legitime (instead of the annulment of the institution of heirs) is it necessary
that what has been left to him in the will "by any title," as by legacy, be granted to him in his
capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or
referred to in the will as heir? This question is pertinent because in the will of the deceased
Edward E. Christensen Helen Garcia is not mentioned as an heir — indeed her status as such is
denied — but is given a legacy of P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer to the
question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI,
Vol. 2.0 — p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851,"
later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above,
comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta
materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna
racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a
quien no se le dejaba por titulo de tal el completo de su legitima, la accion para
invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante
el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como
donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le
privaba no dandole este caracter, y solo cuando era instituido heredero en parte o
cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el ejercicio
de la accion ad suplementum para completarla, sin necesidad de anular las otras
instituciones de heredero o demas disposiciones contenidas en el testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que
le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por
cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo
el derecho de pedir el complemento de la misma sin necesidad de que se anulen las
disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al
articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la
jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de
la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del
testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el
testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el
testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 — p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16,
1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left
to one who was a forced heir a legacy worth less than the legitime, but without referring to the
legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was
held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled
entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the expressed wishes of the testator
in the present case as may be gathered very clearly from the provisions of his will. He refused
to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of
P3,600.00. The fact that she was subsequently declared judicially to possess such status is no
reason to assume that had the judicial declaration come during his lifetime his subjective
attitude towards her would have undergone any change and that he would have willed his
estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of
their theory of preterition. That decision is not here applicable, because it referred to a will
where "the testator left all his property by universal title to the children by his second
marriage, and (that) without expressly disinheriting the children by his first marriage, he left
nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit
oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the
Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate
descended to Helen Garcia as her legitime. Since she became the owner of her share as of the
moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a
corresponding portion of all the fruits or increments thereof subsequently accruing. These
include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all
such dividends pertain to her according to the terms of the will cannot be sustained, for it
would in effect impair the right of ownership of Helen Garcia with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been made in the brief
for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy
Duncan in the event she should die without living issue. This substitution results in effect from
the fact that under paragraph 12 of the will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue, in which event she would inherit in full
ownership; otherwise the property will go to the other relatives of the testator named in the
will. Without deciding this, point, since it is not one of the issues raised before us, we might call
attention to the limitations imposed by law upon this kind of substitution, particularly that
which says that it can never burden the legitime (Art. 864 Civil Code), which means that the
legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of
partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded
with instructions to partition the hereditary estate anew as indicated in this decision, that is, by
giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion
corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after
deducting all debts and charges, which shall not include those imposed in the will of the
decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this
instance.
 G.R. No. L-17818 January 25, 1967
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed
Reyes y Barretto,plaintiffs-appellants,
vs. LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No.
1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver to
the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea
wife under the terms of the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal,
Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of San
Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the
Land Records of this Province, being the share of plaintiff's wards as minor heirs of
the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they
acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan, covered
by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500,
2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of
these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros
Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and
his nephew anä nieces® The usufruct oæ the fishponä situateä iî barrio Saî Roque¬ Hagonoy,
Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo® Iî the
meantime¬ Maria Gerardo was appointeä administratrix. By virtue thereof, she prepared a
project of partition, which was signed by her in her own behalf and as guardian of the minor
Milagros Barretto. Said project of partition was approved by the Court of First Instance of
Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of
the heirs followed forthwith. As a consequence, Salud Barretto took immediate possession of
her share and secured the cancellation of the original certificates of title and the issuance of
new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in the
distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her
death, it was discovered that she had executed two wills, in the first of which, she instituted
Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she revoked the
same and left all her properties in favor of Milagros Barretto alone. Thus, the later will was
allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, as guardian of
the children of Salud Barretto, the lower court held that Salud was not the daughter of the
decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the
Supreme Court, which affirmed the same.1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of
Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano
Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action for the
recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not only of
the fishpond under litigation, but of all the other properties willed and delivered to Salud
Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano
Barretto, thereby directly attacking the validity, not only of the project of partition, but of the
decision of the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the fishpond in
question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the
court did not acquire any jurisdiction of the person of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the
project of partition submitted in the proceedings for the settlement of the estate of Bibiano
Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and void ab
initio (not merely voidable) because the distributee, Salud Barretto, predecessor of plaintiffs
(now appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The
nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of
1889 (then in force) providing as follows: .
A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since Bibiano
Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will
was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part. And
it concluded that, as defendant Milagros was the only true heir of Bibiano Barretto, she was
entitled to recover from Salud, and from the latter's children and successors, all the Properties
received by her from Bibiano's estate, in view of the provisions of Article 1456 of the new Civil
Code of the Philippines establishing that property acquired by fraud or mistake is held by its
acquirer in implied trust for the real owner. Hence, as stated at the beginning of this opinion,
the Court a quo not only dismissed the plaintiffs' complaint but ordered them to return the
properties received under the project of partition previously mentioned as prayed for in
defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for
damages. Hence, this appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been
misapplied to the present case by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano Barretto's last will and testament
together with defendant Milagros; hence, the partition had between them could not be one such
had with a party who was believed to be an heir without really being one, and was not null and
void under said article. The legal precept (Article 1081) does not speak of children, or
descendants, but of heirs(without distinction between forced, voluntary or intestate ones), and
the fact that Salud happened not to be a daughter of the testator does not preclude her being
one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty to assign
the free portion of his estate to whomsoever he chose. While the share (½) assigned to Salud
impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary
heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller than her
legitime invalidate the institution of Salud as heir, since there was here no preterition, or total
ommission of a forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is
not at all applicable, that case involving an instance of preterition or omission of children of the
testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the civil status of
Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a
compromise presupposes the settlement of a controversy through mutual concessions of the
parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the
condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time
disputed during the settlement of the estate of the testator. There can be no compromise over
issues not in dispute. And while a compromise over civil status is prohibited, the law nowhere
forbids a settlement by the parties over the share that should correspond to a claimant to the
estate.
At any rate, independently of a project of partition which, as its own name implies, is merely a
proposal for distribution of the estate, that the court may accept or reject, it is the court alone
that makes the distribution of the estate and determines the persons entitled thereto and the
parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule
90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution,
once final, that vests title in the distributees. If the decree was erroneous or not in conformity
with law or the testament, the same should have been corrected by opportune appeal; but once
it had become final, its binding effect is like that of any other judgment in rem, unless properly
set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution of the estate,
and the same has become final, the validity or invalidity of the project of partition becomes
irrelevant.
It is, however, argued for the appellee that since the court's distribution of the estate of the late
Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the
widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto),
and since no evidence was taken of the filiation of the heirs, nor were any findings of fact or law
made, the decree of distribution can have no greater validity than that of the basic partition,
and must stand or fall with it, being in the nature of a judgment by consent, based on a
compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That
case is authority for the proposition that a judgment by compromise may be set aside on the
ground of mistake or fraud, upon petition filed in due time, where petition for "relief was filed
before the compromise agreement a proceeding, was consummated" (cas. cit. at p. 436). In the
case before us, however, the agreement of partition was not only ratified by the court's decree
of distribution, but actually consummated, so much so that the titles in the name of the
deceased were cancelled, and new certificates issued in favor of the heirs, long before the
decree was attacked. Hence, Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole
basis for the decree of distribution was the project of partition. But, in fact, even without it, the
distribution could stand, since it was in conformity with the probated will of Bibiano Barretto,
against the provisions whereof no objection had been made. In fact it was the court's duty to do
so. Act 190, section 640, in force in 1939, provided: .
SEC. 640. 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 Philippine Islands. 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 these Islands belonging to persons who are inhabitants of
another state or country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court distributed the
estate of her father in 1939 does not imply that the said court was without jurisdiction to enter
the decree of distribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89
Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still
they would be concluded by the result of the proceedings, not only as to their civil
status but as the distribution of the estate as well. As this Court has held in Manolo vs.
Paredes, 47 Phil. 938, "The proceeding for probate is one in rem (40 Cyc., 1265) and
the court acquires jurisdiction over all persons interested, through the publication of
the notice prescribed by section 630 C.P.C.; and any order that any be entered therein
is binding against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A final
order of distribution of the estate of a deceased person vests the title to the land of the
estate in the distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45
Phil. 895.) There is no reason why, by analogy, these salutary doctrines should not
apply to intestate proceedings.
The only instance that we can think of in which 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. Even then, the better practice to secure relief is reopening of the same
case by proper motion within the reglementary period, instead of an independent
action the effect of which, if successful, would be, as in the instant case, for another
court or judge to throw out a decision or order already final and executed and
reshuffle properties long ago distributed and disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu,
94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed the partition,
and that Maria Gerardo was not her judicially appointed guardian. The claim is not
true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of
Court.) The mere statement in the project of partion that the guardianship
proceedings of the minor Lucia Milagros Barretto are pending in the court, does not
mean that the guardian had not yet been appointed; it meant that the guardianship
proceedings had not yet been terminated, and as a guardianship proceedings begin
with the appointment of a guardian, Maria Gerardo must have been already appointed
when she signed the project of partition. There is, therefore, no irregularity or defect
or error in the project of partition, apparent on the record of the testate proceedings,
which shows that Maria Gerardo had no power or authority to sign the project of
partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no
ground for the contention that the order approving the project of partition is
absolutely null and void and may be attacked collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made a party by
publication but actually appeared and participated in the proceedings through her guardian:
she, therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled
her father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not
have ignored that the distributee Salud was not her child, the act of said widow in agreeing to
the oft-cited partition and distribution was a fraud on appellees rights and entitles her to relief.
In the first place, there is no evidence that when the estate of Bibiano Barretto was judicially
settled and distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she was
not Bibiano's child: so that if fraud was committed, it was the widow, Maria Gerardo, who was
solely responsible, and neither Salud nor her minor children, appellants herein, can be held
liable therefor. In the second placegranting that there was such fraud, relief therefrom can only
be obtained within 4 years from its discovery, and the record shows that this period had
elapsed long ago.
fact, the trial court made no mention of such promise in the decision under appeal. Even more:
granting arguendo that the promise was made, the same can not bind the wards, the minor
children of Salud, who are the real parties in interest. An abdicative waiver of rights by a
guardian, being an act of disposition, and not of administration, can not bind his wards, being
null and void as to them unless duly authorized by the proper court (Ledesma Hermanos vs.
Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the
proceedings for the settlement of the estate of Bibiano Barretto duly approved by the Court of
First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to
either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to
contest said partition and decree of distribution is barred by the statute of limitations; and (3)
that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account
for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally
untenable. It follows that the plaintiffs' action for partition of the fishpond described in the
complaint should have been given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed
and set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto
Datu the properties enumeracted in said decision, and the same is affirmed in so far as it denies
any right of said appellee to accounting. Let the records be returned to the court of origin, with
instructions to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709),
covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the
accounting of the fruits thereof, as prayed for in the complaint No costs.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she
became of age five years later, in 1944. On that year, her cause of action accrued to contest on
the ground of fraud the court decree distributing her father's estate and the four-year period of
limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that
Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still
became extinct in 1950. Clearly, therefore, the action was already barred when in August 31,
1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano
Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that
appellant Tirso Reyes had induced her to delay filing action by verbally promising to reconvey
the properties received by his deceased wife, Salud. There is no reliable evidence of the alleged
promise, which rests exclusively on the oral assertions of Milagros herself and her counsel. In
 G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,
vs. HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D.
SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO,
SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1
with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the
RTC), dismissing the petition for probate on the ground of preterition, in the consolidated
cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the
Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the
Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio
and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the intestate
estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and praying
for the appointment of private respondent Elisa D. Seangio–Santos as special administrator and
guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They
contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the
deceased Segundo executed a general power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as the administrator of the estate of
Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will,
dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are to be automatically
suspended and replaced by the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP.
Proc. No. 99–93396, was filed by petitioners before the RTC. They likewise reiterated that the
probate proceedings should take precedence over SP. Proc. No. 98–90870 because testate
proceedings take precedence and enjoy priority over intestate proceedings. 2
The document that petitioners refer to as Segundo’s holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at
nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng
lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na
si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa
ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na
kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon
pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa
mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng
Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at
hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong
saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–93396
were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings5 primarily on the ground that the document purporting to be the holographic will
of Segundo does not contain any disposition of the estate of the deceased and thus does not
meet the definition of a will under Article 783 of the Civil Code. According to private
respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest
son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as
heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being
the case, private respondents maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic
validity of the same, and ordering the dismissal of the petition for probate when on the face of
the will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the
authority of the probate court is limited only to a determination of the extrinsic validity of the
will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on
preterition does not apply because Segundo’s will does not constitute a universal heir or heirs
to the exclusion of one or more compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate
proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al.,
clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she
not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an
abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court
[155 SCRA 100 (1987)] has made its position clear: "for … respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face, the will appears to be
intrinsically void … would have been an exercise in futility. It would have meant a waste of
time, effort, expense, plus added futility. The trial court could have denied its probate outright
or could have passed upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved(underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for
lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED without pronouncement
as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14,
1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A
QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A"
AND "B" HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76
OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY
BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY
OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF
PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF
THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR’S TESTAMENTARY CAPACITY
AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE
UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM
THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS
BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE
CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE
PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court
which respectively mandate the court to: a) fix the time and place for proving the will when all
concerned may appear to contest the allowance thereof, and cause notice of such time and
place to be published three weeks successively previous to the appointed time in a newspaper
of general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees
of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its title
clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the decedent’s will and the holographic will on
its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents alike,
with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the
direct line of Segundo were preterited in the holographic will since there was no institution of
an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated, signed
and written by him in his own handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s
intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he
cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in his document, the Court believes
that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by
his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child
or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with
the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who
disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and
signed by the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly
deduced from the terms of the instrument, and while it does not make an affirmative
disposition of the latter’s property, the disinheritance of Alfredo, nonetheless, is an act of
disposition in itself. In other words, the disinheritance results in the disposition of the property
of the testator Segundo in favor of those who would succeed in the absence of Alfredo. 10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in
the form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that intention.
It is only when the intention of the testator is contrary to law, morals, or public policy that it
cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the execution of the instrument and
the intention of the testator.12 In this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a holographic
will. Unless the will is probated,13 the disinheritance cannot be given effect.14
With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo.
Also, Segundo did not institute an heir16 to the exclusion of his other compulsory heirs. The
mere mention of the name of one of the petitioners, Virginia, in the document did not operate to
institute her as the universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.1âwphi1
Considering that the questioned document is Segundo’s holographic will, and that the law
favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of
the Civil Code provides that no will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the
right of a person to dispose of his property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to
be probated. It is settled that testate proceedings for the settlement of the estate of the
decedent take precedence over intestate proceedings for the same purpose. 18
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila,
Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is
directed to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will
of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the
termination of the aforesaid testate proceedings.
No costs. SO ORDERED.
 G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles
Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner,
vs. THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo,
Branch II, and AVELINA A. MAGNO, respondents.
G.R. Nos. L-27936 & L-27937 March 29, 1974
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE
LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL
BANK, 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, the last
as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY,
INC., movant-appellee.
BARREDO, J.:p
Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent
court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo)
subsequent to the order of December 14, 1957 as null and void for having been issued without
jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting
private respondent Avelina A. Magno to perform or do any acts of administration, such as those
enumerated in the petition, and from exercising any authority or power as Regular Administratrix of above-
named Testate Estate, by entertaining manifestations, motion and pleadings filed by her and acting on
them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part
in any manner in the administration of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of
the same court and branch); with prayer for preliminary injunction, which was issued by this Court on
August 8, 1967 upon a bond of P5,000; the petition being particularly directed against the orders of the
respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18,
1967 denying the motion for reconsideration of said order.
Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals
from different orders of the same respondent court approving or otherwise sanctioning the acts of
administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952
pertinently providing as follows:
FIRST: I direct that all my just debts and funeral expenses be first paid out of my
estate.
SECOND: I give, devise and bequeath all of the rest, residue and remainder of my
estate, both personal and real, wherever situated, or located, to my beloved husband,
Charles Newton Hodges, to have and to hold unto him, my said husband, during his
natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall
have the right to manage, control, use and enjoy said estate during his lifetime, and he
is hereby given the right to make any changes in the physical properties of said estate,
by sale or any part thereof which he may think best, and the purchase of any other or
additional property as he may think best; to execute conveyances with or without
general or special warranty, conveying in fee simple or for any other term or time, any
property which he may deem proper to dispose of; to lease any of the real property for
oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee
simple title to the interest so conveyed in such property as he may elect to sell. All
rents, emoluments and income from said estate shall belong to him, and he is further
authorized to use any part of the principal of said estate as he may need or desire. It is
provided herein, however, that he shall not sell or otherwise dispose of any of the
improved property now owned by us located at, in or near the City of Lubbock, Texas,
but he shall have the full right to lease, manage and enjoy the same during his lifetime,
above provided. He shall have the right to subdivide any farm land and sell lots
therein. and may sell unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and
bequeath all of the rest, residue and remainder of my estate, both real and personal,
wherever situated or located, to be equally divided among my brothers and sisters,
share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman
and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth,
above, prior to the death of my husband, Charles Newton Hodges, then it is my will
and bequest that the heirs of such deceased brother or sister shall take jointly the
share which would have gone to such brother or sister had she or he survived.
SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be
executor of this, my last will and testament, and direct that no bond or other security
be required of him as such executor.
SEVENTH: It is my will and bequest that no action be had in the probate court, in the
administration of my estate, other than that necessary to prove and record this will
and to return an inventory and appraisement of my estate and list of claims. (Pp. 2-4,
Petition.)
This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court
on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the
provisions thereof.
Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed
Special Administrator, in which capacity he filed a motion on the same date as follows:
 URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE
THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD
BEEN DOING WHILE DECEASED WAS LIVING
Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon.
Court, most respectfully states:
1. — That Linnie Jane Hodges died leaving her last will and testament, a copy of which
is attached to the petition for probate of the same.
2. — That in said last will and testament herein petitioner Charles Newton Hodges is
directed to have the right to manage, control use and enjoy the estate of deceased
Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the
following: "I give, devise and bequeath all of the rest, residue and remainder of my
estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto
him, my said husband, during his natural lifetime."
3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in
the business of buying and selling personal and real properties, and do such acts
which petitioner may think best.
4. — That deceased Linnie Jane Hodges died leaving no descendants or ascendants,
except brothers and sisters and herein petitioner as executor surviving spouse, to
inherit the properties of the decedent.
5. — That the present motion is submitted in order not to paralyze the business of
petitioner and the deceased, especially in the purchase and sale of properties. That
proper accounting will be had also in all these transactions.
WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles
Newton Hodges) be allowed or authorized to continue the business in which he was
engaged and to perform acts which he had been doing while deceased Linnie Jane
Hodges was living.
City of Iloilo, May 27, 1957. (Annex "D", Petition.)
which the respondent court immediately granted in the following order:
It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the
business in which said petitioner and the deceased were engaged will be paralyzed,
unless and until the Executor is named and appointed by the Court, the said petitioner
is allowed or authorized to continue the business in which he was engaged and to
perform acts which he had been doing while the deceased was living.
SO ORDERED.
City of Iloilo May 27, 1957. (Annex "E", Petition.)
Under date of December 11, 1957, Hodges filed as such Executor another motion thus:
MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE
EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE
EXECUTOR MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE DECEASED
LINNIE JANE HODGES.
Comes the Executor in the above-entitled proceedings, thru his undersigned attorney,
to the Hon. Court, most respectfully states:
1. — That according to the last will and testament of the deceased Linnie Jane Hodges,
the executor as the surviving spouse and legatee named in the will of the deceased;
has the right to dispose of all the properties left by the deceased, portion of which is
quoted as follows:
Second: I give, devise and bequeath all of the rest, residue and remainder of my estate,
both personal and real, wherever situated, or located, to my beloved husband, Charles
Newton Hodges, to have and to hold unto him, my said husband, during his natural
lifetime.
Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall
have the right to manage, control, use and enjoy said estate during his lifetime, and he
is hereby given the right to make any changes in the physical properties of said
estate, by sale or any part thereof which he may think best, and the purchase of any
other or additional property as he may think best; to execute conveyances with or
without general or special warranty, conveying in fee simple or for any other term or
time, any property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall pass the
absolute fee simple title to the interest so conveyed in such property as he may elect
to sell. All rents, emoluments and income from said estate shall belong to him, and he
is further authorized to use any part of the principal of said estate as he may need or
desire. ...
2. — That herein Executor, is not only part owner of the properties left as conjugal,
but also, the successor to all the properties left by the deceased Linnie Jane Hodges.
That during the lifetime of herein Executor, as Legatee has the right to sell, convey,
lease or dispose of the properties in the Philippines. That inasmuch as C.N. Hodges
was and is engaged in the buy and sell of real and personal properties, even before the
death of Linnie Jane Hodges, a motion to authorize said C.N. Hodges was filed in Court,
to allow him to continue in the business of buy and sell, which motion was favorably
granted by the Honorable Court.
3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying and
selling real and personal properties, in accordance with the wishes of the late Linnie
Jane Hodges.
4. — That the Register of Deeds for Iloilo, had required of late the herein Executor to
have all the sales, leases, conveyances or mortgages made by him, approved by the
Hon. Court.
5. — That it is respectfully requested, all the sales, conveyances leases and mortgages
executed by the Executor, be approved by the Hon. Court. and subsequent sales
conveyances, leases and mortgages in compliances with the wishes of the late Linnie
 Jane Hodges, and within the scope of the terms of the last will and testament, also be
approved;
6. — That the Executor is under obligation to submit his yearly accounts, and the
properties conveyed can also be accounted for, especially the amounts received.
WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and
mortgages executed by the Executor, be approved by the Hon. Court, and also the
subsequent sales, conveyances, leases, and mortgages in consonance with the wishes
of the deceased contained in her last will and testament, be with authorization and
approval of the Hon. Court.
City of Iloilo, December 11, 1967.
(Annex "G", Petition.)
which again was promptly granted by the respondent court on December 14, 1957 as follows:
ORDER
As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in
his motion dated December 11, 1957, which the Court considers well taken all the
sales, conveyances, leases and mortgages of all properties left by the deceased Linnie
Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The
said Executor is further authorized to execute subsequent sales, conveyances, leases
and mortgages of the properties left by the said deceased Linnie Jane Hodges in
consonance with the wishes conveyed in the last will and testament of the latter.
So ordered.
Iloilo City. December 14, 1957.
(Annex "H", Petition.)
On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged:
Pursuant to the provisions of the Rules of Court, herein executor of the deceased,
renders the following account of his administration covering the period from January
1, 1958 to December 31, 1958, which account may be found in detail in the individual
income tax return filed for the estate of deceased Linnie Jane Hodges, to wit:
That a certified public accountant has examined the statement of net worth of the
estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and
expenses, copy of which is hereto attached and made integral part of this statement of
account as Annex "A".
IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of net
worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and
expenses as shown in the individual income tax return for the estate of the deceased
and marked as Annex "A", be approved by the Honorable Court, as substantial
compliance with the requirements of the Rules of Court.
That no person interested in the Philippines of the time and place of examining the
herein accounts be given notice, as herein executor is the only devisee or legatee of
the deceased, in accordance with the last will and testament already probated by the
Honorable court.
City of Iloilo April 14, 1959.
(Annex "I", Petition.)
The respondent court approved this statement of account on April 21, 1959 in its order worded thus:
Upon petition of Atty. Gellada, in representation of the Executor, the statement of net
worth of the estate of Linnie Jane Hodges, assets and liabilities, income and expenses
as shown in the individual income tax return for the estate of the deceased and
marked as Annex "A" is approved.
SO ORDERED.
City of Iloilo April 21, 1959.
(Annex "J", Petition.)
His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31,
1960 were submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14,
1959, quoted above; and the respective orders approving the same, dated July 30, 1960 and May 2, 1961,
were substantially identical to the above-quoted order of April 21, 1959. In connection with the statements
of account just mentioned, the following assertions related thereto made by respondent-appellee Magno in
her brief do not appear from all indications discernible in the record to be disputable:
Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of
the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and
the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C.N.
Hodges reported that the combined conjugal estate earned a net income of
P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges.
Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on
the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his combined
personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)
xxx xxx xxx
Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31,
1959 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned
 a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane
Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year
1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as
having earned income of P135,311.66, exactly one-half of the net income of his
combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92.
Appellee's Brief.)
xxx xxx xxx
Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of Account
by the Executor for the Year 1960" of the estate of Linnie Jane Hodges. In the
"Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1960 annexed thereto, C.N. Hodges reported that the combined conjugal
estate earned a net income of P314,857.94, divided evenly between him and the estate
of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said
estate as having earned income of P157,428.97, exactly one-half of the net income of
his combined personal assets and that of the estate of Linnie Jane Hodges. (Pp. 92-93,
Appellee's Brief.)
Likewise the following:
In the petition for probate that he (Hodges) filed, he listed the seven brothers and
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court
admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see
p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion to have Roy
Higdon's name included as an heir, stating that he wanted to straighten the records "in
order the heirs of deceased Roy Higdon may not think or believe they were omitted,
and that they were really and are interested in the estate of deceased Linnie Jane
Hodges. .
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."
Again, on August 9, 1962, barely four months before his death, he executed an
"affidavit" wherein he ratified and confirmed all that he stated in Schedule "M" of his
estate tax returns as to his having renounced what was given him by his wife's will.1
As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He listed
all the assets of his conjugal partnership with Linnie Jane Hodges on a separate
balance sheet and then stated expressly that her estate which has come into his
possession as executor was "one-half of all the items" listed in said balance sheet. (Pp.
89-90, Appellee's Brief.)
Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least,
extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for a more
comprehensive and clearer view of the important and decisive issues raised by the parties and a more
accurate appraisal of their respective positions in regard thereto.
The records of these cases do not show that anything else was done in the above-mentioned Special
Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the
same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as
Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations, filed the
following:
URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A
SPECIAL ADMINISTRATRIX
COMES the undersigned attorney for the Executor in the above-entitled proceedings,
to the Honorable Court, most respectfully states:
1. That in accordance with the Last Will and Testament of Linnie Jane Hodges
(deceased), her husband, Charles Newton Hodges was to act as Executor, and in fact,
in an order issued by this Hon. Court dated June 28, 1957, the said Charles Newton
Hodges was appointed Executor and had performed the duties as such.
2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and
brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on
December 25, 1962, as shown by a copy of the death certificate hereto attached and
marked as Annex "A".
3. That in accordance with the provisions of the last will and testament of Linnie Jane
Hodges, whatever real and personal properties that may remain at the death of her
husband Charles Newton Hodges, the said properties shall be equally divided among
their heirs. That there are real and personal properties left by Charles Newton Hodges,
which need to be administered and taken care of.
4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton
Hodges, have not as yet been determined or ascertained, and there is necessity for the
appointment of a general administrator to liquidate and distribute the residue of the
estate to the heirs and legatees of both spouses. That in accordance with the
provisions of Section 2 of Rule 75 of the Rules of Court, the conjugal partnership of
Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the testate
proceedings of the wife.
5. That the undersigned counsel, has perfect personal knowledge of the existence of
the last will and testament of Charles Newton Hodges, with similar provisions as that
contained in the last will and testament of Linnie Jane Hodges. However, said last will
and testament of Charles Newton Hodges is kept inside the vault or iron safe in his
office, and will be presented in due time before this honorable Court.
 6. That in the meantime, it is imperative and indispensable that, an Administratrix be
appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the
estate of Charles Newton Hodges, to perform the duties required by law, to
administer, collect, and take charge of the goods, chattels, rights, credits, and estate of
both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for in
Section 1 and 2, Rule 81 of the Rules of Court.
7. That there is delay in granting letters testamentary or of administration, because
the last will and testament of deceased, Charles Newton Hodges, is still kept in his safe
or vault, and in the meantime, unless an administratrix (and,) at the same time, a
Special Administratrix is appointed, the estate of both spouses are in danger of being
lost, damaged or go to waste.
8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N.
Hodges, who had been employed for around thirty (30) years, in the person of Miss
Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane
Hodges and at the same time Special Administratrix of the estate of Charles Newton
Hodges. That the said Miss Avelina Magno is of legal age, a resident of the Philippines,
the most fit, competent, trustworthy and well-qualified person to serve the duties of
Administratrix and Special Administratrix and is willing to act as such.
9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon.
Court believes reasonable.
WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss
AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie
Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges,
with powers and duties provided for by law. That the Honorable Court fix the
reasonable bond of P1,000.00 to be filed by Avelina A. Magno.
(Annex "O", Petition.)
which respondent court readily acted on in its order of even date thus: .
For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the Executor
dated December 25, 1962, which the Court finds meritorious, Miss AVELINA A.
MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane Hodges and as
Special Administratrix of the estate of Charles Newton Hodges, in the latter case,
because the last will of said Charles Newton Hodges is still kept in his vault or iron
safe and that the real and personal properties of both spouses may be lost, damaged
or go to waste, unless a Special Administratrix is appointed.
Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS
(P5,000.00), and after having done so, let letters of Administration be issued to her."
(Annex "P", Petition.)
On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno
herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased
Charles Newton Hodges (who had) arrived from the United States of America to help
in the administration of the estate of said deceased" was appointed as Co-Special
Administrator of the estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only to
be replaced as such co-special administrator on January 22, 1963 by Joe Hodges, who,
according to the motion of the same attorney, is "the nephew of the deceased (who
had) arrived from the United States with instructions from the other heirs of the
deceased to administer the properties or estate of Charles Newton Hodges in the
Philippines, (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a
petition for the probate of the will of Hodges,2 with a prayer for the issuance of letters of administration to
the same Joe Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that
Atty. Fernando Mirasol be appointed as his co-administrator. On the same date this latter motion was filed,
the court issued the corresponding order of probate and letters of administration to Joe Hodges and Atty.
Mirasol, as prayed for.
At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole
estate to her husband "to have and to hold unto him, my said husband, during his natural lifetime", she, at
the same time or in like manner, provided that "at the death of my said husband — I give devise and
bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or
located, to be equally divided among my brothers and sisters, share and share alike —". Accordingly, it
became incumbent upon Hodges, as executor of his wife's will, to duly liquidate the conjugal partnership,
half of which constituted her estate, in order that upon the eventuality of his death, "the rest, residue and
remainder" thereof could be determined and correspondingly distributed or divided among her brothers
and sisters. And it was precisely because no such liquidation was done, furthermore, there is the issue of
whether the distribution of her estate should be governed by the laws of the Philippines or those of Texas,
of which State she was a national, and, what is more, as already stated, Hodges made official and sworn
statements or manifestations indicating that as far as he was concerned no "property interests passed to
him as surviving spouse — "except for purposes of administering the estate, paying debts, taxes and other
legal charges" and it was the intention of the surviving husband of the 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", that
the incidents and controversies now before Us for resolution arose. As may be observed, the situation that
ensued upon the death of Hodges became rather unusual and so, quite understandably, the lower court's
actuations presently under review are apparently wanting in consistency and seemingly lack proper
orientation.
Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial
court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by
the parties is of valuable assistance in clearing up the matter.
To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed
cases, one with green cover and the other with a yellow cover, that at the outset, a sort of modus operandi
had been agreed upon by the parties under which the respective administrators of the two estates were
supposed to act conjointly, but since no copy of the said agreement can be found in the record before Us,
We have no way of knowing when exactly such agreement was entered into and under what specific terms.
And while reference is made to said modus operandi in the order of September 11, 1964, on pages 205-206
of the Green Record on Appeal, reading thus:
The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in
answer to the charges contained in the motion filed by Atty. Cesar Tirol on September
3, 1964. In answer to the said charges, Miss Avelina A. Magno, through her counsel,
Atty. Rizal Quimpo, filed a written manifestation.
 After reading the manifestation here of Atty. Quimpo, for and in behalf of the Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it
administratrix, Miss Avelina A. Magno, the Court finds that everything that happened is hereby ordered:
before September 3, 1964, which was resolved on September 8, 1964, to the
satisfaction of parties, was simply due to a misunderstanding between the
(a) That all cash collections should be deposited in the joint account of the estates of
representative of the Philippine Commercial and Industrial Bank and Miss Magno and
Linnie Jane Hodges and estates of C.N. Hodges;
in order to restore the harmonious relations between the parties, the Court ordered
the parties to remain in status quo as to their modus operandi before September 1,
1964, until after the Court can have a meeting with all the parties and their counsels (b) That whatever cash collections that had been deposited in the account of either of
on October 3, as formerly agreed upon between counsels, Attys. Ozaeta, Gibbs and the estates should be withdrawn and since then deposited in the joint account of the
Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo. estate of Linnie Jane Hodges and the estate of C.N. Hodges;

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not
be resolved by this Court until October 3, 1964.
SO ORDERED.
there is nothing in the record indicating whatever happened to it afterwards, except that again, reference
thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on
Appeal, as follows:
(c) That the PCIB should countersign the check in the amount of P250 in favor of
Administratrix Avelina A. Magno as her compensation as administratrix of the Linnie
Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only;
(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect
whatever records, documents and papers she may have in her possession in the same
manner that Administrator PCIB is also directed to allow Administratrix Magno to
inspect whatever records, documents and papers it may have in its possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all
On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges
records of the transactions of both estates for the protection of the estate of Linnie
Office at 206-208 Guanco Street, Iloilo City, to take immediate and exclusive
Jane Hodges; and in like manner the accountant or any authorized representative of
possession thereof and to place its own locks and keys for security purposes of the
the estate of C.N. Hodges shall have access to the records of transactions of the Linnie
PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion
Jane Hodges estate for the protection of the estate of C.N. Hodges.
that Administratrix Magno of the testate estate of Linnie Jane Hodges refused to open
the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds office and
therefore PCIB is suffering great moral damage and prejudice as a result of said act. It Once the estates' office shall have been opened by Administratrix Magno in the
is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in presence of the PCIB or its duly authorized representative and deputy clerk Albis or
the said office, to take immediate and exclusive possession thereof and place thereon his duly authorized representative, both estates or any of the estates should not close
its own locks and keys for security purposes; instructing the clerk of court or any it without previous consent and authority from this court.
available deputy to witness and supervise the opening of all doors and locks and
taking possession of the PCIB.
SO ORDERED.

A written opposition has been filed by Administratrix Magno of even date (Oct. 27)
As may be noted, in this order, the respondent court required that all collections from the properties in the
thru counsel Rizal Quimpo stating therein that she was compelled to close the office
name of Hodges should be deposited in a joint account of the two estates, which indicates that seemingly
for the reason that the PCIB failed to comply with the order of this Court signed by
the so-called modus operandi was no longer operative, but again there is nothing to show when this
Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates
situation started.
should remain in status quo to their modus operandi as of September 1, 1964.

Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green
To arrive at a happy solution of the dispute and in order not to interrupt the operation
Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that:
of the office of both estates, the Court aside from the reasons stated in the urgent
motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB
and Atty. Rizal Quimpo for Administratix Magno. 3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C.N. Hodges,
Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges and
After due consideration, the Court hereby orders Magno to open all doors and locks in
Messrs. William Brown and Ardell Young acting for all of the Higdon family who claim
the Hodges Office at 206-208 Guanco Street, Iloilo City in the presence of the PCIB or
to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal
its duly authorized representative and deputy clerk of court Albis of this branch not
counsel representing the aforementioned parties entered into an amicable agreement,
later than 7:30 tomorrow morning October 28, 1965 in order that the office of said
which was approved by this Honorable Court, wherein the parties thereto agreed that
estates could operate for business.
certain sums of money were to be paid in settlement of different claims against the
two estates and that the assets (to the extent they existed) of both estates would be
administered jointly by the PCIB as administrator of the estate of C.N. Hodges and
 Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject,
however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to
exclusive possession and ownership of one hundred percent (100%) (or, in the
alternative, seventy-five percent (75%) of all assets owned by C.N. Hodges or Linnie
Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec.,
S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no
way changed its recognition of the afore-described basic demand by the PCIB as
administrator of the estate of C.N. Hodges to one hundred percent (100%) of the
assets claimed by both estates.
but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and
so, We are not informed as to what exactly are the terms of the same which could be relevant in the
resolution of the issues herein.
On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on
Appeal, authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the
attorney's fees of her lawyers, etc., as follows:
Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a
Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the
Agreement dated June 6, 1964 which Agreement is for the purpose of retaining their
services to protect and defend the interest of the said Administratrix in these
proceedings and the same has been signed by and bears the express conformity of the
attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further
prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed
to pay the retailers fee of said lawyers, said fees made chargeable as expenses for the
administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).
An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta
dated July 11, 1964, on the ground that payment of the retainers fee of Attys.
Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is
prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys.
Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and
Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges
should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307).
Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the
Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied
because no evidence has been presented in support thereof. Atty. Manglapus filed a
reply to the opposition of counsel for the Administrator of the C. N. Hodges estate
wherein it is claimed that expenses of administration include reasonable counsel or
attorney's fees for services to the executor or administrator. As a matter of fact the fee
agreement dated February 27, 1964 between the PCIB and the law firm of Ozaeta,
Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the
fees for said law firm has been approved by the Court in its order dated March 31,
1964. If payment of the fees of the lawyers for the administratrix of the estate of
Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner
the very agreement which provides for the payment of attorney's fees to the counsel
for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-
1814, Vol. V, Sp. 1307).
Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the
opposition to the Manifestation and Urgent Motion alleging principally that the estates
of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that C.
N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the
former for the reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-
1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their
appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June 10,
1964 (pp. 1639-1640, Vol. V, Sp. 1307).
Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that
Judge Bellosillo issued an order requiring the parties to submit memorandum in
support of their respective contentions. It is prayed in this manifestation that the
Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439,
Vol. VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January 5,
1965 asking that after the consideration by the court of all allegations and arguments
and pleadings of the PCIB in connection therewith (1) said manifestation and urgent
motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307).
Judge Querubin issued an order dated January 4, 1965 approving the motion dated
June 10, 1964 of the attorneys for the administratrix of the estate of Linnie Jane
Hodges and agreement annexed to said motion. The said order further states: "The
Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign
whatever check or checks may be necessary for the above purpose and the
administrator of the estate of C. N. Hodges is ordered to countersign the same. (pp.
6518-6523, Vol VII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January
13, 1965 asking that the order of January 4, 1965 which was issued by Judge Querubin
be declared null and void and to enjoin the clerk of court and the administratrix and
administrator in these special proceedings from all proceedings and action to enforce
or comply with the provision of the aforesaid order of January 4, 1965. In support of
said manifestation and motion it is alleged that the order of January 4, 1965 is null and
void because the said order was never delivered to the deputy clerk Albis of Branch V
(the sala of Judge Querubin) and the alleged order was found in the drawer of the late
Judge Querubin in his office when said drawer was opened on January 13, 1965 after
the death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the
presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil
Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307).
Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated
February 23, 1965 asking that the order dated January 4, 1964 be reversed on the
ground that:
1. Attorneys retained must render services to the estate not to the personal heir;
2. If services are rendered to both, fees should be pro-rated between them;
3. Attorneys retained should not represent conflicting interests; to the prejudice of the
other heirs not represented by said attorneys;
 4. Fees must be commensurate to the actual services rendered to the estate;
5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp.
1307).
Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a
motion to submit dated July 15, 1965 asking that the manifestation and urgent motion
dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents
directly appertaining thereto be considered submitted for consideration and approval
(pp. 6759-6765, Vol. VIII, Sp. 1307).
Considering the arguments and reasons in support to the pleadings of both the
Administratrix and the PCIB, and of Atty. Gellada, hereinbefore mentioned, the Court
believes that the order of January 4, 1965 is null and void for the reason that the said
order has not been filed with deputy clerk Albis of this court (Branch V) during the
lifetime of Judge Querubin who signed the said order. However, the said manifestation
and urgent motion dated June 10, 1964 is being treated and considered in this instant
order. It is worthy to note that in the motion dated January 24, 1964 (Pp. 1149- 1163,
Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his associates and Atty.
Gibbs and other lawyers in addition to the stipulated fees for actual services rendered.
However, the fee agreement dated February 27, 1964, between the Administrator of
the estate of C. N. Hodges and Atty. Gibbs which provides for retainer fee of P4,000
monthly in addition to specific fees for actual appearances, reimbursement for
expenditures and contingent fees has also been approved by the Court and said
lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373,
Vol. V, Sp. Proc. 1307).
WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.
The manifestation and motion dated June 10, 1964 which was filed by the attorneys
for the administratrix of the testate estate of Linnie Jane Hodges is granted and the
agreement annexed thereto is hereby approved.
The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed
to implement the approval of the agreement annexed to the motion and the
administrator of the estate of C. N. Hodges is directed to countersign the said check or
checks as the case may be.
SO ORDERED.
thereby implying somehow that the court assumed the existence of independent but simultaneous
administrations.
Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the
approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order,
also on appeal herein:
Acting upon the motion for approval of deeds of sale for registered land of the PCIB,
Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp.
2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the
law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto
of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and considering
the allegations and reasons therein stated, the court believes that the deeds of sale
should be signed jointly by the PCIB, Administrator of the Testate Estate of C. N.
Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane
Hodges and to this effect the PCIB should take the necessary steps so that
Administratrix Avelina A. Magno could sign the deeds of sale.
SO ORDERED. (p. 248, Green Record on Appeal.)
Notably this order required that even the deeds executed by petitioner, as administrator of the Estate of
Hodges, involving properties registered in his name, should be co-signed by respondent Magno.3 And this
was not an isolated instance.
In her brief as appellee, respondent Magno states:
After the lower court had authorized appellee Avelina A. Magno to execute final deeds
of sale pursuant to contracts to sell executed by C. N. Hodges on February 20, 1963
(pp. 45-46, Green ROA), motions for the approval of final deeds of sale (signed by
appellee Avelina A. Magno and the administrator of the estate of C. N. Hodges, first Joe
Hodges, then Atty. Fernando Mirasol and later the appellant) were approved by the
lower court upon petition of appellee Magno's counsel, Atty. Leon P. Gellada, on the
basis of section 8 of Rule 89 of the Revised Rules of Court. Subsequently, the appellant,
after it had taken over the bulk of the assets of the two estates, started presenting
these motions itself. The first such attempt was a "Motion for Approval of Deeds of
Sale for Registered Land and Cancellations of Mortgages" dated July 21, 1964 filed by
Atty. Cesar T. Tirol, counsel for the appellant, thereto annexing two (2) final deeds of
sale and two (2) cancellations of mortgages signed by appellee Avelina A. Magno and
D. R. Paulino, Assistant Vice-President and Manager of the appellant (CFI Record, Sp.
Proc. No. 1307, Vol. V, pp. 1694-1701). This motion was approved by the lower court
on July 27, 1964. It was followed by another motion dated August 4, 1964 for the
approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R.
Paulino (CFI Record, Sp. Proc. No. 1307. Vol. V, pp. 1825-1828), which was again
approved by the lower court on August 7, 1964. The gates having been opened, a flood
ensued: the appellant subsequently filed similar motions for the approval of a
multitude of deeds of sales and cancellations of mortgages signed by both the appellee
Avelina A. Magno and the appellant.
A random check of the records of Special Proceeding No. 1307 alone will show Atty.
Cesar T. Tirol as having presented for court approval deeds of sale of real properties
signed by both appellee Avelina A. Magno and D. R. Paulino in the following numbers:
(a) motion dated September 21, 1964 — 6 deeds of sale; (b) motion dated November
4, 1964 — 1 deed of sale; (c) motion dated December 1, 1964 — 4 deeds of sale; (d)
motion dated February 3, 1965 — 8 deeds of sale; (f) motion dated May 7, 1965 — 9
deeds of sale. In view of the very extensive landholdings of the Hodges spouses and
the many motions filed concerning deeds of sale of real properties executed by C. N.
Hodges the lower court has had to constitute special separate expedientes in Special
Proceedings Nos. 1307 and 1672 to include mere motions for the approval of deeds of
sale of the conjugal properties of the Hodges spouses.
As an example, from among the very many, under date of February 3, 1965, Atty. Cesar
T. Tirol, as counsel for the appellant, filed "Motion for Approval of Deeds of Sale for
 Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol.
VIII, pp. 6570-6596) the allegations of which read:
"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property, and
the prospective buyers under said contracts have already paid the price and complied
with the terms and conditions thereof;
"2. In the course of administration of both estates, mortgage debtors have already paid
their debts secured by chattel mortgages in favor of the late C. N. Hodges, and are now
entitled to release therefrom;
appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the
parties with whom Hodges had contracts that are in question in the appeals herein, to pay petitioner, as
Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the estate of Mrs.
Hodges, thus:
Considering that in both cases there is as yet no judicial declaration of heirs nor
distribution of properties to whomsoever are entitled thereto, the Court believes that
payment to both the administrator of the testate estate of C. N. Hodges and the
administratrix of the testate estate of Linnie Jane Hodges or to either one of the two
estates is proper and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.
"3. There are attached hereto documents executed jointly by the Administratrix in Sp.
Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale
in favor — SO ORDERED.

Fernando Cano, Bacolod City, Occ. Negros (Pp. 334-335, Green Record on Appeal.)
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
On the other hand, as stated earlier, there were instances when respondent Magno was given authority to
Rosario T. Libre, Jaro, Iloilo City
act alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record
Federico B. Torres, Iloilo City
on Appeal, the respondent court approved payments made by her of overtime pay to some employees of
Reynaldo T. Lataquin, La Paz, Iloilo City
the court who had helped in gathering and preparing copies of parts of the records in both estates as
Anatolio T. Viray, Iloilo City
follows:
Benjamin Rolando, Jaro, Iloilo City

Considering that the expenses subject of the motion to approve payment of overtime
and cancellations of mortgages in favor of —
pay dated December 10, 1964, are reasonable and are believed by this Court to be a
proper charge of administration chargeable to the testate estate of the late Linnie Jane
Pablo Manzano, Oton, Iloilo Hodges, the said expenses are hereby APPROVED and to be charged against the testate
Ricardo M. Diana, Dao, San Jose, Antique estate of the late Linnie Jane Hodges. The administrator of the testate estate of the late
Simplicio Tingson, Iloilo City Charles Newton Hodges is hereby ordered to countersign the check or checks
Amado Magbanua, Pototan, Iloilo necessary to pay the said overtime pay as shown by the bills marked Annex "A", "B"
Roselia M. Baes, Bolo, Roxas City and "C" of the motion.
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
SO ORDERED.
Norma T. Ruiz, Jaro, Iloilo City

(Pp. 221-222, Green Record on Appeal.)

"4. That the approval of the aforesaid documents will not reduce
the assets of the estates so as to prevent any creditor from
receiving his full debt or diminish his dividend." Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as
Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to
"contracts to sell" executed by Hodges, irrespective of whether they were executed by him before or after
And the prayer of this motion is indeed very revealing:
the death of his wife. The orders of this nature which are also on appeal herein are the following:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of
Court, this honorable court approve the aforesaid deeds of sale and cancellations of
mortgages." (Pp. 113-117, Appellee's Brief.)
None of these assertions is denied in Petitioner's reply brief.
Further indicating lack of concrete perspective or orientation on the part of the respondent court and its
hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-
335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of
1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed
by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to
sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was
cancelled by it for failure of Carles to pay the installments due on January 7, 1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in
favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges
on September 13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3,
1965 in view of failure of said appellee to pay the installments on time.
3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in
favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by
Hodges on August 14, 1961, after the death of his wife.
4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in
favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on
February 21, 1958, after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in
favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on
February 10, 1959, after the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in
favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on
May 26, 1961, after the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in
favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively,
pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after
the death of his wife.
8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent
Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6,
1966, August 17, 1966 and August 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on
April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in
favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on
May 29, 1954, before the death of his wife, which contract petitioner claims it had cancelled on February
16, 1966 for failure of appellee Catedral to pay the installments due on time.
10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in
favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March
7, 1950, after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for
failure of appellee Pablico to pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale executed by
respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to
sell" signed by Hodges on February 5, 1951, before the death of his wife.
12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent
Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on
December 5, 1966 and November 3, 1966, respectively, pursuant to separate "promises to sell" signed
respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October 31,
1959, after her death.
In like manner, there were also instances when respondent court approved deeds of sale executed by
petitioner alone and without the concurrence of respondent Magno, and such approvals have not been the
subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus:
The points of fact and law pertaining to the two abovecited assignments of error have
already been discussed previously. In the first abovecited error, the order alluded to
was general, and as already explained before, it was, as admitted by the lower court
itself, superseded by the particular orders approving specific final deeds of sale
executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well as
the particular orders approving specific final deeds of sale executed by the appellant,
Philippine Commercial and Industrial Bank, which were never appealed by the
appellee, Avelina A. Magno, nor by any party for that matter, and which are now
therefore final.
Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing
significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of
the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P.
Mirasol, the following self-explanatory motion was filed:
URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO
ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL OF
THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE
DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING AS
OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND
INCOME THEREFROM.
COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through
his undersigned attorneys in the above-entitled proceedings, and to this Honorable
Court respectfully alleges:
(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.
(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and
Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and
appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25, Rec.
Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges
in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).
(4) On December 14, 1957 this Honorable Court, on the basis of the following
allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as attorney
for the executor C. N. Hodges:
"That herein Executor, (is) not only part owner of the properties
left as conjugal, but also, the successor to all the properties left by
the deceased Linnie Jane Hodges."
(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)
issued the following order:
"As prayed for by Attorney Gellada, counsel for the Executory, for
the reasons stated in his motion dated December 11, 1957 which
 the court considers well taken, all the sales, conveyances, leases (9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed only
and mortgages of all properties left by the deceased Linnie Jane in Special Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno
Hodges are hereby APPROVED. The said executor is further
authorized to execute subsequent sales, conveyances, leases and
"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of
mortgages of the properties left by the said deceased Linnie Jane
the estate of Charles Newton Hodges, in the latter case, because the last will of said
Hodges in consonance with the wishes contained in the last will
Charles Newton Hodges is still kept in his vault or iron safe and that the real and
and testament of the latter."
personal properties of both spouses may be lost, damaged or go to waste, unless a
Special Administratrix is appointed."
(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)
(p. 100. Rec. Sp. Proc. 1307)
(5) On April 21, 1959 this Honorable Court approved the inventory and accounting
submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959
(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno
wherein he alleged among other things
pursuant to this Honorable Court's aforesaid Order of December 25, 1962

"That no person interested in the Philippines of the time and

"With full authority to take possession of all the property of said
place of examining the herein account, be given notice, as herein
deceased in any province or provinces in which it may be
executor is the only devisee or legatee of the deceased, in
situated and to perform all other acts necessary for the
accordance with the last will and testament already probated by
preservation of said property, said Administratrix and/or Special
the Honorable Court."
Administratrix having filed a bond satisfactory to the Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(p. 102, Rec. Sp. Proc. 1307)

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of
(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of
Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21,
January 21, 1963 issued Letters of Administration to:
1960 wherein he alleged among other things:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

"That no person interested in the Philippines of the time and
place of examining the herein account, be given notice as herein
executor is the only devisee or legatee of the deceased Linnie Jane (b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton
Hodges, in accordance with the last will and testament of the Hodges; and
deceased, already probated by this Honorable Court."
(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges.
(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)
(p. 43, Rec. Sp. Proc. 1307)
(7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account
By The Executor for the Year 1960" submitted through Leon P. Gellada on April 20,
(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon
1961 wherein he alleged:
P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting as
Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307)
That no person interested in the Philippines be given notice, of issued the following order:
the time and place of examining the herein account, as herein
Executor is the only devisee or legatee of the deceased Linnie Jane
"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de
Hodges, in accordance with the last will and testament of the
venta definitiva de propiedades cubiertas por contratos para
deceased, already probated by this Honorable Court.
vender, firmados, en vida, por el finado Charles Newton Hodges,
cada vez que el precio estipulado en cada contrato este
(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.) totalmente pagado. Se autoriza igualmente a la misma a firmar
escrituras de cancelacion de hipoteca tanto de bienes reales
como personales cada vez que la consideracion de cada hipoteca
(8) On December 25, 1962, C.N. Hodges died.
este totalmente pagada.
 "Cada una de dichas escrituras que se otorguen debe ser (16) Avelina A. Magno, it is alleged on information and belief, has paid and still is
sometida para la aprobacion de este Juzgado." paying sums of money to sundry persons.

(p. 117, Sp. Proc. 1307).
[Par 1 (c), Reply to Motion For Removal of Joe Hodges]
(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as
Administratrix of the estate of Linnie Jane Hodges, alleges:
(17) Joe Hodges through the undersigned attorneys manifested during the hearings
before this Honorable Court on September 5 and 6, 1963 that the estate of C. N.
Hodges was claiming all of the assets belonging to the deceased spouses Linnie Jane
Hodges and C. N. Hodges situated in Philippines because of the aforesaid election by C.
N. Hodges wherein he claimed and took possession as sole owner of all of said assets
during the administration of the estate of Linnie Jane Hodges on the ground that he
was the sole devisee and legatee under her Last Will and Testament.

3. — That since January, 1963, both estates of Linnie Jane Hodges
and Charles Newton Hodges have been receiving in full,
payments for those "contracts to sell" entered into by C. N.
Hodges during his lifetime, and the purchasers have been
demanding the execution of definite deeds of sale in their favor.
4. — That hereto attached are thirteen (13) copies deeds of sale
executed by the Administratrix and by the co-administrator
(Fernando P. Mirasol) of the estate of Linnie Jane Hodges and
Charles Newton Hodges respectively, in compliance with the
terms and conditions of the respective "contracts to sell"
executed by the parties thereto."
(14) The properties involved in the aforesaid motion of September 16, 1963 are all
registered in the name of the deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in
the newspaper in Iloilo thusly:
For Sale
(18) Avelina A. Magno has submitted no inventory and accounting of her
administration as Administratrix of the estate of Linnie Jane Hodges and Special
Administratrix of the estate of C. N. Hodges. However, from manifestations made by
Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will
claim that at least fifty per cent (50%) of the conjugal assets of the deceased spouses
and the rents, emoluments and income therefrom belong to the Higdon family who are
named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp.
Proc. 1307).
WHEREFORE, premises considered, movant respectfully prays that this Honorable
Court, after due hearing, order:
(1) Avelina A. Magno to submit an inventory and accounting of all of the funds,
properties and assets of any character belonging to the deceased Linnie Jane Hodges
and C. N. Hodges which have come into her possession, with full details of what she
has done with them;
(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N.
Hodges all of the funds, properties and assets of any character remaining in her
possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A.
Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.
Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly
authorized representative, such as the undersigned attorneys) as the Co-
All Real Estate or Personal Property will be sold on First Come First Served Basis. administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C.
N. Hodges:
A
v (a) Advertising the sale and the sale of the properties of the estates:
e
l
(b) Employing personnel and paying them any compensation.
i
n
a (4) Such other relief as this Honorable Court may deem just and equitable in the
premises. (Annex "T", Petition.)
A
.
Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and Fernando
P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank as sole
M
administrator, pursuant to an agreement of all the heirs of Hodges approved by the court, and because the
above motion of October 5, 1963 had not yet been heard due to the absence from the country of Atty. Gibbs,
petitioner filed the following:
 MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR
HEARING AND RESOLVE "URGENT MOTION FOR AN ACCOUNTING
AND DELIVERY TO ADMINISTRATORS OF THE ESTATE OF C. N.
HODGES OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP
OF THE DECEASED LINNIE JANE HODGES AND C. N. HODGES
EXISTING AS OF MAY 23, 1957 PLUS ALL OF THE RENTS,
EMOLUMENTS AND INCOME THEREFROM OF OCTOBER 5, 1963.
COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as
PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings
No. 1672, through its undersigned counsel, and to this Honorable Court respectfully
alleges that:
1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N.
Hodges filed, through the undersigned attorneys, an "Urgent Motion For An
Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all Of The
Assets Of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N.
Hodges Existing as Of May, 23, 1957 Plus All Of The Rents, Emoluments and Income
Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).
2. On January 24, 1964 this Honorable Court, on the basis of an amicable agreement
entered into on January 23, 1964 by the two co-administrators of the estate of C. N.
Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No. 1672),
resolved the dispute over who should act as administrator of the estate of C. N. Hodges
by appointing the PCIB as administrator of the estate of C. N. Hodges (pp. 905-906, CFI
Rec. S. P. No. 1672) and issuing letters of administration to the PCIB.
3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and
Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges,
Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and
Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim
to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal
counsel representing the aforenamed parties entered into an amicable agreement,
which was approved by this Honorable Court, wherein the parties thereto agreed that
certain sums of money were to be paid in settlement of different claims against the
two estates and that the assets (to the extent they existed)of both estates would be
administrated jointly by the PCIB as administrator of the estate of C. N. Hodges and
Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject,
however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to
exclusive possession and ownership of one-hundred percent (10017,) (or, in the
alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie
Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.
P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no
way changes its recognition of the aforedescribed basic demand by the PCIB as
administrator of the estate of C. N. Hodges to one hundred percent (100%) of the
assets claimed by both estates.
4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of
October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion of
October 5, 1963.
5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United
States, this Honorable Court ordered the indefinite postponement of the hearing of the
Motion of October 5, 1963.
6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not
been able to properly carry out its duties and obligations as administrator of the
estate of C. N. Hodges because of the following acts, among others, of Avelina A. Magno
and those who claim to act for her as administratrix of the estate of Linnie Jane
Hodges:
(a) Avelina A. Magno illegally acts as if she is in exclusive control
of all of the assets in the Philippines of both estates including
those claimed by the estate of C. N. Hodges as evidenced in part
by her locking the premises at 206-208 Guanco Street, Iloilo City
on August 31, 1964 and refusing to reopen same until ordered to
do so by this Honorable Court on September 7, 1964.
(b) Avelina A. Magno illegally acts as though she alone may
decide how the assets of the estate of C.N. Hodges should be
administered, who the PCIB shall employ and how much they
may be paid as evidenced in party by her refusal to sign checks
issued by the PCIB payable to the undersigned counsel pursuant
to their fee agreement approved by this Honorable Court in its
order dated March 31, 1964.
(c) Avelina A. Magno illegally gives access to and turns over
possession of the records and assets of the estate of C.N. Hodges
to the attorney-in-fact of the Higdon Family, Mr. James L.
Sullivan, as evidenced in part by the cashing of his personal
checks.
(d) Avelina A. Magno illegally refuses to execute checks prepared
by the PCIB drawn to pay expenses of the estate of C. N. Hodges
as evidenced in part by the check drawn to reimburse the PCIB's
advance of P48,445.50 to pay the 1964 income taxes reported
due and payable by the estate of C.N. Hodges.
7. Under and pursuant to the orders of this Honorable Court, particularly those of
January 24 and February 1, 1964, and the mandate contained in its Letters of
Administration issued on January 24, 1964 to the PCIB, it has
"full authority to take possession of all the
property of the deceased C. N. Hodges
"and to perform all other acts necessary for the preservation of
said property." (p. 914, CFI Rec., S.P. No. 1672.)
8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the
immediate exclusive possession and control of all of the properties, accounts
receivables, court cases, bank accounts and other assets, including the documentary
records evidencing same, which existed in the Philippines on the date of C. N. Hodges'
death, December 25, 1962, and were in his possession and registered in his name
alone. The PCIB knows of no assets in the Philippines registered in the name of Linnie
Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate
of Linnie Jane Hodges on December 25, 1962. All of the assets of which the PCIB has
knowledge are either registered in the name of C. N. Hodges, alone or were derived
therefrom since his death on December 25, 1962.
9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased,
succeeded to all of the rights of the previously duly appointed administrators of the
estate of C. N. Hodges, to wit:
January 24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in
substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became the only
party entitled to the sole and exclusive possession of all of the assets of the estate of C.
N. Hodges.
11. The PCIB's predecessors submitted their accounting and this Honorable Court
approved same, to wit:
(a) The accounting of Harold K. Davies dated January 18, 1963
(pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its face the:

(a) On December 25, 1962, date of C. N. Hodges' death, this

(i) Conformity of Avelina A. Magno acting as "Administratrix of
Honorable Court appointed Miss Avelina A. Magno
the Estate of Linnie Jane Hodges and Special Administratrix of
simultaneously as:
the Estate of C. N. Hodges";

(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI
(ii) Conformity of Leslie Echols, a Texas lawyer acting for the
Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on
heirs of C.N. Hodges; and
May 28, 1957 was appointed Special Administrator (p. 13. CFI
Rec. S.P. No. 1307) and on July 1, 1957 Executor of the estate of
Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307). (iii) Conformity of William Brown, a Texas lawyer acting for the
Higdon family who claim to be the only heirs of Linnie Jane
Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).
(ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI
Rec., S.P. No. 1307).
Note: This accounting was approved by this Honorable Court on January 22, 1963 (p.
34, CFI Rec., S. P. No. 1672).
(b) On December 29, 1962 this Honorable Court appointed
Harold K. Davies as co-special administrator of the estate of C.N.
Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. (b) The accounting of Joe Hodges and Fernando P. Mirasol as of
No. 1307). January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI
Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307).
(c) On January 22, 1963, with the conformity of Avelina A.
Magno, Harold K. Davies resigned in favor of Joe Hodges (pp. 35- Note: This accounting was approved by this Honorable Court on March 3, 1964.
36, CFI Rec., S.P. No. 1672) who thereupon was appointed on
January 22, 1963 by this Honorable Court as special co-
(c) The PCIB and its undersigned lawyers are aware of no report
administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI
or accounting submitted by Avelina A. Magno of her acts as
Rec. S.P. No. 1672) along with Miss Magno who at that time was
administratrix of the estate of Linnie Jane Hodges or special
still acting as special co-administratrix of the estate of C. N.
administratrix of the estate of C.N. Hodges, unless it is the
Hodges.
accounting of Harold K. Davies as special co-administrator of the
estate of C.N. Hodges dated January 18, 1963 to which Miss
(d) On February 22, 1963, without objection on the part of Magno manifested her conformity (supra).
Avelina A. Magno, this Honorable Court appointed Joe Hodges
and Fernando P. Mirasol as co-administrators of the estate of C.N.
12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00
Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

"for her services as administratrix of the estate of Linnie Jane

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of
Hodges"
December 25, 1962, took possession of all Philippine Assets now claimed by the two
estates. Legally, Miss Magno could take possession of the assets registered in the name
of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N. and in addition she agreed to be employed, starting February 1, 1964, at
Hodges. With the appointment by this Honorable Court on February 22, 1963 of Joe
Hodges and Fernando P. Mirasol as the co-administrators of the estate of C.N. Hodges,
"a monthly salary of P500.00 for her services as an employee of
they legally were entitled to take over from Miss Magno the full and exclusive
both estates."
possession of all of the assets of the estate of C.N. Hodges. With the appointment on
24 ems.
13. Under the aforesaid agreement of January 24, 1964 and the orders of this
Honorable Court of same date, the PCIB as administrator of the estate of C. N. Hodges
is entitled to the exclusive possession of all records, properties and assets in the name
of C. N. Hodges as of the date of his death on December 25, 1962 which were in the
possession of the deceased C. N. Hodges on that date and which then passed to the
possession of Miss Magno in her capacity as Special Co-Administratrix of the estate of
C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as co-
administrators of the estate of C. N. Hodges.
14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB
concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss Magno as
an employee of the estate of C. N. Hodges effective August 31, 1964. On September 1,
1964 Miss Magno locked the premises at 206-208 Guanco Street and denied the PCIB
access thereto. Upon the Urgent Motion of the PCIB dated September 3, 1964, this
Honorable Court on September 7, 1964 ordered Miss Magno to reopen the aforesaid
premises at 206-208 Guanco Street and permit the PCIB access thereto no later than
September 8, 1964.
15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in
physical possession of all of the assets of the estate of C. N. Hodges. However, the PCIB
is not in exclusive control of the aforesaid records, properties and assets because Miss
Magno continues to assert the claims hereinabove outlined in paragraph 6, continues
to use her own locks to the doors of the aforesaid premises at 206-208 Guanco Street,
Iloilo City and continues to deny the PCIB its right to know the combinations to the
doors of the vault and safes situated within the premises at 206-208 Guanco Street
despite the fact that said combinations were known to only C. N. Hodges during his
lifetime.
16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane
Hodges were assessed and paid on the basis that C. N. Hodges is the sole beneficiary of
the assets of the estate of Linnie Jane Hodges situated in the Philippines. Avelina A.
Magno and her legal counsel at no time have questioned the validity of the aforesaid
assessment and the payment of the corresponding Philippine death taxes.
17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to
resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive
possession and control of all of the records, properties and assets of the estate of C. N.
Hodges.
18. Such assets as may have existed of the estate of Linnie Jane Hodges were ordered
by this Honorable Court in special Proceedings No. 1307 to be turned over and
delivered to C. N. Hodges alone. He in fact took possession of them before his death
and asserted and exercised the right of exclusive ownership over the said assets as the
sole beneficiary of the estate of Linnie Jane Hodges.
WHEREFORE, premises considered, the PCIB respectfully petitions that this
Honorable court:
(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date with
notice to all interested parties;
(2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix
of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N. Hodges
of all of the funds, properties and assets of any character belonging to the deceased
Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full
details of what she has done with them;
(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of
the estate of C. N. Hodges all of the funds, properties and assets of any character
remaining in her possession;
(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina
A. Magno and her representatives to stop interferring with the administration of the
estate of C. N. Hodges by the PCIB and its duly authorized representatives;
(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street,
Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal as
such by the PCIB effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly
representing Miss Magno from entering the premises at 206-208 Guanco Street, Iloilo
City or any other properties of C. N. Hodges without the express permission of the
PCIB;
(7) Order such other relief as this Honorable Court finds just and equitable in the
premises. (Annex "U" Petition.)
On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges
Estate" alleging:
COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator
of the estate of the late C. N. Hodges, through the undersigned counsel, and to this Honorable Court
respectfully alleges that:
1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges,
American citizens originally from the State of Texas, U.S.A., acquired and accumulated
considerable assets and properties in the Philippines and in the States of Texas and
Oklahoma, United States of America. All said properties constituted their conjugal
estate.
2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable
Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc. No.
1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and categorically ruled
that said spouses had lived and worked for more than 50 years in Iloilo City and had,
therefore, acquired a domicile of choice in said city, which they retained until the time
of their respective deaths.
3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last 6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and
Will and Testament, a copy of which is hereto attached as Annex "A". The bequests in Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N.
said will pertinent to the present issue are the second, third, and fourth provisions, Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp. 24-
which we quote in full hereunder. 25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges
in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.)
SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever 7. The Will of Linnie Jane Hodges, with respect to the order of succession, the amount
situated, or located, to my husband, Charles Newton Hodges, to of successional rights, and the intrinsic of its testamentary provisions, should be
have and to hold unto him, my said husband during his natural governed by Philippine laws because:
lifetime.
(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to
THIRD: I desire, direct and provide that my husband, Charles govern her Will;
Newton Hodges, shall have the right to manage, control, use and
enjoy said estate during his lifetime, and he is hereby given the
(b) Article 16 of the Civil Code provides that "the national law of
right to make any changes in the physical properties of said
the person whose succession is under consideration, whatever
estate by sale of any part thereof which he think best, and the
may be the nature of the property and regardless of the country
purchase of any other or additional property as he may think
wherein said property may be found", shall prevail. However, the
best; to execute conveyances with or without general or special
Conflict of Law of Texas, which is the "national law" of the
warranty, conveying in fee simple or for any other term or time,
testatrix, Linnie Jane Hodges, provide that the domiciliary law
any property which he may deem proper to dispose of; to lease
(Philippine law — see paragraph 2, supra) should govern the
any of the real property for oil, gas and/or other minerals, and all
testamentary dispositions and successional rights over movables
such deeds or leases shall pass the absolute fee simple title to the
(personal properties), and the law of the situs of the property
interest so conveyed in such property as he may elect to sell. All
(also Philippine law as to properties located in the Philippines)
rents, emoluments and income from said estate shall belong to
with regards immovable (real properties). Thus applying the
him, and he is further authorized to use any part of the principal
"Renvoi Doctrine", as approved and applied by our Supreme
of said estate as he may need or desire. It is provided herein,
Court in the case of "In The Matter Of The Testate Estate of
however, that he shall not sell or otherwise dispose of any of the
Eduard E. Christensen", G.R. No.
improved property now owned by us located at, in or near the
L-16749, promulgated January 31, 1963, Philippine law should
City of Lubbock, Texas, but he shall have the full right to lease,
apply to the Will of Linnie Jane Hodges and to the successional
manage and enjoy the same during his lifetime, as above
rights to her estate insofar as her movable and immovable assets
provided. He shall have the right to sub-divide any farmland and
in the Philippines are concerned. We shall not, at this stage,
sell lots therein, and may sell unimproved town lots.
discuss what law should govern the assets of Linnie Jane Hodges
located in Oklahoma and Texas, because the only assets in issue
FOURTH: At the death of my said husband, Charles Newton in this motion are those within the jurisdiction of this motion
Hodges, I give, devise and bequeath all of the rest, residue and Court in the two above-captioned Special Proceedings.
remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers and
8. Under Philippine and Texas law, the conjugal or community estate of spouses shall,
sisters, share and share alike, namely:
upon dissolution, be divided equally between them. Thus, upon the death of Linnie
Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of the
"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Hodges spouses constituting their conjugal estate pertained automatically to Charles
Rascoe, Era Boman and Nimray Higdon." Newton Hodges, not by way of inheritance, but in his own right as partner in the
conjugal partnership. The other one-half (1/2) portion of the conjugal estate
constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal
4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and
estate capable of inheritance by her heirs.
Testament, a copy of which is hereto attached as Annex "B ". In said Will, C. N. Hodges
designated his wife, Linnie Jane Hodges, as his beneficiary using the identical language
she used in the second and third provisos of her Will, supra. 9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges
cannot, under a clear and specific provision of her Will, be enhanced or increased by
income, earnings, rents, or emoluments accruing after her death on May 23, 1957.
5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her husband
Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said
by more than five (5) years. At the time of her death, she had no forced or compulsory
estate shall belong to him (C. N. Hodges) and he is further authorized to use any part of
heir, except her husband, C. N. Hodges. She was survived also by various brothers and
the principal of said estate as he may need or desire." (Paragraph 3, Annex "A".) Thus,
sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the
by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and income"
HIGDONS.
must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N.
Hodges. Clearly, therefore, the estate of Linnie Jane Hodges, capable of inheritance by That herein Executor, (is) not only part owner of the properties left as conjugal, but
her heirs, consisted exclusively of no more than one-half (1/2) of the conjugal estate, also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (CFI
computed as of the time of her death on May 23, 1957. Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)

10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse issued the following order:
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,
"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in
and no testamentary disposition by the deceased can legally and validly affect this
his motion dated December 11, 1957, which the Court considers well taken, all the sales,
right of the surviving spouse. In fact, her husband is entitled to said one-half (1/2)
conveyances, leases and mortgages of all the properties left by the deceased Linnie
portion of her estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore,
Jane Hodges executed by the Executor, Charles Newton Hodges are hereby
immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the owner of at
APPROVED. The said Executor is further authorized to execute subsequent sales,
least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of
conveyances, leases and mortgages of the properties left by the said deceased Linnie
the spouses, (1/2 or 50% by way of conjugal partnership share and 1/4 or 25% by
Jane Hodges in consonance with the wishes contained in the last will and testament of
way of inheritance and legitime) plus all "rents, emoluments and income" accruing to
the latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)
said conjugal estate from the moment of Linnie Jane Hodges' death (see paragraph
9, supra).
24 ems
11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her sole and
exclusive heir with full authority to do what he pleased, as exclusive heir and owner of (c) On April 21, 1959, this Honorable Court approved the verified inventory and
all the assets constituting her estate, except only with regards certain properties accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14,
"owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without 1959 wherein he alleged among other things,
relying on our laws of succession and legitime, which we have cited above, C. N.
Hodges, by specific testamentary designation of his wife, was entitled to the entirely to
"That no person interested in the Philippines of the time and
his wife's estate in the Philippines.
place of examining the herein account, be given notice, as herein
executor is the only devisee or legatee of the deceased, in
12. Article 777 of the New Civil Code provides that "the rights of the successor are accordance with the last will and testament already probated by
transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane the Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 77-78;
Hodges was transmitted to C. N. Hodges immediately upon her death on May 23, 1957. emphasis supplied.)
For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph
of how the conjugal estate of the spouses Hodges should be divided in accordance
(d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement of
with Philippine law and the Will of Linnie Jane Hodges.
Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21,
1960 wherein he alleged, among other things.
13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as
above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges, appropriated
"That no person interested in the Philippines of the time and
to himself the entirety of her estate. He operated all the assets, engaged in business
place of examining the herein account, be given notice as herein
and performed all acts in connection with the entirety of the conjugal estate, in his own
executor is the only devisee or legatee of the deceased Linnie Jane
name alone, just as he had been operating, engaging and doing while the late Linnie
Hodges, in accordance with the last will and testament ofthe
Jane Hodges was still alive. Upon his death on December 25, 1962, therefore, all said
deceased, already probated by this Honorable Court." (CFI
conjugal assets were in his sole possession and control, and registered in his name alone,
Record, Sp. Proc. No. 1307, pp. 81-82; emphasis supplied.)
not as executor, but as exclusive owner of all said assets.

(e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of
14. All these acts of C. N. Hodges were authorized and sanctioned expressly and
Account By The Executor For the Year 1960" submitted through Leon P. Gellada on
impliedly by various orders of this Honorable Court, as follows:
April 20, 1961 wherein he alleged:

(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is
"That no person interested in the Philippines be given notice, ofthe time and place of
allowed or authorized to continue the business in which he was engaged, and to
examining the herein account, as herein executor is the only devisee or legatee of the
perform acts which he had been doing while the deceased was living." (CFI Record, Sp.
deceased Linnie Jane Hodges, in accordance with the last will and testament ofthe
Proc. No. 1307, p. 11.)
deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307,
pp. 90-91; emphasis supplied.)
(b) On December 14, 1957, this Honorable Court, on the basis of the following fact,
alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as
attorney for the executor C. N. Hodges:
15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only
by law, but in accordance with the dispositions of her will, there was, in fact, no need
to liquidate the conjugal estate of the spouses. The entirely of said conjugal estate
pertained to him exclusively, therefore this Honorable Court sanctioned and
authorized, as above-stated, C. N. Hodges to manage, operate and control all the
conjugal assets as owner.
16. By expressly authorizing C. N. Hodges to act as he did in connection with the estate
of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole heir of the
estate of Linnie Jane Hodges, and (2) delivered and distributed her estate to C. N.
Hodges as sole heir in accordance with the terms and conditions of her Will. Thus,
although the "estate of Linnie Jane Hodges" still exists as a legal and juridical
personality, it had no assets or properties located in the Philippines registered in its
name whatsoever at the time of the death of C. N. Hodges on December 25, 1962.
17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows:
"At the death of my said husband, Charles Newton Hodges, I give,
devise and bequeath all of the rest, residue and remainder of my
estate both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share
alike, namely:
"Esta Higdon, Emma Howell, Leonard
Higdon, Roy Higdon, Sadie Rascoe, Era
Boman and Nimray Higdon."
Because of the facts hereinabove set out there is no "rest, residue and remainder", at
least to the extent of the Philippine assets, which remains to vest in the HIGDONS,
assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the
estate of C. N. Hodges.
18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane
Hodges' Will is without merit because said provision is void and invalid at least as to
the Philippine assets. It should not, in anyway, affect the rights of the estate of C. N.
Hodges or his heirs to the properties, which C. N. Hodges acquired by way of
inheritance from his wife Linnie Jane Hodges upon her death.
(a) In spite of the above-mentioned provision in the Will of
Linnie Jane Hodges, C. N. Hodges acquired, not merely a
usufructuary right, but absolute title and ownership to her
estate. In a recent case involving a very similar testamentary
provision, the Supreme Court held that the heir first designated
acquired full ownership of the property bequeathed by the will,
not mere usufructuary rights. (Consolacion Florentino de
Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876, February
28, 1962.)
(b) Article 864, 872 and 886 of the New Civil Code clearly
provide that no charge, condition or substitution whatsoever
upon the legitime can be imposed by a testator. Thus, under the
provisions of Articles 900, 995 and 1001 of the New Civil Code,
the legitime of a surviving spouse is 1/2 of the estate of the
deceased spouse. Consequently, the above-mentioned provision
in the Will of Linnie Jane Hodges is clearly invalid insofar as the
legitime of C. N. Hodges was concerned, which consisted of 1/2 of
the 1/2 portion of the conjugal estate, or 1/4 of the entire
conjugal estate of the deceased.
(c) 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. (Consolacion Florentino de
Crisologo et al. vs. Manuel Singson, G. R. No.
L-13876.) At most, it is a vulgar or simple substitution. However,
in order that a vulgar or simple 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, commenting on these kisses of
substitution, meaningfully stated that: "... cuando el testador
instituyeun primer heredero, y por fallecimiento de este nombra
otro u otros, ha de entenderse que estas segundas designaciones
solo han de llegar a tener efectividad en el caso de que el primer
instituido muera antes que el testador, fuera o no esta su
verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other
words, 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. Since C. N. Hodges did not
die before Linnie Jane Hodges, the provision for substitution
contained in Linnie Jane Hodges' Willis void.
(d) In view of the invalidity of the provision for substitution in
the Will, C. N. Hodges' inheritance to the entirety of the Linnie
Jane Hodges estate is irrevocable and final.
19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal
estate appeared and was registered in him exclusively as owner. Thus, the
presumption is that all said assets constituted his estate. Therefore —
(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of
the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which can
not be affected by any testamentary disposition), their remedy, if any, is to file their
 claim against the estate of C. N. Hodges, which should be entitled at the present time to
full custody and control of all the conjugal estate of the spouses.
(b) The present proceedings, in which two estates exist under separate
administration, where the administratrix of the Linnie Jane Hodges estate exercises an
officious right to object and intervene in matters affecting exclusively the C. N. Hodges
estate, is anomalous.
WHEREFORE, it is most respectfully prayed that after trial and reception of evidence,
this Honorable Court declare:
1. That the estate of Linnie Jane Hodges was and is composed exclusively of one-half
(1/2) share in the conjugal estate of the spouses Hodges, computed as of the date of
her death on May 23, 1957;
2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his
share as partner in the conjugal partnership;
3. That all "rents, emoluments and income" of the conjugal estate accruing after Linnie
Jane Hodges' death pertains to C. N. Hodges;
4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane
Hodges;
5. That, therefore, the entire conjugal estate of the spouses located in the Philippines,
plus all the "rents, emoluments and income" above-mentioned, now constitutes the
estate of C. N. Hodges, capable of distribution to his heirs upon termination of Special
Proceedings No. 1672;
6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and
exclusive custody, control and management of all said properties; and
7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well
as the HIGDONS, has no right to intervene or participate in the administration of the C.
N. Hodges estate.
PCIB further prays for such and other relief as may be deemed just and equitable in
the premises."
(Record, pp. 265-277)
Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private
respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie Jane
Hodges" as follows:
COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through
undersigned counsel, unto this Honorable Court most respectfully states and
manifests:
1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were American
citizens who died at the City of Iloilo after having amassed and accumulated extensive
properties in the Philippines;
2. That on November 22, 1952, Linnie Jane Hodges executed a last will and testament
(the original of this will now forms part of the records of these proceedings as Exhibit
"C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18);
3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time
survived by her husband, Charles Newton Hodges, and several relatives named in her
last will and testament;
4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard,
this Honorable Court issued an order admitting to probate the last will and testament
of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);
5. That the required notice to creditors and to all others who may have any claims
against the decedent, Linnie Jane Hodges has already been printed, published and
posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary period for filing
such claims has long ago lapsed and expired without any claims having been asserted
against the estate of Linnie Jane Hodges, approved by the
Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;
6. That the last will and testament of Linnie Jane Hodges already admitted to probate
contains an institution of heirs in the following words:
"SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever
situated or located, to my beloved husband, Charles Newton
Hodges to have and to hold unto him, my said husband, during
his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles
Newton Hodges, shall have the right to manage, control, use and
enjoy said estate during his lifetime, and, he is hereby given the
right to make any changes in the physical properties of said
estate, by sale of any part thereof which he may think best, and
the purchase of any other or additional property as he may think
best; to execute conveyances with or without general or special
warranty, conveying in fee simple or for any other term or time,
any property which he may deem proper to dispose of; to lease
any of the real property for oil, gas and/or other minerals, and all
such deeds or leases shall pass the absolute fee simple title to the
interest so conveyed in such property as he elect to sell. All rents,
emoluments and income from said estate shall belong to him,
and he is further authorized to use any part of the principal of
said estate as he may need or desire. It is provided herein,
however, that he shall not sell or otherwise dispose of any of the
improved property now owned by us located at, in or near the
City of Lubbock Texas, but he shall have the full right to lease,
manage and enjoy the same during his lifetime, above provided.
 He shall have the right to subdivide any farm land and sell lots
therein, and may sell unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton
Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers and
sisters, share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie
Rascoe, Era Boman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters
named in item Fourth, above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and bequest that the
heirs of such deceased brother or sister shall take jointly the
share which would have gone to such brother or sister had she or
he survived."
7. That under the provisions of the last will and testament already above-quoted,
Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her husband,
Charles Newton Hodges, and a vested remainder-estate or the naked title over the
same estate to her relatives named therein;
8. That after the death of Linnie Jane Hodges and after the admission to probate of her
last will and testament, but during the lifetime of Charles Newton Hodges, the said
Charles Newton Hodges with full and complete knowledge of the life-estate or
usufruct conferred upon him by the will since he was then acting as Administrator of
the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and
clearly through oral and written declarations and sworn public statements,
renounced, disclaimed and repudiated his life-estate and usufruct over the estate of
Linnie Jane Hodges;
9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges
pursuant to her last will and testament, are her named brothers and sisters, or their
heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David
Higdon, the latter two being the wife and son respectively of the deceased Roy Higdon,
Sadie Rascoe Era Boman and Nimroy Higdon, all of legal ages, American citizens, with
residence at the State of Texas, United States of America;
10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the
co-owner (together with her husband Charles Newton Hodges) of an undivided one-
half interest in their conjugal properties existing as of that date, May 23, 1957, which
properties are now being administered sometimes jointly and sometimes separately
by the Administratrix of the estate of Linnie Jane Hodges and/or the Administrator of
the estate of C. N. Hodges but all of which are under the control and supervision of this
Honorable Court;
11. That because there was no separation or segregation of the interests of husband
and wife in the combined conjugal estate, as there has been no such separation or
segregation up to the present, both interests have continually earned exactly the same
amount of "rents, emoluments and income", the entire estate having been continually
devoted to the business of the spouses as if they were alive;
12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate
was earning "rents, emoluments and income" until her death on May 23, 1957, when it
ceased to be saddled with any more charges or expenditures which are purely
personal to her in nature, and her estate kept on earning such "rents, emoluments and
income" by virtue of their having been expressly renounced, disclaimed and
repudiated by Charles Newton Hodges to whom they were bequeathed for life under
the last will and testament of Linnie Jane Hodges;
13. That, on the other hand, the one-half interest of Charles Newton Hodges in the
combined conjugal estate existing as of May 23, 1957, while it may have earned
exactly the same amount of "rents, emoluments and income" as that of the share
pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures,
and other dispositions which are purely personal to him in nature, until the death of
Charles Newton Hodges himself on December 25, 1962;
14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and
Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is clearly
entitled to a portion more than fifty percent (50%) as compared to the portion to
which the estate of Charles Newton Hodges may be entitled, which portions can be
exactly determined by the following manner:
a. An inventory must be made of the assets of the combined
conjugal estate as they existed on the death of Linnie Jane
Hodges on May 23, 1957 — one-half of these assets belong to the
estate of Linnie Jane Hodges;
b. An accounting must be made of the "rents, emoluments and
income" of all these assets — again one-half of these belong to
the estate of Linnie Jane Hodges;
c. Adjustments must be made, after making a deduction of
charges, disbursements and other dispositions made by Charles
Newton Hodges personally and for his own personal account
from May 23, 1957 up to December 25, 1962, as well as other
charges, disbursements and other dispositions made for him and
in his behalf since December 25, 1962 up to the present;
15. That there remains no other matter for disposition now insofar as the estate of
Linnie Jane Hodges is concerned but to complete the liquidation of her estate,
segregate them from the conjugal estate, and distribute them to her heirs pursuant to
her last will and testament.
WHEREFORE, premises considered, it is most respectfully moved and prayed that this
Honorable Court, after a hearing on the factual matters raised by this motion, issue an
order:
a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard
Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, as
 the sole heirs under the last will and testament of Linnie Jane Hodges and as the only
persons entitled to her estate;
b. Determining the exact value of the estate of Linnie Jane Hodges in accordance with
the system enunciated in paragraph 14 of this motion;
c. After such determination ordering its segregation from the combined conjugal
estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for
distribution to the heirs to whom they properly belong and appertain.
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing
before, petitioner withdrew the said motion and in addition to opposing the above motion of respondent
Magno, filed a motion on April 22, 1966 alleging in part that:
1. That it has received from the counsel for the administratrix of the supposed estate
of Linnie Jane Hodges a notice to set her "Motion for Official Declaration of Heirs of the
Estate of Linnie Jane Hodges";
2. That before the aforesaid motion could be heard, there are matters pending before
this Honorable Court, such as:
a. The examination already ordered by this Honorable Court of
documents relating to the allegation of Avelina Magno that
Charles Newton Hodges "through ... written declarations and
sworn public statements, renounced, disclaimed and repudiated
life-estate and usufruct over the estate of Linnie Jane Hodges';
b. That "Urgent Motion for An Accounting and Delivery to the
Estate of C. N. Hodges of All the Assets of the Conjugal
Partnership of the Deceased Linnie Jane Hodges and C. N. Hodges
Existing as of May 23, 1957 Plus All the Rents, Emoluments and
Income Therefrom";
c. Various motions to resolve the aforesaid motion;
d. Manifestation of September 14, 1964, detailing acts of
interference of Avelina Magno under color of title as
administratrix of the Estate of Linnie Jane Hodges;
which are all prejudicial, and which involve no issues of fact, all facts involved therein
being matters of record, and therefore require only the resolution of questions of law;
3. That whatever claims any alleged heirs or other persons may have could be very
easily threshed out in the Testate Estate of Charles Newton Hodges;
4. That the maintenance of two separate estate proceedings and two administrators
only results in confusion and is unduly burdensome upon the Testate Estate of Charles
Newton Hodges, particularly because the bond filed by Avelina Magno is grossly
insufficient to answer for the funds and property which she has inofficiously collected
and held, as well as those which she continues to inofficiously collect and hold;
5. That it is a matter of record that such state of affairs affects and inconveniences not
only the estate but also third-parties dealing with it;" (Annex "V", Petition.)
and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion
of September 14, 1964, Annex U, prayed that:
1. Immediately order Avelina Magno to account for and deliver to the administrator of
the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased
Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income
therefrom;
2. Pending the consideration of this motion, immediately order Avelina Magno to turn
over all her collections to the administrator Philippine Commercial & Industrial Bank;
3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;
4. Defer the hearing and consideration of the motion for declaration of heirs in the
Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are
resolved.
(Prayer, Annex "V" of Petition.)
On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the
foregoing motion, holding thus:
ORDER
On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of
administrator PCIB praying that (1) Immediately order Avelina Magno to account for
and deliver to the administrator of the estate of C. N. Hodges all assets of the conjugal
partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents,
emoluments and income therefrom; (2) Pending the consideration of this motion,
immediately order Avelina Magno to turn over all her collections to the administrator
PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;
and (4) Defer the hearing and consideration of the motion for declaration of heirs in
the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are
resolved.
This motion is predicated on the fact that there are matters pending before this court
such as (a) the examination already ordered by this Honorable Court of documents
relating to the allegation of Avelina Magno that Charles Newton Hodges thru written
declaration and sworn public statements renounced, disclaimed and repudiated his
life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion for
accounting and delivery to the estate of C. N. Hodges of all the assets of the conjugal
partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as of May
23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to
resolve the aforesaid motion; and (d) manifestation of September 14, 1964, detailing
acts of interference of Avelina Magno under color of title as administratrix of the
estate of Linnie Jane Hodges.
These matters, according to the instant motion, are all pre-judicial involving no issues
of facts and only require the resolution of question of law; that in the motion of
October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty.
Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges
is not only part owner of the properties left as conjugal but also the successor to all
the properties left by the deceased Linnie Jane Hodges.
Said motion of December 11, 1957 was approved by the Court in consonance with the
wishes contained in the last will and testament of Linnie Jane Hodges.
That on April 21, 1959 this Court approved the inventory and accounting submitted
by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959
stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie Jane
Hodges in accordance with the last will and testament already probated by the Court.
That on July 13, 1960 the Court approved the annual statement of accounts submitted
by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21, 1960 wherein it
is stated that the executor, C. N. Hodges is the only devisee or legatee of the deceased
Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of
accounts submitted by executor, C. N. Hodges for the year 1960 which was submitted
by Atty. Gellada on April 20, 1961 wherein it is stated that executor Hodges is the only
devisee or legatee of the deceased Linnie Jane Hodges;
That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed
all the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges
situated in the Philippines; that administratrix Magno has executed illegal acts to the
prejudice of the testate estate of C. N. Hodges.
An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix
Magno has been filed asking that the motion be denied for lack of merit and that the
motion for the official declaration of heirs of the estate of Linnie Jane Hodges be set for
presentation and reception of evidence.
It is alleged in the aforesaid opposition that the examination of documents which are
in the possession of administratrix Magno can be made prior to the hearing of the
motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during
said hearing.
That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other
motion) dated September 14, 1964 have been consolidated for the purpose of
presentation and reception of evidence with the hearing on the determination of the
heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the
motion for the official declaration of heirs of the estate of Linnie Jane Hodges is the
one that constitutes a prejudicial question to the motions dated October 5 and
September 14, 1964 because if said motion is found meritorious and granted by the
Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become
moot and academic since they are premised on the assumption and claim that the only
heir of Linnie Jane Hodges was C. N. Hodges.
That the PCIB and counsel are estopped from further questioning the determination of
heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early as
January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane
Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in the
administration proceedings over the estate of Linnie Jane Hodges and not that of C. N.
Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the
estate of C. N. Hodges.
A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been
filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek deferment
of the hearing and consideration of the motion for official declaration of heirs of Linnie
Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for
administratrix Magno to account for and deliver to the PCIB all assets of the conjugal
partnership of the deceased spouses which has come to her possession plus all rents
and income.
A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19,
1966 has been filed alleging that the motion dated December 11, 1957 only sought the
approval of all conveyances made by C. N. Hodges and requested the Court authority
for all subsequent conveyances that will be executed by C. N. Hodges; that the order
dated December 14, 1957 only approved the conveyances made by C. N. Hodges; that
C. N. Hodges represented by counsel never made any claim in the estate of Linnie Jane
Hodges and never filed a motion to declare himself as the heir of the said Linnie Jane
Hodges despite the lapse of more than five (5) years after the death of Linnie Jane
Hodges; that it is further alleged in the rejoinder that there can be no order of
adjudication of the estate unless there has been a prior express declaration of heirs
and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has
been made.
Considering the allegations and arguments in the motion and of the PCIB as well as
those in the opposition and rejoinder of administratrix Magno, the Court finds the
opposition and rejoinder to be well taken for the reason that so far there has been no
official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no
disposition of her estate.
WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter
alia that:
It cannot be over-stressed that the motion of December 11, 1957 was based on the
fact that:
a. Under the last will and testament of the deceased, Linnie Jane
Hodges, the late Charles Newton Hodges was the sole heir
instituted insofar as her properties in the Philippines are
concerned;
 b. Said last will and testament vested upon the said late Charles
Newton Hodges rights over said properties which, in sum, spell
ownership, absolute and in fee simple;
c. Said late Charles Newton Hodges was, therefore, "not only part
owner of the properties left as conjugal, but also, the successor to
all the properties left by the deceased Linnie Jane Hodges.
Likewise, it cannot be over-stressed that the aforesaid motion was granted by this
Honorable Court "for the reasons stated" therein.
Again, the motion of December 11, 1957 prayed that not only "all the sales,
conveyances, leases, and mortgages executed by" the late Charles Newton Hodges, but
also all "the subsequent sales, conveyances, leases, and mortgages ..." be approved and
authorized. This Honorable Court, in its order of December 14, 1957, "for the reasons
stated" in the aforesaid motion, granted the same, and not only approved all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie Jane
Hodges executed by the late Charles Newton Hodges, but also authorized "all
subsequent sales, conveyances, leases and mortgages of the properties left by the said
deceased Linnie Jane Hodges. (Annex "X", Petition)
and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been
factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him, as sole
universal heir of all the properties of the estate of his wife, in the order of December 14, 1957, Annex G. Still
unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that "the
court believes that there is no justification why the order of October 12, 1966 should be considered or
modified", and, on July 19, 1967, the motion of respondent Magno "for official declaration of heirs of the
estate of Linnie Jane Hodges", already referred to above, was set for hearing.
In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit
petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were issued in
two separate testate estate proceedings, Nos. 1307 and 1672, in the court below).
Together with such petition, there are now pending before Us for resolution herein, appeals from the
following:
1. The order of December 19, 1964 authorizing payment by respondent Magno of
overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders
of January 9, 1965, (pp. 231-232,id.) October 27, 1965, (pp. 227, id.) and February 15,
1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration thereof.
2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by
petitioner to be co-signed by respondent Magno, as well as the order of October 27,
1965 (pp. 276-277) denying reconsideration.
3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all
collections in a joint account and the same order of February 15, 1966 mentioned in
No. 1 above which included the denial of the reconsideration of this order of October
27, 1965.
4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of
attorney's fees, fees of the respondent administratrix, etc. and the order of February
16, 1966 denying reconsideration thereof.
5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western
Institute of Technology to make payments to either one or both of the administrators
of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying
reconsideration.
6. The various orders hereinabove earlier enumerated approving deeds of sale
executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman,
Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to 37 of this
opinion), together with the two separate orders both dated December 2, 1966 (pp.
306-308, and pp. 308-309, Yellow Record on Appeal) denying reconsideration of said
approval.
7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving
similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of
appellees Pacaonsis and Premaylon, as to which no motion for reconsideration was
filed.
8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal,
directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito,
Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of title covering the
lands involved in the approved sales, as to which no motion for reconsideration was
filed either.
Strictly speaking, and considering that the above orders deal with different matters, just as they affect
distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20
thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason, petitioner has to pay
also thirty-one (31) more docket fees.
It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals,
petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions and
arguments under all of them covering also the fundamental issues raised in respect to the petition
for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these
cases together.4
The assignments of error read thus:
I to IV
THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C.
ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
V to VIII
 THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE AND SALVADOR S. GUZMAN PURSUANT TO CONTRACTS TO SPELL WHICH WERE
APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA CANCELLED AND RESCINDED.
AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR WHICH THEY HAVE
NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.
XXX to XXXIV

IX to XII
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER
REAL PROPERTY OF THE LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE COURT.
REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A PROBATE
XXXV to XXXVI
COURT.

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF
XIII to XV
THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED
BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES
XXXVII to XXXVIII
NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE
APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY
XVI to XVIII
WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT
TO SELL WHICH THEY EXECUTED WITH THE DECEASED, CHARLES NEWTON
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE HODGES, IN THE AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY.
APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND
ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR WHICH
XXXIX to XL
THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL
CONTRACTS TO SELL.
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON
HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS
XIX to XXI
ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL
OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO.
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER
REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102),
XLI to XLIII
SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS
A PROBATE COURT.
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES
XXII to XXV
BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING
PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS
THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND LIFETIME.
SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON
XLIV to XLVI
HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY
HIM DURING HIS LIFETIME.
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF
THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES
XXVI to XXIX
BATISANAN, PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM WITH THE
DECEASED, CHARLES NEWTON HODGES, THE TERMS AND CONDITIONS OF WHICH
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN THEY HAVE NEVER COMPLIED WITH.
FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL
XLVII to XLIX THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE
APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965,
ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON
NOVEMBER 20, 1965.
HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT
APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, GRACIANO
LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN LXIV
DETERMINING THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE
ACTING AS A PROBATE COURT.
THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED
L NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF
CONTAINED THEREIN.
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE APPELLEE, AVELINA A. LXV
MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE
THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF
EXECUTED BY HIM DURING HIS LIFETIME.
TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS
AND CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.
LI
LXVI
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE,
PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE
WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT
EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF
MATTER OF THE CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES
P2,337.50.
NEWTON HODGES, WHILE ACTING AS A PROBATE COURT.

LII
LXVII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE
LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE
APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN
APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL
ACCORDANCE WITH THE RULES OF COURT.
EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON HODGES, TO A PERSON
OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR.
LIII to LXI
LXVIII
THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES
CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF
FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN
SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER
THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA
BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR,
MAXIMA BATISANAN AND GRACIANO L. LUCERO. LXIX

LXII THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF
LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES.
THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE,
WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY
COPY THEREOF HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE LXX
COMMERCIAL & INDUSTRIAL BANK.

LXIII
 THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT
BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, AND THEIR LAWYERS.
LXXI
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF
ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF
RETAINER'S FEES.
LXXII
THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE
EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED,
CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE
APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL
AND INDUSTRIAL BANK, AND NOT BY THE LATTER ONLY AS THE LAWFULLY
APPOINTED ADMINISTRATOR OF HIS ESTATE.
LXXIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES
FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN
THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXIV
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF
LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES.
LXXV
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF
ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF
LEGAL EXPENSES.
LXXVI
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO
THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE
IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXVII
THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE
ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT
ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,
AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A COMPLETE STRANGER TO THE
AFORESAID ESTATE.
LXXVIII
THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A.
MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF
THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER
TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's Brief.)
To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases,
it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno
removed as administratrix, with the proposed appointment of Benito J. Lopez in her place, and that
respondent court did actually order such proposed replacement, but the Court declared the said order of
respondent court violative of its injunction of August 8, 1967, hence without force and effect (see
Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the
lawyers of said heirs, appeared no longer for the proposed administrator Lopez but for the heirs
themselves, and in a motion dated October 26, 1972 informed the Court that a motion had been filed with
respondent court for the removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special
Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges had already
been acquired by the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this connection, in
the answer of PCIB to the motion of respondent Magno to have it declared in contempt for disregarding the
Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner
annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court,
informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already been
bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing
17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making
somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the Hodges
estate.
RESOLUTION OF ISSUES IN THE CERTIORARI AND
PROHIBITION CASES
I
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned
thirty-three appeals of PCIB. Considering, however, that these appeals revolve around practically the same
main issues and that it is admitted that some of them have been timely taken, and, moreover, their final
results hereinbelow to be stated and explained make it of no consequence whether or not the orders
concerned have become final by the lapsing of the respective periods to appeal them, We do not deem it
necessary to pass upon the timeliness of any of said appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same respondent is alleged impropriety of the special civil action
of certiorari and prohibition in view of the existence of the remedy of appeal which it claims is proven by
the very appeals now before Us. Such contention fails to take into account that there is a common thread
among the basic issues involved in all these thirty-three appeals which, unless resolved in one single
proceeding, will inevitably cause the proliferation of more or less similar or closely related incidents and
consequent eventual appeals. If for this consideration alone, and without taking account anymore of the
unnecessary additional effort, expense and time which would be involved in as many individual appeals as
the number of such incidents, it is logical and proper to hold, as We do hold, that the remedy of appeal is
not adequate in the present cases. In determining whether or not a special civil action of certiorari or
prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of jurisdiction or grave
abuse of discretion is alleged, it is not enough that the remedy of appeal exists or is possible. It is
indispensable that taking all the relevant circumstances of the given case, appeal would better serve the
interests of justice. Obviously, the longer delay, augmented expense and trouble and unnecessary repetition
of the same work attendant to the present multiple appeals, which, after all, deal with practically the same
basic issues that can be more expeditiously resolved or determined in a single special civil action, make the
remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the
common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the settling
of such common fundamental issues would naturally minimize the areas of conflict between the parties and
render more simple the determination of the secondary issues in each of them. Accordingly, respondent
Magno's objection to the present remedy of certiorariand prohibition must be overruled.
We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank,
(PCIB, for short) in the petition as well as in its main brief as appellant.
III
On Whether or Not There is Still Any Part of the Testate
Estate Mrs. Hodges that may be Adjudicated to her brothers
and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.
In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely
abused its discretion in further recognizing after December 14, 1957 the existence of the Testate Estate of
Linnie Jane Hodges and in sanctioning purported acts of administration therein of respondent Magno. Main
ground for such posture is that by the aforequoted order of respondent court of said date, Hodges was
already allowed to assert and exercise all his rights as universal heir of his wife pursuant to the provisions
of her will, quoted earlier, hence, nothing else remains to be done in Special Proceedings 1307 except to
formally close it. In other words, the contention of PCIB is that in view of said order, nothing more than a
formal declaration of Hodges as sole and exclusive heir of his wife and the consequent formal unqualified
adjudication to him of all her estate remain to be done to completely close Special Proceedings 1307, hence
respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs.
Hodges since then.
After carefully going over the record, We feel constrained to hold that such pose is patently untenable from
whatever angle it is examined.
To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense being read
into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The declaration of heirs and
distribution by the probate court of the estate of a decedent is its most important function, and this Court is
not disposed to encourage judges of probate proceedings to be less than definite, plain and specific in
making orders in such regard, if for no other reason than that all parties concerned, like the heirs, the
creditors, and most of all the government, the devisees and legatees, should know with certainty what are
and when their respective rights and obligations ensuing from the inheritance or in relation thereto would
begin or cease, as the case may be, thereby avoiding precisely the legal complications and consequent
litigations similar to those that have developed unnecessarily in the present cases. While it is true that in
instances wherein all the parties interested in the estate of a deceased person have already actually
distributed among themselves their respective shares therein to the satisfaction of everyone concerned and
no rights of creditors or third parties are adversely affected, it would naturally be almost ministerial for the
court to issue the final order of declaration and distribution, still it is inconceivable that the special
proceeding instituted for the purpose may be considered terminated, the respective rights of all the parties
concerned be deemed definitely settled, and the executor or administrator thereof be regarded as
automatically discharged and relieved already of all functions and responsibilities without the
corresponding definite orders of the probate court to such effect.
Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:
SECTION 1. When order for distribution of residue made. — When the debts, funeral
charges, and expenses of administration, the allowance to the widow and inheritance
tax, if any, chargeable to the estate in accordance with law have been paid, the court,
on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which
each is entitled, and such persons may demand and recover their respective shares
from the executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the lawful heirs of
the deceased person or as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned
has been made or provided for, unless the distributees, or any of them give a bond, in
a sum to be fixed by the court, conditioned for the payment of said obligations within
such time as the court directs.
These provisions cannot mean anything less than that in order that a proceeding for the settlement of the
estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an
order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will
or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses,
expenses of administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but
logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the
purpose of the interested party or parties, and not of the court.
... it is only after, and not before, the payment of all debts, funeral charges, expenses of
administration, allowance to the widow, and inheritance tax shall have been effected
that the court should make a declaration of heirs or of such persons as are entitled by
law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397,
citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.)
(JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief)
xxx xxx xxx
Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule
90) what brings an intestate (or testate) proceeding to a close is the order of
distribution directing delivery of the residue to the persons entitled thereto after
 paying the indebtedness, if any, left by the deceased. (Santiesteban vs. Santiesteban,
68 Phil. 367, 370.)
In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before
Us that the above indispensable prerequisites for the declaration of heirs and the adjudication of the estate
of Mrs. Hodges had already been complied with when the order of December 14, 1957 was issued. As
already stated, We are not persuaded that the proceedings leading to the issuance of said order,
constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E,
and the motion of December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot
see in the order of December 14, 1957, so much relied upon by the petitioner, anything more than an
explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the
deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and
prior to the date of the motion), plus a general advance authorization to enable said "Executor — to execute
subsequent sales, conveyances, leases and mortgages of the properties left the said deceased Linnie Jane
Hodges in consonance with wishes conveyed in the last will and testament of the latter", which, certainly,
cannot amount to the order of adjudication of the estate of the decedent to Hodges contemplated in the law.
In fact, the motion of December 11, 1957 on which the court predicated the order in question did not pray
for any such adjudication at all. What is more, although said motion did allege that "herein Executor
(Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee
(sic), has the right to sell, convey, lease or dispose of the properties in the Philippines — during his
lifetime", thereby indicating that what said motion contemplated was nothing more than either the
enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which
were to be operative only during his lifetime or the use of his own share of the conjugal estate, pending the
termination of the proceedings. In other words, the authority referred to in said motions and orders is in
the nature of that contemplated either in Section 2 of Rule 109 which permits, in appropriate cases,
advance or partial implementation of the terms of a duly probated will before final adjudication or
distribution when the rights of third parties would not be adversely affected thereby or in the established
practice of allowing the surviving spouse to dispose of his own share of he conjugal estate, pending its final
liquidation, when it appears that no creditors of the conjugal partnership would be prejudiced thereby, (see
the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We
are more inclined to believe that Hodges meant to refer to the former. In any event, We are fully persuaded
that the quoted allegations of said motions read together cannot be construed as a repudiation of the rights
unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have not
been disposed of by him up to his death.
Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise
suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved the motion of
appellee Western Institute of Technology by its order We have quoted earlier, it categorically held that as of
said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no
judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In this
connection, it may be stated further against petitioner, by way of some kind of estoppel, that in its own
motion of January 8, 1965, already quoted in full on pages 54-67 of this decision, it prayed inter alia that the
court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which
it would not have done if it were really convinced that the order of December 14, 1957 was already the
order of adjudication and distribution of her estate. That said motion was later withdrawn when Magno
filed her own motion for determination and adjudication of what should correspond to the brothers and
sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn motion.
It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband
and gave him what amounts to full powers of dominion over the same during his lifetime, she imposed at
the same time the condition that whatever should remain thereof upon his death should go to her brothers
and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's estate
as he might possibly dispose of during his lifetime; hence, even assuming that by the allegations in his
motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner, such unilateral
act could not have affected or diminished in any degree or manner the right of his brothers and sisters-in-
law over what would remain thereof upon his death, for surely, no one can rightly contend that the
testamentary provision in question allowed him to so adjudicate any part of the estate to himself as to
prejudice them. In other words, irrespective of whatever might have been Hodges' intention in his motions,
as Executor, of May 27, 1957 and December 11, 1957, the trial court's orders granting said motions, even in
the terms in which they have been worded, could not have had the effect of an absolute and unconditional
adjudication unto Hodges of the whole estate of his wife. None of them could have deprived his brothers
and sisters-in-law of their rights under said will. And it may be added here that the fact that no one
appeared to oppose the motions in question may only be attributed, firstly, to the failure of Hodges to send
notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even if they had been
notified, they could not have taken said motions to be for the final distribution and adjudication of the
estate, but merely for him to be able, pending such final distribution and adjudication, to either exercise
during his lifetime rights of dominion over his wife's estate in accordance with the bequest in his favor,
which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or make use of
his own share of the conjugal estate. In any event, We do not believe that the trial court could have acted in
the sense pretended by petitioner, not only because of the clear language of the will but also because none
of the interested parties had been duly notified of the motion and hearing thereof. Stated differently, if the
orders of May 27, 1957 and December 4, 1957 were really intended to be read in the sense contended by
petitioner, We would have no hesitancy in declaring them null and void.
Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a
partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with the orders of May 27
and December 14, 1957, the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as said
orders amounted to the order of adjudication and distribution ordained by Section 1 of Rule 90. But the
parallel attempted to be drawn between that case and the present one does not hold. There the trial court
had in fact issued a clear, distinct and express order of adjudication and distribution more than twenty
years before the other heirs of the deceased filed their motion asking that the administratrix be removed,
etc. As quoted in that decision, the order of the lower court in that respect read as follows:
En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la
condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos
antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito en
el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido
nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un
valor igual al de los bienes que correspondan a cada heredero segun el testamento.
Creo que no es obice para la terminacion del expediente el hecho de que la
administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun
la ley, estan exentos de esta formalidad os administradores que son legatarios del
residuo o remanente de los bienes y hayan prestado fianza para responder de las
gestiones de su cargo, y aparece en el testamento que la administradora Alejandra
Austria reune dicha condicion.
POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de
Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado
Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla, hermana del
testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano, Jose
Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio
Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas,
Catalino y Froilan, hermanos del testador, declarando, ademas que la heredera
Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el
finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus
coherederos, conforme esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a
del testamento; 3.o, se aprueba el pago hecho por la administradora de los gastos de la
 ultima enfermedad y funerales del testador, de la donacion hecha por el testador a
favor de la Escuela a Publica del Municipio de Mangatarem, y de las misas en sufragio
del alma del finado; 4.o, que una vez prestada la fianza mencionada al principio de este
auto, se haga la entrega y adjudicacion de los bienes, conforme se dispone en el
testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que verificada la
adjudicacion, se dara por terminada la administracion, revelandole toda
responsabilidad a la administradora, y cancelando su fianza.
ASI SE ORDENA.
Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement
of the estate of a deceased person cannot be but perfunctory.
his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-
92, id.)
Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of Account
by the Executor for the year 1960" of the estate of Linnie Jane Hodges. In the
"Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as
of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined
conjugal estate earned a net income of P314,857.94, divided of Linnie Jane Hodges.
Pursuant to this, he filed an "individual evenly between him and the estate income tax
return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P157,428.97, exactly one-half of the
net income of his combined personal assets and that of the estate of Linnie Jane
Hodges. (pp. 92-93, id.)

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-
In the petition for probate that he (Hodges) filed, he listed the seven brothers and
facie to be of the same tenor and nature as the order just quoted, and, what is more, the circumstances
sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court
attendant to its issuance do not suggest that such was the intention of the court, for nothing could have
admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see
been more violative of the will of Mrs. Hodges.
p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy
Higdon's name included as an heir, stating that he wanted to straighten the records "in
Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 order (that) the heirs of deceased Roy Higdon may not think or believe they were
and 1960, A Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein executor (being) omitted, and that they were really and are interested in the estate of deceased Linnie
the only devisee or legatee of the deceased, in accordance with the last will and testament already Jane Hodges".
probated," there is "no (other) person interested in the Philippines of the time and place of examining
herein account to be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an
Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the
absolute manner and without regard to the contingent interests of her brothers and sisters, is to impute
conjugal partnership up to the time of his death, more than five years after that of his wife. He never
bad faith to him, an imputation which is not legally permissible, much less warranted by the facts of record
considered the whole estate as a single one belonging exclusively to himself. The only conclusion one can
herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give
gather from this is that he could have been preparing the basis for the eventual transmission of his wife's
him such a right. Factually, there are enough circumstances extant in the records of these cases indicating
estate, or, at least, so much thereof as he would not have been able to dispose of during his lifetime, to her
that he had no such intention to ignore the rights of his co-heirs. In his very motions in question, Hodges
brothers and sisters in accordance with her expressed desire, as intimated in his tax return in the United
alleged, thru counsel, that the "deceased Linnie Jane Hodges died leaving no descendants and
States to be more extensively referred to anon. And assuming that he did pay the corresponding estate and
ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of
inheritance taxes in the Philippines on the basis of his being sole heir, such payment is not necessarily
the decedent", and even promised that "proper accounting will be had — in all these transactions" which he
inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely on the
had submitted for approval and authorization by the court, thereby implying that he was aware of his
matter in these proceedings, We might say here that We are inclined to the view that under the peculiar
responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee:
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
Under date of April 14, 1959, C. N. Hodges filed his first "Account by the Executor" of other heirs, upon the eventuality of his death, and whatever adjustment might be warranted should there
the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges be any such remainder then is a matter that could well be taken care of by the internal revenue authorities
and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C. N. in due time.
Hodges reported that the combined conjugal estate earned a net income of
P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges.
It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and
Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on
December 11, 1957 and the aforementioned statements of account was the very same one who also
the estate of Linnie Jane Hodges reporting, under oath, the said estate as having
subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent Magno
earned income of P164,201.31, exactly one-half of the net income of his combined
as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in accordance with
personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)
the provisions of the last will and testament of Linnie Jane Hodges, whatever real properties that may
remain at the death of her husband, Charles Newton Hodges, the said properties shall be equally divided
Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of among their heirs." And it appearing that said attorney was Hodges' lawyer as Executor of the estate of his
Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of wife, it stands to reason that his understanding of the situation, implicit in his allegations just quoted, could
Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, somehow be reflective of Hodges' own understanding thereof.
1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate
earned a net income of P270,623.32, divided evenly between him and the estate of
As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for
Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for
Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which
calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said
is made in the above quotation from respondent Magno's brief, are over the oath of Hodges himself, who
estate as having earned income of P135,311.66, exactly one-half of the net income of
verified the motion. Said allegations read:
 1. — That the Hon. Court issued orders dated June 29, 1957, ordering the probate of
the will.
2. — That in said order of the Hon. Court, the relatives of the deceased Linnie Jane
Hodges were enumerated. However, in the petition as well as in the testimony of
Executor during the hearing, the name Roy Higdon was mentioned, but deceased. It
was unintentionally omitted the heirs of said Roy Higdon who are his wife Aline
Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A.
3. — That to straighten the records, and in order the heirs of deceased Roy Higdon may
not think or believe they were omitted, and that they were really and are interested in
the estate of deceased Linnie Jane Hodges, it is requested of the Hon. Court to insert the
names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon in the
said order of the Hon. Court dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's
Answer — Record, p. 260)
As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the
testamentary dispositions of his wife.
In connection with this point of Hodges' intent, We note that there are documents, copies of which are
annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn declarations
recognizing the right of his co-heirs, such as the alleged tax return he filed with the United States Taxation
authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation,
Annex 5. In said Schedule M, Hodges appears to have answered the pertinent question thus:
2a. Had the surviving spouse the right to declare an election between (1) the
provisions made in his or her favor by the will and (11) dower, curtesy or a statutory
interest? (X) Yes ( ) No
2d. Does the surviving spouse contemplate renouncing the will and electing to take
dower, curtesy, or a statutory interest? (X) Yes ( ) No
3. According to the information and belief of the person or persons filing the return, is
any action described under question 1 designed or contemplated? ( ) Yes (X) No
(Annex 4, Answer — Record, p. 263)
and to have further stated under the item, "Description of property interests passing to surviving spouse"
the following:
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. (Annex 4, Answer — Record, p. 263)
In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:
I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States
Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I
renounced and disclaimed any and all right to receive the rents, emoluments and
income from said estate, as shown by the statement contained in Schedule M at page
29 of said return, a copy of which schedule is attached to this affidavit and made a part
hereof.
The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm,
the declaration made in Schedule M of said return and hereby formally disclaim and
renounce any right on my part to receive any of the said rents, emoluments and
income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made
to absolve me or my estate from any liability for the payment of income taxes on
income which has accrued to the estate of Linnie Jane Hodges since the death of the
said Linnie Jane Hodges on May 23, 1957. (Annex 5, Answer — Record, p. 264)
Although it appears that said documents were not duly presented as evidence in the court below, and We
cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot close our eyes
to their existence in the record nor fail to note that their tenor jibes with Our conclusion discussed above
from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these
documents, considering they are supposed to be copies of their originals found in the official files of the
governments of the United States and of the Philippines, serve to lessen any possible apprehension that Our
conclusion from the other evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without
basis in fact.
Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find
it very hard to believe that Hodges did ask the court and that the latter agreed that he be declared her sole
heir and that her whole estate be adjudicated to him without so much as just annotating the contingent
interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it
seems to us more factual and fairer to assume that Hodges was well aware of his position as executor of the
will of his wife and, as such, had in mind the following admonition made by the Court in Pamittan vs. Lasam,
et al., 60 Phil., 908, at pp. 913-914:
Upon the death of Bernarda in September, 1908, said lands continued to be conjugal
property in the hands of the defendant Lasam. It is provided in article 1418 of the Civil
Code that upon the dissolution of the conjugal partnership, an inventory shall
immediately be made and this court in construing this provision in connection with
section 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176 of
November 24, 1924) has repeatedly held that in the event of the death of the wife, the
law imposes upon the husband the duty of liquidating the affairs of the partnership
without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado vs. Lagera, 7
Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10;
Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng
vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41
Phil., 713.)
In the last mentioned case this court quoted with approval the case of Leatherwood vs.
Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the
surviving spouse in the administration of the community property. Attention was
called to the fact that the surviving husband, in the management of the conjugal
property after the death of the wife, was a trustee of unique character who is liable for
any fraud committed by him with relation to the property while he is charged with its
administration. In the liquidation of the conjugal partnership, he had wide powers (as
the law stood prior to Act No. 3176) and the high degree of trust reposed in him
stands out more clearly in view of the fact that he was the owner of a half interest in
his own right of the conjugal estate which he was charged to administer. He could
therefore no more acquire a title by prescription against those for whom he was
 administering the conjugal estate than could a guardian against his ward or a judicial
administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil
Procedure, with relation to prescription, provides that "this chapter shall not apply ...
in the case of a continuing and subsisting trust." The surviving husband in the
administration and liquidation of the conjugal estate occupies the position of a trustee
of the highest order and is not permitted by the law to hold that estate or any portion
thereof adversely to those for whose benefit the law imposes upon him the duty of
administration and liquidation. No liquidation was ever made by Lasam — hence, the
conjugal property which came into his possession on the death of his wife in
September, 1908, still remains conjugal property, a continuing and subsisting trust. He
should have made a liquidation immediately (desde luego). He cannot now be
permitted to take advantage of his own wrong. One of the conditions of title by
prescription (section 41, Code of Civil Procedure) is possession "under a claim of title
exclusive of any other right". For a trustee to make such a claim would be a manifest
fraud.
And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated
everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters.
PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but
merely as approving past and authorizing future dispositions made by Hodges in a wholesale and general
manner, would necessarily render the said orders void for being violative of the provisions of Rule 89
governing the manner in which such dispositions may be made and how the authority therefor and
approval thereof by the probate court may be secured. If We sustained such a view, the result would only
be that the said orders should be declared ineffective either way they are understood, considering We have
already seen it is legally impossible to consider them as adjudicatory. As a matter of fact, however, what
surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such point
of view, the supposed irregularity would involve no more than some non-jurisdictional technicalities of
procedure, which have for their evident fundamental purpose the protection of parties interested in the
estate, such as the heirs, its creditors, particularly the government on account of the taxes due it; and since
it is apparent here that none of such parties are objecting to said orders or would be prejudiced by the
unobservance by the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor
impediment to Our giving sanction to the blanket approval and authority contained in said orders. This
solution is definitely preferable in law and in equity, for to view said orders in the sense suggested by PCIB
would result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas
reading them the other way will not cause any prejudice to anyone, and, withal, will give peace of mind and
stability of rights to the innocent parties who relied on them in good faith, in the light of the peculiar
pertinent provisions of the will of said decedent.
Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of
"One-half of all the items designated in the balance sheet, copy of which is hereto attached and marked as
"Annex A"." Although, regrettably, no copy of said Annex A appears in the records before Us, We take
judicial notice, on the basis of the undisputed facts in these cases, that the same consists of considerable
real and other personal kinds of properties. And since, according to her will, her husband was to be the sole
owner thereof during his lifetime, with full power and authority to dispose of any of them, provided that
should there be any remainder upon his death, such remainder would go to her brothers and sisters, and
furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all of them,
and, on the contrary, the indications are rather to the effect that he had kept them more or less intact, it
cannot truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak
of. It is Our conclusion, therefore, that properties do exist which constitute such estate, hence Special
Proceedings 1307 should not yet be closed.
Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said
proceeding. There is no showing that she has ever been legally removed as such, the attempt to replace her
with Mr. Benito Lopez without authority from the Court having been expressly held ineffective by Our
resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing
that it is not questioning said respondent's status as such administratrix. Indeed, it is not clear that PCIB
has any standing to raise any objection thereto, considering it is a complete stranger insofar as the estate of
Mrs. Hodges is concerned.
It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their
conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the same
were thus commingled pro indiviso and, consequently, the properties pertaining to the estate of each of the
spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should
administer everything, and all that respondent Magno can do for the time being is to wait until the
properties constituting the remaining estate of Mrs. Hodges have been duly segregated and delivered to her
for her own administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party
having a claim of ownership to some properties included in the inventory of an administrator of the estate
of a decedent, (here that of Hodges) and who normally has no right to take part in the proceedings pending
the establishment of his right or title; for which as a rule it is required that an ordinary action should be
filed, since the probate court is without jurisdiction to pass with finality on questions of title between the
estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the
estate, on the other.
We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot
be compared with the claim of a third party the basis of which is alien to the pending probate proceedings.
In the present cases what gave rise to the claim of PCIB of exclusive ownership by the estate of Hodges over
all the properties of the Hodges spouses, including the share of Mrs. Hodges in the community properties,
were the orders of the trial court issued in the course of the very settlement proceedings themselves, more
specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the
root of the issue of title between the parties is something that the court itself has done in the exercise of its
probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the properties
herein involved pertain exclusively to the estate of Hodges depends on the legal meaning and effect of said
orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is
incorrect. If it was within the competence of the court to issue the root orders, why should it not be within
its authority to declare their true significance and intent, to the end that the parties may know whether or
not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of Hodges, in
his favor, to the exclusion of the other heirs of his wife instituted in her will?
At this point, it bears emphasis again that the main cause of all the present problems confronting the courts
and the parties in these cases was the failure of Hodges to secure, as executor of his wife's estate, from May,
1957 up to the time of his death in December, 1962, a period of more than five years, the final adjudication
of her estate and the closure of the proceedings. The record is bare of any showing that he ever exerted any
effort towards the early settlement of said estate. While, on the one hand, there are enough indications, as
already discuss that he had intentions of leaving intact her share of the conjugal properties so that it may
pass wholly to his co-heirs upon his death, pursuant to her will, on the other hand, by not terminating the
proceedings, his interests in his own half of the conjugal properties remained commingled pro-indiviso
with those of his co-heirs in the other half. Obviously, such a situation could not be conducive to ready
ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having
these considerations in mind, it would be giving a premium for such procrastination and rather unfair to
his co-heirs, if the administrator of his estate were to be given exclusive administration of all the properties
in question, which would necessarily include the function of promptly liquidating the conjugal partnership,
thereby identifying and segregating without unnecessary loss of time which properties should be
considered as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are
supposed to inherit equally among themselves.
To be sure, an administrator is not supposed to represent the interests of any particular party and his acts conclusion, as PCIB does, that the testamentary dispositions in question are therefore inoperative and
are deemed to be objectively for the protection of the rights of everybody concerned with the estate of the invalid.
decedent, and from this point of view, it maybe said that even if PCIB were to act alone, there should be no
fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6 of
The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light
Rule 78 fixing the priority among those to whom letters of administration should be granted that the
of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title IV, Book III)
criterion in the selection of the administrator is not his impartiality alone but, more importantly, the extent
when it is obvious that substitution occurs only when another heir is appointed in a will "so that he may
of his interest in the estate, so much so that the one assumed to have greater interest is preferred to
enter into inheritance in default of the heir originally instituted," (Article 857, id.) and, in the present case,
another who has less. Taking both of these considerations into account, inasmuch as, according to Hodges'
no such possible default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for
own inventory submitted by him as Executor of the estate of his wife, practically all their properties were
Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit,
conjugal which means that the spouses have equal shares therein, it is but logical that both estates should
but what he would not dispose of from his inheritance; rather, therefore, they are also heirs instituted
be administered jointly by representatives of both, pending their segregation from each other. Particularly
simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges
is such an arrangement warranted because the actuations so far of PCIB evince a determined, albeit
was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. It is
groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB,
partially resolutory, since it bequeaths unto Hodges the whole of her estate to be owned and enjoyed by
the administrator of his estate, to perform now what Hodges was duty bound to do as executor is to violate
him as universal and sole heir with absolute dominion over them 6 only during his lifetime, which means
the spirit, if not the letter, of Section 2 of Rule 78 which expressly provides that "The executor of an
that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other
executor shall not, as such, administer the estate of the first testator." It goes without saying that this
than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death
provision refers also to the administrator of an executor like PCIB here.
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
We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the automatically become operative upon the occurrence of the death of Hodges in the event of actual existence
death of the husband or wife, the community property shall be inventoried, administered, and liquidated, of any remainder of her estate then.
and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses
have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either."
Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as
Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of
contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but the full
spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either,
ownership thereof, although the same was to last also during his lifetime only, even as there was no
but precisely because said sentence allows or permits that the liquidation be made in either proceeding, it
restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody
is a matter of sound judicial discretion in which one it should be made. After all, the former rule referring to
other than himself. The Court sees no legal impediment to this kind of institution, in this jurisdiction or
the administrator of the husband's estate in respect to such liquidation was done away with by Act 3176,
under Philippine law, except that it cannot apply to the legitime of Hodges as the surviving spouse,
the pertinent provisions of which are now embodied in the rule just cited.
consisting of one-half of the estate, considering that Mrs. Hodges had no surviving ascendants nor
descendants. (Arts. 872, 900, and 904, New Civil Code.)
Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial
settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the
But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership
executor of the latter's will who had, as such, failed for more than five years to see to it that the same was
properties may be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil
terminated earliest, which was not difficult to do, since from ought that appears in the record, there were
Code7 should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of
no serious obstacles on the way, the estate not being indebted and there being no immediate heirs other
the Philippines at the time of her death, under said Article 16, construed in relation to the pertinent laws of
than Hodges himself. Such dilatory or indifferent attitude could only spell possible prejudice of his co-heirs,
Texas and the principle of renvoi, what should be applied here should be the rules of succession under the
whose rights to inheritance depend entirely on the existence of any remainder of Mrs. Hodges' share in the
Civil Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth of the said
community properties, and who are now faced with the pose of PCIB that there is no such remainder. Had
conjugal properties, the other fourth being, as already explained, the legitime of her husband (Art. 900, Civil
Hodges secured as early as possible the settlement of his wife's estate, this problem would not arisen. All
Code) which she could not have disposed of nor burdened with any condition (Art. 872, Civil Code). On the
things considered, We are fully convinced that the interests of justice will be better served by not
other hand, respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly
permitting or allowing PCIB or any administrator of the estate of Hodges exclusive administration of all the
she never changed nor intended to change her original residence of birth in Texas, United States of
properties in question. We are of the considered opinion and so hold that what would be just and proper is
America, and contends that, anyway, regardless of the question of her residence, she being indisputably a
for both administrators of the two estates to act conjointly until after said estates have been segregated
citizen of Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of
from each other.
said State which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs.
Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties
At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, consisting of one-half thereof. Respondent Magno further maintains that, in any event, Hodges had
viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents touching
be given effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will on the point already mentioned earlier, the genuineness and legal significance of which petitioner
provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In
fideicommissary substitution under Article 863 thereof. There is no vulgar substitution therein because the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting
there is no provision for either (1) predecease of the testator by the designated heir or (2) refusal or (3) claims of the parties were determined in these proceedings. The Court regrets, however, that it cannot do
incapacity of the latter to accept the inheritance, as required by Article 859; and neither is there a so, for the simple reason that neither the evidence submitted by the parties in the court below nor their
fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve discussion, in their respective briefs and memoranda before Us, of their respective contentions on the
the estate or any part thereof for anyone else. But from these premises, it is not correct to jump to the pertinent legal issues, of grave importance as they are, appear to Us to be adequate enough to enable Us to
render an intelligent comprehensive and just resolution. For one thing, there is no clear and reliable proof
of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of documents relied Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the
upon by respondent Magno is disputed. And there are a number of still other conceivable related issues estate of Mrs. Hodges could in any event be less than that We have fixed above.
which the parties may wish to raise but which it is not proper to mention here. In Justice, therefore, to all
the parties concerned, these and all other relevant matters should first be threshed out fully in the trial
It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing
court in the proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating
the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the rule that foreign
and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will.
laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the
parties in any proceeding, with the rare exception in instances when the said laws are already within the
To be more explicit, all that We can and do decide in connection with the petition for certiorari and actual knowledge of the court, such as when they are well and generally known or they have been actually
prohibition are: (1) that regardless of which corresponding laws are applied, whether of the Philippines or ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (5 Moran,
of Texas, and taking for granted either of the respective contentions of the parties as to provisions of the Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held:
latter,8 and regardless also of whether or not it can be proven by competent evidence that Hodges
renounced his inheritance in any degree, it is easily and definitely discernible from the inventory submitted
It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia, on November 3,
by Hodges himself, as Executor of his wife's estate, that there are properties which should constitute the
1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this
estate of Mrs. Hodges and ought to be disposed of or distributed among her heirs pursuant to her will in
end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code,
said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the
Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as certified to by the Director of the National
pertinent laws of Texas applicable to the situation herein is basically one of fact, and, considering that the
Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove
sole difference in the positions of the parties as to the effect of said laws has reference to the supposed
themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of
legitime of Hodges — it being the stand of PCIB that Hodges had such a legitime whereas Magno claims the
the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of
negative - it is now beyond controversy for all future purposes of these proceedings that whatever be the
Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that
provisions actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of
the book from which an extract was taken was printed or published under the authority of the State of West
the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact, and it
Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law
being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas, should only be
attested by the certificate of the officer having charge of the original, under the seal of the State of West
one-fourth of the conjugal estate, such contention constitutes an admission of fact, and consequently, it
Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show
would be in estoppel in any further proceedings in these cases to claim that said estate could be less,
that the extract from the laws of West Virginia was in force at the time the alleged will was executed."
irrespective of what might be proven later to be actually the provisions of the applicable laws of Texas; (3)
that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges cannot be closed at
this stage and should proceed to its logical conclusion, there having been no proper and legal adjudication No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite
or distribution yet of the estate therein involved; and (4) that respondent Magno remains and continues to to the contrary, the parties herein have presented opposing versions in their respective pleadings and
be the Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues memoranda regarding the matter. And even if We took into account that in Aznar vs. Garcia, the Court did
which, as already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in make reference to certain provisions regarding succession in the laws of Texas, the disparity in the material
fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) dates of that case and the present ones would not permit Us to indulge in the hazardous conjecture that
assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code, said provisions have not been amended or changed in the meantime.
and in the light of what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is
more than the one-fourth declared above. As a matter of fact, even our finding above about the existence of
On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:
properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the size and extent
of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as
in their pleadings included in the records on appeal, and it should accordingly yield, as to which exactly Upon the other point — as to whether the will was executed in conformity with the
those properties are, to the more concrete and specific evidence which the parties are supposed to present statutes of the State of Illinois — we note that it does not affirmatively appear from
in support of their respective positions in regard to the foregoing main legal and factual issues. In the the transcription of the testimony adduced in the trial court that any witness was
interest of justice, the parties should be allowed to present such further evidence in relation to all these examined with reference to the law of Illinois on the subject of the execution of will.
issues in a joint hearing of the two probate proceedings herein involved. After all, the court a quo has not The trial judge no doubt was satisfied that the will was properly executed by
yet passed squarely on these issues, and it is best for all concerned that it should do so in the first instance. examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of
Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed
that he could take judicial notice of the laws of Illinois under section 275 of the Code
Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-
of Civil Procedure. If so, he was in our opinion mistaken. That section authorizes the
fourth of the conjugal partnership properties, it may be mentioned here that during the deliberations, the
courts here to take judicial notice, among other things, of the acts of the legislative
point was raised as to whether or not said holding might be inconsistent with Our other ruling here also
department of the United States. These words clearly have reference to Acts of the
that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with respect to
Congress of the United States; and we would hesitate to hold that our courts can,
the order of succession and to the amount of successional rights" that may be willed by a testator which,
under this provision, take judicial notice of the multifarious laws of the various
under Article 16 of the Civil Code, are controlling in the instant cases, in view of the undisputed Texan
American States. Nor do we think that any such authority can be derived from the
nationality of the deceased Mrs. Hodges, these cases should be returned to the court a quo, so that the
broader language, used in the same section, where it is said that our courts may take
parties may prove what said law provides, it is premature for Us to make any specific ruling now on either
judicial notice of matters of public knowledge "similar" to those therein enumerated.
the validity of the testamentary dispositions herein involved or the amount of inheritance to which the
The proper rule we think is to require proof of the statutes of the States of the
brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the considered view that,
American Union whenever their provisions are determinative of the issues in any
at this stage and in the state of the records before Us, the feared inconsistency is more apparent than real.
action litigated in the Philippine courts.
 Nevertheless, even supposing that the trial court may have erred in taking judicial As recited above, there is no question that the deceased, Linnie Jane Hodges, was an
notice of the law of Illinois on the point in question, such error is not now available to American citizen. There is also no question that she was a national of the State of
the petitioner, first, because the petition does not state any fact from which it would Texas, U.S.A. Again, there is likewise no question that she had her domicile of choice in
appear that the law of Illinois is different from what the court found, and, secondly, the City of Iloilo, Philippines, as this has already been pronounced by the above-cited
because the assignment of error and argument for the appellant in this court raises no orders of the lower court, pronouncements which are by now res adjudicata (par. [a],
question based on such supposed error. Though the trial court may have acted upon See. 49, Rule 39, Rules of Court; In re Estate of Johnson, 39 Phil. 156).
pure conjecture as to the law prevailing in the State of Illinois, its judgment could not
be set aside, even upon application made within six months under section 113 of the
Article 16 of the Civil Code provides:
Code of Civil Procedure, unless it should be made to appear affirmatively that the
conjecture was wrong. The petitioner, it is true, states in general terms that the will in
question is invalid and inadequate to pass real and personal property in the State of "Real property as well as personal property is subject to the law of the country where
Illinois, but this is merely a conclusion of law. The affidavits by which the petition is it is situated.
accompanied contain no reference to the subject, and we are cited to no authority in
the appellant's brief which might tend to raise a doubt as to the correctness of the
However, intestate and testamentary successions, both with respect to the order of
conclusion of the trial court. It is very clear, therefore, that this point cannot be urged
succession and to the amount of successional rights and to the intrinsic validity of
as of serious moment.
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
It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, regardless of the country wherein said property may be found."
the parties in a given case do not have any controversy or are more or less in agreement, the Court may
take it for granted for the purposes of the particular case before it that the said laws are as such virtual
Thus the aforecited provision of the Civil Code points towards the national law of the
agreement indicates, without the need of requiring the presentation of what otherwise would be the
deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession "both
competent evidence on the point. Thus, in the instant cases wherein it results from the respective
with respect to the order of succession and to the amount of successional rights and to
contentions of both parties that even if the pertinent laws of Texas were known and to be applied, the
the intrinsic validity of testamentary provisions ...". But the law of Texas, in its
amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above, the absence of
conflicts of law rules, provides that the domiciliary law governs the testamentary
evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any
dispositions and successional rights over movables or personal property, while the
consequence, unless the purpose is to show that it could be more. In other words, since PCIB, the
law of the situs governs with respect to immovable property. Such that with respect to
petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the pertinent laws of
both movable property, as well as immovable property situated in the Philippines, the
Texas, the amount of the estate in controversy is just as We have determined it to be, and respondent-
law of Texas points to the law of the Philippines.
appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically:
Inasmuch as Article 16 of the Civil Code provides that "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 wherein
The subject of successional rights.
said property may be found", while the law of Texas (the Hodges spouses being
nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the
domiciliary law (in this case Philippine law) governs the testamentary dispositions
and successional rights over movables or personal properties, while the law of the
situs (in this case also Philippine law with respect to all Hodges properties located in
the Philippines), governs with respect to immovable properties, and applying
therefore the 'renvoi doctrine' as enunciated and applied by this Honorable Court in
the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be
no question that Philippine law governs the testamentary dispositions contained in
the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the
successional rights to her estate, both with respect to movables, as well as to
immovables situated in the Philippines.
Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied by this
Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31, 1963),
there can be no question that Philippine law governs the testamentary provisions in
the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the
successional rights to her estate, both with respect to movables, as well as
immovables situated in the Philippines.
Under Philippine law, as it is under the law of Texas, the conjugal or community
property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon the
death of the latter, is to be divided into two, one-half pertaining to each of the spouses,
as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the
conjugal partnership property immediately pertained to Charles Newton Hodges as
his own share, and not by virtue of any successional rights. There can be no question
about this.
Again, Philippine law, or more specifically, Article 900 of the Civil Code provides:

If the only survivor is the widow or widower, she or he shall be

In its main brief dated February 26, 1968, PCIB asserts:
entitled to one-half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other half.
The law governing successional rights.
 If the marriage between the surviving spouse and the testator
was solemnized in articulo mortis, and the testator died within
three months from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-third of the
hereditary estate, except when they have been living as husband
and wife for more than five years. In the latter case, the legitime
of the surviving spouse shall be that specified in the preceding
paragraph.
This legitime of the surviving spouse cannot be burdened by a fideicommisary
substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art,
872, Civil code). It is clear, therefore, that in addition to one-half of the conjugal
partnership property as his own conjugal share, Charles Newton Hodges was also
immediately entitled to one-half of the half conjugal share of the deceased, Linnie Jane
Hodges, or one-fourth of the entire conjugal property, as his legitime.
One-fourth of the conjugal property therefore remains at issue.
In the summary of its arguments in its memorandum dated April 30, 1968, the following appears:
Briefly, the position advanced by the petitioner is:
a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20,
petition). This is now a matter of res adjudicata (p. 20, petition).
b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law
governs the successional rights over the properties left by the deceased, Linnie Jane
Hodges (pp. 20-21, petition).
c. That under Philippine as well as Texas law, one-half of the Hodges properties
pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not
questioned by the respondents.
d. That under Philippine law, the deceased, Charles Newton Hodges, automatically
inherited one-half of the remaining one-half of the Hodges properties as his legitime
(p. 21, petition).
e. That the remaining 25% of the Hodges properties was inherited by the deceased,
Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition).
Upon the death of Charles Newton Hodges, the substitution 'provision of the will of the
deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 23-25,
petition).
f. That the deceased, Charles Newton Hodges, asserted his sole ownership of the
Hodges properties and the probate court sanctioned such assertion (pp. 25-29,
petition). He in fact assumed such ownership and such was the status of the
properties as of the time of his death (pp. 29-34, petition).
Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option.
On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of
legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal properties.
It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the
Civil Code in relation to the corresponding laws of Texas would result in that the Philippine laws on
succession should control. On that basis, as We have already explained above, the estate of Mrs. Hodges is
the remainder of one-fourth of the conjugal partnership properties, considering that We have found that
there is no legal impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her
brothers and sisters and, further, that the contention of PCIB that the same constitutes an inoperative
testamentary substitution is untenable. As will be recalled, PCIB's position that there is no such estate of
Mrs. Hodges is predicated exclusively on two propositions, namely: (1) that the provision in question in
Mrs. Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in any
event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had already finally
and irrevocably adjudicated to her husband the whole free portion of her estate to the exclusion of her
brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and
memoranda does PCIB 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." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat,
L-23023, Aug. 31, 1968, 24 SCRA 1018).
Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be
held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would
depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when
there is no legitime provided therein, and (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 Hodges after the death of
his wife 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
remain with the estate at the time of the death 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 Mrs. Hodges 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 construction of
the will of Mrs. Hodges 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.
THE APPEALS Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest,
and then proceed to the more complicated ones in that order, without regard to the numerical sequence of
the assignments of error in appellant's brief or to the order of the discussion thereof by counsel.
A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily
reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had already
adjudicated unto himself all the properties constituting his wife's share of the conjugal partnership, Assignments of error numbers
allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said LXXII, LXXVII and LXXVIII.
date, no longer any estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the
various assailed orders sanctioning her actuations as such are not in accordance with law. Such being the
These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the
case, with the foregoing resolution holding such posture to be untenable in fact and in law and that it is in
deeds of sale (therein referred to involving properties in the name of Hodges) should be signed jointly by
the best interest of justice that for the time being the two estates should be administered conjointly by the
the PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the
respective administrators of the two estates, it should follow that said assignments of error have lost their
Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that
fundamental reasons for being. There are certain matters, however, relating peculiarly to the respective
Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order
orders in question, if commonly among some of them, which need further clarification. For instance, some
of October 27, 1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3)
of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect to
the other order also dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be
many of said orders, PCIB further claims that either the matters involved were not properly within the
deposited in the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that
probate jurisdiction of the trial court or that the procedure followed was not in accordance with the rules.
whatever cash collections (that) had been deposited in the account of either of the estates should be
Hence, the necessity of dealing separately with the merits of each of the appeals.
withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the
estate of C. N. Hodges; ... (d) (that) Administratrix Magno — allow the PCIB to inspect whatever records,
Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to the documents and papers she may have in her possession, in the same manner that Administrator PCIB is also
failure of Hodges and the lower court to liquidate the conjugal partnership, to recognize appellee Magno as directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in
Administratrix of the Testate Estate of Mrs. Hodges which is still unsegregated from that of Hodges is not to its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all
say, without any qualification, that she was therefore authorized to do and perform all her acts complained records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like
of in these appeals, sanctioned though they might have been by the trial court. As a matter of fact, it is such manner, the accountant or any authorized representative of the estate of C. N. Hodges shall have access to
commingling pro-indiviso of the two estates that should deprive appellee of freedom to act independently the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges",
from PCIB, as administrator of the estate of Hodges, just as, for the same reason, the latter should not have (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the motion for
authority to act independently from her. And considering that the lower court failed to adhere consistently reconsideration of the order of October 27, 1965 last referred to. (pp. 455-456, id.)
to this basic point of view, by allowing the two administrators to act independently of each other, in the
various instances already noted in the narration of facts above, the Court has to look into the attendant
As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-
circumstances of each of the appealed orders to be able to determine whether any of them has to be set
mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8, 1967,
aside or they may all be legally maintained notwithstanding the failure of the court a quo to observe the
and, more importantly, with what We have said the trial court should have always done pending the
pertinent procedural technicalities, to the end only that graver injury to the substantive rights of the parties
liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the
concerned and unnecessary and undesirable proliferation of incidents in the subject proceedings may be
arrangement We are ordering, by this decision, to be followed. Stated differently, since the questioned
forestalled. In other words, We have to determine, whether or not, in the light of the unusual circumstances
orders provide for joint action by the two administrators, and that is precisely what We are holding out to
extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox approach, so as
have been done and should be done until the two estates are separated from each other, the said orders
to cause the least disturbance in rights already being exercised by numerous innocent third parties, even if
must be affirmed. Accordingly the foregoing assignments of error must be, as they are hereby overruled.
to do so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules.

Assignments of error Numbers LXVIII

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that
to LXXI and LXXIII to LXXVI.
might result later from PCIB's continuing to administer all the community properties, notwithstanding the
certainty of the existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the
meantime with a relative degree of regularity, that the Court ordered in the resolution of September 8, The orders complained of under these assignments of error commonly deal with expenditures made by
1972 the modification of the injunction issued pursuant to the resolutions of August 8, October 4 and appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her administration
December 6, 1967, by virtue of which respondent Magno was completely barred from any participation in thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into question the payment of
the administration of the properties herein involved. In the September 8 resolution, We ordered that, attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to
pending this decision, Special Proceedings 1307 and 1672 should proceed jointly and that the respective the heirs of Mrs. Hodges.
administrators therein "act conjointly — none of them to act singly and independently of each other for any
purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or administering all
More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six
the said properties to the exclusion of the administratrix of Mrs. Hodges' estate might place the heirs of
employees of the court and three other persons for services in copying the court records to enable the
Hodges at an unduly advantageous position which could result in considerable, if not irreparable, damage
lawyers of the administration to be fully informed of all the incidents in the proceedings. The
or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this date, more
reimbursement was approved as proper legal expenses of administration per the order of December 19,
than a year after said resolution, the same has not been given due regard, as may be gleaned from the fact
1964, (pp. 221-222, id.) and repeated motions for reconsideration thereof were denied by the orders of
that recently, respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for
January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-456, id.)
alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof
On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the trial court's order of
have all been denied soon after they were filed.9
November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. attorney's fees, may be paid without awaiting the determination and segregation of the estate of Mrs.
Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Hodges.
Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who
had agreed "to prosecute and defend their interests (of the Parties of the First Part) in certain cases now
Withal, the weightiest consideration in connection with the point under discussion is that at this stage of
pending litigation in the Court of First Instance of Iloilo —, more specifically in Special Proceedings 1307
the controversy among the parties herein, the vital issue refers to the existence or non-existence of the
and 1672 —" (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign whatever check or
estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the appointed administratrix of
checks maybe needed to implement the approval of the agreement annexed to the motion" as well as the
the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable
"administrator of the estate of C. N. Hodges — to countersign the said check or checks as the case maybe."
from the interest of the brothers and sisters of Mrs. Hodges. Thus, it should not be wondered why both
(pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16,
Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement
1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's order of October 27, 1965,
should be more convenient and economical to both. The possibility of conflict of interest between Magno
already referred to above, insofar as it orders that "PCIB should counter sign the check in the amount of
and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather insubstantial.
P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of Linnie Jane
Besides, should any substantial conflict of interest between them arise in the future, the same would be a
Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.)
matter that the probate court can very well take care of in the course of the independent proceedings in
Case No. 1307 after the corresponding segregation of the two subject estates. We cannot perceive any
Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such cogent reason why, at this stage, the estate and the heirs of Mrs. Hodges cannot be represented by a
estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence what were common counsel.
authorized were in effect expenditures from the estate of Hodges. As We have already demonstrated in Our
resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in
Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes
whichever way the remaining issues between the parties in these cases are ultimately resolved, 10 the final
premature partial distribution of the estate of Mrs. Hodges is also a matter in which neither PCIB nor the
result will surely be that there are properties constituting the estate of Mrs. Hodges of which Magno is the
heirs of Hodges have any interest. In any event, since, as far as the records show, the estate has no creditors
current administratrix. It follows, therefore, that said appellee had the right, as such administratrix, to hire
and the corresponding estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges,
the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she
have already been paid, 11 no prejudice can caused to anyone by the comparatively small amount of
has not yet collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to
attorney's fees in question. And in this connection, it may be added that, although strictly speaking, the
her credit.
attorney's fees of the counsel of an administrator is in the first instance his personal responsibility,
reimbursable later on by the estate, in the final analysis, when, as in the situation on hand, the attorney-in-
Of course, she is also entitled to the services of counsel and to that end had the authority to enter into fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the
contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And as regards sanction given to said fees by the probate court is proper.
to the reasonableness of the amount therein stipulated, We see no reason to disturb the discretion
exercised by the probate court in determining the same. We have gone over the agreement, and considering
For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should be as they are
the obvious size of the estate in question and the nature of the issues between the parties as well as the
hereby overruled.
professional standing of counsel, We cannot say that the fees agreed upon require the exercise by the Court
of its inherent power to reduce it.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the
to XXX VI, XLI to XLIII and L.
heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment under it, insofar as
counsels' services would redound to the benefit of the heirs, would be in the nature of advances to such
heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail. These assignments of error deal with the approval by the trial court of various deeds of sale of real
properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of the
Estate of Mrs. Hodges, purportedly in implementation of corresponding supposed written "Contracts to
Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that
Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and
juridically and factually the interests involved in her estate are distinct and different from those involved in
December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the,
her estate of Hodges and vice versa. Insofar as the matters related exclusively to the estate of Mrs. Hodges,
contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores
PCIB, as administrator of the estate of Hodges, is a complete stranger and it is without personality to
executed on February 5, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the
question the actuations of the administratrix thereof regarding matters not affecting the estate of Hodges.
appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased,
Actually, considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible cause
Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to
for apprehension that when the two estates are segregated from each other, the amount of attorney's fees
sell between the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August
stipulated in the agreement in question will prejudice any portion that would correspond to Hodges' estate.
25, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Lorenzo
Carles, executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges, and
And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on the the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell between the
attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they appear to deceased, Charles Newton Hodges, and the appellee, Florenia Barrido, executed on February 21, 1958; the
have been duly represented in the agreement itself by their attorney-in-fact, James L. Sullivan and have not contract to sell between the deceased, Charles Newton Hodges, and the appellee, Purificacion Coronado,
otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in these executed on August 14, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the
appeals. As a matter of fact, as ordered by the trial court, all the expenses in question, including the appellee, Graciano Lucero, executed on November 27, 1961; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to
sell between the deceased, Charles Newton Hodges, and the appellee, Melquiades Batisanan, executed on
June 9, 1959; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar
Causing, executed on February 10, 1959 and the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815."
Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs.
Hodges, her husband was to have dominion over all her estate during his lifetime, it was as absolute owner
of the properties respectively covered by said sales that he executed the aforementioned contracts to sell,
and consequently, upon his death, the implementation of said contracts may be undertaken only by the
administrator of his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same
theory is invoked with particular reference to five other sales, in which the respective "contracts to sell" in
favor of these appellees were executed by Hodges before the death of his wife, namely, those in favor of
appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa
Premaylon.
Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his
wife, those enumerated in the quotation in the immediately preceding paragraph, it is quite obvious that
PCIB's contention cannot be sustained. As already explained earlier, 1 1* all proceeds of remunerative
transfers or dispositions made by Hodges after the death of his wife should be deemed as continuing to be
parts of her estate and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the
sense that should there be no showing that such proceeds, whether in cash or property have been
subsequently conveyed or assigned subsequently by Hodges to any third party by acts inter vivos with the
result that they could not thereby belong to him anymore at the time of his death, they automatically
became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions
which are exactly of this nature. Consequently, the payments made by the appellees should be considered
as payments to the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs
specified in the will.
The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his wife,
present a different situation. At first blush, it would appear that as to them, PCIB's position has some degree
of plausibility. Considering, however, that the adoption of PCIB's theory would necessarily have
tremendous repercussions and would bring about considerable disturbance of property rights that have
somehow accrued already in favor of innocent third parties, the five purchasers aforenamed, the Court is
inclined to take a pragmatic and practical view of the legal situation involving them by overlooking the
possible technicalities in the way, the non-observance of which would not, after all, detract materially from
what should substantially correspond to each and all of the parties concerned.
To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as
possible, they should not be made to suffer any prejudice on account of judicial controversies not of their
own making. What is more, the transactions they rely on were submitted by them to the probate court for
approval, and from already known and recorded actuations of said court then, they had reason to believe
that it had authority to act on their motions, since appellee Magno had, from time to time prior to their
transactions with her, been allowed to act in her capacity as administratrix of one of the subject estates
either alone or conjointly with PCIB. All the sales in question were executed by Magno in 1966 already, but
before that, the court had previously authorized or otherwise sanctioned expressly many of her act as
administratrix involving expenditures from the estate made by her either conjointly with or independently
from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyers-appellees merely
followed precedents in previous orders of the court. Accordingly, unless the impugned orders approving
those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them.
It is quite apparent from the record that the properties covered by said sales are equivalent only to a
fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same would
finally be held to be only one-fourth of the conjugal properties of the spouses as of the time of her death or,
to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on May 12,
1958. In none of its numerous, varied and voluminous pleadings, motions and manifestations has PCIB
claimed any possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the
said properties covered by the questioned deeds of sale executed by appellee Magno may be treated as
among those corresponding to the estate of Mrs. Hodges, which would have been actually under her control
and administration had Hodges complied with his duty to liquidate the conjugal partnership. Viewing the
situation in that manner, the only ones who could stand to be prejudiced by the appealed orders referred to
in the assignment of errors under discussion and who could, therefore, have the requisite interest to
question them would be only the heirs of Mrs. Hodges, definitely not PCIB.
It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he
had acted as executor of the will of his wife, he did not have to submit those contracts to the court nor
follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to
127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other
purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court
"to continue the business in which he was engaged and to perform acts which he had been doing while the
deceased was living", (Order of May 27) which according to the motion on which the court acted was "of
buying and selling personal and real properties", and "to execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes
conveyed in the last will and testament of the latter." (Order of December 14) In other words, if Hodges
acted then as executor, it can be said that he had authority to do so by virtue of these blanket orders, and
PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the terms of
the order itself for its main contention in these cases. On the other hand, if, as PCIB contends, he acted as
heir-adjudicatee, the authority given to him by the aforementioned orders would still suffice.
As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in
question were based were executed by Hodges before or after the death of his wife. In a word, We hold, for
the reasons already stated, that the properties covered by the deeds being assailed pertain or should be
deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity attending the
actuations of the trial court may be invoked only by her heirs, not by PCIB, and since the said heirs are not
objecting, and the defects pointed out not being strictly jurisdictional in nature, all things considered,
particularly the unnecessary disturbance of rights already created in favor of innocent third parties, it is
best that the impugned orders are not disturbed.
In view of these considerations, We do not find sufficient merit in the assignments of error under
discussion.
Assignments of error V to VIII,
XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.
All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees,
appellees herein, of the terms and conditions embodied in the deeds of sale referred to in the assignments
of error just discussed. It is claimed that some of them never made full payments in accordance with the
respective contracts to sell, while in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo
Catedral and Salvador S. Guzman, the contracts with them had already been unilaterally cancelled by PCIB
pursuant to automatic rescission clauses contained in them, in view of the failure of said buyers to pay
arrearages long overdue. But PCIB's posture is again premised on its assumption that the properties
covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have already held
above that, it being evident that a considerable portion of the conjugal properties, much more than the
properties covered by said deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid
unnecessary legal complications, it can be assumed that said properties form part of such estate. From this
point of view, it is apparent again that the questions, whether or not it was proper for appellee Magno to
have disregarded the cancellations made by PCIB, thereby reviving the rights of the respective buyers-
appellees, and, whether or not the rules governing new dispositions of properties of the estate were strictly
followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges as the persons designated to
inherit the same, or perhaps the government because of the still unpaid inheritance taxes. But, again, since
there is no pretense that any objections were raised by said parties or that they would necessarily be
prejudiced, the contentions of PCIB under the instant assignments of error hardly merit any consideration.
Assignments of error IX to XII, XIX
to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.
PCIB raises under these assignments of error two issues which according to it are fundamental, namely: (1)
that in approving the deeds executed by Magno pursuant to contracts to sell already cancelled by it in the
performance of its functions as administrator of the estate of Hodges, the trial court deprived the said
estate of the right to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court
"arrogated unto itself, while acting as a probate court, the power to determine the contending claims of
third parties against the estate of Hodges over real property," since it has in effect determined whether or
not all the terms and conditions of the respective contracts to sell executed by Hodges in favor of the
buyers-appellees concerned were complied with by the latter. What is worse, in the view of PCIB, is that the
court has taken the word of the appellee Magno, "a total stranger to his estate as determinative of the
issue".
Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to
ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the sales in their
favor that is decisive. Since We have already held that the properties covered by the contracts in question
should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a
complete stranger in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs
who are the real parties in interest having the right to oppose the consummation of the impugned sales are
not objecting, and that they are the ones who are precisely urging that said sales be sanctioned, the
assignments of error under discussion have no basis and must accordingly be as they are hereby overruled.
With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to
surrender the respective owner's duplicate certificates of title over the properties covered by the sales in
question and otherwise directing the Register of Deeds of Iloilo to cancel said certificates and to issue new
transfer certificates of title in favor of the buyers-appellees, suffice it to say that in the light of the above
discussion, the trial court was within its rights to so require and direct, PCIB having refused to give way, by
withholding said owners' duplicate certificates, of the corresponding registration of the transfers duly and
legally approved by the court.
Assignments of error LXII to LXVII
All these assignments of error commonly deal with the appeal against orders favoring appellee Western
Institute of Technology. As will be recalled, said institute is one of the buyers of real property covered by a
contract to sell executed by Hodges prior to the death of his wife. As of October, 1965, it was in arrears in
the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it
received under date of October 4, 1965 and October 20, 1965, letters of collection, separately and
respectively, from PCIB and appellee Magno, in their respective capacities as administrators of the distinct
estates of the Hodges spouses, albeit, while in the case of PCIB it made known that "no other arrangement
can be accepted except by paying all your past due account", on the other hand, Magno merely said she
would "appreciate very much if you can make some remittance to bring this account up-to-date and to
reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute
filed a motion which, after alleging that it was ready and willing to pay P20,000 on account of its overdue
installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the
aforesaid amount with the court pending resolution of the conflicting claims of the administrators." Acting
on this motion, on November 23, 1965, the trial court issued an order, already quoted in the narration of
facts in this opinion, holding that payment to both or either of the two administrators is "proper and legal",
and so "movant — can pay to both estates or either of them", considering that "in both cases (Special
Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto."
The arguments under the instant assignments of error revolve around said order. From the procedural
standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion, that said motion
was heard, considered and resolved on November 23, 1965, whereas the date set for its hearing was
November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to
the substantive aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of the
probate court and that the order authorized payment to a person other than the administrator of the estate
of Hodges with whom the Institute had contracted.
The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear
proof to the contrary, that the lower court had acted regularly by seeing to it that appellant was duly
notified. On the other hand, there is nothing irregular in the court's having resolved the motion three days
after the date set for hearing the same. Moreover, the record reveals that appellants' motion for
reconsideration wherein it raised the same points was denied by the trial court on March 7, 1966 (p. 462,
Green R. on A.) Withal, We are not convinced that the relief granted is not within the general intent of the
Institute's motion.
Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere
reiterations of contentions We have already resolved above adversely to appellants' position. Incidentally,
We may add, perhaps, to erase all doubts as to the propriety of not disturbing the lower court's orders
sanctioning the sales questioned in all these appeal s by PCIB, that it is only when one of the parties to a
contract to convey property executed by a deceased person raises substantial objections to its being
implemented by the executor or administrator of the decedent's estate that Section 8 of Rule 89 may not
apply and, consequently, the matter has, to be taken up in a separate action outside of the probate court;
but where, as in the cases of the sales herein involved, the interested parties are in agreement that the
conveyance be made, it is properly within the jurisdiction of the probate court to give its sanction thereto
pursuant to the provisions of the rule just mentioned. And with respect to the supposed automatic
rescission clauses contained in the contracts to sell executed by Hodges in favor of herein appellees, the
effect of said clauses depend on the true nature of the said contracts, despite the nomenclature appearing
therein, which is not controlling, for if they amount to actual contracts of sale instead of being mere
unilateral accepted "promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) thepactum
commissorium or the automatic rescission provision would not operate, as a matter of public policy, unless
there has been a previous notarial or judicial demand by the seller (10 Manresa 263, 2nd ed.) neither of
which have been shown to have been made in connection with the transactions herein involved.
Consequently, We find no merit in the assignments of error
Number LXII to LXVII.
SUMMARY
Considering the fact that this decision is unusually extensive and that the issues herein taken up and
resolved are rather numerous and varied, what with appellant making seventy-eight assignments of error
affecting no less than thirty separate orders of the court a quo, if only to facilitate proper understanding of
the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of the
whole situation be made together with our conclusions in regard to its various factual and legal aspects. .
The instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie
Jane Hodges, who predeceased him by about five years and a half. In their respective wills which were
executed on different occasions, each one of them provided mutually as follows: "I give, devise and
bequeath all of the rest, residue and remainder (after funeral and administration expenses, taxes and
debts) of my estate, both real and personal, wherever situated or located, to my beloved (spouse) to have
and to hold unto (him/her) — during (his/her) natural lifetime", subject to the condition that upon the
death of whoever of them survived the other, the remainder of what he or she would inherit from the other
is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter.
Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special
administrator of her estate, and in a separate order of the same date, he was "allowed or authorized to
continue the business in which he was engaged, (buying and selling personal and real properties) and to
perform acts which he had been doing while the deceased was living." Subsequently, on December 14,
1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and had qualified as
Executor thereof, upon his motion in which he asserted that he was "not only part owner of the properties
left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", the
trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court
considers well taken, ... all the sales, conveyances, leases and mortgages of all properties left by the
deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED.
The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of
the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the
last will and testament of the latter."
Annually thereafter, Hodges submitted to the court the corresponding statements of account of his
administration, with the particularity that in all his motions, he always made it point to urge the that "no
person interested in the Philippines of the time and place of examining the herein accounts be given notice
as herein executor is the only devisee or legatee of the deceased in accordance with the last will and
testament already probated by the Honorable Court." All said accounts approved as prayed for.
Nothing else appears to have been done either by the court a quo or Hodges until December 25, 1962.
Importantly to be the provision in the will of Mrs. Hodges that her share of the conjugal partnership was to
be inherited by her husband "to have and to hold unto him, my said husband, during his natural lifetime"
and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and remainder of
my estate, both real and personal, wherever situated or located, to be equally divided among my brothers
and sisters, share and share alike", which provision naturally made it imperative that the conjugal
partnership be promptly liquidated, in order that the "rest, residue and remainder" of his wife's share
thereof, as of the time of Hodges' own death, may be readily known and identified, no such liquidation was
ever undertaken. The record gives no indication of the reason for such omission, although relatedly, it
appears therein:
1. That in his annual statement submitted to the court of the net worth of C. N. Hodges
and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the
combined income of the conjugal partnership and then merely divided the same
equally between himself and the estate of the deceased wife, and, more importantly,
he also, as consistently, filed corresponding separate income tax returns for each
calendar year for each resulting half of such combined income, thus reporting that the
estate of Mrs. Hodges had its own income distinct from his own.
2. That when the court a quo happened to inadvertently omit in its order probating
the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon then already
deceased, Hodges lost no time in asking for the proper correction "in order that the
heirs of deceased Roy Higdon may not think or believe they were omitted, and that
they were really interested in the estate of the deceased Linnie Jane Hodges".
3. That in his aforementioned motion of December 11, 1957, he expressly stated that
"deceased Linnie Jane Hodges died leaving no descendants or ascendants except
brothers and sisters and herein petitioner as the surviving spouse, to inherit the
properties of the decedent", thereby indicating that he was not excluding his wife's
brothers and sisters from the inheritance.
4. That Hodges allegedly made statements and manifestations to the United States
inheritance tax authorities indicating that he had renounced his inheritance from his
wife in favor of her other heirs, which attitude he is supposed to have reiterated or
ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in
which he even purportedly stated that his reason for so disclaiming and renouncing
his rights under his wife's will was to "absolve (him) or (his) estate from any liability
for the payment of income taxes on income which has accrued to the estate of Linnie
Jane Hodges", his wife, since her death.
On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and
appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of the Testate Estate of
Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special Administratrix of the estate of Charles
Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is still kept in his
vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to
waste, unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.)
although, soon enough, on December 29, 1962, a certain Harold K. Davies was appointed as her Co-Special
Administrator, and when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was
opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said
estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced
eventually by petitioner PCIB alone.
At the outset, the two probate proceedings appear to have been proceeding jointly, with each administrator
acting together with the other, under a sort of modus operandi. PCIB used to secure at the beginning the
conformity to and signature of Magno in transactions it wanted to enter into and submitted the same to the
court for approval as their joint acts. So did Magno do likewise. Somehow, however, differences seem to
have arisen, for which reason, each of them began acting later on separately and independently of each
other, with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted and
paid handsomely, conducted the business of the estate independently of Magno and otherwise acted as if all
the properties appearing in the name of Charles Newton Hodges belonged solely and only to his estate, to
the exclusion of the brothers and sisters of Mrs. Hodges, without considering whether or not in fact any of
said properties corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs.
Hodges. On the other hand, Magno made her own expenditures, hired her own lawyers, on the premise that
there is such an estate of Mrs. Hodges, and dealth with some of the properties, appearing in the name of
Hodges, on the assumption that they actually correspond to the estate of Mrs. Hodges. All of these
independent and separate actuations of the two administrators were invariably approved by the trial court
upon submission. Eventually, the differences reached a point wherein Magno, who was more cognizant
than anyone else about the ins and outs of the businesses and properties of the deceased spouses because
of her long and intimate association with them, made it difficult for PCIB to perform normally its functions
as administrator separately from her. Thus, legal complications arose and the present judicial controversies
came about.
Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval
by the court a quo of the annual statements of account of Hodges, PCIB holds to the view that the estate of
Mrs. Hodges has already been in effect closed with the virtual adjudication in the mentioned orders of her
whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any estate to
administer and the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by
Hodges. Mainly upon such theory, PCIB has come to this Court with a petition for certiorari and prohibition
praying that the lower court's orders allowing respondent Magno to continue acting as administratrix of
the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as detailed earlier
above, be set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her
brothers and sisters in the manner therein specified is in the nature of a testamentary substitution, but
inasmuch as the purported substitution is not, in its view, in accordance with the pertinent provisions of
the Civil Code, it is ineffective and may not be enforced. It is further contended that, in any event, inasmuch
as the Hodges spouses were both residents of the Philippines, following the decision of this Court in Aznar
vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-
half of her share of the conjugal partnership, notwithstanding the fact that she was citizen of Texas, U.S.A.,
in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code. Initially, We issued a
preliminary injunction against Magno and allowed PCIB to act alone.
At the same time PCIB has appealed several separate orders of the trial court approving individual acts of
appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for
specified fees and incurring expenses of administration for different purposes and executing deeds of sale
in favor of her co-appellees covering properties which are still registered in the name of Hodges,
purportedly pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being
questioned on jurisdictional and procedural grounds directly or indirectly predicated on the principal
theory of appellant that all the properties of the two estates belong already to the estate of Hodges
exclusively.
On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December
14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and contends that they
were no more than the court's general sanction of past and future acts of Hodges as executor of the will of
his wife in due course of administration. As to the point regarding substitution, her position is that what
was given by Mrs. Hodges to her husband under the provision in question was a lifetime usufruct of her
share of the conjugal partnership, with the naked ownership passing directly to her brothers and sisters.
Anent the application of Article 16 of the Civil Code, she claims that the applicable law to the will of Mrs.
Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs.
Hodges cannot be less than her share or one-half of the conjugal partnership properties. She further
maintains that, in any event, Hodges had as a matter of fact and of law renounced his inheritance from his
wife and, therefore, her whole estate passed directly to her brothers and sisters effective at the latest upon
the death of Hodges.
In this decision, for the reasons discussed above, and upon the issues just summarized, We overrule PCIB's
contention that the orders of May 27, 1957 and December 14, 1957 amount to an adjudication to Hodges of
the estate of his wife, and We recognize the present existence of the estate of Mrs. Hodges, as consisting of
properties, which, while registered in that name of Hodges, do actually correspond to the remainder of the
share of Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of
her will, any portion of said share still existing and undisposed of by her husband at the time of his death
should go to her brothers and sisters share and share alike. Factually, We find that the proven
circumstances relevant to the said orders do not warrant the conclusion that the court intended to make
thereby such alleged final adjudication. Legally, We hold that the tenor of said orders furnish no basis for
such a conclusion, and what is more, at the time said orders were issued, the proceedings had not yet
reached the point when a final distribution and adjudication could be made. Moreover, the interested
parties were not duly notified that such disposition of the estate would be done. At best, therefore, said
orders merely allowed Hodges to dispose of portions of his inheritance in advance of final adjudication,
which is implicitly permitted under Section 2 of Rule 109, there being no possible prejudice to third parties,
inasmuch as Mrs. Hodges had no creditors and all pertinent taxes have been paid.
More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the
assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges inherited
by her brothers and sisters consists of one-fourth of the community estate of the spouses at the time of her
death, minus whatever Hodges had gratuitously disposed of therefrom during the period from, May 23,
1957, when she died, to December 25, 1962, when he died provided, that with regard to remunerative
dispositions made by him during the same period, the proceeds thereof, whether in cash or property,
should be deemed as continuing to be part of his wife's estate, unless it can be shown that he had
subsequently disposed of them gratuitously.
At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what
would be the estate of Mrs. Hodges under them is basically one of fact, and considering the respective
positions of the parties in regard to said factual issue, it can already be deemed as settled for the purposes
of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers and
sisters by virtue of her will may not be less than one-fourth of the conjugal estate, it appearing that the
difference in the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the view
that under the laws of Texas, there is such a legitime of one-fourth of said conjugal estate and Magno
contending, on the other hand, that there is none. In other words, hereafter, whatever might ultimately
appear, at the subsequent proceedings, to be actually the laws of Texas on the matter would no longer be of
any consequence, since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges
should be less than as contended by it now, for admissions by a party related to the effects of foreign laws,
which have to be proven in our courts like any other controverted fact, create estoppel.
In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her
brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on the
other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs.
Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition,
however, that the latter would have complete rights of dominion over the whole estate during his lifetime
and what would go to the former would be only the remainder thereof at the time of Hodges' death. In
other words, whereas they are not to inherit only in case of default of Hodges, on the other hand, Hodges
was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary
substitution are absent; the provision in question is a simple case of conditional simultaneous institution of
heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative
contingency of which is coincidental with that of the suspensive condition of the institution of his brothers
and sisters-in-law, which manner of institution is not prohibited by law.
We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more
than just stated, but this would depend on (1) whether upon the proper application of the principle
of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that
Hodges had no legitime as contended by Magno, and (2) whether or not it can be held that Hodges had
legally and effectively renounced his inheritance from his wife. Under the circumstances presently
obtaining and in the state of the record of these cases, as of now, the Court is not in a position to make a
final ruling, whether of fact or of law, on any of these two issues, and We, therefore, reserve said issues for
further proceedings and resolution in the first instance by the court a quo, as hereinabove indicated. We
reiterate, however, that pending such further proceedings, as matters stand at this stage, Our considered
opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could
not have anyway legally adjudicated or caused to be adjudicated to himself her whole share of their
conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate
of Mrs. Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the
conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have
been gratuitously disposed of therefrom, by Hodges in favor of third persons since then, for even if it were
assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the
Philippines are the ones ultimately applicable, such one-fourth share would be her free disposable portion,
taking into account already the legitime of her husband under Article 900 of the Civil Code.
The foregoing considerations leave the Court with no alternative than to conclude that in predicating its
orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be
distributed among her brothers and sisters and that respondent Magno is the legal administratrix thereof, Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly, never
the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and independently from each other, as such administrators, is reiterated, and the same is made part of this
prohibition has to be denied. The Court feels however, that pending the liquidation of the conjugal judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased
partnership and the determination of the specific properties constituting her estate, the two administrators spouses and the determination and segregation from each other of their respective estates, provided, that
should act conjointly as ordered in the Court's resolution of September 8, 1972 and as further clarified in upon the finality of this judgment, the trial court should immediately proceed to the partition of the
the dispositive portion of its decision. presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be
properly and clearly identified; thereafter, the trial court should forthwith segregate the remainder of the
one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to
Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as
respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall
administratrix, of expenses of administration and attorney's fees, it is obvious that, with Our holding that
remain under the joint administration of said respondent and petitioner under a joint proceedings in
there is such an estate of Mrs. Hodges, and for the reasons stated in the body of this opinion, the said orders
Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be
should be affirmed. This We do on the assumption We find justified by the evidence of record, and
administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by
seemingly agreed to by appellant PCIB, that the size and value of the properties that should correspond to
the trial court of the pending motions for its removal as administrator 12; and this arrangement shall be
the estate of Mrs. Hodges far exceed the total of the attorney's fees and administration expenses in
maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for
question.
further hearing and determination, and the corresponding complete segregation and partition of the two
estates in the proportions that may result from the said resolution.
With respect to the appeals from the orders approving transactions made by appellee Magno, as
administratrix, covering properties registered in the name of Hodges, the details of which are related
Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all
earlier above, a distinction must be made between those predicated on contracts to sell executed by Hodges
their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in
before the death of his wife, on the one hand, and those premised on contracts to sell entered into by him
the foregoing opinion.
after her death. As regards the latter, We hold that inasmuch as the payments made by appellees constitute
proceeds of sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of
the motions of May 27 and December 14, 1957, said payments continue to pertain to said estate, pursuant Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal
to her intent obviously reflected in the relevant provisions of her will, on the assumption that the size and docket fees, but this decision shall nevertheless become final as to each of the parties herein after fifteen
value of the properties to correspond to the estate of Mrs. Hodges would exceed the total value of all the (15) days from the respective notices to them hereof in accordance with the rules.
properties covered by the impugned deeds of sale, for which reason, said properties may be deemed as
pertaining to the estate of Mrs. Hodges. And there being no showing that thus viewing the situation, there
Costs against petitioner-appellant PCIB.
would be prejudice to anyone, including the government, the Court also holds that, disregarding procedural
technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders should
be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural
and jurisdictional issues raised by it. And inasmuch as it does not appear that any of the other heirs of Mrs.
Hodges or the government has objected to any of the orders under appeal, even as to these parties, there
exists no reason for said orders to be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R.
Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial
court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of
the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix
thereof is recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the
manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases
and (2) the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally
renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the
community properties of the said spouses, as of the time of the death of the wife 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; in consequence, the preliminary injunction of August 8, 1967,
as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972,
directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges,
in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate
 G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee,
vs. MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.
ABAD SANTOS, J.:
The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio
Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez;
his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while
the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for
substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his
widow as compulsory heir. His will was admitted to probate by the Court of First Instance of
Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the
estate. In due time she submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila............................................................. P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion ..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co.............................................................................................. 2,350.73
TOTAL.............................................................. P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO........................................... P507,976.97
The testamentary dispositions are as follows:
A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de
edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su
sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus
respectivos descendientes, y, en su defecto, con sustitucion vulgar reciprocal
entre ambos.
El precedente legado en nuda propiedad de la participacion indivisa de la
finca Santa Cruz Building, lo ordena el testador a favor de los legatarios
nombrados, en atencion a que dicha propiedad fue creacion del querido
padre del otorgante y por ser aquellos continuadores del apellido Ramirez,
B.—Y en usufructo a saber: —
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da.
Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33,
Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda
de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,
b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada
Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—
En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo
Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante,
a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St.
Ermita, Manila, I.F.
 A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente con los nudo propietarios,
podran en cualquier memento vender a tercero los bienes objeto delegado,
sin intervencion alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the property of
the deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio"
in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto
Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with
the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for
vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in
favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are
invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the
provisions for fideicommissary substitutions are also invalid because the first heirs are not
related to the second heirs or substitutes within the first degree, as provided in Article 863 of
the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of
Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution;
and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building
between the widow Marcelle and the appellants, violates the testator's express win to give this
property to them Nonetheless, the lower court approved the project of partition in its order
dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of the estate in full
ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed,
under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall
be entitled to one-half of the hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he could impose no burden,
encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question and justifiably
so. It appears that the court a quo approved the usufruct in favor of Marcelle because the
testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred
for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and
which is more than what she is given under the will is not entitled to have any additional share
in the estate. To give Marcelle more than her legitime will run counter to the testator's
intention for as stated above his dispositions even impaired her legitime and tended to favor
Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he
may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code.
And that there are several kinds of substitutions, namely: simple or common, brief or
compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino,
"Although the Code enumerates four classes, there are really only two principal classes of
substitutions: the simple and the fideicommissary. The others are merely variations of these
two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or
should not wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers,
shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the fiduciary or
first heir instituted is entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of inheritance, shall be valid and
shall take effect, provided such substitution does not go beyond one degree
from the heir originally instituted, and provided further that the fiduciary or
first heir and the second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the legacies of
Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus
respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided. The appellants
question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in
connection with the one-third usufruct over the estate given to the widow Marcelle However,
this question has become moot because as We have ruled above, the widow is not entitled to
any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's
usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the
testator or stated differently because she did not predecease the testator. But dying before the
testator is not the only case for vulgar substitution for it also includes refusal or incapacity to
accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar
substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in their
claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct,
heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title
"provided such substitution does not go beyond one degree from the heir originally instituted." to land in favor of aliens which is proscribed by the Constitution.

What is meant by "one degree" from the first heir is explained by Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has decidedly
adopted this construction. From this point of view, there can be only one
tranmission or substitution, and the substitute need not be related to the
first heir. Manresa, Morell and Sanchez Roman, however, construe the word
"degree" as generation, and the present Code has obviously followed this
interpretation. by providing that the substitution shall not go beyond one
degree "from the heir originally instituted." The Code thus clearly indicates
that the second heir must be related to and be one generation from the first
heir.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed
as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan
Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special pronouncement
as to costs.

From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation
or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator
contradicts the establishment of a fideicommissary substitution when he permits the
properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and
the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is
void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land

shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary succession.
We are of the opinion that the Constitutional provision which enables aliens to acquire private
lands does not extend to testamentary succession for otherwise the prohibition will be for
naught and meaningless. Any alien would be able to circumvent the prohibition by paying
money to a Philippine landowner in exchange for a devise of a piece of land.
 [G.R. No. 113725. June 29, 2000]
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA
MARLENA[2] COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals,[3] dated December
23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the
Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including
herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr.
Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla,
was instituted as a devisee of 511, 855 square meters of that parcel of land surveyed
as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated
and admitted in Special Proceedings No. 4046 before the then Court of First Instance
of Negros Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge
Rabadilla resident of 141 P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), which is registered in my name according to the
records of the Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned
property and the rights which I shall set forth hereinbelow, shall be
inherited and acknowledged by the children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that should I die
and Jorge Rabadilla shall have already received the ownership of the said Lot
No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon
of the said lot shall expire, Jorge Rabadilla shall have the obligation until he
dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75)
(sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar,
until the said Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of
the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(10492), shall have the obligation to still give yearly, the sugar as specified in
the Fourth paragraph of his testament, to Maria Marlina Coscolluela y
Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later sell,
lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also
the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of
sugar to Maria Marlina Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of
Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this
Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my
near desendants, (sic) and the latter shall then have the obligation to give
the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I
further command in this my addition (Codicil) that my heir and his heirs of
this Lot No. 1392, that they will obey and follow that should they decide to
sell, lease, mortgage, they cannot negotiate with others than my near
descendants and my sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge
Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children
Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a
complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial
Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to
enforce the provisions of subject Codicil. The Complaint alleged that the defendant-
heirs violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the
Republic Planters Bank in disregard of the testatrix's specific instruction to
 sell, lease, or mortgage only to the near descendants and sister of the
testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one
hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar
crop years 1985 up to the filing of the complaint as mandated by the Codicil,
despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which
provided that in case of the sale, lease, or mortgage of the property, the
buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100
piculs of sugar per crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-heirs to
reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and
the issuance of a new certificate of title in the names of the surviving heirs of the late
Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on March 28,
1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla,
who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin,
son-in-law of the herein petitioner who was lessee of the property and acting as
attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered
into a Memorandum of Agreement on the obligation to deliver one hundred piculs of
sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
TCT No. 44489 will be delivered not later than January of 1989, more
specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then
existing in any of our names, Mary Rose Rabadilla y
Azurin or Alan Azurin, during December of each sugar
crop year, in Azucar Sugar Central; and, this is considered
compliance of the annuity as mentioned, and in the same
manner will compliance of the annuity be in the next
succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88,
will be complied in cash equivalent of the number of piculs as mentioned
therein and which is as herein agreed upon, taking into consideration the
composite price of sugar during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered cash
installment, payable on or before the end of December of every sugar crop year, to
wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1991-92."[5]
However, there was no compliance with the aforesaid Memorandum of Agreement
except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year
1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the
complaint and disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that the
action is prematurely filed as no cause of action against the defendants has
as yet arose in favor of plaintiff. While there maybe the non-performance of
the command as mandated exaction from them simply because they are the
children of Jorge Rabadilla, the title holder/owner of the lot in question, does
not warrant the filing of the present complaint. The remedy at bar must fall.
Incidentally, being in the category as creditor of the left estate, it is opined
that plaintiff may initiate the intestate proceedings, if only to establish the
heirs of Jorge Rabadilla and in order to give full meaning and semblance to
her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed
is DISMISSED without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision
of the trial court; ratiocinating and ordering thus:
 "Therefore, the evidence on record having established plaintiff-appellant's
right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs
of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee's admitted non-compliance with
said obligation since 1985; and, the punitive consequences enjoined by both
the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to
the estate of Aleja Belleza in case of such non-compliance, this Court deems
it proper to order the reconveyance of title over Lot No. 1392 from the
estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-
appellant must institute separate proceedings to re-open Aleja Belleza's
estate, secure the appointment of an administrator, and distribute Lot No.
1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to
her by the codicil, to receive her legacy of 100 piculs of sugar per year out of
the produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found
his way to this Court via the present petition, contending that the Court of Appeals
erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza
on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary
institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article
882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal in
accordance with Article 882 of the New Civil Code on modal institutions and in
deviating from the sole issue raised which is the absence or prematurity of the cause
of action. Petitioner maintains that Article 882 does not find application as there was
no modal institution and the testatrix intended a mere simple substitution - i.e. the
instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near
descendants" should the obligation to deliver the fruits to herein private respondent
be not complied with. And since the testatrix died single and without issue, there can
be no valid substitution and such testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no valid substitution for the reason
that the substituted heirs are not definite, as the substituted heirs are merely referred
to as "near descendants" without a definite identity or reference as to who are the
"near descendants" and therefore, under Articles 843 [8] and 845[9] of the New Civil
Code, the substitution should be deemed as not written.
The contentions of petitioner are untenable. Contrary to his supposition that the
Court of Appeals deviated from the issue posed before it, which was the propriety of
the dismissal of the complaint on the ground of prematurity of cause of action, there
was no such deviation. The Court of Appeals found that the private respondent had a
cause of action against the petitioner. The disquisition made on modal institution was,
precisely, to stress that the private respondent had a legally demandable right against
the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in
accordance with law.
It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent[10] and compulsory heirs are
called to succeed by operation of law. The legitimate children and descendants, in
relation to their legitimate parents, and the widow or widower, are compulsory
heirs.[11] Thus, the petitioner, his mother and sisters, as compulsory heirs of the
instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without
need of further proceedings, and the successional rights were transmitted to them
from the moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the property, rights
and obligations of a person, not extinguished by his death. Conformably, whatever
rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his
forced heirs, at the time of his death. And since obligations not extinguished by death
also form part of the estate of the decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his
compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla,
subject to the condition that the usufruct thereof would be delivered to the herein
private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory
heirs succeeded to his rights and title over the said property, and they also assumed
his (decedent's) obligation to deliver the fruits of the lot involved to herein private
respondent. Such obligation of the instituted heir reciprocally corresponds to the right
of private respondent over the usufruct, the fulfillment or performance of which is
now being demanded by the latter through the institution of the case at bar.
Therefore, private respondent has a cause of action against petitioner and the trial
court erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions
is not applicable because what the testatrix intended was a substitution - Dr. Jorge
Rabadilla was to be substituted by the testatrix's near descendants should there be
noncompliance with the obligation to deliver the piculs of sugar to private
respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take the place
of the heir or heirs first instituted. Under substitutions in general, the testator may
either (1) provide for the designation of another heir to whom the property shall pass
in case the original heir should die before him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple substitution,[12] or (2) leave his/her property to
one person with the express charge that it be transmitted subsequently to another or
others, as in a fideicommissary substitution.[13] The Codicil sued upon contemplates
neither of the two.
In simple substitutions, the second heir takes the inheritance in default of the first
heir by reason of incapacity, predecease or renunciation.[14] In the case under
consideration, the provisions of subject Codicil do not provide that should Dr. Jorge
Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near
descendants would substitute him. What the Codicil provides is that, should Dr. Jorge
Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property
referred to shall be seized and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point, petitioner is
correct. In a fideicommissary substitution, the first heir is strictly mandated to
preserve the property and to transmit the same later to the second heir.[15] In the
case under consideration, the instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with the near descendants or the
sister of the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the second heir. "Without this
obligation to preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution."[16] Also, the near descendants' right to inherit from the
testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla
or his heirs not fulfill the obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary substitution is also missing here.
Under Article 863, the second heir or the fideicommissary to whom the property is
transmitted must not be beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is not related by first
degree to the second heir.[17] In the case under scrutiny, the near descendants are not
at all related to the instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla
under subject Codicil is in the nature of a modal institution and therefore, Article 882
of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New
Civil Code provide:
Art. 882. The statement of the object of the institution or the application of
the property left by the testator, or the charge imposed on him, shall not be
considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided
that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should disregard this
obligation.
Art. 883. When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by the
testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is known in
the law of succession as an institucion sub modo or a modal institution. In a modal
institution, the testator states (1) the object of the institution, (2) the purpose or
application of the property left by the testator, or (3) the charge imposed by the
testator upon the heir.[18] A "mode" imposes an obligation upon the heir or legatee but
it does not affect the efficacy of his rights to the succession.[19] On the other hand, in a
conditional testamentary disposition, the condition must happen or be fulfilled in
order for the heir to be entitled to succeed the testator. The condition suspends but
does not obligate; and the mode obligates but does not suspend.[20] To some extent, it
is similar to a resolutory condition.[21]
From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the
testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is
likewise clearly worded that the testatrix imposed an obligation on the said instituted
heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein
private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee, dependent on the performance of the said
obligation. It is clear, though, that should the obligation be not complied with, the
property shall be turned over to the testatrix's near descendants. The manner of
institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature
because it imposes a charge upon the instituted heir without, however, affecting the
efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an obligation
imposed upon the heir should not be considered a condition unless it clearly appears
from the Will itself that such was the intention of the testator. In case of doubt, the
institution should be considered as modal and not conditional.[22]
Neither is there tenability in the other contention of petitioner that the private
respondent has only a right of usufruct but not the right to seize the property itself
from the instituted heir because the right to seize was expressly limited to violations
by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to
the application of any of its provisions, the testator's intention is to be ascertained
from the words of the Will, taking into consideration the circumstances under which it
was made.[23] Such construction as will sustain and uphold the Will in all its parts
must be adopted.[24]

Subject Codicil provides that the instituted heir is under obligation to deliver One
Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is
imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee,
or mortgagee should they sell, lease, mortgage or otherwise negotiate the property
involved. The Codicil further provides that in the event that the obligation to deliver
the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn
it over to the testatrix's near descendants. The non-performance of the said obligation
is thus with the sanction of seizure of the property and reversion thereof to the
testatrix's near descendants. Since the said obligation is clearly imposed by the
testatrix, not only on the instituted heir but also on his successors-in-interest, the
sanction imposed by the testatrix in case of non-fulfillment of said obligation should
equally apply to the instituted heir and his successors-in-interest.

Similarly unsustainable is petitioner's submission that by virtue of the amicable

settlement, the said obligation imposed by the Codicil has been assumed by the lessee,
and whatever obligation petitioner had become the obligation of the lessee; that
petitioner is deemed to have made a substantial and constructive compliance of his
obligation through the consummated settlement between the lessee and the private
respondent, and having consummated a settlement with the petitioner, the recourse
of the private respondent is the fulfillment of the obligation under the amicable
settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a
person disposes of his property, to take effect after his death.[25] Since the Will
expresses the manner in which a person intends how his properties be disposed, the
wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the
subject of a compromise agreement which would thereby defeat the very purpose of
making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of
Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No
pronouncement as to costs

SO ORDERED.
G.R. No. L-48627 February 19, 1943 article 751 and to indicate his wish that the residue of his estate be distributed in equal parts to
all who would have been entitled to inherit from him had he dies intestate.
TESTATE ESTATE OF VICENTE SINGSON PABLO, deceased. ROSALIA ROSARIO VDA. DE
SINGSON,petitioner-appellee, The order appealed from is affirmed, with costs. So ordered.
vs.
JOSEFINA F. VDA. DE LIM, oppositor-appellee,
EMILIA FLORENTINO, ET AL., oppositors-appellees,
EVARISTO SINGSON, ET AL., oppositors-appellants.

OZAETA, J.:

Don Vicente Singson Pablo, a lawyer of Vigan, Ilocos Sur, died on April 15, 1938, without any
descendant or ascendant, his nearest surviving relatives being his widow Doña Rosalia Rosario,
four brothers, and four nieces, the children of a deceased sister. He left a will which was duly
probated, clause 8 of which reads as follows:

Octavo. — Orderno y mando que todos mis bienes no dispuestos de otro modo en este
testamento, se distribuiran en partes iguales a todos los que tienen derecho a ello.

The widow, as administratrix, presented a project of partition in which the properties not
disposed of in the will were adjudicated to the four brothers and the four nieces of the deceased
"in the proportion provided in paragraph 8 of the will." The brothers, appellants herein,
objected to the project of partition insofar as it includes the nieces of the deceased, on the
ground that under clause 8 of the will, in relation to article 751 of the Civil Code, they were not
entitled to any share. The nieces also objected to the project of partition, alleging that certain
other specified properties had been omitted therefrom, which formed part of the properties not
disposed of and which under clause 8 of the will "should be distributed in equal parts to all who
are entitled thereto." The trial court sustained the contention of the nieces (appellees herein)
and ordered the administratrix "to amend the project of partition so as to include therein the
said properties and that all of those not disposed of in the will be adjudicated in equal parts to
the brothers and nieces of the deceased."

The only question raised in this appeal is the interpretation of clause 8 of the will above quoted.
Said clause provides that "all of my properties not disposed of otherwise in this testament shall
be distributed in equal parts to all who are entitled thereto." In this connection appellants
invoke article 751 of the Civil Code, which provides that "a disposition made in general terms in
favor of the testator's relatives shall be understood as made in favor of those nearest in
degree."

The trial court noted that the testator, who was a lawyer, did not use the word "relatives" in the
clause in question. We do not need to decide here whether, had the testator used the word
"relatives," the nieces would be excluded. The authorities differ on the interpretation of article
751. Some hold that under said article the nephews and nieces inherit by representation
together with the brothers and sisters of the testator, as in legal succession; while others.
Manresa among them, hold that said article excludes nephews and nieces when brothers and
sisters survive. We think the testator, by referring to "all who are entitled thereto," instead of
referring to his "relatives," precisely meant to avoid the uncertainty of the interpretation of
 G.R. No. L-40789 February 27, 1987
INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner,
vs. FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and
ANTONIO ROSALES, respondents.
GANCAYCO, J.:
In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question
raised is whether the widow whose husband predeceased his mother can inherit from the
latter, her mother-in-law.
It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales, a
resident of Cebu City, died intestate. She was survived by her husband Fortunate T. Rosales and
their two (2) children Magna Rosales Acebes and Antonio Rosales. Another child, Carterio
Rosales, predeceased her, leaving behind a child, Macikequerox Rosales, and his widow Irenea
C. Rosales, the herein petitioner. The estate of the dismissed has an estimated gross value of
about Thirty Thousand Pesos (P30,000.00).
On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the
estate of the deceased in the Court of First Instance of Cebu. The case was docketed as Special
Proceedings No. 3204-R. Thereafter, the trial court appointed Magna Rosales Acebes
administratrix of the said estate.
In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972
declaring the following in individuals the legal heirs of the deceased and prescribing their
respective share of the estate —
Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.
This declaration was reiterated by the trial court in its Order I dated February 4, 1975.
These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her
capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that
she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales.
Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court
denied her plea. Hence this petition.
In sum, the petitioner poses two (2) questions for Our resolution petition. First — is a widow
(surviving spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial
court which excluded the widow from getting a share of the estate in question final as against
the said widow?
Our answer to the first question is in the negative.
Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their
own right, and those who inherit by the right of representation. 1 Restated, an intestate heir can
only inherit either by his own right, as in the order of intestate succession provided for in the
Civil Code, 2 or by the right of representation provided for in Article 981 of the same law. The
relevant provisions of the Civil Code are:
Art. 980. The children of the deceased shall always inherit from him in their
own right, dividing the inheritance in equal shares.
Art. 981. Should children of the deceased and descendants of other children
who are dead, survive, the former shall inherit in their own right, and the
latter by right of representation.
Art. 982. The grandchildren and other descendants shag inherit by right of
representation, and if any one of them should have died, leaving several
heirs, the portion pertaining to him shall be divided among the latter in
equal portions.
Art. 999. When the widow or widower survives with legitimate children or
their descendants and illegitimate children or their descendants, whether
legitimate or illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child.
There is no provision in the Civil Code which states that a widow (surviving spouse) is an
intestate heir of her mother-in-law. The entire Code is devoid of any provision which entitles
her to inherit from her mother-in- law either by her own right or by the right of representation.
The provisions of the Code which relate to the order of intestate succession (Articles 978 to
1014) enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as
the final intestate heir. The conspicuous absence of a provision which makes a daughter-in-law
an intestate heir of the deceased all the more confirms Our observation. If the legislature
intended to make the surviving spouse an intestate heir of the parent-in-law, it would have so
provided in the Code.
Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887
of the Civil Code which provides that:
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate
parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with
respect to their legitimate children and descendants;
 (3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287;
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in
Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned,
shall inherit from them in the manner and to the extent established by this
Code.
The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the
surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a
parent-in-law.
Art. 971. The representative is called to the succession by the law and not
by the person represented. The representative does not succeed the person
represented but the one whom the person represented would have
succeeded. (Emphasis supplied.)
Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because
of his blood relationship. He does not succeed his father, Carterio Rosales (the person
represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father
would have succeeded. Petitioner cannot assert the same right of representation as she has no
filiation by blood with her mother-in-law.
Petitioner however contends that at the time of the death of her husband Carterio Rosales he
had an inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be
that as it may, said right of her husband was extinguished by his death that is why it is their son
Macikequerox Rosales who succeeded from Petra Rosales by right of representation. He did not
succeed from his deceased father, Carterio Rosales.
On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon
the second question posed by the petitioner.

Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in- Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an
law. We had occasion to make this observation in Lachenal v. Salas, 4 to Wit: intestate heir of his or her parent-in-law.

We hold that the title to the fishing boat should be determined in Civil Case
No. 3597 (not in the intestate proceeding) because it affects the lessee
thereof, Lope L. Leoncio, the decedent's son-in-law, who, although married to
his daughter or compulsory heir, is nevertheless a third person with respect to
his estate. ... (Emphasis supplied).
WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with
costs against the petitioner. Let this case be remanded to the trial-court for further
proceedings.
SO ORDERED.

By the same token, the provision of Article 999 of the Civil Code aforecited does not support
petitioner's claim. A careful examination of the said Article confirms that the estate
contemplated therein is the estate of the deceased spouse. The estate which is the subject
matter of the intestate estate proceedings in this case is that of the deceased Petra V. Rosales,
the mother-in-law of the petitioner. It is from the estate of Petra V. Rosales that Macikequerox
Rosales draws a share of the inheritance by the right of representation as provided by Article
981 of the Code.

The essence and nature of the right of representation is explained by Articles 970 and 971 of
the Civil Code, viz —

Art. 970. Representation is a right created by fiction of law, by virtue of

which the representative is raised to the place and the degree of the person
represented, and acquires the rights which the latter would have if he were
living or if he could have inherited.
 G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen
O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the
action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation"1 on two (2)
grounds, namely: that the petition for legal separation was filed beyond the one-year period provided
for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal
separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the
order, the court stated that the motion to dismiss and the motion for substitution had to be resolved
on the question of whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15
September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued
by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October
1969. The same was given due course and answer thereto was filed by respondent, who prayed for
the affirmance of the said order.3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did
not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab
initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for
a declaration of nullity of a marriage, does the death of a party abate the
proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves property
rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else)
to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself — actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the
spouse takes place during the course of the suit (Article 244, Section 3). The
action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8,
1933, D. H. 1933, 332.")4 .
Marriage is a personal relation or status, created under the sanction of law, and
an action for divorce is a proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a personal nature. In the absence
of a statute to the contrary, the death of one of the parties to such action abates
the action, for the reason that death has settled the question of separation
beyond all controversy and deprived the court of jurisdiction, both over the
 persons of the parties to the action and of the subject-matter of the action itself.
For this reason the courts are almost unanimous in holding that the death of
either party to a divorce proceeding, before final decree, abates the action. 1
Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236;
Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas.
874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80
Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717;
Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates,
Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of
property shall be dissolved and liquidated, but the offending spouse shall have no
right to any share of the profits earned by the partnership or community, without
prejudice to the provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom
said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains
(or of the absolute community of property), the loss of right by the offending spouse to any share of
the profits earned by the partnership or community, or his disqualification to inherit by intestacy
from the innocent spouse as well as the revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of
the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and
intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a
claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section
17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the
deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative
of the deceased to appear and to be substituted for the deceased, within a period
of thirty (30) days, or within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor
or administrator. No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or administrator; but
actions to recover real or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to recover damages for an injury
to person or property, real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in
the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the
finality of a decree, these claims are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the
latter, and there could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired by either party as a
result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a
proper action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed dead,
still the action for annulment became extinguished as soon as one of the three persons involved had
died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment
should be brought during the lifetime of any one of the parties involved. And furthermore, the
liquidation of any conjugal partnership that might have resulted from such voidable marriage must
be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided
in Section 2 of the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.
 [G.R. No. 100748. February 3, 1997]
JOSE BARITUA, petitioner, vs. HON. COURT OF APPEALS (Eleventh Division); HON.
MANUEL D. VICTORIO, Judge, RTC, Br. 53, Rosales-Pangasinan; and ROY R.
DOMINGO, represented by his Attorney-in-Fact Crispin A. Domingo, respondents.
DECISION
PUNO, J.:
Petitioner Jose Baritua raises the question of venue in the filing of a complaint for
damages arising from a quasi-delict.
The facts show that on June 26, 1989 private respondent Roy R. Domingo, represented by
his attorney-in-fact, Crispin A. Domingo, filed with the Regional Trial Court, Branch 53, Rosales,
Pangasinan a complaint against petitioner Jose Baritua as owner and operator of the J.B. Bus
Lines. Private respondent sought to recover actual and exemplary damages after a bus owned
by petitioner rammed private respondents car along the Maharlika Highway, Sto. Tomas,
Batangas on January 19, 1988. In his complaint, private respondent alleged that:
1. He is a Filipino, of legal age, married and a resident of Poblacion Rosales, Pangasinan before
he went to the United States where he now lives at 4525 Leata Lane, La Cantada, LA 91011. He
is being represented by his attorney-in-fact, Crispin A. Domingo, a Filipino, of legal age, married
and a resident of No. 47 Yale St., Cubao, Quezon City. Defendant is also a Filipino, of legal age,
married and doing business under the business name J.B. Bus Lines with business address at
Tramo Street, Pasay City where said defendant could be served summons. x x x.[1]
Petitioner moved to dismiss the complaint for improper venue. He alleged that since
private respondent was not a resident of the Philippines, the complaint should be filed in the
place where petitioner, the defendant, resides which is in Gubat, Sorsogon. The trial court
denied the motion to dismiss after finding that private respondent was merely temporarily out
of the country and did not lose his legal residence in Rosales, Pangasinan.[2]
The Court of Appeals affirmed the trial court.[3] Hence this petition for certiorari and
prohibition.
Petitioner claims that:
A. RESPONDENT COURT OF APPEALS COMMITTED GROSS ERROR AND GRAVE ABUSE OF
DISCRETION WHEN IT DISMISSED THE PETITION DESPITE PETITIONERS OVERWHELMING
EVIDENCE THAT THE VENUE OF PRIVATE RESPONDENTS ACTION (CIVIL CASE NO. 915-R)
WAS IMPROPERLY LAID;
B. INSPITE ALSO OF THE ADMITTED FACT THAT PRIVATE RESPONDENT ROY DOMINGO HAS
REMAINED AN ACTUAL RESIDENT OF 4525 LEATA LANE, LA CANTADA, LA 91011, U.S.A., AT
LEAST SINCE FEBRUARY 18, 1988, UP TO THE PRESENT.[4]
A complaint for damages is a personal action. In cases filed before the Regional Trial
Court, the venue for personal actions is laid down in Section 2 (b) of Rule 4 of the Revised Rules
of Court which reads as follows :
Sec. 2. Venue in Courts of First Instance. - -
xxx
(b) Personal actions. - - All other actions may be commenced and tried
where the defendant or any of the defendants resides or may be found, or where
the plaintiff or any of the plaintiffs resides, at the election of the plaintiff.
x x x[5]
The complaint in personal actions may be filed in the place where the defendant resides or may
be found, or where the plaintiff resides, at the option of the plaintiff. The Rules give the plaintiff
the option of choosing where to file his complaint. He can file it in the place (1) where he
himself or any of them resides; or (2) where the defendant or any of the defendants resides or
may be found. The plaintiff or the defendant must be residents of the place where the action
has been instituted at the time the action is commenced.[6]
Section 2 (b) of Rule 4 speaks of the place where the defendant or the plaintiff resides. We
have held that the residence of a person must be his personal, actual or physical habitation or
his actual residence or abode.[7] It does not mean fixed permanent residence to which when
absent, one has the intention of returning. The word resides connotes ex vi termini actual
residence as distinguished from legal residence or domicile.[8] Actual residence may in some
cases be the legal residence or domicile, but for purposes of venue, actual residence is the place
of abode and not necessarily legal residence or domicile.[9] Actual residence signifies personal
residence, i.e., physical presence and actual stay thereat.[10] This physical presence, nonetheless,
must be more than temporary and must be with continuity and consistency.[11]
The question in this case is whether private respondent had his actual residence in
Rosales, Pangasinan or in Los Angeles, California at the time the complaint was filed before the
Regional Trial Court of Rosales, Pangasinan.
It is undisputed that private respondent left for the United States on April 25,
1988 before the complaint was filed on June 26, 1989.[12] This fact is expressly admitted in the
complaint itself where private respondent states that he is [sic] x x x a resident of Poblacion
Rosales, Pangasinan before he went to the United States where he now lives in 4525 Leata
Lane, La Cantada, LA 91011. Furthermore, the special power of attorney in favor of Crispin A.
Domingo was drawn and executed by private respondent on February 18, 1988 before the
Philippine Consul in Los Angeles, California.[13] In said special power of attorney, private
respondent declared that he was a resident of Los Angeles, California.[14]
Private respondent was not a mere transient or occasional resident of the United
States. He fixed his place of abode in Los Angeles, California and stayed there continuously and
consistently for over a year at the time the complaint was filed in Rosales Pangasinan. [15]
Contrary to the lower courts finding the temporary nature of private respondents
working non-immigrant visa did not make him a non-resident of the United States. There is no
showing as to the date his temporary employment in the United States ended. [16] There is
likewise no showing much less any allegation, that after the filing of the complaint, private
respondent actually returned to the Philippines and resumed residence in Rosales,
Pangasinan. In fact petitioners claim that private respondent resided in the United States
continuously and consistently since 1988 until the present has not been refuted. [17]
We previously held that:

We are fully convinced that private respondent Colomas protestations of domicile in San
Nicolas, Ilocos Norte, based on his manifested intention to return there after the retirement of
his wife from government service to justify his bringing of an action for damages against
petitioner in the C.F.I. of Ilocos Norte, is entirely of no moment since what is of paramount
importance is where he actually resided or where he may be found at the time he brought the
action, to comply substantially with the requirements of Sec. 2(b) of Rule 4, Rules of Court, on
venue of personal actions x x x.[18]

It is fundamental that the situs for bringing real and personal civil actions is fixed by the
rules to attain the greatest convenience possible to parties litigants and their witnesses by
affording them maximum accessibility to the courts of justice.[19] The choice of venue is given to
the plaintiff but is not left to his caprice.[20] It cannot unduly deprive a resident defendant of the
rights conferred upon him by the Rules of Court.[21]
When the complaint was filed in Rosales, Pangasinan, not one of the parties was a
resident of the town. Private respondent was a resident of Los Angeles, California while his
attorney-in-fact was a resident of Cubao, Quezon City.Petitioners business address according to
private respondent is in Pasay City,[22] although petitioner claims he resides in Gubat,
Sorsogon.[23] The venue in Rosales, Pangasinan was indeed improperly laid.
IN VIEW WHEREOF, the petition is granted and the decision of the Court of Appeals in
CA-G.R. SP No. 20737 is reversed and set aside. The complaint in Civil Case No. 915-R is
dismissed for improper venue. No costs.
SO ORDERED
 [G.R. No. 118449. February 11, 1998]
LAURO G. VIZCONDE, petitioner, vs., COURT OF APPEALS, REGIONAL TRIAL COURT,
Branch 120, Caloocan City, and RAMON G. NICOLAS, respondents.
DECISION
FRANCISCO, J.:
Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two
children, viz., Carmela and Jennifer. Petitioners wife, Estrellita, is one of the five siblings of
spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and Salud are
Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and Ricardo Nicolas, an
incompetent. Antonio predeceased his parents and is now survived by his widow, Zenaida, and
their four children.
On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of 10,110
sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property) covered by TCT No. (T-
36734) 13206 for One Hundred Thirty Five Thousand Pesos (P135,000.00), evidenced by
a Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan ng Titulo TCT NO. T-36734.[1] In view
thereof, TCT No. V-554 covering the Valenzuela property was issued to Estrellita.[2] On March
30, 1990, Estrellita sold the Valenzuela property to Amelia Lim and Maria Natividad Balictar
Chiu for Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos
(P3,405,612.00).[3] In June of the same year, Estrellita bought from Premiere Homes, Inc., a
parcel of land with improvements situated at Vinzon St., BF Homes, Paraaque (hereafter
Paraaque property) using a portion of the proceeds was used in buying a car while the balance
was deposited in a bank.
The following year an unfortunate event in petitioners life occurred. Estrellita and her
two daughters, Carmela and Jennifer, were killed on June 30, 1991, an incident popularly
known as the Vizconde Massacre. The findings of the investigation conducted by the NBI reveal
that Estrellita died ahead of her daughters.[4] Accordingly, Carmela, Jennifer and herein
petitioner succeeded Estrellita and, with the subsequent death of Carmela and Jennifer,
petitioner was left as the sole heir of his daughters. Nevertheless, petitioner entered into
an Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde With Waiver
of Shares,[5] with Rafael and Salud, Estrellitas parents. The extra-judicial settlement provided
for the division of the properties of Estrellita and her two daughters between petitioner and
spouses Rafael and Salud. The properties include bank deposits, a car and the Paraaque
property. The total value of the deposits deducting the funeral and other related expenses in
the burial of Estrellita, Carmela and Jennifer, amounts to Three Million Pesos
(P3,000,000.00).[6] The settlement gave fifty percent (50%) of the total amount of the bank
deposits of Estrellita and her daughters to Rafael, except Saving Account No. 104-111211-0
under the name of Jennifer which involves a token amount. The other fifty percent (50%) was
allotted to petitioner. The Paraaque property and the car were also given to petitioner with
Rafael and Salud waiving all their claims, rights, ownership and participation as heirs[7] in the
said properties.
On November 18, 1992, Rafael died. To settle Rafaels estate, Teresita instituted an
intestate estate proceeding[8] docketed as Sp. Proc. No. C-1679, with Branch 120 of the Regional
Trial Court (RTC) of Caloocan City listing as heirs Salud, Ramon, Ricardo and the wife (Zenaida)
and children of Antonio. Teresita prayed to be appointed Special Administratrix of Rafaels
estate. Additionally, she sought to be appointed as guardian ad litem of Salud, now senile, and
Ricardo, her incompetent brother. Herein private respondent Ramon filed an
opposition[9] dated March 24, 1993, praying to be appointed instead as Salud and Ricardos
guardian. Barely three weeks passed, Ramon filed another opposition[10] alleging, among
others, that Estrellita was given the Valenzuela property by Rafael which she sold for not les
than Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded for courts
intervention to determine the legality and validity of the intervivos distribution made
by deceased Rafael to his children,[11] Estrellita included. On May 12, 1993, Ramon filed his own
petition, docketed as Sp. Proc. No. C-1699, entitled InMatter Of The Guardianship Of Salud G.
Nicolas and Ricardo G. Nicolas and averred that their legitime should come from the collation of
all the properties distributed to his children by Rafael during his lifetime.[12] Ramon stated that
herein petitioner is one of Rafaels children by right of representation as the widower of
deceased legitimate daughter of Estrellita.[13]
In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as the
Guardian of Salud and Ricardo while Teresita, in turn, was appointed as the Special
Administratrix of Rafaels estate. The courts Order did not include petitioner in the slate of
Rafaels heirs.[14] Neither was the Paraaque property listed in its list of properties to be included
in the estate.[15] Subsequently, the RTC in an Order dated January 5, 1994, removed Ramon as
Salud and Ricardos guardian for selling his wards property without the courts knowledge and
permission.[16]
Sometime on January 13, 1994, the RTC released an Order giving petitioner ten (10) days
x x x within which to file any appropriate petition or motion related to the pending petition
insofar as the case is concerned and to file any opposition to any pending motion that has been
filed by both the counsels for Ramon Nicolas and Teresita de Leon. In response, petitioner filed
a Manifestation, dated January 19, 1994, stressing tha the was neither a compulsory heir nor an
intestate heir of Rafael and he has no interest to participate in the proceedings. The RTC noted
said Manifestation in its Order dated February 2, 1994.[17] Despite the Manifestation, Ramon,
through a motion dated February 14, 1994, moved to include petitioner in the intestate estate
proceeding and asked that the Paraaque property, as well as the car and the balance of the
proceeds of the sale of the Valenzuela property, be collated.[18] Acting on Ramons motion, the
trial court on March 10, 1994 granted the same in an Order which pertinently reads as follows:
xxxxxxxxx
On the Motion To Include Lauro G. Vizconde In Intestate proceedings in instant case and
considering the comment on hi Manifestation, the same is hereby granted.[19]
xxxxxxxxx
Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon
opposed.[20] On August 12, 1994, the RTC rendered an Order denying petitioners motion for
reconsideration. It provides:
xxxxxxxxx
The centerpoint of oppositor-applicants argument is that spouses Vizconde were then
financially incapable of having purchased or acquired for a valuable consideration the property
at Valenzuela from the deceased Rafael Nicolas.Admittedly, the spouses Vizconde were then
living with the deceased Rafael Nicolas in the latters ancestral home. In fact, as the argument
further goes, said spouses were dependent for support on the deceased Rafael Nicolas. And
Lauro Vizconde left for the United States in, de-facto separation, from the family for sometime
and returned to the Philippines only after the occurrence of violent deaths of Estrellita and her
two daughters.
To dispute the contention that the spouses Vizconde were financially incapable to buy the
property from the late Rafael Nicolas, Lauro Vizconde claims that they have been engaged in
business venture such as taxi business, canteen concessions and garment
manufacturing. However, no competent evidence has been submitted to indubitably support
the business undertakings adverted to.
In fine, there is no sufficient evidence to show that the acquisition of the property from Rafael
Nicolas was for a valuable consideration.
Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her father was
gratuitous and the subject property in Paraaque which was purchased out of the proceeds of
the said transfer of property by the deceased Rafael Nicolas in favor of Estrellita, is subject to
collation.
WHEREFORE, the motion for reconsideration is hereby DENIED.[21] (Underscoring added)
Petitioner filed a petition for certiorari and prohibition with respondent Court of Appeals. In its
decision of December 14, 1994, respondent Court of Appeals[22] denied the petition stressing
that the RTC correctly adjudicated the question on the title of the Valenzuela property as the
jurisdiction of the probate court extends to matters incidental and collateral to the exercise of
its recognized powers in handling the settlement of the estate of the deceased (Cf.: Sec. 1, Rule
90, Revised Rules of Court).[23] Dissatisfied, petitioner filed the instant petition for review
on certiorari. Finding prima facie merit, the Court on December 4, 1995, gave due course to the
petition and required the parties to submit their respective memoranda.
The core issue hinges on the validity of the probate courts Order, which respondent Court
of Appeals sustained, nullifying the transfer of the Valenzuela property from Rafael to Estrellita
and declaring the Paraaque property as subject to collation.
The appeal is well taken.
Basic principles of collation need to be emphasized at the outset. Article 1061 of the Civil
Code speaks of collation. It states:
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into
the mass of the estate any property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it
may be computed in the determination of the legitime of each heir, and in the account of the
partition.
Collation is the act by virtue of which descendants or other forced heirs who intervene in
the division of the inheritance of an ascendant bring into the common mass, the property which
they received from him, so that the division may be made according to law and the will of the
testator.[24] Collation is only required of compulsory heirs succeeding with other compulsory
heirs and involves property or rights received by donation or gratuitous title during the
lifetime of the decedent.[25] The purpose for it is presumed that the intention of the testator or
predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give
him something in advance on account of his share in the estate, and that the predecessors will
is to treat all his heirs equally, in the absence of any expression to the contrary.[26] Collation
does not impose any lien on the property or the subject matter of collationable donation. What
is brought to collation is not the property donated itself, but rather the value of such property
at the time it was donated,[27] the rationale being that the donation is a real alienation which
conveys ownership upon its acceptance, hence any increase in value or any deterioration or
loss thereof is for the account of the heir or donee.[28]
The attendant facts herein do no make a case of collation. We find that the probate court,
as well as respondent Court of Appeals, committed reversible errors.
First: The probate court erred in ordering the inclusion of petitioner in the intestate estate
proceeding. Petitioner, a son-in-law of Rafael, is one of Rafaels compulsory heirs. Article 887 of
the Civil Code is clear on this point:
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the following, legitimate parents and ascendants, with respect to their
legitimate children and ascendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos 1 and 2;
neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from
them in the manner and to the extent established by this Code.
With respect to Rafaels estate, therefore, petitioner who was not even shown to be a creditor of
Rafael is considered a third person or a stranger.[29] As such, petitioner may not be dragged into
the intestate estate proceeding. Neither may he be permitted or allowed to intervene as he has
no personality or interest in the said proceeding,[30] which petitioner correctly argued in his
manifestation.[31]
Second: As a rule, the probate court may pass upon and determine the title or ownership
of a property which may or may not be included in the estate proceedings.[32] Such
determination is provisional in character and is subject to final decision in a separate action to
resolve title.[33] In the case at bench, however, we note that the probate court went beyond the
scope of its jurisdiction when it proceeded to determine the validity of the sale of the
Valenzuela property between Rafael and Estrellita and ruled that the transfer of the subject
property between the concerned parties was gratuitous. The interpretation of the deed and the
true intent of the contracting parties, as well as the presence or absence of consideration, are
matter outside the probate courts jurisdiction. These issues should be ventilated in an
appropriate action. We reiterate:
x x x we are of the opinion and so hold, that a court which takes cognizance of testate or
intestate proceedings has power and jurisdiction to determine whether or not the properties
included therein or excluded therefrom belong prima facie to the deceased, although such a
determination is not final or ultimate in nature, and without prejudice to the right of the
interested parties, in a proper action, to raise the question bearing on the ownership or
existence of the right or credit.[34]
not obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public
instrument, voluntarily and willfully waived any claims, rights, ownership and participation as
heir[38] in the Paraaque property.
Fifth: Finally, it is futile for the probate court to ascertain whether or not the Valenzuela
property may be brought to collation. Estrellita, it should be stressed, died ahead of Rafael. In
fact, it was Rafael who inherited from Estrellita an amount more than the value of the
Valenzuela property.[39] Hence, even assuming that the Valenzuela property may be collated
collation may not be allowed as the value of the Valenzuela property has long been returned to
the estate of Rafael. Therefore, any determination by the probate court on the matter serves no
valid and binding purpose.
WHEREFORE, the decision of the Court of Appeals appealed from is hereby REVERSED
AND SET ASIDE.
SO ORDERED.

Third: The order of the probate court subjecting the Paraaque property to collation is
premature. Records indicate that the intestate estate proceedings is still in its initiatory
stage. We find nothing herein to indicate that the legitimate of any of Rafaels heirs has been
impaired to warrant collation. We thus advert to our ruling in Udarbe v. Jurado, 59 Phil. 11, 13-
14, to wit:

We are of the opinion that this contention is untenable. In accordance with the provisions of
article 1035[35] of the Civil Code, it was the duty of the plaintiffs to allege and prove that the
donations received by the defendants were inofficious in whole or in part and prejudiced the
legitimate or hereditary portion to which they are entitled. In the absence of evidence to that
effect, the collation sought is untenable for lack of ground or basis therefor.

Fourth: Even on the assumption that collation is appropriate in this case the probate
court, nonetheless, made a reversible error in ordering collation of the Paraaque property. We
note that what was transferred to Estrellita, by way of a deed of sale, is the Valenzuela
property. The Paraaque property which Estrellita acquired by using the proceeds of the sale of
the Valenzuela property does not become collationable simply by reason thereof. Indeed
collation of the Paraaque property has no statutory basis.[36] The order of the probate court
presupposes that the Paraaque property was gratuitously conveyed by Rafael to
Estrellita. Records indicate, however, that the Paraaque property was conveyed for and in
consideration of P900,000.00,[37] by Premier Homes, Inc., to Estrellita. Rafael, the decedent, has
no participation therein, and petitioner who inherited and is now the present owner of the
Paraaque property is not one of Rafaels heirs. Thus, the probate courts order of collation
against petitioner is unwarranted for the obligation to collate is lodged with Estrellita, the heir,
and not to herein petitioner who does not have any interest in Rafaels estate. As it stands,
collation of the Paraaque property is improper for, to repeat, collation covers only properties
gratuitously given by the decedent during his lifetime to his compulsory heirs which fact does
 G.R. No. 70722 July 3, 1991
CANUTA PAGKATIPUNAN, FLORA VELASQUEZ, BENJAMIN VELASQUEZ, RODOLFO
VELASQUEZ, ALFREDO VELASQUEZ, NAPOLEON VELASQUEZ, MANUEL VELASQUEZ, JULIO
VELASQUEZ, VICTORIA VELASQUEZ, CARLOS VELASQUEZ, LEONOR VELASQUEZ, ELENA
VELASQUEZ, PATROCINIO VELASQUEZ, PATRICIA VELASQUEZ, SANTIAGO ZAPANTA,
HERMINIGILDO SISON, ALFREDO AGAPITO, MOISES SANTOS, MAGDALENA
PAGKATIPUNAN, AGAPITO MANALO, MIGUEL ANGELES, MATIAS ALVAREZ, PATRICIO
LAYSA, TEOFILO DE LUNA, ISIDRO ANINAO, APOLINAR CASAL, MOISES GALLARDO,
BONIFACIO PEREZ, DELFIN LAYBA, AND HERMOGENES FLORES, petitioners,
vs. HON. INTERMEDIATE APPELLATE COURT, JOSE R. VELASQUEZ, JR., LOURDES
VELASQUEZ, EDGARDO VELASQUEZ, LOLITA VELASQUEZ, MINERVA VELASQUEZ,
CYNTHIA VELASQUEZ, CESAR GONZALES, ADOLFO GONZALES, EVELYN GONZALES,
AMELITA GONZALES, RUBEN GONZALES, AND CARMENCITA GONZALES, respondents.
MEDIALDEA, J.:
This petition for certiorari seeks to nullify the decision of the Intermediate Appellate Court
(now Court of Appeals) in AC-G.R. CV No. 68431 dated February 7, 1986, affirming the decision
of the Court of First Instance (now Regional Trial Court) of Laguna, Branch II, Santa Cruz,
Laguna, in Civil Case No. SC-894, the dispositive portion of which reads:
WHEREFORE, the appealed decision of the lower court is affirmed, with the following
modification:
The entire house and lot on West Avenue, Quezon City, shall be divided as follows:
One-half value of said house and lot to defendant-appellant Canuta Pagkatipunan and
her 13 co-defendants-appellants children (now petitioners) to the extent of their
respective proportional contributions as stated above; and
The other one-half value of the said house and lot goes to the second conjugal
partnership of the deceased husband and his second spouse Canuta Pagkatipunan to
be partitioned one-fourth to Canuta Pagkatipunan and the other one-fourth
appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his 18
heirs as follows:
1/18 undivided portion to Canuta Pagkatipunan;
1/18 undivided portion to the plaintiff-appellee Lourdes Velasquez;
1/18 undivided portion to the plaintiffs-appellees Edgardo, Lolita, Minerva, Cynthia,
and Jennifer, all surnamed Velasquez;
1/18 undivided portion to the plaintiffs-appellee Teresa Magtibay and her children,
Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez;
1/1 8 undivided portion to the plaintiffs-appellees Cesar, Adolfo, Evelyn, Angelita,
Ruben, and Carmencita, all surnamed Gonzales;
1/18 undivided portion to each of the 13 defendants-appellants Flora, Leonor,
Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia,
Victoria, and Carlos, all surnamed Velasquez.
SO ORDERED. (p. 55, Rollo)
The facts from the records are as follows:
The principal litigants in this case are the successors- in-interest of Jose Velasquez, Sr. who died
intestate on February 24, 1961. Petitioner Canuta Pagkatipunan is the surviving spouse of Jose
Velasquez, Sr. and the other 13 petitioners are their children namely: Flora, Leonor, Patrocinio,
Julio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Elena, Patricia, Victoria and Carlos. On the
other hand, the private respondents are the descendants of Jose Velasquez, Sr. with his first
wife Victorina Real who died in 1920 at Santa Cruz, Laguna. Private respondents Jose
Velasquez, Jr. (substituted after his death during the pendency of this suit by his surviving
spouse Teresa Magtibay and their children Ricardo, Lourdes, Celia and Aida), and Lourdes
Velasquez are two of the five children of Jose Velasquez, Sr. and Victorina Real. The other three,
Amelia, Guillermo and Lutgarda, all surnamed Velasquez, all died before the commencement of
this case. Amelia Velasquez died without any issue. Guillermo Velasquez was survived by
private respondents Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez, his
children, forced heirs and lawful successors-in-interest. Lutgarda Velasquez was survived by
private respondents Cesar, Adolfo, Evelyn, Amelita, Ruben and Carmencita, all surnamed
Gonzales, likewise her children, forced heirs and successors-in-interest.
This case was judicially instituted by the private respondents against the petitioners in 1969 in
a complaint entitled "accion reivindicatoria, annulment of deeds of sale, partition and
damages." However, both the trial and the appellate courts considered that the real controversy
in this case is the liquidation of the conjugal partnership properties acquired by the deceased
Jose Velasquez, Sr. in his two marriages, one with Victorina Real, who predeceased him, and the
other with Canuta Pagkatipunan, as well as the partition of the estate of said Jose Velasquez, Sr.
among his heirs.
It appears that after the death of Victorina Real in 1920, no dissolution of the first conjugal
property has been made. Consequently, Jose Velasquez, Sr. enjoyed full possession, use,
usufruct and administration of the whole conjugal property of the first marriage.
In 1930, Jose Velasquez, Sr. took Canuta Pagkatipunan as his second wife although they
cohabited as early as 1921, when she was 16, soon after his first wife's death. From this
marriage, the other 13 co-petitioners were born. Neither had there been any liquidation of the
second conjugal partnership after the death of Jose Velasquez, Sr. in 1961. This situation gave
rise to the controversies in the instant case spawned by the parties' conflicting claims from
both sides of the two marriages.
The trial court appointed two sets of commissions — one on January 31, 1975, for the purpose
of making an inventory of the estate of Jose Velasquez, Sr., and the other on November 15,
1976, to determine which of the parcels of land listed in such inventory submitted by the first
set of commissioners belong to the conjugal partnership of the first marriage or to the conjugal
partnership of the second marriage.
Based on the Report and Inventory submitted on May 29, 1975, the commissioners listed the
following properties as acquired by the late Jose Velasquez, Sr. during his marriage with
Victorina Real:
1. Tax Declaration No. 2718. A riceland, located in Luya and with an area of 93,662
square meters;
2. Tax Declaration No. 3125. A Secano land located in Luya and with an area of 12,540
square meters;
3. Tax Declaration No. 2623. A Cocal and Forestal, situated in Salang-Bato (Macasipac)
and with an area of 500,000 square meters;
4. Tax Declaration No. 2096. A riceland, situated in Islang Munti and with an area of
40,328 square meters;
5. A Cocal and Forestal land situated in Bankang Bato containing an area of 240,000
square meters;
6. Tax Declaration No. 4251. A Cocal, Secano and Cogonal land situated in Cambuja
and containing an area of 163,121 square meters;
7. Tax Declaration No. 1342. A parcel of land situated in Bagumbayan and containing
an area of 80,258 square meters;
8. Tax Declaration No. 3541. A Cocal and Secano land, situated in Bagumbayan and
containing an area of 20 hectares;
(Total area as surveyed is 392,503 square meters. This includes the area of the land
stated in Item 7 of the Inventory).
9. Tax Declaration No. 82. A Cogonal land situated in Tungkod (Ikalong Tumid),
containing an area of 385,324 square meters;
10. Tax Declaration No. 1500. A riceland, situated in Pague, containing an area of
9,228 square meters;
11. Tax Declaration No. 5688
a) A parcel of land situated in NAPSE (Masinao), containing an area of
24,725 square meters;
b) A parcel of land situated in NAPSE (Masinao), containing an area of
25,000 square meters;
12. Tax Declaration No. 543. A parcel of land situated in Gomez Street, containing an
area of 755 square meters;
13. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area
of 367.2 square meters;
14. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area
of 367.2 square meters.
15. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area
of 367.2 square meters.
16. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area
of 367.2 square meters.
17. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area
of 1,275 square meters.
18. Tax Declaration No. 804-A. Three parcels of land situated in Salang Bato,
containing an area of 450,000 square meters;
19. Tax Declaration No. 2560. A parcel of land situated in Salang Bato which area is
included in item no. 18.
20. A parcel of land situated in Burgos St. (Papers cannot be located but subject lot is
known to both parties).
21. A parcel of land situated in Burgos St., containing an area of 5,000 square meters.
(Papers cannot be located but subject lot is known to both parties).
22. A parcel of land situated in Gomez St., containing an area of 300 square meters.
(Papers cannot be located but subject lot is known to both parties).
23. A parcel of land situated in Gomez St., containing an area of 1,050 square meters.
(Papers cannot be located but subject lot is known to both parties).
24. A parcel of land situated in Gomez St. (Papers cannot be located but subject lot is
known to both parties).
25. A parcel of land situated in Zamora St., containing an area of 3,605. (Papers cannot
be located but subject lot is known to both parties).
26. Tax Declaration No. 2412: A parcel of land situated in Caboan, containing an area
of 12,867 square meters;
27. A parcel of land situated in Dra. Amelia St.
On the other hand, the commissioners listed the following properties as acquired by Jose
Velasquez, Sr. on February 11, 1921 or after the death of Victorina Real:
28. Tax Declaration No. 2547. A parcel of land situated in Barandilla, containing an
area of 21,566 square meters;
29. A parcel of land situated in Barandilla, containing an area of 93.191 square meters.
(Commissioner's Inventory, Rollo, pp. 355-360)
Worth noting are the following findings of the commissioners:
3) That among the properties acquired by the late Jose Velasquez, Sr. during his
lifetime, only the one mentioned in Item 7 of the Inventory (Annex "A") is still intact. It
is situated in Bagumbayan, Sta. Maria, Laguna, and is containing an area of 80,258
square meters, more or less;
4) That Item 8 of the Inventory is only 200,000 square meters, more or less in Tax
Declaration No. 3541, but as per Survey caused by the defendants (which is not yet
approved) it contains an area of 330,345 square meters. That the Tax Declaration of
said parcel of land is under the name of Canuta Pagkatipunan, but plaintiff Jose
Velasquez, Jr. is the one in possession of said property. That the area as contained in
the Survey includes the area of the land mentioned in Item 7 of the Inventory (80,258
sq. m.);
5) That the other properties of the late Jose Velasquez Sr. were disposed of by the said
decedent during his lifetime and some were sold and/or disposed of by the parties
and heirs of the late Jose Velasquez, Sr.;
6) That the Barandilla properties, as evidenced by the Venta Absoluta dated February
11, 1921 executed by Pedro Villanueva in favor of Jose Velasquez Sr., were disposed of
 portion by portion. It was sold by the late Jose Velasquez who disposed of some
portions and the rest by either the plaintiffs or defendants. An area of 11,200 square
meters more or less was DONATED (donacion propter Nupcias) in favor of Canuta
Pagkatipunan by the decedent Jose Velasquez, Sr. as evidenced by Kasulatan ng
Panibagong Documento Donacion Propter Nupcias notarized under Inst. 135; Page
47; Book 1; Series of 1947 of Notary Public Bonifacio de Ramos;
7) That the parcels of land appearing in Items 5 and 6 of the Inventory (Annex "A")
were DONATED by the late Jose Velasquez Sr. to Guillermo Velasquez;
8) That parcels of land mentioned in Items 18 and 19 of the Inventory (Annex "A")
were DONATED by the late Jose Velasquez, Sr. to Jose Velasquez, Jr. Said properties
were sold by the Donee to Sps. Santiago Recio and Filomena Dimaculangan;
9) The property mentioned in Item 27, page 3 of the Inventory was given by the late
Jose Velasquez, Sr. to one of his daughters, Dra. Amelia Velasquez while she was still
living and now owned by her heirs;
10) A residential lot at 7 West Avenue, Quezon City, titled in the name of Canuta
Pagkatipunan, was acquired from the PHHC (People's Homesite and Housing
Corporation, now National Housing Authority) and presently occupied by the
defendants. (Rollo, pp. 351-353)
There is divergence of findings and opinion among the three members of the second set of
commissioners with respect to the properties covered by Items 7 and 8 and the property in the
unnumbered item relating to Lot 2-A West Avenue, Quezon City and the house thereon of the
Inventory submitted by the first set of commissioners. They refuse to make findings as to the
nature of the properties because the petitioners had caused the issuance of titles covering said
properties. However, all the commissioners were in agreement that all the other properties
listed in the Inventory belonged to the conjugal partnership of the first marriage.
The records before Us will show that the properties covered by items 7 and 8 were originally
declared for taxation purposes in the names of the spouses Real and Velasquez. This has been
admitted by Canuta Pagkatipunan during the hearing before the Commissioner and is duly
supported by documentary evidence.
After the death of Jose Velasquez, Sr. the full possession of said property was acquired by
Canuta Pagkatipunan. On March 4, 1967, she sold the same property to the spouses Moises
Santos and Magdalena Pagkatipunan, her brother-in-law and sister, respectively (they were
previously impleaded in the trial court as party-defendants). Subsequently, Tax Declaration No.
4843 was issued in the names of the said spouses who later resold the same property to Canuta
Pagkatipunan. Thereafter, tax declaration covering said property was issued in her name,
During the pendency of this suit, this property was subdivided and assigned by Canuta
Pagkatipunan in favor of her thirteen children. The latter caused the issuance of separate free
patent titles in their favor covering the subdivided lots conveyed to them by their mother.
Original Certificates of Title Nos. P-2000 to P-2012 were accordingly issued in their names.
With regard to the West Avenue property it is not disputed that said residential lot was
purchased on installments from People's Homesite and Housing Corporation (now National
Housing Authority) by the spouses Jose Velasquez Sr. and Canuta Pagkatipunan. The
installments were paid by the said spouses until Jose Velasquez, Sr. died on February 24, 1961.
Canuta Pagkatipunan, with the help of some of her children, shouldered the payment of the
remaining installments until said property was fully paid in 1965. On February 23, 1968, the
PHHC executed a deed of absolute sale conveying the said house and lot to Canuta
Pagkatipunan.
On August 11, 1980, a judgment was rendered by the trial court:
1) Declaring the properties listed in the Inventory submitted by the Commissioners
on May 9, 1975, as belonging to the estate of the conjugal partnership of the deceased
spouses Jose Velasquez, Sr. and Victorina Real;
2) Confirming all the conveyances, either by way of sale or donation, executed by Jose
Velasquez, Sr. during his lifetime;
3) Declaring null and void, sham and fictitious, the following sales, transfers,
assignments or conveyances: (a) the sale executed by Canuta Pagkatipunan in favor of
her sister Magdalena Pagkatipunan in favor of Canuta Pagkatipunan (sic); (b) the
deeds of assignments executed by Canuta Pagkatipunan in favor of her children,
covering the properties listed in Items 7 and 8 of the Inventory; and ordering
defendants (petitioners) to reconvey in favor of the plaintiffs (private respondents)
the parcels of land covered by Patent Titles Nos. P-2000 to P-2012;
4) Declaring as null, fictitious and fraudulent the sales by Canuta Pagkatipunan in
favor of her children and her sister Magdalena Pagkatipunan and brother-in-law
Moises Santos, listed in paragraph 13 of the Amended Complaint; declaring the
plaintiffs owners of the said properties; and ordering the defendant Canuta
Pagkatipunan and her children-defendants to deliver possession of said properties to
the plaintiffs;
5) Ordering the partition of the house and lot in West Avenue, Quezon City in the
following manner:
(a) One-half undivided portion to defendant Canuta Pagkatipunan; and the
other half appertaining to Jose Velasquez, Sr. to be divided among his heirs,
to wit:
1/18 undivided portion to Canuta Pagkatipunan;
1/18 undivided portion to Lourdes Velasquez;
1/18 undivided portion to the plaintiffs Edgardo, Lolita, Minerva, Cynthia
and Jennifer, all surnamed Velasquez;
1/18 undivided portion to the plaintiffs Teresa Magtibay and her children
Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez;
 1/18 undivided portion to the plaintiffs Cesar, Adolfo, Evelyn, Angelita,
Ruben and Carmencita, all surnamed Gonzales;
1/18 undivided portion to each of the defendants Flora, Leonor, Patrocinio,
Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria
and Carlos, all surnamed Velasquez;
Petitioners appealed to the respondent Intermediate Appellate Court.
On February 7, 1985, the Intermediate Appellate Court, Third Civil Cases Division promulgated
a decision, affirming the decision of the trial court, with the modification that the entire house
and lot in West Avenue, Quezon City be divided into two; one-half value to the petitioners
Canuta Pagkatipunan and her 13 children to the extent of their respective proportional
contributions and the other half value, to the second conjugal partnership of Jose Velasquez, Sr.
and Canuta Pagkatipunan to be partitioned one-fourth to the wife and the other one-fourth
appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his heirs.
Hence, this instant petition for review pointing out the following four (4) assignments of error,
to wit:
I
THE TRIAL COURT ERRED IN HOLDING THAT THE ENTIRE ESTATE LISTED IN THE
INVENTORY SUBMITTED BY THE COMMISSIONERS ON MAY 9, 1975 AS BELONGING
TO THE DECEASED SPOUSES JOSE VELASQUEZ, SR. AND VICTORINA REAL.
II
THAT THE LOWER COURT ERRED IN CONFIRMING ALL THE CONVENYANCES
EITHER BY WAY OF SALE OR DONATION EXECUTED BY JOSE VELASQUEZ, SR.
DURING HIS LIFETIME.
III
THAT THE LOWER COURT ERRED IN DECLARING NULL AND VOID, SHAM AND
FICTITIOUS THE FOLLOWING SALES: a) THE SALE EXECUTED BY CANUTA
PAGKATIPUNAN IN FAVOR OF HER SISTER MAGDALENA PAGKATIPUNAN AND
BROTHER-IN-LAW MOISES SANTOS; b) THE RESALE EXECUTED BY MOISES SANTOS
AND MAGDALENA PAGKATIPUNAN IN FAVOR OF CANUTA PAGKATIPUNAN; c) THE
DEEDS OF ASSIGNMENT EXECUTED BY CANUTA PAGKATIPUNAN IN FAVOR OF HER
CHILDREN: COVERING THE PROPERTIES LISTED IN ITEMS 7 AND 8 OF THE
INVENTORY; AND ORDERING DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN
AND HER CHILDREN DEFENDANTS-APPELLANTS TO RECONVEY IN FAVOR OF THE
PLAINTIFFS-APPELLEES THE PARCELS OF LAND COVERED BY PATENT TITLES NOS.
P2-000 TO P-2012.
IV
THAT THE TRIAL COURT ERRED IN ORDERING THE PARTITION OF THE HOUSE AND
LOT IN WEST AVENUE, QUEZON CITY, ONE-HALF UNDIVIDED PORTION TO
DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN AND THE OTHER HALF TO JOSE
VELASQUEZ, SR. (pp. 21-22, Rollo)
After a careful review of the records and the arguments presented by both parties, the Court
finds that both the trial court and the respondent Intermediate Appellate Court failed to
consider some basic principles observed in the law on succession Such an oversight renders the
appealed decision defective and hard to sustain.
It is a basic rule that before any conclusion about the legal share due to the heirs may be
reached, it is necessary that certain steps be taken first. In the assailed decision, the respondent
court affirmed the trial court's ruling, that Jose Velasquez, Sr. had already disposed of and
exhausted his corresponding share in the conjugal partnership owned by him and Victorina
Real, so that his heirs have nothing more to inherit from him, and that accordingly, whatever
remaining portion of the conjugal property must necessarily appertain only to the private
respondents as heirs of the deceased Victorina Real. Clearly, the trial court failed to consider
among others, the following provisions of the Civil Code:
Art. 908. To determine the legitime, the value of the property left at the death of the
testator shall be considered, deducting all debts and charges, which shall not include
those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by
the testator that are subject to collation, at the time he made them.
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must
bring into the mass of the estate any property or right which he may have received
from the decedent, during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the determination of the legitime
of each heir, and in the account of the partition.
It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr. in favor
of some of his compulsory heirs. They include among others, the donation made in favor of
Guillermo Velasquez on February 26,1953, consisting of 403,000 square meters (Items 5 and
6); the donation made in 1926 in favor of Jose Velasquez, Jr., consisting of 450,000 square
meters (Item No. 18); the donation in favor of Amelia Velasquez (Item No. 27); and the
donation in favor of Canuta Pagkatipunan, consisting of 11,000 square meters (part of Item No.
29) (Commissioner's Report, Rollo, pp. 355-360).
It appears that there was no determination whatsoever of the gross value of the conjugal
properties of Jose Velasquez, Sr. and Victorina Real. Obviously it is impossible to determine the
conjugal share of Jose Velasquez, Sr. from the said property relationship. Likewise, no collation
of the donations he executed during his lifetime was undertaken by the trial court. Thus, it
would be extremely difficult to ascertain whether or not such donations trenched on the heirs'
legitime so that the same may be considered subject to reduction for being inofficious.
Article 909 of the Civil Code provides:
Art. 909. Donations given to children shall be charged to their legitime.
Donations made to strangers shall be charged to that part of the estate of which the
testator could have disposed by his last will.1âwphi1
Insofar as they may be inofficious or may exceed the disposable portion, they shall be
reduced according to the rules established by this Code.
With the avowed specific provisions of the aforesaid laws respecting collation, which are ruled
controlling even in intestate succession, this Court finds that the lower court's ruling
adjudicating the remaining portion of the conjugal estate to the private respondents is purely
speculative and conjectural.
Relative to the sale executed by Canuta Pagkatipunan to the spouses Magdalena Pagkatipunan
and Moises Santos; the resale of the same property to her; and the subsequent deeds of
assignment she executed in favor of her children, the trial court had clearly established that
Canuta Pagkatipunan employed fraudulent acts to acquire title over the said properties. Hence,
the trial court, as well as the respondent court are correct in ruling that the said sales and
assignments are null and void, sham and fictitious.
The pertinent portion of the trial court's decision reads as follows:
From the evidence adduced by the parties during the hearing before this Court and
before the Commissioners, these properties were acquired on November 19, 1918 by
the spouses Jose Velasquez, Sr. and Victorina Real from Estanislao Balasoto (Exh. H-5
Commissioner). Said property was originally declared for taxation purposes in the
names of said spouses. (Exh. H Commissioner) On March 4, 1967, defendant Canuta
Pagkatipunan sold the same property to the spouses Moises Santos and Magdalena
Pagkatipunan (Exh. H-1-Commissioner). The vendee Magdalena Pagkatipunan is the
sister of the defendant Canuta Pagkatipunan. Subsequently, Tax Declaration No. 4843
(Exh. H-2 Commissioner) was issued in the names of the spouses Moises Santos and
Magdalena Pagkatipunan resold (sic) the same property to Canuta Pagkatipunan (Exh.
H-3 Commissioner). Thereafter, tax declaration covering said property was issued in
the name of Canuta Pagkatipunan (Exhibit H-4 Commissioner). During the pendency
of this suit, this property was subdivided and assigned by Canuta Pagkatipunan in
favor of her children, the defendants Flora, Leonor, Patrocinio, Benjamin, Rodolfo,
Alfredo, Napoleon, Manuel, Elena, Patricia, Julio, Victoria and Carlos, all surnamed
Velasquez. Said defendants-children of Canuta Pagkatipunan caused the issuance of
free patent titles in their favor covering the subdivided lots conveyed to them
respectively by their mother (Exh. 2, 2-A to 2-L)
It is evident that the parcels of land under Items 7 and 8 of the Inventory belonged to
the conjugal partnership of the spouses Jose Velasquez, Sr. and Victorina Real. Canuta
Pagkatipunan had no right to alienate the same. Her conveyance of the same property
to her brother-in-law and sister is fictitious or simulated. Ten (10) days after she
executed her sale, the same property was resold to her by the vendees. She utilized
said conveyance and reconveyance only for the purpose of securing a tax declaration
in her name over said property. Her subsequent subdivision of said lot and transfer of
the subdivided lots to each of their children further show her fraudulent intent to
deprive the plaintiffs of their rightful shares in the disputed property. (Rollo, pp. 606-
607)
Despite the several pleadings filed by the petitioners in this Court, they did not rebut the
foregoing findings of the trial court but merely held on to their argument that since Free Patent
Titles Nos. P-2000 to P-2012 were already issued in their names, their title thereto is
indefeasible and incontrovertible. This is a misplaced argument.
The fact that they had succeeded in securing title over the said parcels of land does not warrant
the reversal of the trial court's ruling that the above mentioned sales and assignments were
sham and fictitious. A Torrens title does not furnish a shield for fraud notwithstanding the long-
standing rule that registration is a constructive notice of title binding upon the whole world.
The legal principle is that if the registration of the land is fraudulent and the person in whose
name the land is registered thus holds it as a mere trustee, the real owner is entitled to file an
action for reconveyance of the property within a period of ten years (Pajarillo v. Intermediate
Appellate Court, G.R. No. 72908, August 11, 1969, 176 SCRA 340).
Since petitioners asserted claims of exclusive ownership over the said parcels of land but acted
in fraud of the private respondents, the former may be held to act as trustees for the benefit of
the latter, pursuant to the provision of Article 1456 of the Civil Code:
Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is,
by force of law, considered a trustee of an implied trust for the benefit of the person
from whom the property comes.
But while the trial court has the authority to order the reconveyance of the questioned titles,
We cannot agree that the reconveyance should be made in favor of the private respondents.
The reason is that it is still unproven whether or not the private respondents are the only ones
entitled to the conjugal properties of Jose Velasquez, Sr. and Victoria Real. It is to be noted that
as the lawful heirs of Jose Velasquez Sr. the herein petitioners are also entitled to participate in
his conjugal share. To reconvey said property in favor of the private respondents alone would
not only be improper but will also make the situation more complicated. There are still things
to be done before the legal share of all the heirs can be properly adjudicated.
Relative to the last assignment of error, We find the ruling made by the respondent appellate
court proper and in accord with law insofar as it adjudicated the one-half (1/2) portion of the
house and lot situated at West Avenue, Quezon City, as belonging to the petitioners to the
extent of their respective proportional contributions, and the other half to the conjugal
partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan. We must modify it, however, as it
readily partitioned the conjugal share of Jose Velasquez, Sr. (1/2 of the conjugal property or SO ORDERED.
1/4 of the entire house and lot) to his 18 heirs.

As already said, no conclusion as to the legal share due to the compulsory heirs can be reached
in this case without (1) determining first the net value of the estate of Jose Velasquez, Sr.; (2)
collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the
legitime of the compulsory heirs.1âwphi1

ACCORDINGLY, the decision of the trial court as modified by the respondent appellate court is
hereby SET ASIDE except insofar as it:

(a) declared the properties listed in the Inventory submitted by the commissioners on
May 9, 1975 as belonging to the estate of the conjugal partnership of the spouses Jose
Velasquez, Sr. and Victorina Real;

(b) declared null and void, sham and fictitious, the following sales, transfers,
assignments or conveyances:

1) the sale executed by Canuta Pagkatipunan in favor of her sister

Magdalena Pagkatipunan; 2) the resale of the same property executed in
favor of Canuta Pagkatipunan; and 3) the deeds of assignments executed by
Canuta Pagkatipunan in favor of her 13 children; covering the properties
listed in Items 7 and 8;

(c) declared as null and void all the other conveyances made by Canuta Pagkatipunan
with respect to Item No. 13 of the inventory; and

d) dismissed the case against the other defendants except Canuta Pagkatipunan and
her children and the spouses Moises Santos and Magdalena Pagkatipunan.

Civil Case No. SC-894 is hereby remanded to the Regional Trial Court of Laguna, for further
proceedings and the same Court is directed to:

a) follow the procedure for partition herein prescribed;

b) expand the scope of the trial to cover other possible illegal dispositions of the first
conjugal partnership properties not only by Canuta Pagkatipunan but also by the
other heirs as can be shown in the records;

c) include the one-fourth (1/4) share of Jose Velasquez, Sr. in the residential house in
Quezon City with his conjugal share under his first marriage, if any, to determine his
net estate at the time of his death.

The trial court's pronouncement as to cost and damages is hereby deleted.

 G.R. No. L-46903 July 23, 1987
BUHAY DE ROMA, petitioner,
vs. THE HONORABLE COURT OF APPEALS and FELICIDAD CARINGAL, as Guardian of
Rosalinda de Roma,respondents.
CRUZ, J.:
Candelaria de Roma had two legally adopted daughters, Buhay de Roma and Rosalinda de
Roma. She died intestate on April 30, 1971, and administration proceedings were instituted in
the Court of First Instance of Laguna by the private respondent as guardian of Rosalinda. Buhay
was appointed administratrix and in due time filed an inventory of the estate. This was
opposed by Rosalinda on the ground that certain properties earlier donated by Candelaria to
Buhay, and the fruits thereof, had not been included.1
The properties in question consisted of seven parcels of coconut land worth P10,297.50.2 There
is no dispute regarding their evaluation; what the parties cannot agree upon is whether these
lands are subject to collation. The private respondent rigorously argues that it is, conformably
to Article 1061 of the Civil Code. Buhay, for her part, citing Article 1062, claims she has no
obligation to collate because the decedent prohibited such collation and the donation was not
officious.
The two articles provide as follows:
Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must
bring into the mass of the estate any property or right which he may have received
from the decedent during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the determination of the legitime
of each heir, and in the account of the partition.
Article 1062. Collation shall not take place among compulsory heirs if the
donor should have so expressly provided, or if the donor should repudiate
the inheritance, unless the donation should be reduced as inofficious.
The issue was resolved in favor of the petitioner by the trial court,* which held that
the decedent, when she made the donation in favor of Buhay, expressly prohibited
collation. Moreover, the donation did not impair the legitimes of the two adopted
daughters as it could be accommodated in, and in fact was imputed to, the free portion
of Candelaria's estate.3
On appeal, the order of the trial court was reversed, the respondent court** holding
that the deed of donation contained no express prohibition to collate as an exception
to Article 1062. Accordingly, it ordered collation and equally divided the net estate of
the decedent, including the fruits of the donated property, between Buhay and
Rosalinda.4
The pertinent portions of the deed of donation are as follows:
IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at pagsisilbi sa akin ng
aking anak na si BUHAY DE ROMA, kasal kay Arabella Castaneda, may karampatang
gulang, mamamayang Pilipino at naninirahan at may pahatirang-sulat din dito sa
Lunsod ng San Pablo sa pamamagitan ng kasulatang ito ay kusang-loob kong
ibinibigay, ipinagkakaloob at inililipat sa nabanggit na BUHAY DE ROMA, sa kanyang
mga kahalili at tagapagmana, sa pamamagitan ng pagbibigay na di na mababawing
muli, ang lahat ng mga lagay ng lupa na sinasabi sa itaas, sa ilalim ng kasunduan na
ngayon pa ay siya na ang nagmamay-aring tunay ng mga lupang ito at kanya nang
maaring ipalipat ang mga hoja declaratoria ng mga lupang ito sa kanyang pangalan,
datapwa't samantalang ako ay nabubuhay, ay ako rin ang makikinabang sa mga
mapuputi at mamomosesion sa mga nasabing lupa;
IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari sa sapat pang
aking ikabuhay at sa pagbibigay kong ito ay hindi masisira ang legitimate ng mga tao
na dapat magmana sa akin, sapagkat ang mga lupang sinasabi sa itaas ay bahagui ng
aking kabuhayan na ako ay may layang ipamigay kahit na kaninong tao na kung
tawagin ay Libre Disposicion. 5
We agree with the respondent court that there is nothing in the above provisions expressly
prohibiting the collation of the donated properties. As the said court correctly observed, the
phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the
donation as "irrevocable" and should not be construed as an express prohibition against
collation.6 The fact that a donation is irrevocable does not necessarily exempt the subject
thereof from the collation required under Article 1061.
We surmise from the use of such terms as "legitime" and "free portion" in the deed of donation
that it was prepared by a lawyer, and we may also presume he understood the legal
consequences of the donation being made. It is reasonable to suppose, given the precise
language of the document, that he would have included therein an express prohibition to
collate if that had been the donor's intention.
Anything less than such express prohibition will not suffice under the clear language of Article
1062.1awphil The suggestion that there was an implied prohibition because the properties
donated were imputable to the free portion of the decedent's estate merits little consideration.
Imputation is not the question here, nor is it claimed that the disputed donation is officious The
sole issue is whether or not there was an express prohibition to collate, and we see none.
The intention to exempt from collation should be expressed plainly and unequivocally as an
exception to the general rule announced in Article 1062. Absent such a clear indication of that
intention, we apply not the exception but the rule, which is categorical enough.
There is no need to dwell long on the other error assigned by the petitioner regarding the
decision of the appealed case by the respondent court beyond the 12-month period prescribed
by Article X, Section 11 (1) of the 1973 Constitution. As we held in Marcelino v. Cruz,7 the said
provision was merely directory and failure to decide on time would not deprive the
corresponding courts of jurisdiction or render their decisions invalid.
It is worth stressing that the aforementioned provision has now been reworded in Article VIII,
Section 15, of the 1987 Constitution, which also impresses upon the courts of justice, indeed
with greater urgency, the need for the speedy disposition of the cases that have been clogging
their dockets these many years. Serious studies and efforts are now being taken by the Court to
meet that need.

WHEREFORE, the appealed decision is AFFIRMED in toto, with costs against the petitioner. It is
so ordered.
 AMELIA P. ARELLANO, represented by her G.R. No.
duly appointed guardians, AGNES P. 189776
ARELLANO and NONA P. ARELLANO, Every compulsory heir, who succeeds with other compulsory heirs,
Petitioner, Present: must bring into the mass of the estate any property or right which he may
have received from the decedent, during the lifetime of the latter, by way of
- versus - CARPIO donation, or any other gratuitous title in order that it may be computed in
MORALES, J., the determination of the legitime of each heir, and in the account of the
Chairperson, partition.
FRANCISCO PASCUAL and MIGUEL PERALTA,*
PASCUAL, BERSAMIN,
Respondents. MENDOZA,** and
SERENO, JJ. The probate court thereafter partitioned the properties of the intestate estate. Thus it

disposed:
Promulgated: WHEREFORE, premises considered, judgment is hereby rendered
December 15, declaring that:
2010
1. The property covered by TCT No. 181889 of the Register of Deeds of
Makati as part of the estate of Angel N. Pascual;
x--------------------------------------------------x

DECISION 2. The property covered by TCT No. 181889 to be subject to collation;

CARPIO MORALES, J.:
Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs his siblings, 3. 1/3 of the rental receivables due on the property at the mezzanine
namely: petitioner Amelia P. Arellano who is represented by her daughters[1] Agnes P. Arellano and the 3rd floor of Unit 1110 Tanay St., Makati City form part of the
(Agnes) and Nona P. Arellano, and respondents Francisco Pascual and Miguel N. Pascual. [2] estate of Angel N. Pascual;

In a petition for Judicial Settlement of Intestate Estate and Issuance of Letters of 4. The following properties form part of the estate of Angel N. Pascual:
Administration, docketed as Special Proceeding Case No. M-5034, filed by respondents on April
28, 2000 before the Regional Trial Court (RTC) of Makati, respondents alleged, inter alia, that a a. 1/3 share in the House and Lot at 1110 Tanay St., Rizal Village
parcel of land (the donated property) located in Teresa Village, Makati, which was, by Deed of Makati TCT No. 348341 and 1/3 share in the rental income
Donation, transferred by the decedent to petitioner the validity of which donation respondents thereon;
assailed, may be considered as an advance legitime of petitioner.
b. 1/3 share in the Vacant Lot with an area of 271 square meters
located at Tanay St., Rizal Village, Makati City, TCT No.
Respondents nephew Victor was, as they prayed for, appointed as Administrator of the estate 119063;
by Branch 135 of the Makati RTC.[3]
c. Agricultural land with an area of 3.8 hectares located at
Puerta Galera Mindoro covered by OCT No. P-2159;
Respecting the donated property, now covered in the name of petitioner by Transfer
Certificate of Title No. 181889 of the Register of Deeds of Makati, which respondents assailed d. Shares of stocks in San Miguel Corporation covered by the
but which they, in any event, posited that it may be considered as an advance legitime to following Certificate Numbers: A0011036, A006144, A082906,
petitioner, the trial court, acting as probate court, held that it was precluded from determining A006087, A065796, A11979, A049521, C86950, C63096,
the validity of the donation. C55316, C54824, C120328, A011026, C12865, A10439,
A021401, A007218, A0371, S29239, S40128, S58308, S69309;
Provisionally passing, however, upon the question of title to the donated
property only for the purpose of determining whether it formed part of the decedents e. Shares of stocks in Paper Industries Corp. covered by the
estate,[4] the probate court found the Deed of Donation valid in light of the presumption of following Certificate Numbers: S29239, S40128, S58308,
validity of notarized documents. It thus went on to hold that it is subject to collation following S69309, A006708, 07680, A020786, S18539, S14649;
Article 1061 of the New Civil Code which reads:[5]
 f. share in Eduardo Pascuals shares in Baguio Gold Mining Co.;
g. Cash in Banco De Oro Savings Account No. 2 014 12292 4 in the
name of Nona Arellano;
i. Property previously covered by TCT No. 119053 now covered
by TCT No. 181889, Register of Deeds of Makati City;
j. Rental receivables from Raul Arellano per Order issued by
Branch 64 of the Court on November 17, 1995.
5. AND the properties are partitioned as follows:
a. To heir Amelia P. Arellano-the property covered by TCT No.
181889;
b. To heirs Francisco N. Pascual and Miguel N. Pascual-the real
properties covered by TCT Nos. 348341 and 119063 of the
Register of Deeds of Makati City and the property covered by
OCT No. 2159, to be divided equally between them up to the
extent that each of their share have been equalized with the
actual value of the property in 5(a) at the time of donation, the
value of which shall be determined by an independent
appraiser to be designated by Amelia P. Arellano, Miguel N.
Pascual and Francisco N. Pascual. If the real properties are not
sufficient to equalize the shares, then Franciscos and Miguels
shares may be satisfied from either in cash property or shares
of stocks, at the rate of quotation. The remaining properties
shall be divided equally among Francisco, Miguel and
Amelia. (emphasis and underscoring supplied)
Before the Court of Appeals, petitioner faulted the trial court in holding that
I
. . . THE PROPERTY DONATED TO APPELLANT AMELIA PASCUAL
ARELLANO IS PART OF THE ESTATE OF ANGEL PASCUAL, JR.
II
. . . THE PROPERTY DONATED TO APPELLANT IS SUBJECT TO
COLLATION UNDER ARTICLE 1061 OF THE NEW CIVIL CODE.
III
. . . APPELLEES WHO ARE MERELY COLLATERAL RELATIVES OF DECEASED
ANGEL N. PASCUAL JR. AS HIS COMPULSORY HEIRS ENTITLED TO
LEGITIMES.
xxxx
and
V
. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL
JR. EQUALLY AMONG HIS LEGAL OR INTESTATE HEIRS.[6] (underscoring
supplied)
By Decision[7] of July 20, 2009, the Court of Appeals found petitioners appeal partly
meritorious. It sustained the probate courts ruling that the property donated to petitioner is
subject to collation in this wise:
Bearing in mind that in intestate succession, what governs is the
rule on equality of division, We hold that the property subject of
donation inter vivos in favor of Amelia is subject to collation. Amelia
cannot be considered a creditor of the decedent and we believe that under
the circumstances, the value of such immovable though not strictly in the
concept of advance legitime, should be deducted from her share in the net
hereditary estate. The trial court therefore committed no reversible error
when it included the said property as forming part of the estate of Angel N.
Pascual.[8] (citation omitted; emphasis and underscoring supplied)
The appellate court, however, held that, contrary to the ruling of the probate court,
herein petitioner was able to submit prima facie evidence of shares of stocks owned by the
[decedent] which have not been included in the inventory submitted by the administrator.
Thus, the appellate court disposed, quoted verbatim:
WHEREFORE, premises considered, the present appeal is hereby
PARTLY GRANTED. The Decision dated January 29, 2008 of the Regional
Trial Court of Makati City, Branch 135 in Special Proceeding Case No. M-
5034 is hereby REVERSED and SET ASIDE insofar as the order of inclusion of
properties of the Intestate Estate of Angel N. Pascual, Jr. as well as
the partition and distribution of the same to the co-heirs are concerned.
The case is hereby REMANDED to the said court for further
proceedings in accordance with the disquisitions herein.[9] (underscoring
supplied)
 Petitioners Partial Motion for Reconsideration[10] having been denied by the appellate
court by Resolution[11] of October 7, 2009, the present petition for review on certiorari was
filed, ascribing as errors of the appellate court its ruling
I (3) concurring. The primary compulsory heirs are those who have
. . . THAT THE PROPERTY DONATED BY ANGEL N. PASCUAL, JR. TO
PETITIONER AMELIA PASCUAL ARELLANO IS PART OF HIS ESTATE AT THE
TIME OF HIS DEATH.
II
. . . THAT THE PROPERTY DONATED TO PETITIONER IS SUBJECT TO
COLLATION UNDER ARTICLE 1061 OF THE NEW CIVIL CODE.
III
. . . THAT RESPONDENTS ARE COMPULSORY HEIRS OF THEIR DECEASED
BROTHER ANGEL N. PASCUAL JR. AND ARE ENTITLED TO LEGITIMES.
IV
. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL,
JR. EQUALLY AMONG PETITIONER AND RESPONDENTS, AS HIS LEGAL OR
INTESTATE HEIRS.[12] (underscoring supplied)
Petitioners thus raise the issues of whether the property donated to petitioner is subject to
collation; and whether the property of the estate should have been ordered equally distributed
among the parties.
On the first issue:
The term collation has two distinct concepts: first, it is a mere mathematical operation
by the addition of the value of donations made by the testator to the value of the hereditary
estate; and second, it is the return to the hereditary estate of property disposed of by lucrative
title by the testator during his lifetime.[13]
The purposes of collation are to secure equality among the compulsory heirs in so far
as is possible, and to determine the free portion, after finding the legitime, so that inofficious
donations may be reduced.[14]
Collation takes place when there are compulsory heirs, one of its purposes being to
determine the legitime and the free portion. If there is no compulsory heir, there is no legitime
to be safeguarded.[15]
The records do not show that the decedent left any primary, secondary, or concurring
compulsory heirs. He was only survived by his siblings, who are his collateral relatives and,
therefore, are not entitled to any legitime that part of the testators property which he cannot
dispose of because the law has reserved it for compulsory heirs.[16]
The compulsory heirs may be classified into (1) primary, (2) secondary, and
precedence over and exclude other compulsory heirs; legitimate children
and descendants are primary compulsory heirs. The secondary compulsory
heirs are those who succeed only in the absence of the primary heirs; the
legitimate parents and ascendants are secondary compulsory heirs. The
concurring compulsory heirs are those who succeed together with the
primary or the secondary compulsory heirs; the illegitimate children, and
the surviving spouse are concurring compulsory heirs.[17]
The decedent not having left any compulsory heir who is entitled to any legitime, he
was at liberty to donate all his properties, even if nothing was left for his siblings-collateral
relatives to inherit. His donation to petitioner, assuming that it was valid,[18] is deemed as
donation made to a stranger, chargeable against the free portion of the estate.[19] There being
no compulsory heir, however, the donated property is not subject to collation.
On the second issue:
The decedents remaining estate should thus be partitioned equally among his heirs-
siblings-collateral relatives, herein petitioner and respondents, pursuant to the provisions of
the Civil Code, viz:
Art. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed to the
entire estate of the deceased in accordance with the following
articles. (underscoring supplied)
Art. 1004. Should the only survivors be brothers and sisters of the
full blood, they shall inherit in equal shares. (emphasis and underscoring
supplied)
WHEREFORE, the petition is GRANTED. The Court of Appeals Decision ordering the collation
of the property donated to petitioner, Amelia N. Arellano, to the estate of the deceased Angel N.
Pascual, Jr. is SET ASIDE.
Let the records of the case be REMANDED to the court of origin, Branch 135 of the
Makati Regional Trial Court, which is ordered to conduct further proceedings in the case for the
purpose of determining what finally forms part of the estate, and thereafter to divide whatever
remains of it equally among the parties.
SO ORDERED.
 [G.R. No. 112483. October 8, 1999]
ELOY IMPERIAL, petitioner vs. COURT OF APPEALS, REGIONAL TRIAL COURT OF LEGASPI
CITY, CESAR VILLALON, JR., TERESA VILLALON, ANTONIO VILLALON, AUGUSTO
VILLALON, ROBERTO VILLALON, RICARDO VILLALON and ESTHER
VILLALON, respondents.
DECISION
GONZAGA-REYES, J.:
Petitioner seeks to set aside the Decision of the Court of Appeals in C.A.-G.R. CV No.
31976[1], affirming the Decision of the Regional Trial Court of Legazpi City [2], which rendered
inofficious the donation made by Leoncio Imperial in favor of hereinpetitioner, to the extent
that it impairs the legitime of Victor Imperial, and ordering petitioner to convey to herein
private respondents, heirs of said Victor Imperial, that portion of the donated land
proportionate to Victor Imperials legitime.
Leoncio Imperial was the registered owner of a 32,837-square meter parcel of land
covered by Original Certificate of Title No. 200, also known as Lot 45 of the Cadastral Survey of
Albay. On July 7, 1951, Leoncio sold the said lot for P1.00 to his acknowledged natural son,
petitioner herein, who then acquired title over the land and proceeded to subdivide it into
several lots. Petitioner and private respondents admit that despite the contracts designation as
one of Absolute Sale, the transaction was in fact a donation.
On July 28, 1953, or barely two years after the donation, Leoncio filed a complaint for
annulment of the said Deed of Absolute Sale, docketed as Civil Case No. 1177, in the then Court
of First Instance of Albay, on the ground that he was deceived by petitioner herein into signing
the said document. The dispute, however, was resolved through a compromise agreement,
approved by the Court of First Instance of Albay on November 3, 1961[3], under which terms:
(1) Leoncio recognized the legality and validity of the rights of petitioner to the land donated;
and (2) petitioner agreed to sell a designated 1,000-square meter portion of the donated land,
and to deposit the proceeds thereof in a bank, for the convenient disposal of Leoncio. In case of
Leoncios death, it was agreed that the balance of the deposit will be withdrawn by petitioner to
defray burial costs.
On January 8, 1962, and pending execution of the above judgment, Leoncio died, leaving
only two heirs --- the herein petitioner, who is his acknowledged natural son, and an adopted
son, Victor Imperial. On March 8, 1962, Victor was substituted in place of Leoncio in the above-
mentioned case, and it was he who moved for execution of judgment. On March 15, 1962, the
motion for execution was duly granted.
Fifteen years thereafter, or on July 26, 1977, Victor died single and without issue,
survived only by his natural father, Ricardo Villalon, who was a lessee of a portion of the
disputed land. Four years hence, or on September 25, 1981, Ricardo died, leaving as his only
heirs his two children, Cesar and Teresa Villalon.
Five years thereafter, or sometime in 1986, Cesar and Teresa filed a complaint for
annulment of the donation with the Regional Trial Court of Legazpi City, docketed as Civil Case
No. 7646. Petitioner moved to dismiss on the ground of res judicata, by virtue of the
compromise judgment rendered by the Court of First Instance of Albay. The trial court granted
the motion to dismiss, but the Court of Appeals reversed the trial courts order and remanded
the case for further proceedings.
On October 18, 1989, Cesar and Teresa filed an amended complaint in the same case, Civil
Case No. 7646, for Annulment of Documents, Reconveyance and Recovery of Possession with
the Regional Trial Court of Legazpi City, seeking the nullification of the Deed of Absolute Sale
affecting the above property, on grounds of fraud, deceit and inofficiousness. In the amended
complaint, it was alleged that petitioner caused Leoncio to execute the donation by taking
undue advantage of the latters physical weakness and mental unfitness, and that the
conveyance of said property in favor of petitioner impaired the legitime of Victor Imperial, their
natural brother and predecessor-in-interest.[4]
In his Answer, petitioner: (1) alleged that Leoncio had conveyed sufficient property to
Victor to cover his legitime, consisting of 563 hectares of agricultural land in Manito, Albay; (2)
reiterated the defense of res judicata, and (3) raised the additional defenses of prescription and
laches.
Plaintiff Cesar Villalon died on December 26, 1989, while the case was pending in the
Regional Trial Court, and was substituted in this action by his sons, namely, Antonio, Roberto,
Augusto, Ricardo and Cesar, Jr., all surnamed Villalon, and his widow, Esther H. Villalon.
The RTC held the donation to be inofficious and impairing the legitime of Victor, on the
basis of its finding that at the time of Leoncios death, he left no property other than the 32,837-
square meter parcel of land which he had donated to petitioner. The RTC went on further to
state that petitioners allegation that other properties existed and were inherited by Victor was
not substantiated by the evidence.[5]
The legitime of Victor was determined by the trial court in this manner:
Considering that the property donated is 32,837 square meters, one half of that or 16,418
square meters becomes the free portion of Leoncio which could be absorbed in the donation to
defendant. The other half, which is also 16,418 square meters is where the legitime of the
adopted son Victor Imperial has to be taken.
The proportion of the legitime of the legitimate child (including the adopted child) in relation to
the acknowledged natural child (defendant) is 10 is to 5[,] with the acknowledged natural child
getting of the legitime of the legitimate (adopted) child, in accordance with Art. 895 of the New
Civil Code which provides:
The legitime of each of the acknowledged natural children and each of the natural children by
legal fiction shall consist of one-half of the legitime of each of the legitimate children or
descendants.
From the 16,418 square meters left (after the free portion has been taken) plaintiffs are
therefore entitled to 10,940 square meters while defendant gets 5,420 square meters. [6]
The trial court likewise held that the applicable prescriptive period is 30 years under
Article 1141 of the Civil Code[7], reckoned from March 15, 1962, when the writ of execution of
the compromise judgment in Civil Case 1177 was issued, and that the original complaint having
been filed in 1986, the action has not yet prescribed. In addition, the trial court regarded the
defense of prescription as having been waived, this not being one of the issues agreed upon at
pre-trial.
Thus, the dispositive portion of the RTCs Decision of December 13, 1990 reads:
WHEREFORE, premises considered, the Deed of Absolute Sale otherwise known as Doc. No. 8;
Book No. 14; Page No. 1; Series of 1951 of the Notarial file of Pompeyo B. Calleja which is
considered a donation, is hereby reduced proportionately insofar as it affected the legitime of
the late Victor Imperial, which share is inherited by the plaintiffs herein, to the extent that
plaintiffs are ordered to be given by defendant a portion of 10,940 square meters thereof.
In order to avoid further conflict, the 10,940 share to be given to plaintiffs should include the
portion which they are presently occupying, by virtue of the extended lease to their father
Ricardo Villalon, where the bungalow in question stands.
The remaining portion to be given to plaintiffs may come from any other portion that may be
agreed upon by the parties, otherwise, this court will appoint a commissioner to undertake the
partition.
The other 21,897 square meters should go to the defendant as part of his legitime and by virtue
of the reduced donation.
No pronouncement as to damages as they were not sufficiently proved.
SO ORDERED.[8]
The Court of Appeals affirmed the RTC Decision in toto.
Before us, petitioner questions the following findings of respondent court: (1) that there
was no res judicata, there being no identity of parties and cause of action between the instant
case and Civil Case No. 1177; (2) that private respondents had a right to question the donation;
(3) that private respondents action is barred by prescription, laches and estoppel; and (4) that
the donation was inofficious and should be reduced.
It is an indispensable requirement in res judicata that there be, between the first and
second action, identity of parties, of subject matter and of cause of action. [9] A perusal of the
records leads us to conclude that there is no identity of parties and of cause of action as
between Civil Case No. 1177 and Civil Case No. 7646. Civil Case No. 1177 was instituted by
Leoncio in his capacity as donor of the questioned donation. While it is true that upon his death,
Victor was substituted as plaintiff of the action, such does not alter the fact that Victors
participation in the case was in representation of the interests of the original plaintiff,
Leoncio. The purpose behind the rule on substitution of parties is to ensure that the deceased
party would continue to be properly represented in the suit through the duly appointed legal
representative of the estate[10], or his heir, as in this case, for which no court appointment is
required.[11] Petitioners argument, therefore, that there is substantial identity between Leoncio
and private respondents, being heirs and successors-in-interest of Victor, is unavailing.
Moreover, Leoncios cause of action as donor of the property was fraud, purportedly
employed upon him by petitioner in the execution of the donation. While the same
circumstances of fraud and deceit are alleged in private respondents complaint, it also raises
the additional ground of inofficiousness of donation.
Contrary to petitioners contentions, inofficiousness of donation does not, and could not,
form part of Leoncios cause of action in Civil Case No. 1177. Inofficiousness as a cause of action
may arise only upon the death of the donor, as the value of the donation will then be contrasted
with the net value of the estate of the donor-deceased.[12]
Consequently, while in Civil Case No. 1177, Leoncio sought the revocation in full of the
donation on ground of fraud, the instant case actually has two alternative causes of action. First,
for fraud and deceit, under the same circumstances as alleged in Leoncios complaint, which
seeks the annulment in full of the donation, and which the trial court correctly dismissed
because the compromise agreement in Civil Case No. 1177 served as a ratification and waiver
on the part of Leoncio of whatever defects in voluntariness and consent may have been
attendant in the making of the donation. The second cause of action is the alleged
inofficiousness of the donation, resulting in the impairment of Victors legitime, which seeks the
annulment, not of the entire donation, but only of that portion diminishing the legitime. [13] It is
on the basis of this second cause of action that private respondents prevailed in the lower
courts.
Petitioner next questions the right of private respondents to contest the
donation. Petitioner sources his argument from Article 772 of the Civil Code, thus:
Only those who at the time of the donors death have a right to the legitime and their heirs and
successors in interest may ask for the reduction of inofficious donations. xxx
As argued by petitioner, when Leoncio died on January 8, 1962, it was only Victor who
was entitled to question the donation. However, instead of filing an action to contest the
donation, Victor asked to be substituted as plaintiff in Civil Case No. 1177 and even moved for
execution of the compromise judgment therein.
No renunciation of legitime may be presumed from the foregoing acts. It must be
remembered that at the time of the substitution, the judgment approving the compromise
agreement has already been rendered. Victor merely participated in the execution of the
compromise judgment. He was not a party to the compromise agreement.
More importantly, our law on succession does not countenance tacit repudiation of
inheritance. Rather, it requires an express act on the part of the heir. Thus, under Article 1051
of Civil Code:
The repudiation of an inheritance shall be made in a public or authentic instrument, or by
petition presented to the court having jurisdiction over the testamentary or intestate
proceedings.
Thus, when Victor substituted Leoncio in Civil Case No. 1177 upon the latters death, his
act of moving for execution of the compromise judgment cannot be considered an act of
renunciation of his legitime. He was, therefore, not precluded or estopped from subsequently
seeking the reduction of the donation, under Article 772. Nor are Victors heirs, upon his death,
precluded from doing so, as their right to do so is expressly recognized under Article 772, and
also in Article 1053:
If the heir should die without having accepted or repudiated the inheritance, his right shall be
transmitted to his heirs.
Be that as it may, we find merit in petitioners other assignment of errors. Having
ascertained this action as one for reduction of an inofficious donation, we cannot sustain the
holding of both the trial court and the Court of Appeals that the applicable prescriptive period
is thirty years, under Article 1141 of the Civil Code. The sense of both courts that this case is a
real action over an immovable allots undue credence to private respondents description of
their complaint, as one for Annulment of Documents, Reconveyance and Recovery of
Possession of Property, which suggests the action to be, in part, a real action enforced by those
with claim of title over the disputed land.
Unfortunately for private respondents, a claim for legitime does not amount to a claim of
title. In the recent case of Vizconde vs. Court of Appeals[14], we declared that what is brought to
collation is not the donated property itself, but the value of the property at the time it was
donated. The rationale for this is that the donation is a real alienation which conveys ownership
upon its acceptance, hence, any increase in value or any deterioration or loss thereof is for the
account of the heir or donee.[15]
What, then, is the prescriptive period for an action for reduction of an inofficious
donation? The Civil Code specifies the following instances of reduction or revocation of
donations: (1) four years, in cases of subsequent birth, appearance, recognition or adoption of a
child;[16] (2) four years, for non-compliance with conditions of the donation;[17] and (3) at any
time during the lifetime of the donor and his relatives entitled to support, for failure of the
donor to reserve property for his or their support.[18]Interestingly, donations as in the instant
case,[19] the reduction of which hinges upon the allegation of impairment of legitime, are not
controlled by a particular prescriptive period, for which reason we must resort to the ordinary
rules of prescription.
Under Article 1144 of the Civil Code, actions upon an obligation created by law must be
brought within ten years from the time the right of action accrues. Thus, the ten-year
prescriptive period applies to the obligation to reduce inofficious donations, required under
Article 771 of the Civil Code, to the extent that they impair the legitime of compulsory heirs.
From when shall the ten-year period be reckoned? The case of Mateo vs.
Lagua, 29 SCRA 864, which involved the reduction for inofficiousness of a donation propter
nuptias, recognized that the cause of action to enforce a legitime accrues upon the death of the
donor-decedent. Clearly so, since it is only then that the net estate may be ascertained and on
which basis, the legitimes may be determined.
It took private respondents 24 years since the death of Leoncio to initiate this case. The
action, therefore, has long prescribed.
As for the trial courts holding that the defense of prescription had been waived, it not
being one of the issues agreed upon at pre-trial, suffice it to say that while the terms of the pre-
trial order bind the parties as to the matters to be taken up in trial, it would be the height of
injustice for us to adhere to this technicality when the fact of prescription is manifest in the
pleadings of the parties, as well as the findings of fact of the lower courts.[20]
A perusal of the factual antecedents reveals that not only has prescription set in, private
respondents are also guilty of estoppel by laches. It may be recalled that Leoncio died on
January 8, 1962. Fifteen years later, Victor died, leaving as his sole heir Ricardo Villalon, who
also died four years later. While Victor was alive, he gave no indication of any interest to
contest the donation of his deceased father. As we have discussed earlier, the fact that he
actively participated in Civil Case No. 1177 did not amount to a renunciation of his inheritance
and does not preclude him from bringing an action to claim his legitime. These are matters that
Victor could not possibly be unaware of, considering that he is a lawyer [21]. Ricardo Villalon was
even a lessee of a portion of the donated property, and could have instituted the action as sole
heir of his natural son, or at the very least, raised the matter of legitime by way of counterclaim
in an ejectment case[22] filed against him by petitioner in 1979. Neither does it help private
respondents cause that five years have elapsed since the death of Ricardo in 1981 before they
filed their complaint with the RTC.
Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of
time to do that which, by exercising due diligence, could or should have been done earlier,
warranting a presumption that the person has abandoned his right or declined to assert
it.[23] We find the necessity for the application of the principle of estoppel by laches in this case,
in order to avoid an injustice.
A final word on collation of donations. We observe that after finding the donation to be
inofficious because Leoncio had no other property at the time of his death, the RTC computed
the legitime of Victor based on the area of the donated property. Hence, in its dispositive
portion, it awarded a portion of the property to private respondents as Victors legitime. This
was upheld by the Court of Appeals.
Our rules of succession require that before any conclusion as to the legal share due to a
compulsory heir may be reached, the following steps must be taken: (1) the net estate of the
decedent must be ascertained, by deducting all the payable obligations and charges from the
value of the property owned by the deceased at the time of his death; (2) the value of all
donations subject to collation would be added to it.[24]
Thus, it is the value of the property at the time it is donated, and not the property itself,
which is brought to collation. Consequently, even when the donation is found inofficious and
reduced to the extent that it impaired Victors legitime, private respondents will not receive a
corresponding share in the property donated. Thus, in this case where the collatable property
is an immovable, what may be received is: (1) an equivalent, as much as possible, in property of
the same nature, class and quality;[25] (2) if such is impracticable, the equivalent value of the
impaired legitime in cash or marketable securities;[26] or (3) in the absence of cash or securities
in the estate, so much of such other property as may be necessary, to be sold in public
auction.[27]
We believe this worth mentioning, even as we grant the petition on grounds of
prescription and laches.
ACCORDINGLY, the decision of the Court of Appeals in C.A. G.R. CV No. 31976,
affirming in toto the decision of the Regional Trial Court in Civil Case No. 7646, is reversed and
set aside. No costs. SO ORDERED.