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G.R. No. L-43082 June 18, 1937
PABLO LORENZO, as trustee of the estate of
Thomas Hanley, deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal
Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-
appellant.
Office of the Solicitor-General Hilado for defendant-
appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in
his capacity as trustee of the estate of Thomas
Hanley, deceased, brought this action in the Court
of First Instance of Zamboanga against the
defendant, Juan Posadas, Jr., then the Collector of
Internal Revenue, for the refund of the amount of
P2,052.74, paid by the plaintiff as inheritance tax
on the estate of the deceased, and for the
collection of interst thereon at the rate of 6 per cent
per annum, computed from September 15, 1932,
the date when the aforesaid tax was [paid under
protest. The defendant set up a counterclaim for
P1,191.27 alleged to be interest due on the tax in
question and which was not included in the original
assessment. From the decision of the Court of First
Instance of Zamboanga dismissing both the
plaintiff's complaint and the defendant's
counterclaim, both parties appealed to this court.
It appears that on May 27, 1922, one Thomas
Hanley died in Zamboanga, Zamboanga, leaving a
will (Exhibit 5) and considerable amount of real and
personal properties. On june 14, 1922, proceedings
for the probate of his will and the settlement and
distribution of his estate were begun in the Court of
First Instance of Zamboanga. The will was admitted
to probate. Said will provides, among other things,
as follows:
4. I direct that any money left by me be
given to my nephew Matthew Hanley.
5. I direct that all real estate owned by me at
the time of my death be not sold or
otherwise disposed of for a period of ten
(10) years after my death, and that the
same be handled and managed by the
executors, and proceeds thereof to be given
to my nephew, Matthew Hanley, at
Castlemore, Ballaghaderine, County of
Rosecommon, Ireland, and that he be
directed that the same be used only for the
education of my brother's children and their
descendants.
6. I direct that ten (10) years after my death
my property be given to the above
mentioned Matthew Hanley to be disposed
of in the way he thinks most advantageous.
xxx xxx xxx
8. I state at this time I have one brother
living, named Malachi Hanley, and that my
nephew, Matthew Hanley, is a son of my
said brother, Malachi Hanley.
The Court of First Instance of Zamboanga
considered it proper for the best interests of ther
estate to appoint a trustee to administer the real
properties which, under the will, were to pass to
Matthew Hanley ten years after the two executors
named in the will, was, on March 8, 1924,
appointed trustee. Moore took his oath of office and
gave bond on March 10, 1924. He acted as trustee
until February 29, 1932, when he resigned and the
plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee,
the defendant Collector of Internal Revenue,
alleging that the estate left by the deceased at the
time of his death consisted of realty valued at
P27,920 and personalty valued at P1,465, and
allowing a deduction of P480.81, assessed against
the estate an inheritance tax in the amount of
P1,434.24 which, together with the penalties for
deliquency in payment consisting of a 1 per cent
monthly interest from July 1, 1931 to the date of
payment and a surcharge of 25 per cent on the tax,
amounted to P2,052.74. On March 15, 1932, the
defendant filed a motion in the testamentary
proceedings pending before the Court of First
Instance of Zamboanga (Special proceedings No.
302) praying that the trustee, plaintiff herein, be
ordered to pay to the Government the said sum of
P2,052.74. The motion was granted. On September
15, 1932, the plaintiff paid said amount under
protest, notifying the defendant at the same time
that unless the amount was promptly refunded suit
would be brought for its recovery. The defendant
overruled the plaintiff's protest and refused to
refund the said amount hausted, plaintiff went to
court with the result herein above indicated.

In his appeal, plaintiff contends that the lower court
erred:
I. In holding that the real property of
Thomas Hanley, deceased, passed to his
instituted heir, Matthew Hanley, from the
moment of the death of the former, and that
from the time, the latter became the owner
thereof.
II. In holding, in effect, that there was
deliquency in the payment of inheritance tax
due on the estate of said deceased.
III. In holding that the inheritance tax in
question be based upon the value of the
estate upon the death of the testator, and
not, as it should have been held, upon the
value thereof at the expiration of the period
of ten years after which, according to the
testator's will, the property could be and
was to be delivered to the instituted heir.
IV. In not allowing as lawful deductions, in
the determination of the net amount of the
estate subject to said tax, the amounts
allowed by the court as compensation to the
"trustees" and paid to them from the
decedent's estate.
V. In not rendering judgment in favor of the
plaintiff and in denying his motion for new
trial.
The defendant-appellant contradicts the theories of
the plaintiff and assigns the following error besides:
The lower court erred in not ordering the
plaintiff to pay to the defendant the sum of
P1,191.27, representing part of the interest
at the rate of 1 per cent per month from
April 10, 1924, to June 30, 1931, which the
plaintiff had failed to pay on the inheritance
tax assessed by the defendant against the
estate of Thomas Hanley.
The following are the principal questions to be
decided by this court in this appeal: (a) When does
the inheritance tax accrue and when must it be
satisfied? (b) Should the inheritance tax be
computed on the basis of the value of the estate at
the time of the testator's death, or on its value ten
years later? (c) In determining the net value of the
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estate subject to tax, is it proper to deduct the
compensation due to trustees? (d) What law
governs the case at bar? Should the provisions of
Act No. 3606 favorable to the tax-payer be given
retroactive effect? (e) Has there been deliquency in
the payment of the inheritance tax? If so, should
the additional interest claimed by the defendant in
his appeal be paid by the estate? Other points of
incidental importance, raised by the parties in their
briefs, will be touched upon in the course of this
opinion.
(a) The accrual of the inheritance tax is distinct
from the obligation to pay the same. Section 1536
as amended, of the Administrative Code, imposes
the tax upon "every transmission by virtue of
inheritance, devise, bequest, gift mortis causa, or
advance in anticipation of inheritance,devise, or
bequest." The tax therefore is upon transmission or
the transfer or devolution of property of a decedent,
made effective by his death. (61 C. J., p. 1592.) It is
in reality an excise or privilege tax imposed on the
right to succeed to, receive, or take property by or
under a will or the intestacy law, or deed, grant, or
gift to become operative at or after death. Acording
to article 657 of the Civil Code, "the rights to the
succession of a person are transmitted from the
moment of his death." "In other words", said
Arellano, C. J., ". . . the heirs succeed immediately
to all of the property of the deceased ancestor. The
property belongs to the heirs at the moment of the
death of the ancestor as completely as if the
ancestor had executed and delivered to them a
deed for the same before his death." (Bondad vs.
Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3
Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil.,
13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio
vs. Gat-Pandan, 14 Phil., 491; Aliasas vs.Alcantara,
16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil.,
321; Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs.
Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti
Steamship Co., 41 Phil., 531; Fule vs. Fule, 46
Phil., 317; Dais vs. Court of First Instance of Capiz,
51 Phil., 396; Baun vs. Heirs of Baun, 53 Phil.,
654.) Plaintiff, however, asserts that while article
657 of the Civil Code is applicable to testate as well
as intestate succession, it operates only in so far as
forced heirs are concerned. But the language of
article 657 of the Civil Code is broad and makes no
distinction between different classes of heirs. That
article does not speak of forced heirs; it does not
even use the word "heir". It speaks of the rights of
succession and the transmission thereof from the
moment of death. The provision of section 625 of

the Code of Civil Procedure regarding the
authentication and probate of a will as a necessary
condition to effect transmission of property does not
affect the general rule laid down in article 657 of the
Civil Code. The authentication of a will implies its
due execution but once probated and allowed the
transmission is effective as of the death of the
testator in accordance with article 657 of the Civil
Code. Whatever may be the time when actual
transmission of the inheritance takes place,
succession takes place in any event at the moment
of the decedent's death. The time when the heirs
legally succeed to the inheritance may differ from
the time when the heirs actually receive such
inheritance. "Poco importa", says Manresa
commenting on article 657 of the Civil Code, "que
desde el falleimiento del causante, hasta que el
heredero o legatario entre en posesion de los
bienes de la herencia o del legado, transcurra
mucho o poco tiempo, pues la adquisicion ha de
retrotraerse al momento de la muerte, y asi lo
ordena el articulo 989, que debe considerarse
como complemento del presente." (5 Manresa,
305; see also, art. 440, par. 1, Civil Code.) Thomas
Hanley having died on May 27, 1922, the
inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died
on May 27, 1922, it does not follow that the
obligation to pay the tax arose as of the date. The
time for the payment on inheritance tax is clearly
fixed by section 1544 of the Revised Administrative
Code as amended by Act No. 3031, in relation to
section 1543 of the same Code. The two sections
follow:
SEC. 1543. Exemption of certain
acquisitions and transmissions. — The
following shall not be taxed:
(a) The merger of the usufruct in the
owner of the naked title.
(b) The transmission or delivery of
the inheritance or legacy by the
fiduciary heir or legatee to the
trustees.
(c) The transmission from the first
heir, legatee, or donee in favor of
another beneficiary, in accordance
with the desire of the predecessor.
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In the last two cases, if the scale of taxation
appropriate to the new beneficiary is greater
than that paid by the first, the former must
pay the difference.
SEC. 1544. When tax to be paid. — The tax
fixed in this article shall be paid:
(a) In the second and third cases of
the next preceding section, before
entrance into possession of the
property.
(b) In other cases, within the six
months subsequent to the death of
the predecessor; but if judicial
testamentary or intestate
proceedings shall be instituted prior
to the expiration of said period, the
payment shall be made by the
executor or administrator before
delivering to each beneficiary his
share.
If the tax is not paid within the time
hereinbefore prescribed, interest at the rate
of twelve per centum per annum shall be
added as part of the tax; and to the tax and
interest due and unpaid within ten days after
the date of notice and demand thereof by
the collector, there shall be further added a
surcharge of twenty-five per centum.
A certified of all letters testamentary or of
admisitration shall be furnished the
Collector of Internal Revenue by the Clerk
of Court within thirty days after their
issuance.
It should be observed in passing that the word
"trustee", appearing in subsection (b) of section
1543, should read "fideicommissary" or "cestui que
trust". There was an obvious mistake in translation
from the Spanish to the English version.
The instant case does fall under subsection (a), but
under subsection (b), of section 1544 above-
quoted, as there is here no fiduciary heirs, first
heirs, legatee or donee. Under the subsection, the
tax should have been paid before the delivery of
the properties in question to P. J. M. Moore as
trustee on March 10, 1924.

(b) The plaintiff contends that the estate of Thomas
Hanley, in so far as the real properties are
concerned, did not and could not legally pass to the
instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the
testator on May 27, 1922 and, that the inheritance
tax should be based on the value of the estate in
1932, or ten years after the testator's death. The
plaintiff introduced evidence tending to show that in
1932 the real properties in question had a
reasonable value of only P5,787. This amount
added to the value of the personal property left by
the deceased, which the plaintiff admits is P1,465,
would generate an inheritance tax which, excluding
deductions, interest and surcharge, would amount
only to about P169.52.
If death is the generating source from which the
power of the estate to impose inheritance taxes
takes its being and if, upon the death of the
decedent, succession takes place and the right of
the estate to tax vests instantly, the tax should be
measured by the vlaue of the estate as it stood at
the time of the decedent's death, regardless of any
subsequent contingency value of any subsequent
increase or decrease in value. (61 C. J., pp. 1692,
1693; 26 R. C. L., p. 232; Blakemore and Bancroft,
Inheritance Taxes, p. 137. See also Knowlton vs.
Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44
Law. ed., 969.) "The right of the state to an
inheritance tax accrues at the moment of death,
and hence is ordinarily measured as to any
beneficiary by the value at that time of such
property as passes to him. Subsequent
appreciation or depriciation is immaterial." (Ross,
Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule
in Cyclopedia of Law of and Procedure (vol. 37, pp.
1574, 1575) that, in the case of contingent
remainders, taxation is postponed until the estate
vests in possession or the contingency is settled.
This rule was formerly followed in New York and
has been adopted in Illinois, Minnesota,
Massachusetts, Ohio, Pennsylvania and Wisconsin.
This rule, horever, is by no means entirely
satisfactory either to the estate or to those
interested in the property (26 R. C. L., p. 231.).
Realizing, perhaps, the defects of its anterior
system, we find upon examination of cases and
authorities that New York has varied and now
requires the immediate appraisal of the postponed
estate at its clear market value and the payment
forthwith of the tax on its out of the corpus of the
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estate transferred. (In re Vanderbilt, 172 N. Y., 69;
69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458;
83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y.,
501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609;
64 N. E., 958; Estate of Post, 85 App. Div., 611; 82
N. Y. Supp., 1079. Vide also, Saltoun vs. Lord
Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L.,
659; 23 Eng. Rul. Cas., 888.) California adheres to
this new rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions,
we hold that a transmission by inheritance is
taxable at the time of the predecessor's death,
notwithstanding the postponement of the actual
possession or enjoyment of the estate by the
beneficiary, and the tax measured by the value of
the property transmitted at that time regardless of
its appreciation or depreciation.
(c) Certain items are required by law to be
deducted from the appraised gross in arriving at the
net value of the estate on which the inheritance tax
is to be computed (sec. 1539, Revised
Administrative Code). In the case at bar, the
defendant and the trial court allowed a deduction of
only P480.81. This sum represents the expenses
and disbursements of the executors until March 10,
1924, among which were their fees and the proven
debts of the deceased. The plaintiff contends that
the compensation and fees of the trustees, which
aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH,
JJ, LL, NN, OO), should also be deducted under
section 1539 of the Revised Administrative Code
which provides, in part, as follows: "In order to
determine the net sum which must bear the tax,
when an inheritance is concerned, there shall be
deducted, in case of a resident, . . . the judicial
expenses of the testamentary or intestate
proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair
compensation for his services (Barney vs.
Saunders, 16 How., 535; 14 Law. ed., 1047). But
from this it does not follow that the compensation
due him may lawfully be deducted in arriving at the
net value of the estate subject to tax. There is no
statute in the Philippines which requires trustees'
commissions to be deducted in determining the net
value of the estate subject to inheritance tax (61 C.
J., p. 1705). Furthermore, though a testamentary
trust has been created, it does not appear that the
testator intended that the duties of his executors
and trustees should be separated. (Ibid.; In
re Vanneck's Estate, 161 N. Y. Supp., 893; 175

App. Div., 363; In re Collard's Estate, 161 N. Y.
Supp., 455.) On the contrary, in paragraph 5 of his
will, the testator expressed the desire that his real
estate be handled and managed by his executors
until the expiration of the period of ten years therein
provided. Judicial expenses are expenses of
administration (61 C. J., p. 1705) but, in State vs.
Hennepin County Probate Court (112 N. W., 878;
101 Minn., 485), it was said: ". . . The
compensation of a trustee, earned, not in the
administration of the estate, but in the management
thereof for the benefit of the legatees or devises,
does not come properly within the class or reason
for exempting administration expenses. . . . Service
rendered in that behalf have no reference to closing
the estate for the purpose of a distribution thereof
to those entitled to it, and are not required or
essential to the perfection of the rights of the heirs
or legatees. . . . Trusts . . . of the character of that
here before the court, are created for the the
benefit of those to whom the property ultimately
passes, are of voluntary creation, and intended for
the preservation of the estate. No sound reason is
given to support the contention that such expenses
should be taken into consideration in fixing the
value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the
inheritance tax due from the estate of Thomas
Hanley under the provisions of section 1544 of the
Revised Administrative Code, as amended by
section 3 of Act No. 3606. But Act No. 3606 went
into effect on January 1, 1930. It, therefore, was not
the law in force when the testator died on May 27,
1922. The law at the time was section 1544 above-
mentioned, as amended by Act No. 3031, which
took effect on March 9, 1922.
It is well-settled that inheritance taxation is
governed by the statute in force at the time of the
death of the decedent (26 R. C. L., p. 206; 4 Cooley
on Taxation, 4th ed., p. 3461). The taxpayer can
not foresee and ought not to be required to guess
the outcome of pending measures. Of course, a tax
statute may be made retroactive in its operation.
Liability for taxes under retroactive legislation has
been "one of the incidents of social life." (Seattle
vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup.
Ct. Rep., 44.) But legislative intent that a tax statute
should operate retroactively should be perfectly
clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491;
Smietanka vs. First Trust & Savings Bank, 257 U.
S., 602; Stockdale vs. Insurance Co., 20 Wall., 323;
Lunch vs. Turrish, 247 U. S., 221.) "A statute
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should be considered as prospective in its
operation, whether it enacts, amends, or repeals an
inheritance tax, unless the language of the statute
clearly demands or expresses that it shall have a
retroactive effect, . . . ." (61 C. J., P. 1602.) Though
the last paragraph of section 5 of Regulations No.
65 of the Department of Finance makes section 3
of Act No. 3606, amending section 1544 of the
Revised Administrative Code, applicable to all
estates the inheritance taxes due from which have
not been paid, Act No. 3606 itself contains no
provisions indicating legislative intent to give it
retroactive effect. No such effect can begiven the
statute by this court.
The defendant Collector of Internal Revenue
maintains, however, that certain provisions of Act
No. 3606 are more favorable to the taxpayer than
those of Act No. 3031, that said provisions are
penal in nature and, therefore, should operate
retroactively in conformity with the provisions of
article 22 of the Revised Penal Code. This is the
reason why he applied Act No. 3606 instead of Act
No. 3031. Indeed, under Act No. 3606, (1) the
surcharge of 25 per cent is based on the tax only,
instead of on both the tax and the interest, as
provided for in Act No. 3031, and (2) the taxpayer is
allowed twenty days from notice and demand by
rthe Collector of Internal Revenue within which to
pay the tax, instead of ten days only as required by
the old law.
Properly speaking, a statute is penal when it
imposes punishment for an offense committed
against the state which, under the Constitution, the
Executive has the power to pardon. In common
use, however, this sense has been enlarged to
include within the term "penal statutes" all status
which command or prohibit certain acts, and
establish penalties for their violation, and even
those which, without expressly prohibiting certain
acts, impose a penalty upon their commission (59
C. J., p. 1110). Revenue laws, generally, which
impose taxes collected by the means ordinarily
resorted to for the collection of taxes are not
classed as penal laws, although there are
authorities to the contrary. (See Sutherland,
Statutory Construction, 361; Twine Co. vs.
Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice
vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs.
Standard Oil Co., 101 Pa. St., 150; State vs.
Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the
Revised Penal Code is not applicable to the case at

bar, and in the absence of clear legislative intent,
we cannot give Act No. 3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to
pay a tax may arise at a certain time and the tax
may be paid within another given time. As stated by
this court, "the mere failure to pay one's tax does
not render one delinqent until and unless the entire
period has eplased within which the taxpayer is
authorized by law to make such payment without
being subjected to the payment of penalties for
fasilure to pay his taxes within the prescribed
period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the
executor to pay the inheritance tax before the
delivery of the decedent's property to the trustee.
Stated otherwise, the defendant contends that
delivery to the trustee was delivery to the cestui
que trust, the beneficiery in this case, within the
meaning of the first paragraph of subsection (b) of
section 1544 of the Revised Administrative Code.
This contention is well taken and is sustained. The
appointment of P. J. M. Moore as trustee was made
by the trial court in conformity with the wishes of the
testator as expressed in his will. It is true that the
word "trust" is not mentioned or used in the will but
the intention to create one is clear. No particular or
technical words are required to create a
testamentary trust (69 C. J., p. 711). The words
"trust" and "trustee", though apt for the purpose,
are not necessary. In fact, the use of these two
words is not conclusive on the question that a trust
is created (69 C. J., p. 714). "To create a trust by
will the testator must indicate in the will his intention
so to do by using language sufficient to separate
the legal from the equitable estate, and with
sufficient certainty designate the beneficiaries, their
interest in the ttrust, the purpose or object of the
trust, and the property or subject matter thereof.
Stated otherwise, to constitute a valid testamentary
trust there must be a concurrence of three
circumstances: (1) Sufficient words to raise a trust;
(2) a definite subject; (3) a certain or ascertain
object; statutes in some jurisdictions expressly or in
effect so providing." (69 C. J., pp. 705,706.) There
is no doubt that the testator intended to create a
trust. He ordered in his will that certain of his
properties be kept together undisposed during a
fixed period, for a stated purpose. The probate
court certainly exercised sound judgment in
appointment a trustee to carry into effect the
provisions of the will (see sec. 582, Code of Civil
Procedure).
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P. J. M. Moore became trustee on March 10, 1924.
On that date trust estate vested in him (sec. 582 in
relation to sec. 590, Code of Civil Procedure). The
mere fact that the estate of the deceased was
placed in trust did not remove it from the operation
of our inheritance tax laws or exempt it from the
payment of the inheritance tax. The corresponding
inheritance tax should have been paid on or before
March 10, 1924, to escape the penalties of the
laws. This is so for the reason already stated that
the delivery of the estate to the trustee was in
esse delivery of the same estate to the cestui que
trust, the beneficiary in this case. A trustee is but an
instrument or agent for the cestui que trust (Shelton
vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57
Law. ed., 1086). When Moore accepted the trust
and took possesson of the trust estate he thereby
admitted that the estate belonged not to him but to
his cestui que trust (Tolentino vs. Vitug, 39
Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not
acquire any beneficial interest in the estate. He
took such legal estate only as the proper execution
of the trust required (65 C. J., p. 528) and, his
estate ceased upon the fulfillment of the testator's
wishes. The estate then vested absolutely in the
beneficiary (65 C. J., p. 542).
The highest considerations of public policy also
justify the conclusion we have reached. Were we to
hold that the payment of the tax could be
postponed or delayed by the creation of a trust of
the type at hand, the result would be plainly
disastrous. Testators may provide, as Thomas
Hanley has provided, that their estates be not
delivered to their beneficiaries until after the lapse
of a certain period of time. In the case at bar, the
period is ten years. In other cases, the trust may
last for fifty years, or for a longer period which does
not offend the rule against petuities. The collection
of the tax would then be left to the will of a private
individual. The mere suggestion of this result is a
sufficient warning against the accpetance of the
essential to the very exeistence of government.
(Dobbins vs. Erie Country, 16 Pet., 435; 10 Law.
ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491;
25 Law. ed., 558; Lane County vs. Oregon, 7 Wall.,
71; 19 Law. ed., 101; Union Refrigerator Transit
Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep.,
36; 50 Law. ed., 150; Charles River Bridge vs.
Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The
obligation to pay taxes rests not upon the privileges
enjoyed by, or the protection afforded to, a citizen
by the government but upon the necessity of
money for the support of the state (Dobbins vs. Erie

Country, supra). For this reason, no one is allowed
to object to or resist the payment of taxes solely
because no personal benefit to him can be pointed
out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct.
Rep., 340; 43 Law. ed., 740.) While courts will not
enlarge, by construction, the government's power
of taxation (Bromley vs. McCaughn, 280 U. S., 124;
74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also
will not place upon tax laws so loose a construction
as to permit evasions on merely fanciful and
insubstantial distictions. (U. S. vs. Watts, 1 Bond.,
580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2
Story, 369; Fed. Cas. No. 16,690, followed in
Froelich & Kuttner vs. Collector of Customs, 18
Phil., 461, 481; Castle Bros., Wolf & Sons vs.
McCoy, 21 Phil., 300; Muñoz & Co. vs. Hord, 12
Phil., 624; Hongkong & Shanghai Banking
Corporation vs. Rafferty, 39 Phil., 145; Luzon
Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When
proper, a tax statute should be construed to avoid
the possibilities of tax evasion. Construed this way,
the statute, without resulting in injustice to the
taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy
deeply intrenched in our tax system. Thus, no court
is allowed to grant injunction to restrain the
collection of any internal revenue tax ( sec. 1578,
Revised Administrative Code; Sarasola vs.
Trinidad, 40 Phil., 252). In the case of Lim Co Chui
vs. Posadas (47 Phil., 461), this court had
occassion to demonstrate trenchment adherence to
this policy of the law. It held that "the fact that on
account of riots directed against the Chinese on
October 18, 19, and 20, 1924, they were prevented
from praying their internal revenue taxes on time
and by mutual agreement closed their homes and
stores and remained therein, does not authorize the
Collector of Internal Revenue to extend the time
prescribed for the payment of the taxes or to accept
them without the additional penalty of twenty five
per cent." (Syllabus, No. 3.)
". . . It is of the utmost importance," said the
Supreme Court of the United States, ". . . that the
modes adopted to enforce the taxes levied should
be interfered with as little as possible. Any delay in
the proceedings of the officers, upon whom the
duty is developed of collecting the taxes, may
derange the operations of government, and
thereby, cause serious detriment to the public."
(Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65,
66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
7
It results that the estate which plaintiff represents
has been delinquent in the payment of inheritance
tax and, therefore, liable for the payment of interest
and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10,
1924, the date when Moore became trustee. The
interest due should be computed from that date and
it is error on the part of the defendant to compute it
one month later. The provisions cases is mandatory
(see and cf. Lim Co Chui vs. Posadas, supra), and
neither the Collector of Internal Revenuen or this
court may remit or decrease such interest, no
matter how heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten
days after the date of notice and demand thereof by
the Collector of Internal Revenue, a surcharge of
twenty-five per centum should be added (sec.
1544, subsec. (b), par. 2, Revised Administrative
Code). Demand was made by the Deputy Collector
of Internal Revenue upon Moore in a communiction
dated October 16, 1931 (Exhibit 29). The date fixed
for the payment of the tax and interest was
November 30, 1931. November 30 being an official
holiday, the tenth day fell on December 1, 1931. As
the tax and interest due were not paid on that date,
the estate became liable for the payment of the
surcharge.
In view of the foregoing, it becomes unnecessary
for us to discuss the fifth error assigned by the
plaintiff in his brief.
We shall now compute the tax, together with the
interest and surcharge due from the estate of
Thomas Hanley inaccordance with the conclusions
we have reached.
At the time of his death, the deceased left real
properties valued at P27,920 and personal
properties worth P1,465, or a total of P29,385.
Deducting from this amount the sum of P480.81,
representing allowable deductions under secftion
1539 of the Revised Administrative Code, we have
P28,904.19 as the net value of the estate subject to
inheritance tax.
The primary tax, according to section 1536,
subsection (c), of the Revised Administrative Code,
should be imposed at the rate of one per centum
upon the first ten thousand pesos and two per
centum upon the amount by which the share
exceed thirty thousand pesos, plus an additional
 8

two hundred per centum. One per centum of ten

thousand pesos is P100. Two per centum of
P18,904.19 is P378.08. Adding to these two sums
an additional two hundred per centum, or P965.16,
we have as primary tax, correctly computed by the
defendant, the sum of P1,434.24.

To the primary tax thus computed should be added

the sums collectible under section 1544 of the
Revised Administrative Code. First should be
added P1,465.31 which stands for interest at the
rate of twelve per centum per annum from March
10, 1924, the date of delinquency, to September
15, 1932, the date of payment under protest, a
period covering 8 years, 6 months and 5 days. To
the tax and interest thus computed should be
added the sum of P724.88, representing a
surhcarge of 25 per cent on both the tax and
interest, and also P10, the compromise sum fixed
by the defendant (Exh. 29), giving a grand total of
P3,634.43.

As the plaintiff has already paid the sum of

P2,052.74, only the sums of P1,581.69 is legally
due from the estate. This last sum is P390.42 more
than the amount demanded by the defendant in his
counterclaim. But, as we cannot give the defendant
more than what he claims, we must hold that the
plaintiff is liable only in the sum of P1,191.27 the
amount stated in the counterclaim.

The judgment of the lower court is accordingly

modified, with costs against the plaintiff in both
instances. So ordered.

ARTICLE 779
G.R. No. L-21993 June 21, 1966
ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET
AL., petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the Court
of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA
JACALAN, respondents.
Lorenzo Somulong for petitioners.
Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio,
surnamed Rodriguez, petition this Court for a writ
of certiorari and prohibition to the Court of First
Instance of Bulacan, for its refusal to grant their
motion to dismiss its Special Proceeding No. 1331,
which said Court is alleged to have taken
cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the
order of the respondent court, dated June 13, 1963
(Petition, Annex 0), in this wise:
It is alleged in the motion to dismiss filed by
Angela, Maria, Abelardo and Antonio
Rodriguez, through counsel, that this Court
"has no jurisdiction to try the above-entitled
case in view of the pendency of another
action for the settlement of the estate of the
deceased Rev. Fr. Celestino Rodriguez in
the Court of First Instance of Rizal, namely,
Sp. Proceedings No. 3907 entitled 'In the
matter of the Intestate Estate of the
deceased Rev. Fr. Celestino Rodriguez
which was filed ahead of the instant case".
The records show that Fr. Celestino
Rodriguez died on February 12, 1963 in the
City of Manila; that on March 4, 1963,
Apolonia Pangilinan and Adelaida Jacalan
delivered to the Clerk of Court of Bulacan a
purported last will and testament of Fr.
Rodriguez; that on March 8, 1963, Maria
Rodriguez and Angela Rodriguez, through
counsel filed a petition for leave of court to
allow them to examine the alleged will; that
on March 11, 1963 before the Court could
9
act on the petition, the same was
withdrawn; that on March 12, 1963,
aforementioned petitioners filed before the
Court of First Instance of Rizal a petition for
the settlement of the intestate estate of Fr.
Rodriguez alleging, among other things, that
Fr. Rodriguez was a resident of Parañaque,
Rizal, and died without leaving a will and
praying that Maria Rodriguez be appointed
as Special Administratrix of the estate; and
that on March 12, 1963 Apolonia Pangilinan
and Adelaida Jacalan filed a petition in this
Court for the probation of the will delivered
by them on March 4, 1963. It was stipulated
by the parties that Fr. Rodriguez was born
in Parañaque, Rizal; that he was Parish
priest of the Catholic Church of Hagonoy,
Bulacan, from the year 1930 up to the time
of his death in 1963; that he was buried in
Parañaque, and that he left real properties
in Rizal, Cavite, Quezon City and Bulacan.
The movants contend that since the
intestate proceedings in the Court of First
Instance of Rizal was filed at 8:00 A.M. on
March 12, 1963 while the petition for
probate was filed in the Court of First
Instance of Bulacan at 11:00 A.M. on the
same date, the latter Court has no
jurisdiction to entertain the petition for
probate, citing as authority in support
thereof the case of Ongsingco Vda. de
Borja vs. Tan and De Borja, G.R. No. 7792,
July 27, 1955.
The petitioners Pangilinan and Jacalan, on
the other hand, take the stand that the Court
of First Instance of Bulacan acquired
jurisdiction over the case upon delivery by
them of the will to the Clerk of Court on
March 4, 1963, and that the case in this
Court therefore has precedence over the
case filed in Rizal on March 12, 1963.
The Court of First Instance, as previously stated
denied the motion to dismiss on the ground that a
difference of a few hours did not entitle one
proceeding to preference over the other; that, as
early as March 7, movants were aware of the
existence of the purported will of Father Rodriguez,
deposited in the Court of Bulacan, since they filed a
petition to examine the same, and that movants
clearly filed the intestate proceedings in Rizal "for
no other purpose than to prevent this Court (of

Bulacan) from exercising jurisdiction over the
probate proceedings". Reconsideration having
been denied, movants, now petitioners, came to
this Court, relying principally on Rule 73, section 1
of the Rules of Court, and invoking our ruling
in Ongsingco vs. Tan and De Borja, L-7792, July
27, 1955.
SECTION 1. Where estate of deceased
persons settled. — If the decedent is an
inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, his
will shall be proved, or letters of
administration granted, and his estate
settled, in the Court of First Instance in the
province in which he resides at the time of
his death, and if he is an inhabitant of a
foreign country, the Court of First Instance
of any province which he had estate. The
court first taking cognizance of the
settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a
court, as far as it depends on the place of
residence of the decedent, or of the location
of his estate, shall not be contested in a suit
or proceeding, except in an appeal from that
court, in the original case, or when the want
of jurisdiction appears on the record.
We find this recourse to be untenable. The
jurisdiction of the Court of First Instance of Bulacan
became vested upon the delivery thereto of the will
of the late Father Rodriguez on March 4, 1963,
even if no petition for its allowance was filed until
later, because upon the will being deposited the
court could, motu proprio, have taken steps to fix
the time and place for proving the will, and issued
the corresponding notices conformably to what is
prescribed by section 3, Rule 76, of the Revised
Rules of Court (Section 3, Rule 77, of the old
Rules):
SEC. 3. Court to appoint time for proving
will. Notice thereof to be published. —
When a will is delivered to, or a petition for
the allowance of a will is filed in, the Court
having jurisdiction, such Court shall fix a
time and place for proving the will when all
concerned may appear to contest the
allowance thereof, and shall cause notice of
such time and place to be published three
(3) weeks successively, previous to the time
10
appointed, in a newspaper of general
circulation in the province.
But no newspaper publication shall be made
where the petition for probate has been filed
by the testator himself.
The use of the disjunctive in the words "when a will
is delivered to OR a petition for the allowance of a
will is filed" plainly indicates that the court may act
upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as
yet filed. Where the petition for probate is made
after the deposit of the will, the petition is deemed
to relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez
was submitted and delivered to the Court of
Bulacan on March 4, while petitioners initiated
intestate proceedings in the Court of First Instance
of Rizal only on March 12, eight days later, the
precedence and exclusive jurisdiction of the
Bulacan court is incontestable.1äwphï1.ñët
But, petitioners object, section 3 of revised Rule 76
(old Rule 77) speaks of a will being delivered to
"the Court having jurisdiction," and in the case at
bar the Bulacan court did not have it because the
decedent was domiciled in Rizal province. We can
not disregard Fr. Rodriguez's 33 years of residence
as parish priest in Hagonoy, Bulacan (1930-1963);
but even if we do so, and consider that he retained
throughout some animus revertendi to the place of
his birth in Parañaque, Rizal, that detail would not
imply that the Bulacan court lacked jurisdiction. As
ruled in previous decisions, the power to settle
decedents' estates is conferred by law upon all
courts of first instance, and the domicile of the
testator only affects the venue but not the
jurisdiction of the Court (In re Kaw Singco, 74 Phil.
239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs.
Vergara, 73 Phil. 676). Neither party denies that the
late Fr. Rodriguez is deceased, or that he left
personal property in Hagonoy, province of Bulacan
(t.s.n. p. 46, hearing of June 11, 1963, Annex "H",
Petition, Rec., p. 48). That is sufficient in the case
before us.
In the Kaw Singco case (ante) this Court ruled that:
"... If we consider such question of
residence as one affecting the jurisdiction of
the trial court over the subject-matter, the
effect shall be that the whole proceedings
including all decisions on the different

incidents which have arisen in court will
have to be annulled and the same case will
have to be commenced anew before
another court of the same rank in another
province. That this is of mischievous effect
in the prompt administration of justice is too
obvious to require comment. (Cf.
Tanunchuan vs. Dy Buncio & Co., G.R. No.
48206, December 31, 1942). Furthermore,
section 600 of Act No. 190, providing that
the estate of a deceased person shall be
settled in the province where he had last
resided, could not have been intended as
defining the jurisdiction of the probate court
over the subject matter, because such legal
provision is contained in a law of procedure
dealing merely with procedural matters,
and, as we have said time and again,
procedure is one thing and jurisdiction over
the subject matter is another. (Attorney
General vs. Manila Railroad Company, 20
Phil. 523.) The law of jurisdiction — Act No.
136, Section 56, No. 5 — confers upon
Courts of First Instance jurisdiction over all
probate cases independently of the place of
residence of the deceased.1 Since,
however, there are many Courts of First
Instance in the Philippines, the Law of
Procedure, Act No. 190, section 600, fixes
the venue or the place where each case
shall be brought. Thus, the place of
residence of the deceased is not an element
of jurisdiction over the subject matter but
merely of venue. And it is upon this ground
that in the new Rules of Court the province
where the estate of a deceased person shall
be settled is properly called "venue" (Rule
75, section 1.) Motion for reconsideration is
denied.
The estate proceedings having been initiated in the
Bulacan Court of First Instance ahead of any other,
that court is entitled to assume jurisdiction to the
exclusion of all other courts, even if it were a case
of wrong venue by express provisions of Rule 73
(old Rule 75) of the Rules of Court, since the same
enjoins that:
The Court first taking cognizance of the
settlement of the estate of a decedent shall
exercise jurisdiction to the exclusion of all
other courts. (Sec. 1)
11
This disposition presupposes that two or more
courts have been asked to take cognizance of the
settlement of the estate. Of them only one could be
of proper venue, yet the rule grants precedence to
that Court whose jurisdiction is first invoked, without
taking venue into account.
There are two other reasons that militate against
the success of petitioners. One is that their
commencing intestate proceedings in Rizal, after
they learned of the delivery of the decedent's will to
the Court of Bulacan, was in bad faith, patently
done with a view to divesting the latter court of the
precedence awarded it by the Rules. Certainly the
order of priority established in Rule 73 (old Rule 75)
was not designed to convert the settlement of
decedent's estates into a race between applicants,
with the administration of the properties as the price
for the fleetest.
The other reason is that, in our system of civil law,
intestate succession is only subsidiary or
subordinate to the testate, since intestacy only
takes place in the absence of a valid operative will.
Says Article 960 of the Civil Code of the
Philippines:
ART. 960. Legal or intestate succession
takes place:
(1) If a person dies without a will, or with a
void will, or one which has subsequently lost
its validity;
(2) When the will does not institute an heir
to, or dispose of all the property belonging
to the testator. In such case, legal
succession shall take place only with
respect to the property in which the testator
has not disposed;
(3) If the suspensive condition attached to
the institution of heir does not happen or is
not fulfilled, or if the heir dies before the
testator, or repudiates the inheritance, there
being no substitution, and no right of
accretion takes place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this
Code.
 12

Therefore, as ruled in Castro, et al. vs. Martinez, 10

Phil. 307, "only after final decision as to the nullity
of testate succession could an intestate succession
be instituted in the form of pre-established action".
The institution of intestacy proceedings in Rizal
may not thus proceed while the probate of the
purported will of Father Rodriguez is pending.

We rule that the Bulacan Court of First Instance

was entitled to priority in the settlement of the
estate in question, and that in refusing to dismiss
the probate. proceedings, said court did not commit
any abuse of discretion. It is the proceedings in the
Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is

denied. Costs against petitioners Rodriguez.

G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will
of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the
Court of First Instance of Davao, Branch VI;
AVELINA B. ANTONIO and DELIA B.
LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the
order of the Court of First Instance of Davao dated
February 28, 1974, declaring illegal and void the
will of his mother, Leodegaria Julian, converting the
testate proceeding into an intestate proceeding and
ordering the issuance of the corresponding notice
to creditors (Special Case No. 1808). The
antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos
Sur, died on February 12, 1973 in Davao City at the
age of sixty-seven. She was survived by her
husband, Felix Balanay, Sr., and by their six
legitimate children named Felix Balanay, Jr.,
Avelina B. Antonio, Beatriz B. Solamo, Carolina B.
Manguiob, Delia B. Lanaban and Emilia B.
Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a
petition dated February 27, 1973 for the probate of
his mother's notarial will dated September 5, 1970
which is written in English. In that will Leodegaria
Julian declared (a) that she was the owner of the
"southern half of nine conjugal lots (par. II); (b) that
she was the absolute owner of two parcels of land
which she inherited from her father (par. III), and (c)
that it was her desire that her properties should not
be divided among her heirs during her husband's
lifetime and that their legitimes should be satisfied
out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that
after her husband's death (he was eighty-two years
old in 1973) her paraphernal lands and all the
13
conjugal lands (which she described as "my
properties") should be divided and distributed in the
manner set forth in that part of her will. She devised
and partitioned the conjugal lands as if they were
all owned by her. She disposed of in the will her
husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed
the probate of the will on the grounds of lack of
testamentary capacity, undue influence, preterition
of the husband and alleged improper partition of the
conjugal estate. The oppositors claimed that Felix
Balanay, Jr. should collate certain properties which
he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition,
attached thereto an affidavit of Felix Balanay, Sr.
dated April 18, 1973 wherein he withdrew his
opposition to the probate of the will and affirmed
that he was interested in its probate. On the same
date Felix Balanay, Sr. signed an instrument
captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he
manifested that out of respect for his wife's will he
"waived and renounced' his hereditary rights in her
estate in favor of their six children. In that same
instrument he confirmed the agreement, which he
and his wife had perfected before her death, that
their conjugal properties would be partitioned in the
manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder
contended that the affidavit and "conformation" of
Felix Balanay, Sr. were void. The lower court in its
order of June 18, 1973 "denied" the opposition and
reset for hearing the probate of the will. It gave
effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, 1973 it
appointed its branch clerk of court as special
administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the
lower court's order of June 18, 1973 on the grounds
(a) that the testatrix illegally claimed that she was
the owner of the southern half of the conjugal lots
and (b) that she could not partition the conjugal
estate by allocating portions of the nine lots to her
children. Felix Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion. The
lower court denied it in its order of October 15,
1973.
In the meanwhile, another lawyer appeared in the
case. David O. Montaña, Sr., claiming to be the

lawyer of petitioner Felix Balanay, Jr. (his counsel
of record was Atty. Cabreros), filed a motion dated
September 25, 1973 for "leave of court to withdraw
probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate
proceeding." In that motion Montaña claimed to be
the lawyer not only of the petitioner but also of Felix
Balanay, Sr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon.
Montaña in his motion assailed the provision of the
will which partitioned the conjugal assets or
allegedly effected a compromise of future legitimes.
He prayed that the probate of the will be withdrawn
and that the proceeding be converted into an
intestate proceeding. In another motion of the same
date he asked that the corresponding notice to
creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through
Atty. Jose B. Guyo, in their comments dated
October 15, 1973 manifested their conformity with
the motion for the issuance of a notice to creditors.
They prayed that the will be declared void for being
contrary to law and that an intestacy be declared.
The lower court, acting on the motions of Atty.
Montaña, assumed that the issuance of a notice to
creditors was in order since the parties had agreed
on that point. It adopted the view of Attys. Montaña
and Guyo that the will was void. So, in its order of
February 28, 1974 it dismissed the petition for the
probate, converted the testate proceeding into an
intestate proceeding, ordered the issuance of a
notice to creditors and set the intestate proceeding
for hearing on April 1 and 2, 1974. The lower court
did not abrogate its prior orders of June 18 and
October 15, 1973. The notice to creditors was
issued on April 1, 1974 and published on May 2, 9
and 16 in the Davao Star in spite of petitioner's
motion of April 17, 1974 that its publication be held
in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto
M. Sarenas, in a verified motion dated April 15,
1974, asked for the reconsideration of the lower
court's order of February 28, 1974 on the ground
that Atty. Montaña had no authority to withdraw the
petition for the allowance of the will. Attached to the
motion was a copy of a letter dated March 27, 1974
addressed to Atty. Montaña and signed by Felix
Balanay, Jr., Beatriz V. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaña's services and informed him
14
that his withdrawal of the petition for the probate of
the will was without their consent and was contrary
to their repeated reminder to him that their mother's
will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed
the motion for reconsideration. The lower court
denied the motion in its order of June 29, 1974. It
clarified that it declared the will void on the basis of
its own independent assessment of its provisions
and not because of Atty. Montaña's arguments.
The basic issue is whether the probate court erred
in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and
in declaring it void.
We are of the opinion that in view of certain
unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed
to have been filed with the petitioner's
authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before
its formal validity had been established. The
probate of a will might become an idle ceremony if
on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is
probated, the court should meet the issue (Nuguid
vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare
with Sumilang vs. Ramagosa, L-23135, December
26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-
19996, April 30, 1965, 13 SCRA 693).1äwphï1.ñët
But the probate court erred in declaring, in its order
of February 28, 1974 that the will was void and in
converting the testate proceeding into an intestate
proceeding notwithstanding the fact that in its order
of June 18, 1973 , it gave effect to the surviving
husband's conformity to the will and to his
renunciation of his hereditary rights which
presumably included his one-half share of the
conjugal estate.
The rule is that "the invalidity of one of several
dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it is to
be presumed that the testator would not have made
such other dispositions if the first invalid disposition
had not been made" (Art. 792, Civil Code). "Where
some of the provisions of a will are valid and others
invalid, the valid parts will be upheld if they can be
separated from the invalid without defeating the

intention of the testator or interfering with the
general testamentary scheme, or doing injustice to
the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the
"southern half of the conjugal lands is contrary to
law because, although she was a coowner thereof,
her share was inchoate and proindiviso (Art. 143,
Civil Code; Madrigal and Paterno vs. Rafferty and
Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the
testatrix should not be divided among her heirs
during her husband's lifetime but should be kept
intact and that the legitimes should be paid in cash
is contrary to article 1080 of the Civil Code which
reads:
ART. 1080. Should a person make a
partition of his estate by an act inter
vivos, or by will, such partition shall
be respected, insofar as it does not
prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or
her family, to keep any agricultural,
industrial, or manufacturing
enterprise intact, may avail himself
of the right granted him in this
article, by ordering that the legitime
of the other children to whom the
property is not assigned be paid in
cash. (1056a)
The testatrix in her will made a partition of the
entire conjugal estate among her six children (her
husband had renounced his hereditary rights and
his one-half conjugal share). She did not assign the
whole estate to one or more children as envisaged
in article 1080. Hence, she had no right to require
that the legitimes be paid in cash. On the other
hand, her estate may remain undivided only for a
period of twenty years. So, the provision that the
estate should not be divided during her husband's
lifetime would at most be effective only for twenty
years from the date of her death unless there are
compelling reasons for terminating the coownership
(Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his
hereditary rights and his one-half share of the
15
conjugal partnership (Arts. 179[1] and 1041, Civil
Code) but insofar as said renunciation partakes of a
donation of his hereditary rights and his one-half
share in the conjugal estate (Art. 1060[1] Civil
Code), it should be subject to the limitations
prescribed in articles 750 and 752 of the Civil Code.
A portion of the estate should be adjudicated to the
widower for his support and maintenance. Or at
least his legitime should be respected.
Subject to the foregoing observations and the rules
on collation, the will is intrinsically valid and the
partition therein may be given effect if it does not
prejudice the creditors and impair the legitimes.
The distribution and partition would become
effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably
divided among the children and the surviving
spouse.
It should be stressed that by reason of the surviving
husband's conformity to his wife's will and his
renunciation of his hereditary rights, his one-half
conjugal share became a part of his deceased
wife's estate. His conformity had the effect of
validating the partition made in paragraph V of the
will without prejudice, of course, to the rights of the
creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property
acquired after the making of a will shall only pass
thereby, as if the testator had it at the time of
making the will, should it expressly appear by the
will that such was his intention". Under article 930
of the Civil Code "the legacy or devise of a thing
belonging to another person is void, if the testator
erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not
belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the
disposition shall take effect."
In the instant case there is no doubt that the
testatrix and her husband intended to partition the
conjugal estate in the manner set forth in paragraph
V of her will. It is true that she could dispose of by
will only her half of the conjugal estate (Art. 170,
Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had
assented to her testamentary partition of the
conjugal estate, such partition has become valid,
assuming that the will may be probated.

The instant case is different from
the Nuguid case, supra, where the testatrix
instituted as heir her sister and preterited her
parents. Her will was intrinsically void because it
preterited her compulsory heirs in the direct line.
Article 854 of the Civil Code provides that "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." Since the
preterition of the parents annulled the institution of
the sister of the testatrix and there were no legacies
and devises, total intestacy resulted (.Art. 960[2],
Civil Code).1äwphï1.ñët
In the instant case, the preterited heir was the
surviving spouse. His preterition did not produce
intestacy. Moreover, he signified his conformity to
his wife's will and renounced his hereditary rights. .
It results that the lower court erred in not
proceeding with the probate of the will as
contemplated in its uncancelled order of June 18,
1973. Save in an extreme case where the will on its
face is intrinsically void, it is the probate court's
duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art.
838, Civil Code; Guevara vs. Guevara, 74 Phil. 479
and 98 Phil. 249; Fernandez vs. Dimagiba, L-
23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very
existence of a purported testament is in itself prima
facie proof that the supposed testator has willed
that his estate should be distributed in the manner
therein provided, and it is incumbent upon the state
that, if legally tenable, such desire be given effect
independent of the attitude of the parties affected
thereby" (Resolution, Vda. de Precilla vs. Narciso,
L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the
testatrix is the first and principal law in the matter of
testaments (Dizon-Rivera vs. Dizon, L-24561, June
30, 1970, 33 SCRA 554, 561). Testacy is
preferable to intestacy. An interpretation that will
render a testamentary disposition operative takes
precedence over a construction that will nullify a
provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of
testacy especially where the will evinces an
16
intention on the part of the testator to dispose of
practically his whole estate. So compelling is the
principle that intestacy should be avoided and that
the wishes of the testator should prevail that
sometimes the language of the will can be varied
for the purpose of giving it effect (Austria vs. Reyes,
L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire
of the testator must be followed and the
dispositions of the properties in his will should be
upheld (Estorque vs. Estorque, L-19573, June 30,
1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the
testator as expressed in his will because any
disposition therein is better than that which the law
can make (Castro vs. Bustos, L-25913, February
28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed.
It erred in issuing a notice to creditors although no
executor or regular administrator has been
appointed. The record reveals that it appointed a
special administrator. A notice to creditors is not in
order if only a special administrator has been
appointed. Section 1, Rule 86 of the Rules of Court,
in providing that "immediately after granting letters
of testamentary or of administration, the court shall
issue a notice requiring all persons having money
claims against the decedent to file them in the
office of the clerk of said court" clearly
contemplates the appointment of an executor or
regular administrator and not that of a special
administrator.
It is the executor or regular administrator who is
supposed to oppose the claims against the estate
and to pay such claims when duly allowed (See.
10, Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the
probate court's appointment of its branch clerk of
court as special administrator (p. 30, Rollo) is not a
salutary practice because it might engender the
suspicion that the probate Judge and his clerk of
court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any
abuse or devastavit in the course of his
administration, the probate Judge might find it
difficult to hold him to a strict accountability. A court
employee should devote his official time to his
official duties and should not have as a sideline the
administration of a decedent's estate.
 17

WHEREFORE, the lower court's orders of February
28, and June 29, 1974 are set aside and its order of
June 18, 1973, setting for hearing the petition for
probate, is affirmed. The lower court is directed to
conduct further proceedings in Special Case No.
1808 in consonance with this opinion. Costs,
against the private respondents.
which she devised to Emilia
Pabaonon and the other lot to Felix
Balanay, Jr., but also the nine
conjugal lots. She did not restrict the
partition to her one-half conjugal
share but included her husband's
one-half share.).

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and

Concepcion, Jr., JJ., concur.

Footnotes

* The pertinent provisions of the will

are as follows:

"II. That I am the absolute owner of

the southern half of the following
conjugal properties which I acquired
during my married life with my
husband, Felix Balanay, Sr., namely:
(Here follows an enumeration of nine
lots).1äwphï1.ñët

"III. I am the absolute owner of the

following paraphernal properties
which I inherited from my deceased
father, Cecilio Julian, namely: (Here
follows a description of two lots).

"IV. It is my desire and I direct that in

the interest of my family, my
properties shall not be divided
among my heirs during the lifetime
of my husband, Felix Balanay, Sr.
but should be kept intact. The
respective legitimes of my husband
and my children should be paid in
cash out of the proceeds of sale of
the produce and rents derived from
said properties.

"V. After the death of my husband,

Felix Balanay, Sr., my properties
shall be divided and distributed in
the manner as follows:" (Here
follows a partition of the nine
conjugal lots and the two
paraphernal lots. The testatrix
divided among her six children not
only her two paraphernal lots, one of

ARTICLE 781
G.R. No. 198434
HEIRS OF LEANDRO NATIVIDAD AND JULIANA
V. NATIVIDAD, Petitioners,
vs.
JUANA MAURICIO-NATIVIDAD, and SPOUSES
JEAN NATIVIDAD CRUZ AND JERRY
CRUZ, Respondents.
DECISION
PERALTA, J.:
Challenged in the present petition for review
on certiorari are the Decision1 and Resolution2 of
the Court of Appeals (CA), dated February 7, 2011
and August 25, 2011, respectively, in CA-G.R. CV
No. 92840. The assailed CA Decision modified the
Decision of the Regional Trial Court (RTC) of San
Mateo, Rizal, Branch 75, in Civil Case No. 1637-02-
SM, while the CA Resolution denied petitioners'
motion for reconsideration.
The present petition arose from an action for
specific performance and/or recovery of sum of
money filed against herein respondents by the
spouses Leandro Natividad (Leandro) and Juliana
Natividad (Juliana), who are the predecessors of
herein petitioners.
In their Complaint, Leandro and Juliana alleged that
sometime in 1974, Sergio
Natividad (Sergio), husband of respondent Juana
Mauricio-Natividad (Juana) and father of
respondent Jean Natividad-Cruz (Jean), obtained a
loan from the Development Bank of t.he
Philippines (DBP). As security for the loan, Sergio
mortgaged two parcels of land, one of which is co-
owned and registered in his name and that of his
siblings namely, Leandro, Domingo and Adoracion.
This property is covered by Original Certificate of
Title (OCT) No. 5980. Sergio's siblings executed a
Special Power of Attorney authorizing him to
mortgage the said property. The other mortgaged
parcel of land, covered by OCT No. 10271, was
registered in the name of Sergio and Juana.
Subsequently, Sergio died without being able to
pay his obligations with DBP. Since the loan was
nearing its maturity and the mortgaged properties
were in danger of being foreclosed, Leandro paid
Sergio's loan obligations. Considering that
18
respondents were unable to reimburse Leandro for
the advances he made in Sergio's favor,
respondents agreed that Sergio's share in the lot
which he co-owned with his siblings and the other
parcel of land in the name of Sergio and Juana,
shall be assigned in favor of Leandro ahd Juliana.
Leandro's and Sergio's brother, Domingo, was
tasked to facilitate the transfer of ownership of the
subject properties in favor of Leandro ·and Juliana.
However, Domingo died without being able to
cause such transfer. Subsequently, despite
demands and several follow-ups made by
petitioners, respondents failed and refused to honor
their undertaking.
Respondents filed their Answer denying the
allegations in the complaint and raising the
following defenses: (1) respondents are not parties
to the contract between Sergio and DBP; (2) there
is neither verbal nor written agreement between
petitioners and respondents that the latter shall
reimburse whatever payment was made by the
former or their predecessor-in-interest; (3) Jean
was only a minor during the execution of the
alleged agreement and is not a party thereto; (4)
that whatever liability or obligation of respondents is
already barred by prescription, laches and
estoppel; (5) that the complaint states no cause of
action as respondents are not duty-bound to
reimburse whatever alleged payments were made
by petitioners; and (6) there is no contract between
the parties to the effect that respondents are under
obligation to transfer ownership in petitioners' favor
as reimbursement for the alleged payments made
by petitioners to DBP.
Respondents waived their right to present evidence
arid they merely filed their memorandum. Also,
during pendency" of the trial, Leandro died and was
substituted by his heirs, herein petitioners.
On November. 4, 2008, the RTC rendered its
Decision in favor of petitioners, the dispositive
portion of which reads as follows:
WHEREFORE, premises considered, judgment is
hereby rendered as follows:
1. Defendants Juana Mauricio [Vda.] de
Natividad and Jean Natividad-Cruz are
ordered to effect the transfer of title in OCT
No. 5980 with respect to the undivided
share of the late Sergio Natividad; and in
OCT No. 10271 both of the Registry of

Deeds of the Province of Rizal in favor of
plaintiff Juliana [V da.] de Natividad and the
Heirs of the late Leandro Natividad.
2. Defendants to pay jointly and severally,
attorney's fees in the sum of Thirty
Thousand Pesos (P30,000.00); and cost of
suit.
SO ORDERED.3
Aggrieved by the RTC Decision, respondents filed
an Appeal with the CA.
On February 7, 2011, the CA promulgated its
questioned Decision, disposing as follows:
WHEREFORE, the appeal is PARTLY
GRANTED. The Decision dated November 4, 2008
is hereby MODIFIED in that defendants-appellants
Juana Mauricio-Natividad and Jean Natividad-Cruz
are ordered instead to reimburse plaintiffs-
appellees Juliana Natividad and the heirs of the late
Leandro Natividad the amount of P162,514.88
representing the amount of the loan obligation paid
to the Development Bank of the Philippines, plus
legal interest of 12% per annum computed from
June 23, 2001 until finality of the judgment, the total
amount of which shall be to the extent only of
defendants-appellants' successional rights in the
mortgaged properties and Juana's conjugal share
in [the] property covered by OCT No. 10271. The
award of attorney's fees and cost of suit
are AFFIRMED.
SO ORDERED.4
Petitioners filed a Motion for Partial
Reconsideration, while respondents filed their own
Motion for Reconsideration, both of which,
however, were denied by the CA in its assailed
Resolution dated August 25, 2011.
Hence, the instant petition based on the following
grounds:
I. WITH DUE RESPECT, THE
HONORABLE COURT OF APPEALS'
RULING THAT THE VERBAL
AGREEMENT TO CONVEY THE
PROPERTY SHARES OF SERGIO
NATIVIDAD IN THE PAYMENT OF HIS
OBLIGATION IS COVERED BY THE
19
STATUTE OF FRAUDS DESPITE THE
FACT THAT IT HAS BEEN PARTIALLY
EXECUTED, IS CONTRARY TO'EXISTING
JURISPRUDENCE.
II. WITH DUE RESPECT, THE
HONORABLE COURT OF APPEALS
ERRED IN RULING THAT THE INTEREST
ON THE UNPAID LOAN .OBLIGATION
SHOULD BE IMPOSED ONLY ON JUNE
23, 2001, DATE OF THE DEMAND FOR
PAYMENT INSTEAD OF SEPTEMBER 23,
1994, WHEN THE PARTIES VERBALLY
AGREED TO CONVEY THEIR PROPERTY
RIGHTS WITH THE EXECUTION OF THE
EXTRAJUDICIAL SETTLEMENT OF
ESTATE OF SERGIO NATIVIDAD.5
Petitioners, insist that there was a verbal
agreement between respondents and Leandro,
their predecessor-in-interest, wherein the subject
properties shall be assigned to the latter as
reimbursement for the payments he made in
Sergio's favor. To support this contention,
petitioners relied heavily on the Extrajudicial
Settlement Among Heirs, which was executed by
respondents to prove that there was indeed such
an agreement and that such a Settlement is
evidence of the partial execution of the said
agreement. The provisions of the said Settlement
are as follows:
EXTRAJUDICIAL SETTLEMENT AMONG HEIRS
KNOW ALL MEN BY THESE PRESENTS:
This EXTRAJUDICIAL SETTLEMENT, made and
entered into by and among:
JUAN M. NATIVIDAD, widow; JEAN N. CRUZ,
married to JERRY CRUZ; JOSELITO M.
NATIVIDAD, single, all of legal age, Filipino
citizens, and residents of Malanday, San Mateo,
Rizal
WITNESSETH
That the above-named parties, is the legitimate wife
and children and sole heirs of the deceased
SERGIO NATIVIDAD, who died in San Mateo,
Rizal on May 31, 1981;

That the said deceased, at the time of his death,
left certain real estate properties located at San
Mateo, Rizal, and Montalban, Rizal, more
particularly described as follows:
a. A whole portion of a parcel of land (Plan
Psu-295655, L.R. Case No. Q-29, L.R.C.
Record No. N-295___ , situated in the
Barrio of Malanday, Municipality of San
Mateo, Province of Rizal, containing an area
of TWO HUNDRED EIGHT (208) SQUARE
METERS, more or less, and covered by
OCT NO. 10271.
b. A one-fourth (1/4) share in the parcel of
land situated in Guinayang, San Mateo,
Rizal, containing an area of 2,742 square
meters, covered by OCT No. 10493.
c. A one-fourth (1/4) share in the parcel of
land situated in San Jose, Montalban, Rizal,
containing an area of 4,775 square meters,
and covered by OCT No. ON-403.
d. A one-fourth (1/4) share in the parcel of
land situated in Cambal, San Mateo, Rizal,
containing an area of 13,456 square meters,
and covered by OCT No. 5980.
That no other personal properties are involved in
this extrajudicial settlement.
That to the best knowledge and information of the
parties hereto, the said deceased left certain
obligations amounting to P175,000.00 representing
loan obligations with the Development Bank of the
Philippines.
That a notice of this extrajudicial settlement had
been published once a week for three consecutive
weeks in ___________ a newspaper of general
circulation in_______, as certified by the said
newspaper hereto attached as Annex "A";
That the parties hereto being all of legal age and
with full civil capacity to contract, hereby by these
presents agree to divide and adjudicate, as they
hereby divide and adjudicate, among themselves
the above-described real estate property in equal
shares and interest.
20
IN WITNESS WHEREOF, the parties have signed
this document on this 2nd day of September, 1994
in San Mateo, Rizal, Philippines.
x x x6
After a careful reading of the abovequoted Extra
judicial Settlement Among Heirs, the Court agrees
with the CA that there is nothing in the said
document which would indicate that respondents
agreed to the effect that the subject properties shall
be transferred in the name of Leandro as
reimbursement for his payment of Syrgio's loan
obligations with the DBP. On the contrary, the
second to the last paragraph of the said Settlement
clearly shows that herein respondents, as heirs of
Sergio, have divided the subject properties
exclusively among themselves.
There is no competent evidence to prove the verbal
agreement being claimed by respondents. Aside
from the subject Extrajudicial Settlement Among
Heirs, the self-serving claims of Leandro on the
witness stand, as well as the cash voucher, 7 which
supposedly represented payment of P8,000.00
given to Atty. Domingo Natividad for the expenses
in transferring the title of the subject properties in
Leandro's favor, would hardly count as competent
evidence in the eyes of the law. Respondents'
claim of the existence of a verbal agreement
between them, on one hand, and petitioners'
predecessors-in-interest, on the other, remains to
be mere allegation. It is an age-old rule in civil
cases that he who alleges a fact has the burden of
proving it and a mere allegation is not evidence. 8
In relation to petitioners' contention that the subject
verbal agreement actually existed, they reiterate
their contention that the conveyance of the subject
properties in their favor is not covered by the
Statute of Frauds because they claim that
respondents' execution of the Extrajudicial
Settlement Among Heirs constitutes partial
execution of their alleged agreement.
The Court does not agree.
Suffice it to say that there is no partial execution of
any contract, whatsoever, because petitioners
failed to prove, in the first place, that there was a
verbal agreement that was entered into.
Even granting that such an agreement existed, the
CA did not commit any en-or in ruling that the

assignment of the shares of Sergio in the subject
properties in petitioners' favor as payment of
Sergio's obligation cannot be enforced if there is no
written contract to such effect. Under the Statute of
Frauds9, an agreement to convey real properties
shall be unenforceable by action in the absence of
a written note or memorandum thereof and
subscribed by the party charged or by his agent. As
earlier discussed, the pieces of evidence presented
by petitioners, consisting of respondents'
acknowledgment of Sergio's loan obligations with
DBP as embodied in the Extrajudicial Settlement
Among Heirs, as well as the cash voucher which
allegedly represents payment for taxes and transfer
of title in petitioners' name do not serve as written
notes or memoranda of the alleged verbal
agreement.
The foregoing, notwithstanding, the Court finds it
proper to reiterate the CA ruling that, in any case,
since respondents had already acknowledged that
Sergio had, in fact, incurred loan obligations with
the DBP, they are liable to reimburse the amount
paid by Leandro for the payment of the said
obligation even if such payment was made without
their knowledge or consent.
Article 1236 of the Civil Code clearly provides that:
The creditor is not bound to accept payment or
performance by a third person who has no interest
in the fulfillment of the obligation, unless there is a
stipulation to the contrary.
Whoever pays for another may demand from
the debtor what he has paid, except that if he
paid without the knowledge or against the will
of the debtor, he can recover only insofar as the
payment has been beneficial to the
debtor. (Emphasis supplied)
Neither can respondents evade liability by arguing
that they were not parties to the contract between
Sergio and the DBP. As earlier stated, the fact
remains that, in the Extrajudicial Settlement Among
Heirs, respondents clearly acknowledged Sergio's
loan obligations with the DBP. Being Sergio's heirs,
they succeed not only to the rights of Sergio but
also to his obligations.
The following provisions of the Civil Code are clear
on this matter, to wit:
21
Art. 774. Succession is a mode of acquisition by
virtue of which the property, rights and obligations
to the extent of the value of the inheritance, of a
person are transmitted through his death to another
or others either by will or by operation of law.
Art. 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death.
Art. 781. The inheritance of a person includes not
only the property and the transmissible rights and
obligations existing at the time of his death, but also
those which have accrued thereto since the
opening of the succession.
In the present case, respondents, being heirs of
Sergio, are now liable to settle his transmissible
obligations, which include the amount due to
petitioners, prior to the distribution of the remainder
of Sergio's estate to them, in accordance with
Section 1, 10 Rule 90 of the Rules of Court.
As to when the interest on the sum due from
respondents should be reckoned, the Court finds
no error in the ruling of the CA that such interest
should be computed from June 23, 2001, the date
when petitioners made a written demand for the
payment of respondents' obligation. 11 There is no
merit in petitioners' contention that the reckoning
date should have been September 23, 1994, the
date when respondents executed the Extrajudicial
Settlement Among Heirs, because there is nothing
therein to prove that petitioners, at that time, made
a demand for reimbursement.
However, the rate of interest should be modified in
view of the issuance of Circular No. 799, Series of
2013 by the Bangko Sentral ng Pilipinas Monetary
Board (BSP-MB). The said Circular reduced the
"rate of interest for the loan or forbearance of any
money, goods or credits and the rate allowed in
judgments, in the absence of an express contract
as to such rate of interest," from twelve percent
(12%) to six percent (6%) per annum. The Circular
was made effective on July 1, 2013. Hence, under
the modified guidelines in the imposition of interest,
as laid down in the case of Nacar v. Gallery
Frames, 12 this Court held that:
xxxx
II. With regard particularly to an award of interest in
the concept of actual and compensatory damages,

the rate of interest, as well as the accrual thereof, is
imposed, as follows:
1. When the obligation is breached, and
it consists in the payment of a sum of
money, i.e., a loan or forbearance of
money, the interest due should be that
which may have been stipulated in
writing. Furthermore, the interest due
shall itself earn legal interest from the
time it is judicially demanded. In the
absence of stipulation, the rate of
interest shall be 6% per annum to be
computed from default, i.e., from judicial
or extrajudicial demand under and
subject to the provisions of Article 1169
of the Civil Code.
2. When an obligation, not constituting a
loan or forbearance of money, is breached,
an interest on the amount of damages
awarded may be imposed at the discretion
of the court at the rate of 6% per annum. No
interest, however, shall be adjudged on
unliquidated claims or damages, except
when or until the demand can be
established with reasonable certainty.
Accordingly, where the demand is
established with reasonable certainty, the
interest shall begin to run from the time the
claim is made judicially or extrajudicially
(Art. 1169, Civil Code), but when such
certainty cannot be so reasonably
established at the time the demand is made,
the interest shall begin to run only from the
date the judgment of the court is made (at
which time the quantification of damages
may be deemed to have been reasonably
ascertained). The actual base for the
computation of legal interest shall, in any
case, be on the amount finally adjudged.
3. When the judgment of the court
awarding a sum of money becomes final
and executory, the rate of legal interest,
whether the case falls under paragraph 1
or paragraph 2, above, shall be 6% per
annum from such finality until its
satisfaction, this interim period being
deemed to be by then an equivalent to a
forbearance of credit. (Emphasis supplied)
x x x13
22
The Court explained that:
[F]rom the foregoing, in the absence of an express
stipulation as to the rate of interest that would
govern the parties, the rate of legal interest for
loans or forbearance of any money, goods or
credits and the rate allowed in judgments shall no
longer be twelve percent (12%) per annum - as
reflected in the case of Eastern Shipping Lines and
Subsection X305.1 of the Manual of Regulations for
Banks and Sections 4305Q.1, 4305S.3 and
4303P.1 of the Manual of Regulations for Non-Bank
Financial Institutions, before its amendment by
BSP-MB Circular No. 799 - but will now be six
percent (6%) per annum effective July 1, 2013. It
should be noted, nonetheless, that the new rate
could only be applied prospectively and not
retroactively. Consequently, the twelve percent
(12%) per annum legal interest shall apply only until
June 30, 2013. Come July 1, 2013, the new rate of
six percent (6%) per annum shall be the prevailing
rate of interest when applicable. 14
Thus, in accordance with the above ruling, the rate
of interest on the principal amount due to
petitioners shall be 12% from June 23, 2001, the
date when petitioners made a demand for payment,
to June 30, 2013. From July 1, 2013, the effective
date of BSP-MB Circular No. 799, until full
satisfaction of the monetary award, the rate of
interest shall be 6%.
WHEREFORE, the instant petition is DENIED. The
Decision and Resolution of the Court of Appeals,
dated February 7, 2011 and August 25, 2011,
respectively, in CA-G.R. CV No. 92840
are AFFIRMED with MODIFICATION by ORDERIN
G respondents to pay petitioners, in addition to the
principal amount of P162,514.88, interest thereon
at the rate of twelve percent (12%) per
annum, computed from June 23, 2001 to June 30,
2013, and six percent (6%) per annum from July 1,
2013 until full satisfaction of the judgment award.
SO ORDERED.

ARTICLE 783
G.R. No. 113725 June 29, 2000
JOHNNY S. RABADILLA,1 petitioner,
vs.
COURT OF APPEALS AND MARIA
MARLENA2 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,
23
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.
24
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.
25
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
8438 and 8459 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 decedent10 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
26
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
27
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
 28

into consideration the circumstances under which it No. CV-35555 AFFIRMED. No pronouncement as
was made.23 Such construction as will sustain and to costs
uphold the Will in all its parts must be adopted.24
SO ORDERED.
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.

EN BANC
G.R. No. L-3362 March 1, 1951
TESTATE estate of Carlos Gil, deceased.
ISABEL HERREROS VDA. DE GIL, administratrix-
appellee, vs. PILAR GIL VDA. DE
MURCIANO,oppositor-appellant.
Eligio C. Lagman for appellant.
Reyes, Albert and Agcaoili for appellee.
JUGO, J.:
The Court of First Instance of Manila admitted to
probate the alleged will and testament of the
deceased Carlos Gil. The oppositor Pilar Gil Vda.
de Murciano appealed to this Court, raising only
question of law. Her counsel assigns the two
following alleged errors:
Primer Error. - El Juzgado inferior erro al dejar de
declarar que el alegado testamento de Carlos Gil
no ha sido otogar de acuerdo con la
ley.chanroblesvirtualawlibrary chanrobles virtual
law library
Segundo Error. - Erro finalmente a legalizar el
referido testamento.
The alleged will read as follows:
Primera Pagina (1)chanrobles virtual law library
EN EL NOMBRE DE DIOS, AMENchanrobles
virtual law library
Yo, Carlos Gil, de 66 a�os de edad, residente de
Porac, Pampanga, I. F., hallandome sano y en
pleno goce de mis facultades intelectuales, libre y
expontaneamente, sin violencia, coaccion, dolo o
influencia ilegal de persona extra�a, otorgo y
ordeno este mi testamento y ultima voluntad en
castellano, idioma que poseo y entiendo, de la
manera siguiente:chanrobles virtual law library
1. Declaro que durante mi matrimonio con mi
esposa la hoy Isabel Herreros no tuvimos
hijos;chanrobles virtual law library
2. Declaro que tengo propiedades situadas en
Manila y en la Provincia de Pampanga;chanrobles
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29
3. Doy y adjudico a mi querida esposa Isabel
Herretos todos mis bienes ya que muebles e
inmuebles situados en Manila y en Pampanga, bajo
la condicion de que cuando esta muera y si hayan
bienes remanentes heredadas por ella de mi, que
dichos bienes remanentes se adjudicaran a Don
Carlos
Worrel.chanroblesvirtualawlibrary chanrobles virtual
law library
4. Nombro como albacea de mis bienes despues
de mi fallecimiento al Dr. Galicano Coronel a quien
tengo absoluta confianza, con relevacion de
fianza;chanrobles virtual law library
En testimonio de todo lo cual, firmo este mi
testamento y en el margen izquierdo de cada una
de sus dos paginas, utiles con la clausula de
atestiguamiento en presencia de los testigos,
quienes a su vez firmaron cada una de dichas
paginas y la clausula de atestiguamiento en mi
presencia cada uno de ellos con la de los demas,
hoy en Porac, Pampanga, I. F., el dia 27 de Mayo
de mil novecientos treinta y nueve.
CARLOS GIL
Testificacion:
Segunda Pagina (2)
Nosotros los que suscribimos, todos mayores de
edad, certificamos: que el testamento que precede
este escrito en la lengua castellana que conoce la
testadora, compuesto de dos paginas utiles con la
clausula de atestiguamiento paginadas
correlativamente en letras y numeros en la parte
superior de la casilla, asi como todas las hojas del
mismo, en nuestra presencia y que cada uno de
nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de
nosotros.
(Fdo.) ALFREDO T. RIVERAchanrobles
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(Fdo.) RAMON MENDIOLAchanrobles
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(Fdo.) MARIANO OMA�A
Regarding the correctness and accuracy of the
above-copied alleged will, the court below said:
. . . The only copy available is a printed form
contained in the record appeal in case G.R. No. L-
254, entitled "Testate Estate of Carlos Gil; Isabel
Herreros Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil, oppositor and
appellee." Both parties are agreed that this is a true
and correct copy of the will. (P. 10, Record on
Appeal).
The appeal being only on questions of law the
above finding of the court below cannot be
disputed. The conclusions of law reached by said
court are based on it. Moreover, the finding is
correctly based on the evidence of record. The
parties agreed that said copy is true and correct. If
it were otherwise, they would not have so agreed,
considering that the defect is of an essential
character and is fatal to the validity of the
attestation
clause.chanroblesvirtualawlibrary chanrobles virtual
law library
It will be noted that the attestation clause above
quoted does not state that the alleged testor signed
the will. It declares only that it was signed by the
witnesses. This is a fatal defect, for the precise
purpose of the attestation clause is to certify that
the testator signed the will, this being the most
essential element of the clause. Without it there is
no attestation at all. It is said that the court may
correct a mere clerical error. This is too much of a
clerical error for it effects the very essence of the
clause. Alleged errors may be overlooked or correct
only in matters of form which do not affect the
substance of the
statement.chanroblesvirtualawlibrary chanrobles
virtual law library
It is claimed that the correction may be made by
inference. If we cure a deficiency by means of
inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills?
Where are we to draw the line? Following that
procedure we would be making interpolations by
inferences, implication, and even
by internal circumtantial evidence. This would be
done in the face of the clear, uniquivocal, language
of the statute as to how the attestation clause
30
should be made. It is to be supposed that the
drafter of the alleged will read the clear words of
the statute when he prepared it. For the court to
supply alleged deficiencies would be against the
evident policy of the law. Section 618 of Act No.
190, before it was amended, contained the
following provision:
. . . But the absence of such form of attestation
shall not render the will invalid if it proven that the
will was in fact signed and attested as in this
section provided.
However, Act No. 2645 of the Philippine
Legislature, passed on July 1, 1916, besides
increasing the contents of the attestation clause,
entirely suppressed the above-quoted provision.
This would show that the purpose of the amending
act was to surround the execution of a will with
greater guarantees and solemnities. Could we, in
view of this, hold that the court can cure alleged
deficiencies by inferences, implications,
and internal circumstantial evidence? Even in
ordinary cases the law requires certain requisities
for the conclusiveness of circumstantial
evidence.chanroblesvirtualawlibrary chanrobles
virtual law library
It is contended that the deficiency in the attestation
clause is cured by the last paragraph of the body of
the alleged will, which we have quoted above. At
first glance, it is queer that the alleged testator
should have made an attestation clause, which is
the function of the witness. But the important point
is that he attests or certifies his own signature, or,
to be accurate, his signature certifies itself. It is
evident that one cannot certify his own signature,
for it does not increase the evidence of its
authenticity. It would be like lifting one's self by his
own bootstraps. Consequently, the last paragraph
of the will cannot cure in any way the fatal defect of
the attestation clause of the witnesses. Adding zero
to an insufficient amount does not make it
sufficient.chanroblesvirtualawlibrary chanrobles
virtual law library
It is said that the rules of statutory construction are
applicable to documents and wills. This is true, but
said rules apply to the body of the will, containing
the testamentary provisions, but not to the
attestation clause, which must be so clear that it
should not require any
construction.chanroblesvirtualawlibrary chanrobles
virtual law library

The parties have cited pro and con several
decisions of the Supreme Court, some of which are
said to be rather strict and others liberal, in the
interpretation of section 618 of Act No. 190, as
amended by Act No.
2645.chanroblesvirtualawlibrary chanrobles virtual
law library
In the case of Gumban vs. Gorecho (50 Phil., 30,
31), the court had the following to say:
1. WILLS; ALLOWANCE OR DISALLOWANCE;
SECTIONS 618 AND 634 OF THE CODE OF
CIVIL PROCEDURE CONSTRUED. - The right to
dispose of the property by will is governed entirely
by statute. The law is here found in section 618 of
the Code of Civil Procedure, as amended. The law
not alone carefully makes use of the imperative, but
cautiously goes further and makes use of the
negative, to enforce legislative
intention.chanroblesvirtualawlibrary chanrobles
virtual law library
2. ID.; ID.; ATTESTATION. - The Philippine
authorities relating to the attestation clause to wills
reviewed. The cases of Sa�o vs. Quintana ([1925],
48 Phil., 506), and Nayve vs. Mojal and Aguilar
([1924], 47 Phil., 152), particularly compared. The
decision in In re Will of Quintana, supra, adopted
and reaffirmed. The decision in Nayve vs. Mojal
and Aguilar, supra,
modified.chanroblesvirtualawlibrary chanrobles
virtual law library
3. ID.; ID.; ID.; ID. - The portion of section 618 of
the Code of Civil Procedure, as amended, which
provides that "The attestation clause shall state the
number of sheets or pages used, upon which the
will is written, and the fact that the testator signed
the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of
each other" applied and
enforced.chanroblesvirtualawlibrary chanrobles
virtual law library
4. ID.; ID.; ID.; ID. - An attestation clause which
does not recite that the witnesses signed the will
and each and every page thereof on the left margin
in the presence of the testator is defective, and
such a defect annuls the will.
(Sano vs.Quintana, supra.)
31
In the subsequent case of Quinto vs. Morata (54
Phil., 481, 482), Judge Manuel V. Moran, now Chief
Justice of the Supreme Court, in his decision made
the following pronouncement:
. . . En la clausula de atestiguamiento del
testamento en cuestion, se hace constar que los
testadores firmaron el testamento en presencia de
los tres testigos instrumentales y que estos
firmaron el testamento los unos en presencia de los
otros, pero no se hace constar que dichos testigos
firmaron el testamento en presencia de los
testadores, ni que estos y aquellos firmaron todas y
cada una de las paginas del testamento los
primeros en presencia de los segundos y vice-
versa.chanroblesvirtualawlibrary chanrobles virtual
law library
En su virtud, se deniega la solicitud en la que se
pide la legalizacion del alegado testamento Exhibit
A de Gregorio Pueblo y Carmen Quinto, y se
declara que Gregorio Pueblo murio intestado.
The Supreme Court fully affirmed the decision,
laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE
TO SUPPLY DEFECTS OF. - The attestation
clause must be made in strict conformity with the
requirements of section 618 of Act No. 190, as
amended. Where said clause fails to show on its
face a full compliance with those requirements, the
defect constitutes sufficient ground for the
disallowance of the will. (Sano vs. Quintana, 48
Phil., 506; Gumban vs. Gorecho, 50 Phil., 30).
Evidence aliunde should not be admitted to
establish facts not appearing on the attestation
clause, and where said evidence has been
admitted it should not be given the effect intended.
(Uy Coque vs. Navas L. Sioca, 43 Phil., 405,
409.).chanroblesvirtualawlibrary chanrobles virtual
law library
2. ID.; ID.; INTERPRETATION OF SECTION 618
OF ACT NO. 190, AS AMENDED. - Section 618 of
Act No. 190, as amended, should be given a strict
interpretation in order to give effect to the intention
of the Legislature. Statutes prescribing formalities
to be observed in the execution of wills are very
strictly construed. Courts cannot supply the
defensive execution of will. (40 Cyc., p. 1079; Uy
Coque vs. Navas L. Sioca, supra.)

It is true that in subsequent decisions, the court has
somewhat relaxed the doctrine of the Gumban vs.
Gorcho case, supra, but not to the extent of
validating an attestation clause similar to that
involved
herein.chanroblesvirtualawlibrary chanrobles virtual
law library
In the case of Aldaba vs. Roque (43 Phil., 378), the
testatrix signed the attestation clause which was
complete, and it was also signed by the two
attesting witnesses. For this reason, the court said:
In reality, it appears that it is the testatrix who
makes the declaration about the points contained in
the above described paragraph; however, as the
witnesses, together with the testatrix, have signed
the said declaration, we are of the opinion and so
hold that the words above quoted of the testament
constitute a sufficient compliance with the
requirements of section 1 of Act No. 2645 which
provides that: . . . (p. 381, supra.)
The attestation clause involved herein is very
different.chanroblesvirtualawlibrary chanrobles
virtual law library
In the case of Dischoso de Ticson vs. De
Gorotiza (57 Phil., 437), it was held that:
An attestation clause to a will, copied from a form
book and reading: "We, the undersigned attesting
witnesses, whose residences are stated opposite
our respective names, do hereby certify that the
testatrix, whose name is signed hereinabove, has
publish unto us the foregoing will consisting of two
pages as her Last Will and Testament, and has
signed the same in our presence, and in witness
whereof we have each signed the same and each
page thereof in the presence of said testatrix and in
the presence of each other," held not to be fatally
defective and to conform to the law.
This very different from the attestation clause in the
case at bar.chanroblesvirtualawlibrary chanrobles
virtual law library
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st
Supplement, 196, No. 3, May 23, 1939), the will
was objected to on the ground that, although the
attestation clause stated that "each of the pages of
which the said will is composed" was signed by the
testatrix at the left margin and at the foot of the fifth
page, it did not state that the signature was made in
32
the presence of the witnesses. It was held,
however, that said deficiency was cured by the
phrase "as well as by each of us in the presence of
the testatrix." The words "as well as" indicate that
the testatrix signed also in the presence of the
witnesses, for the phrase "as well as" in this case is
equivalent to "also." The language is clear and,
unlike the attestation clause in the present case,
does not necessitate any correction. In the body of
the will the testatrix stated that she signed in the
presence of each and all of the three witnesses.
This was considered as a corroboration, but it was
unnecessary.chanroblesvirtualawlibrary chanrobles
virtual law library
In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd
Supplement, 51, 52, No. 7, October 18, 1939; 68
Phil., 745), the attestation clause reads as follows:
Suscrito y declarado por el testador Valerio Leynez,
como su ultima voluntad y testamento en presencia
de todos y cada uno de nosotros, y a ruego de
dicho testador, firmamos el presente cada uno en
presencia de los otros, o de los demas y de la del
mismo testsador, Valerio Leynez. El testamento
consta de dos (2) paginas solamente.
The objection was that the attestation clause did
not state that the testator and the witnesses signed
each and every page of the will. This fact ,
however, appears in the will itself. It is clear,
therefore, that in case of the will complied with all
the requisites for its due execution. In the instant
case, essential words were
omitted.chanroblesvirtualawlibrary chanrobles
virtual law library
In the case of Alcala vs. De Villa 1 (40 Off. Gaz.,
14th Supplement, 131, 134-135, No. 23, April 18,
1939), the attestation clause reads as follows:
Hacemos constar que en la fecha y pueblo arriba
mencionadios otorgo el Sr. Emiliano Alcala su
ultima voluntad o testamentao compuesto de
cuatro paginas incluida ya esta clasula de
atestiguamiento. Que estabamos presentes en el
momento de leer y ratificar el que el testamento
arriba mencionado es su ultima voluntad o
testamento compuesto de cuatro paginasen papel
de maquinilla. Que igualmente estabamos
presentes cuando el firmo este documento al pie
del mismo y en el margen izquierdo de cada pagina
del testador tambien en presencia suya y de cada
uno de nosotros en cada pagina y en el margen

izquierdo de esta escritura o testamento. En su
testimonio firmamos abajo en prsencia del testador
y de cada uno de nosotros.
The above attestation clause is substantially
perfect. The only clerical error is that it says
"testador" instead of "testamento" in the phrase
"cada pagina del testador." The word "tambien"
renders unnecessary the use of the verb
"firmamos."chanrobles virtual law library
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz.,
1855, No. 9, June 27, 1941), the attestation clause
did not state the number of pages of the will.
However, it was held that this deficiency was cured
by the will itself, which stated that it consisted of
three pages and in fact it had three
pages.chanroblesvirtualawlibrary chanrobles virtual
law library
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938,
4940, No. 12, October 23, 1947), decided by the
Court of Appeals, the attestation clause (translated
in Spanish) reads as follows:
Nosotros, los testigos, certificamos que este que
hemos firmado es el testamento y ultima voluntad,
que se ha redactado en cuatro paginas, de
Numeriano Rallos, quien despues de leer y de leer
y de leerle el mencionado testamento, y despues
de que ella dio su conformidad, firmo y marco con
su dedo pulgar derecho en nuestra presencia y en
presencia de cada uno de nosotros, que asimismo
cada uno de nosotros, los testigos, firmamos
enpresencia de la testadora y en presencia de
cada uno de nosotros.
It will be noticed that the only thing omitted is the
statement as to the signing of the testatrix and the
witnesses of each and every page of the will, but
the omission is cured by the fact that their
signatures appear on every page. This attestation
clause is different from that involved in the present
case.chanroblesvirtualawlibrary chanrobles virtual
law library
There is no reason why wills should not be
executed by complying substantially with the clear
requisites of the law, leaving it to the courts to
supply essential elements. The right to dispose of
property by will is not natural but statutory, and
statutory requirements should be satisfied.
33
The right to make a testamentary disposition of
one's property is purely of statutory creation, and is
available only upon the compliance with the
requirements of the statute. The formalities which
the Legislature has prescribed for the execution of
a will are essential to its validity, and cannot be
disregarded. The mode so prescribed is the
measure for the exercise of the right, and the heir
can be deprived of his inheritance only by a
compliance with this mode. For the purpose of
determining whether a will has been properly
executed, the intention of the testator in executing it
is entitled to no consideration. For that purpose
only intention of the Legislature, as expressed in
the language of the statute, can be considered by
the court, and whether the will as presented, shows
a compliance with the statute. Estate of Walker,
110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52
Am. St. Rep. 104. In re Seaman's Estate, 80 Pac.,
700, 701.)chanrobles virtual law library
In interpreting the legislature's thought, courts have
rigidly opposed any exception tending to weaken
the basic principle underlying the law, the chief
purpose of which is to see that the testator's wishes
are observed. It is possible, in some or many
cases, a decedent may have thought he had made
a will, but the statute says he had not. The question
is not one of his intention, but of what he actually
did, or . . . failed to do. . . . It may happen . . . that . .
. wills . . . truly expressing the intertions of the
testator are made without observations of the
required forms; and whenever that happens, the
genuine intention is frustrated. . . . The Legislature .
. . has taught of it best and has therefore
determined, to run the risk of frustrating (that
intention, . . . in preference to the risk of giving
effect to or facilitating the formation of spurious
wills, by the absence of forms. . . . The evil
probably to arise by giving to wills made without
any form, . . ." or, in derogation of testator's wishes,
fraudulently imposing spurious wills on his effect on
his estate. Churchill's Estate, 260 Pac. 94, 101, 103
Atl. 533.chanroblesvirtualawlibrary chanrobles
virtual law library
It has always been the policy of this court to sustain
a will if it is legally possible to do so, but we cannot
break down the legislative barriers protecting a
man's property after death, even if a situation may
be presented apparently meritorious. (In Re:
Maginn, 30 A. L. R., pp. 419, 420.)
 34

In view of the foregoing, the decision appealed from

is reversed, denying the probate of the alleged will
and declaring intestate the estate of the deceased
Carlos Gil. With costs against the appellee. It is so
ordered

SEE PDF MONTINOLA v. HERBOSA CASE
_________________________________________
___________________________________
G.R. No. L-4888 May 25, 1953
JOSE MERZA, petitioner,
vs.
PEDRO LOPEZ PORRAS, respondent.
Primicias, Abad, Mencies & Castillo for petitioner.
Moises Ma. Buhain for respondent.
TUAZON , J.:
This is an appeal from the Court of Appeals which
affirmed an order of the Court of First Instance of
Zambales denying the probate of the last will and
testament and
so-called codicil, identified as Exhibits A and B, of
Pilar Montealegre, deceased. The testatrix was
survived by the husband and collateral relatives,
some of whom, along with the husband, were
disinherited in Exhibit B for the reasons set forth
therein.
The opposition to Exhibit A was predicated on
alleged defects of the attestation clause. Written in
the local dialect known to the testatrix, the
attestation clause, as translated into English in the
record on appeal, reads:
The foregoing instrument consisting of three
pages, on the date above-mentioned, was
executed, signed and published by testatrix
Pilar Montealegre and she declared that the
said instrument is her last will and
testament; that in our presence and also in
the very presence of the said testatrix as
likewise in the presence of two witnesses
and the testatrix each of us three witnesses
signed this a testament.
The opponent objected that this clause did not
estate that the tetratrix and the witnesses had
signed each and every page of the will or that she
had signed the instrument in the presence of the
witnesses. The Appellate Court dismissed the first
objection, finding that "failure to estate in the
attestation clause in question that the testatrix
and/or the witnesses had signed each and every
page of Exhibit A were cured by the fact that each
35
one of the page of the instrument appears to be
signed by the testatrix and the three attesting
witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924);
Ticson vs. Gorostiza, 57 Phil., (1932);
Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl.
(October 18, 1939), 510, 528; Rallos vs. Rallos, 44
Off. Gaz., 4938, 4940)." But granting the
correctness of the premise, the court held the
second objection well taken and thus concluded:
"The question whether the testatrix had signed in
the presence of said witnesses can not be verified
upon physical examination of the instrument.
Hence, the absence of the require statement in said
clause may not, pursuant to the decisions of the
Supreme Court, be offset by proof aliunde even if
admitted without any objection."
The premise of the conclusion is, in our opinion,
incorrect.
It must be admitted that the attestation clause was
very poor drawn, its language exceedingly
ungrammatical to the point of being difficult to
understand; but from a close examination of the
whole context in relation to its purpose the
implication seems clear that the testatrix signed in
the presence of the witnesses. Considering that the
witnesses' only business at hand was to sign and
attest to the testatrix's signing of the document, and
that the only actors of the proceeding were the
maker and the witnesses acting and speaking
collectively and in the first person, the phrase "in
our presence," used as it was in connection with
the process of signing, can not imply anything but
the testatrix signed before them. No other inference
is possible. The prepositional phrase "in our
presence" denotes an active verb and the verb a
subject. The verb could not be other than signed
and the subject no other than the testatrix.
The use of the word "also" is no less enlightening. It
denotes that, as each of the witnesses sign in the
presence of the testatrix and of one another, so the
testatrix sign in similar or like manner — in their
presence.
In consonance with the principle of the liberal
interpretation, adhered to in numerous later
decision of this Court and affirmed and translated
into inactment in the new Civil Code (Article 827),
we are constrained to hold the attestation clause
under consideration sufficient and valid.
 36

"Precision of language in the drafting of the
attestation clause is desirable. However, it is not
imperative that a parrot-like copy of the word of the
statue be made. It is sufficient if from the language
employed it can reasonably be deduced that the
attestation clause fulfills what the law expects of it."
(Ticson vs. Gorostiza, supra.)
"It could have been the intention of the legislature
in providing for the essential safeguards in the
execution of a will to shackle the very right of the
testamentary disposition which the law recognizes
and holds sacred." (Leynes vs.Leynes, supra.)
With reference of Exhibit B the Court of Appeal
agreed with the trial court that the document having
been executed one day before Exhibit A could not
be considered as a codicil "because a codicil, as
the word implies, is only an addition to, or
modification of, the will." The Court of Appeals
added that "the content of Exhibit B are couched in
the language of ordinarily used in a simple affidavit
and as such, may not have the legal effect and
force to a testamentary disposition." Furthermore,
the Court of Appeals observed, disinheritance "may
not be made in any instrument other than the will of
Exhibit A, as expressly provided for in article 849 of
the Civil Code," and, "there being no disposition as
to the disinheritance of the oppositor, Pedro Lopez
Porras (the surviving spouse), in the said Exhibit A,
it is quite clear that he can not be disinherited in
any other instrument including Exhibit B, which is,
as above stated, a simple affidavit."
complied with (Id. 881). As seen, Exhibit B
embodied all the requisites of a will, even free of
such formal of literary imperfections as are found in
Exhibit A.
It also follows that Exhibit B is a legal and effective
vehicle for excluding lawful heirs from testate or
intestate succession. Article 849 of the Civil Code
of Spain does not, as the appealed decision seems
to insinuate, require that the disinheritance should
be accomplished in the same instrument by which
the maker provides the disposition of his or her
property after his or death. This article merely
provides that "disinheritance can be affected only
by a will (any will) in which the legal cause upon
which it is based is expressly stated."
It is our judgment therefore that the instruments
Exhibit A and B admitted to probate, subject of
courts to the right of the disinherited person under
particle 850 to contest the disinheritance, and it is
so ordered, with costs against the appellee.

Exhibit B does partake of the nature of a will. A will

is defined in article 667 of the Civil code of Spain as
"the act by which a persons dispose of all his
property or a portion of it," and in article 783 of the
new Civil Code as "an act whereby a person is
permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his
estate, to take effect after his death. Exhibit B
comes within this definition.

Being of testamentary character and having been

made with all the formalities of law, Exhibit B is
entitled to probate as an independent testementary
desposition. In the absence of any legal provision
to the contrary — and there is none in this
jurisdiction — it is the general, well-established rule
that two separate and distinct wills may be
probated if one does not revoke the other (68 C.J.,
885) and provided that the statutory requirements
relative to the execution of wills have been

G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and
ROWENA FAUSTINO-CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private
respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by
this Court 1 involving the probate of the two wills of
the late Dolores Luchangco Vitug, who died in New
York, U. S.A., on November 10, 1980, naming
private respondent Rowena Faustino-Corona
executrix. In our said decision, we upheld the
appointment of Nenita Alonte as co-special
administrator of Mrs. Vitug's estate with her (Mrs.
Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.
On January 13, 1985, Romarico G. Vitug filed a
motion asking for authority from the probate court
to sell certain shares of stock and real properties
belonging to the estate to cover allegedly his
advances to the estate in the sum of P667,731.66,
plus interests, which he claimed were personal
funds. As found by the Court of Appeals, 2 the
alleged advances consisted of P58,147.40 spent
for the payment of estate tax, P518,834.27 as
deficiency estate tax, and P90,749.99 as
"increment thereto." 3 According to Mr. Vitug, he
withdrew the sums of P518,834.27 and P90,749.99
from savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the
motion to sell on the ground that the same funds
withdrawn from savings account No. 35342-038
were conjugal partnership properties and part of the
estate, and hence, there was allegedly no ground
for reimbursement. She also sought his ouster for
failure to include the sums in question for inventory
and for "concealment of funds belonging to the
estate." 4
37
Vitug insists that the said funds are his exclusive
property having acquired the same through a
survivorship agreement executed with his late wife
and the bank on June 19, 1970. The agreement
provides:
We hereby agree with each other
and with the BANK OF AMERICAN
NATIONAL TRUST AND SAVINGS
ASSOCIATION (hereinafter referred
to as the BANK), that all money now
or hereafter deposited by us or any
or either of us with the BANK in our
joint savings current account shall
be the property of all or both of us
and shall be payable to and
collectible or withdrawable by either
or any of us during our lifetime, and
after the death of either or any of us
shall belong to and be the sole
property of the survivor or survivors,
and shall be payable to and
collectible or withdrawable by such
survivor or survivors.
We further agree with each other
and the BANK that the receipt or
check of either, any or all of us
during our lifetime, or the receipt or
check of the survivor or survivors, for
any payment or withdrawal made for
our above-mentioned account shall
be valid and sufficient release and
discharge of the BANK for such
payment or withdrawal. 5
The trial courts 6 upheld the validity of this
agreement and granted "the motion to sell some of
the estate of Dolores L. Vitug, the proceeds of
which shall be used to pay the personal funds of
Romarico Vitug in the total sum of P667,731.66 ...
." 7
On the other hand, the Court of Appeals, in the
petition for certiorari filed by the herein private
respondent, held that the above-quoted
survivorship agreement constitutes a
conveyance mortis causa which "did not comply
with the formalities of a valid will as prescribed by
Article 805 of the Civil Code," 8 and secondly,
assuming that it is a mere donation inter vivos, it is
a prohibited donation under the provisions of Article
133 of the Civil Code. 9

The dispositive portion of the decision of the Court
of Appeals states:
WHEREFORE, the order of
respondent Judge dated November
26, 1985 (Annex II, petition) is
hereby set aside insofar as it
granted private respondent's motion
to sell certain properties of the
estate of Dolores L. Vitug for
reimbursement of his alleged
advances to the estate, but the
same order is sustained in all other
respects. In addition, respondent
Judge is directed to include
provisionally the deposits in Savings
Account No. 35342-038 with the
Bank of America, Makati, in the
inventory of actual properties
possessed by the spouses at the
time of the decedent's death. With
costs against private respondent. 10
In his petition, Vitug, the surviving spouse, assails
the appellate court's ruling on the strength of our
decisions in Rivera v. People's Bank and Trust
Co. 11 and Macam v. Gatmaitan 12 in which we
sustained the validity of "survivorship agreements"
and considering them as aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one
of mortis causa, which should be embodied in a
will. A will has been defined as "a personal,
solemn, revocable and free act by which a
capacitated person disposes of his property and
rights and declares or complies with duties to take
effect after his death." 14 In other words, the
bequest or device must pertain to the testator. 15 In
this case, the monies subject of savings account
No. 35342-038 were in the nature of conjugal funds
In the case relied on, Rivera v. People's Bank and
Trust Co., 16 we rejected claims that a survivorship
agreement purports to deliver one party's separate
properties in favor of the other, but simply, their
joint holdings:
xxx xxx xxx
... Such conclusion is evidently
predicated on the assumption that
Stephenson was the exclusive
owner of the funds-deposited in the
38
bank, which assumption was in turn
based on the facts (1) that the
account was originally opened in the
name of Stephenson alone and (2)
that Ana Rivera "served only as
housemaid of the deceased." But it
not infrequently happens that a
person deposits money in the bank
in the name of another; and in the
instant case it also appears that Ana
Rivera served her master for about
nineteen years without actually
receiving her salary from him. The
fact that subsequently Stephenson
transferred the account to the name
of himself and/or Ana Rivera and
executed with the latter the
survivorship agreement in question
although there was no relation of
kinship between them but only that
of master and servant, nullifies the
assumption that Stephenson was
the exclusive owner of the bank
account. In the absence, then, of
clear proof to the contrary, we must
give full faith and credit to the
certificate of deposit which recites in
effect that the funds in question
belonged to Edgar Stephenson and
Ana Rivera; that they were joint (and
several) owners thereof; and that
either of them could withdraw any
part or the whole of said account
during the lifetime of both, and the
balance, if any, upon the death of
either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that
Exhibit C is an aleatory contract
whereby, according to article 1790 of
the Civil Code, one of the parties or
both reciprocally bind themselves to
give or do something as an
equivalent for that which the other
party is to give or do in case of the
occurrence of an event which is
uncertain or will happen at an
indeterminate time. As already

stated, Leonarda was the owner of
the house and Juana of the Buick
automobile and most of the furniture.
By virtue of Exhibit C, Juana would
become the owner of the house in
case Leonarda died first, and
Leonarda would become the owner
of the automobile and the furniture if
Juana were to die first. In this
manner Leonarda and Juana
reciprocally assigned their
respective property to one another
conditioned upon who might die first,
the time of death determining the
event upon which the acquisition of
such right by the one or the other
depended. This contract, as any
other contract, is binding upon the
parties thereto. Inasmuch as
Leonarda had died before Juana,
the latter thereupon acquired the
ownership of the house, in the same
manner as Leonarda would have
acquired the ownership of the
automobile and of the furniture if
Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively
belonged to one party, and hence it must be
presumed to be conjugal, having been acquired
during the existence of the marita. relations. 20
Neither is the survivorship agreement a
donation inter vivos, for obvious reasons, because
it was to take effect after the death of one party.
Secondly, it is not a donation between the spouses
because it involved no conveyance of a spouse's
own properties to the other.
It is also our opinion that the agreement involves no
modification petition of the conjugal partnership, as
held by the Court of Appeals, 21 by "mere
stipulation" 22 and that it is no "cloak" 23 to
circumvent the law on conjugal property relations.
Certainly, the spouses are not prohibited by law to
invest conjugal property, say, by way of a joint and
several bank account, more commonly
denominated in banking parlance as an "and/or"
account. In the case at bar, when the spouses
Vitug opened savings account No. 35342-038, they
merely put what rightfully belonged to them in a
money-making venture. They did not dispose of it in
39
favor of the other, which would have arguably been
sanctionable as a prohibited donation. And since
the funds were conjugal, it can not be said that one
spouse could have pressured the other in placing
his or her deposits in the money pool.
The validity of the contract seems debatable by
reason of its "survivor-take-all" feature, but in
reality, that contract imposed a mere obligation with
a term, the term being death. Such agreements are
permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract,
one of the parties or both
reciprocally bind themselves to give
or to do something in consideration
of what the other shall give or do
upon the happening of an event
which is uncertain, or which is to
occur at an indeterminate time.
Under the aforequoted provision, the fulfillment of
an aleatory contract depends on either the
happening of an event which is (1) "uncertain," (2)
"which is to occur at an indeterminate time." A
survivorship agreement, the sale of a sweepstake
ticket, a transaction stipulating on the value of
currency, and insurance have been held to fall
under the first category, while a contract for life
annuity or pension under Article 2021, et sequentia,
has been categorized under the second. 25 In either
case, the element of risk is present. In the case at
bar, the risk was the death of one party and
survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship
agreement is per se not contrary to
law its operation or effect may be
violative of the law. For instance, if it
be shown in a given case that such
agreement is a mere cloak to hide
an inofficious donation, to transfer
property in fraud of creditors, or to
defeat the legitime of a forced heir, it
may be assailed and annulled upon
such grounds. No such vice has
been imputed and established
 40

against the agreement involved in

this case. 26

xxx xxx xxx

There is no demonstration here that the

survivorship agreement had been executed for
such unlawful purposes, or, as held by the
respondent court, in order to frustrate our laws on
wills, donations, and conjugal partnership.

The conclusion is accordingly unavoidable that Mrs.

Vitug having predeceased her husband, the latter
has acquired upon her death a vested right over the
amounts under savings account No. 35342-038 of
the Bank of America. Insofar as the respondent
court ordered their inclusion in the inventory of
assets left by Mrs. Vitug, we hold that the court was
in error. Being the separate property of petitioner, it
forms no more part of the estate of the deceased.

WHEREFORE, the decision of the respondent

appellate court, dated June 29, 1987, and its
resolution, dated February 9, 1988, are SET
ASIDE.

No costs.

SO ORDERED.

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
41
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)
42
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 appointed time in a newspaper of general
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:
43
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
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
44
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
 45

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.

ARTICLE 784
G.R. No. 1439 March 19, 1904
ANTONIO CASTAÑEDA, plaintiff-appellee,
vs.
JOSE E. ALEMANY, defendant-appellant.
Ledesma, Sumulong and Quintos for appellant.
The court erred in holding that all legal formalities
had been complied with in the execution of the will
of Doña Juana Moreno, as the proof shows that the
said will was not written in the presence of under
the express direction of the testratrix as required by
section 618 of the Code of Civil Procedure.
Antonio V. Herrero for appellee.
The grounds upon which a will may be disallowed
are limited to those mentioned in section 634 of the
Code of Civil Procedure.
WILLARD, J.:
(1) The evidence in this case shows to our
satisfaction that the will of Doña Juana Moreno was
duly signed by herself in the presence of three
witnesses, who signed it as witnesses in the
presence of the testratrix and of each other. It was
therefore executed in conformity with law.
There is nothing in the language of section 618 of
the Code of Civil Procedure which supports the
claim of the appellants that the will must be written
by the testator himself or by someone else in his
presence and under his express direction. That
section requires (1) that the will be in writing and (2)
either that the testator sign it himself or, if he does
sign it, that it be signed by some one in his
presence and by his express direction. Who does
the mechanical work of writing the will is a matter of
indifference. The fact, therefore, that in this case
the will was typewritten in the office of the lawyer
for the testratrix is of no consequence. The English
text of section 618 is very plain. The mistakes in
translation found in the first Spanish edition of the
code have been corrected in the second.
(2) To establish conclusively as against everyone,
and once for all, the facts that a will was executed
46
with the formalities required by law and that the
testator was in a condition to make a will, is the
only purpose of the proceedings under the new
code for the probate of a will. (Sec. 625.) The
judgment in such proceedings determines and can
determine nothing more. In them the court has no
power to pass upon the validity of any provisions
made in the will. It can not decide, for example, that
a certain legacy is void and another one valid. It
could not in this case make any decision upon the
question whether the testratrix had the power to
appoint by will a guardian for the property of her
children by her first husband, or whether the person
so appointed was or was not a suitable person to
discharge such trust.
All such questions must be decided in some other
proceeding. The grounds on which a will may be
disallowed are stated the section 634. Unless one
of those grounds appears the will must be allowed.
They all have to do with the personal condition of
the testator at the time of its execution and the
formalities connected therewith. It follows that
neither this court nor the court below has any
jurisdiction in his proceedings to pass upon the
questions raised by the appellants by the
assignment of error relating to the appointment of a
guardian for the children of the deceased.
It is claimed by the appellants that there was no
testimony in the court below to show that the will
executed by the deceased was the same will
presented to the court and concerning which this
hearing was had. It is true that the evidence does
not show that the document in court was presented
to the witnesses and identified by them, as should
have been done. But we think that we are justified
in saying that it was assumed by all the parties
during the trial in the court below that the will about
which the witnesses were testifying was the
document then in court. No suggestion of any kind
was then made by the counsel for the appellants
that it was not the same instrument. In the last
question put to the witness Gonzales the phrase
"this will" is used by the counsel for the appellants.
In their argument in that court, found on page 15 of
the record, they treat the testimony of the witnesses
as referring to the will probate they were then
opposing.
The judgment of the court below is affirmed,
eliminating therefrom, however, the clause "el cual
debera ejecutarse fiel y exactamente en todas sus
 47

partes." The costs of this instance will be charged

against the appellants.

ARTICLE 788
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON,
BERNARDITA DIZON, JOSEFINA DIZON,
ANGELINA DIZON and LILIA DIZON, oppositors-
appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.
Leonardo Abola for oppositors-appellants.
TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of
Pampanga approving the Executrix-appellee's
project of partition instead of Oppositors-Appellants'
proposed counter-project of partition.1
On January 28, 1961, the testatrix, Agripina J.
Valdez, a widow, died in Angeles, Pampanga, and
was survived by seven compulsory heirs, to wit, six
legitimate children named Estela Dizon, Tomas V.
Dizon, Bernardita Dizon, Marina Dizon (herein
executrix-appellee), Angelina Dizon and Josefina
Dizon, and a legitimate granddaughter named Lilia
Dizon, who is the only legitimate child and heir of
Ramon Dizon, a pre-deceased legitimate son of the
said decedent. Six of these seven compulsory heirs
(except Marina Dizon, the executrix-appellee) are
the oppositors-appellants.
The deceased testatrix left a last will executed on
February 2, 1960 and written in the Pampango
dialect. Named beneficiaries in her will were the
above-named compulsory heirs, together with
seven other legitimate grandchildren, namely Pablo
Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon,
Francisco Rivera, Agripina Ayson, Jolly Jimenez
and Laureano Tiambon.
In her will, the testatrix divided, distributed and
disposed of all her properties appraised at
P1,801,960.00 (except two small parcels of land
appraised at P5,849.60, household furniture valued
48
at P2,500.00, a bank deposit in the sum of P409.95
and ten shares of Pampanga Sugar Development
Company valued at P350.00) among her above-
named heirs.
Testate proceedings were in due course
commenced2 and by order dated March 13, 1961,
the last will and testament of the decedent was duly
allowed and admitted to probate, and the appellee
Marina Dizon-Rivera was appointed executrix of the
testatrix' estate, and upon her filing her bond and
oath of office, letters testamentary were duly issued
to her.
After the executrix filed her inventory of the estate,
Dr. Adelaido Bernardo of Angeles, Pampanga was
appointed commissioner to appraise the properties
of the estate. He filed in due course his report of
appraisal and the same was approved in toto by the
lower court on December 12, 1963 upon joint
petition of the parties.
The real and personal properties of the testatrix at
the time of her death thus had a total appraised
value of P1,811,695.60, and the legitime of each of
the seven compulsory heirs amounted to
P129,362.11.3 (¹/7 of the half of the estate reserved
for the legitime of legitimate children and
descendants).4 In her will, the testatrix
"commanded that her property be divided" in
accordance with her testamentary disposition,
whereby she devised and bequeathed specific real
properties comprising practically the entire bulk of
her estate among her six children and eight
grandchildren. The appraised values of the real
properties thus respectively devised by the testatrix
to the beneficiaries named in her will, are as
follows:
1. Estela Dizon
....................................... P
98,474.80
2. Angelina Dizon
.................................. 106,307.06
3. Bernardita Dizon
.................................. 51,968.17
4. Josefina Dizon
...................................... 52,056.39
5. Tomas Dizon
.......................................
131,987.41
6. Lilia Dizon
..............................................
72,182.47

7. Marina Dizon
.....................................
1,148,063.71
8. Pablo Rivera, Jr.
...................................... 69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon
................. 72,540.00
Total Value ......................
P1,801,960.01
The executrix filed her project of partition dated
February 5, 1964, in substance adjudicating the
estate as follows:
(1) with the figure of P129,254.96 as
legitime for a basis Marina
(exacultrix-appellee) and Tomas
(appellant) are admittedly
considered to have received in the
will more than their respective
legitime, while the rest of the
appellants, namely, Estela,
Bernardita, Angelina, Josefina and
Lilia received less than their
respective legitime;
(2) thus, to each of the latter are
adjudicated the properties
respectively given them in the will,
plus cash and/or properties, to
complete their respective legitimes
to P129,254.96; (3) on the other
hand, Marina and Tomas are
adjudicated the properties that they
received in the will less the cash
and/or properties necessary to
complete the prejudiced legitime
mentioned in number 2 above;
(4) the adjudications made in the will
in favor of the grandchildren remain
untouched.<äre||anº•1àw>
On the other hand oppositors
submitted their own counter-project
of partition dated February 14, 1964,
wherein they proposed the
distribution of the estate on the
following basis:
49
(a) all the testamentary dispositions
were proportionally reduced to the
value of one-half (½) of the entire
estate, the value of the said one-half
(½) amounting to P905,534.78; (b)
the shares of the Oppositors-
Appellants should consist of their
legitime, plus the devises in their
favor proportionally reduced; (c) in
payment of the total shares of the
appellants in the entire estate, the
properties devised to them plus
other properties left by the Testatrix
and/or cash are adjudicated to them;
and (d) to the grandchildren who are
not compulsory heirs are adjudicated
the properties respectively devised
to them subject to reimbursement by
Gilbert D. Garcia, et al., of the sums
by which the devise in their favor
should be proportionally reduced.
Under the oppositors' counter-project of partition,
the testamentary disposition made by the testatrix
of practically her whole estate of P1,801,960.01, as
above stated, were proposed to be reduced to the
amounts set forth after the names of the respective
heirs and devisees totalling one-half thereof as
follows:
1. Estela Dizon
........................................... P
49,485.56
2. Angelina Dizon
.........................................
53,421.42
3. Bernardita Dizon
....................................... 26,115.04
4. Josefina Dizon
..........................................
26,159.38
5. Tomas V. Dizon
.........................................
65,874.04
6. Lilia Dizon
..................................................
36,273.13
7. Marina Dizon
...........................................
576,938.82
8. Pablo Rivera, Jr.
.........................................
34,814.50

9. Grandchildren Gilbert Garcia et al
.......... 36,452.80
Total
................................................... P90
5,534.78
while the other half of the estate (P905,534.78)
would be deemed as constituting the legitime of the
executrix-appellee and oppositors-appellants, to be
divided among them in seven equal parts of
P129,362.11 as their respective legitimes.
The lower court, after hearing, sustained and
approved the executrix' project of partition, ruling
that "(A)rticles 906 and 907 of the New Civil Code
specifically provide that when the legitime is
impaired or prejudiced, the same shall be
completed and satisfied. While it is true that this
process has been followed and adhered to in the
two projects of partition, it is observed that the
executrix and the oppositors differ in respect to the
source from which the portion or portions shall be
taken in order to fully restore the impaired legitime.
The proposition of the oppositors, if upheld, will
substantially result in a distribution of intestacy,
which is in controversion of Article 791 of the New
Civil Code" adding that "the testatrix has chosen to
favor certain heirs in her will for reasons of her own,
cannot be doubted. This is legally permissible
within the limitation of the law, as aforecited." With
reference to the payment in cash of some
P230,552.38, principally by the executrix as the
largest beneficiary of the will to be paid to her five
co-heirs, the oppositors (excluding Tomas Dizon),
to complete their impaired legitimes, the lower court
ruled that "(T)he payment in cash so as to make
the proper adjustment to meet with the
requirements of the law in respect to legitimes
which have been impaired is, in our opinion, a
practical and valid solution in order to give effect to
the last wishes of the testatrix."
From the lower court's orders of approval,
oppositors-appellants have filed this appeal, and
raise anew the following issues: .
1. Whether or not the testamentary dispositions
made in the testatrix' will are in the nature of
devises imputable to the free portion of her estate,
and therefore subject to reduction;
2. Whether the appellants are entitled to the devise
plus their legitime under Article 1063, or merely to
50
demand completion of their legitime under Article
906 of the Civil Code; and
3. Whether the appellants may be compelled to
accept payment in cash on account of their
legitime, instead of some of the real properties left
by the Testatrix;
which were adversely decided against them in the
proceedings below.
The issues raised present a matter of determining
the avowed intention of the testatrix which is "the
life and soul of a will."5 In consonance therewith,
our Civil Code included the new provisions found in
Articles 788 and 791 thereof that "(I)f a
testamentary disposition admits of different
interpretations, in case of doubt, that interpretation
by which the disposition is to be operative shall be
preferred" and "(T)he 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." In Villanueva vs. Juico6 for
violation of these rules of interpretation as well as
of Rule 123, section 59 of the old Rules of
Court, 7 the Court, speaking through Mr. Justice
J.B.L. Reyes, overturned the lower court's decision
and stressed that "the intention and wishes of the
testator, when clearly expressed in his will,
constitute the fixed law of interpretation, and all
questions raised at the trial, relative to its execution
and fulfillment, must be settled in accordance
therewith, following the plain and literal meaning of
the testator's words, unless it clearly appears that
his intention was otherwise." 8
The testator's wishes and intention constitute the
first and principal law in the matter of testaments,
and to paraphrase an early decision of the
Supreme Court of Spain, 9 when expressed clearly
and precisely in his last will amount to the only law
whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs
and devisees and legatees, and neither these
interested parties nor the courts may substitute
their own criterion for the testator's will. Guided and
restricted by these fundamental premises, the
Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the
testatrix' testamentary disposition was in the nature
of a partition of her estate by will. Thus, in the third

paragraph of her will, after commanding that upon
her death all her obligations as well as the
expenses of her last illness and funeral and the
expenses for probate of her last will and for the
administration of her property in accordance with
law, be paid, she expressly provided that "it is my
wish and I command that my property be divided"
in accordance with the dispositions immediately
thereafter following, whereby she specified each
real property in her estate and designated the
particular heir among her seven compulsory heirs
and seven other grandchildren to whom she
bequeathed the same. This was a valid
partition 10 of her estate, as contemplated and
authorized in the first paragraph of Article 1080 of
the Civil Code, providing that "(S)hould a person
make a partition of his estate by an act inter
vivos or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the
compulsory heirs." This right of a testator to
partition his estate is subject only to the right of
compulsory heirs to their legitime. The Civil Code
thus provides the safeguard for the right of such
compulsory heirs:
ART. 906. 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.
ART. 907. Testamentary
dispositions that impair or diminish
the legitime of the compulsory heirs
shall be reduced on petition of the
same, insofar as they may be
inofficious or excessive.
This was properly complied with in
the executrix-appellee's project of
partition, wherein the five oppositors-
appellants namely Estela,
Bernardita, Angelina, Josefina and
Lilia, were adjudicated the properties
respectively distributed and
assigned to them by the testatrix in
her will, and the differential to
complete their respective legitimes
of P129,362.11 each were taken
from the cash and/or properties of
the executrix-appellee, Marina, and
their co-oppositor-appellant, Tomas,
who admittedly were favored by the
testatrix and received in the partition
51
by will more than their respective
legitimes.
2. This right of a testator to partition his estate by
will was recognized even in Article 1056 of the old
Civil Code which has been reproduced now as
Article 1080 of the present Civil Code. The only
amendment in the provision was that Article 1080
"now permits any person (not a testator, as under
the old law) to partition his estate by act inter
vivos." 11 This was intended to repeal the then
prevailing doctrine 12 that for a testator to partition
his estate by an act inter vivos, he must first make
a will with all the formalities provided by law.
Authoritative commentators doubt the efficacy of
the amendment 13 but the question does not here
concern us, for this is a clear case of partition by
will, duly admitted to probate, which perforce must
be given full validity and effect. Aside from the
provisions of Articles 906 and 907 above quoted,
other codal provisions support the executrix-
appellee's project of partition as approved by the
lower court rather than the counter-project of
partition proposed by oppositors-appellants
whereby they would reduce the testamentary
disposition or partition made by the testatrix to one-
half and limit the same, which they would consider
as mere devises or legacies, to one-half of the
estate as the disposable free portion, and apply the
other half of the estate to payment of the legitimes
of the seven compulsory heirs. Oppositors'
proposal would amount substantially to a
distribution by intestacy and pro tanto nullify the
testatrix' will, contrary to Article 791 of the Civil
Code. It would further run counter to the provisions
of Article 1091 of the Civil Code that "(A) partition
legally made confers upon each heir the exclusive
ownership of the property adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the
distribution made in the will of the deceased
testator Pedro Teves of two large coconut
plantations in favor of his daughter, Concepcion, as
against adverse claims of other compulsory heirs,
as being a partition by will, which should be
respected insofar as it does not prejudice the
legitime of the compulsory heirs, in accordance with
Article 1080 of the Civil Code. In upholding the sale
made by Concepcion to a stranger of the
plantations thus partitioned in her favor in the
deceased's will which was being questioned by the
other compulsory heirs, the Court ruled that
"Concepcion Teves by operation of law, became
the absolute owner of said lots because 'A partition

legally made confers upon each heir the exclusive
ownership of the property adjudicated to him'
(Article 1091, New Civil Code), from the death of
her ancestors, subject to rights and obligations of
the latter, and, she can not be deprived of her rights
thereto except by the methods provided for by law
(Arts. 657, 659, and 661, Civil
Code). 15 Concepcion Teves could, as she did, sell
the lots in question as part of her share of the
proposed partition of the properties, especially
when, as in the present case, the sale has been
expressly recognized by herself and her co-heirs
..."
4. The burden of oppositors' contention is that the
testamentary dispositions in their favor are in the
nature of devises of real property, citing the
testatrix' repeated use of the words "I bequeath" in
her assignment or distribution of her real properties
to the respective heirs. From this erroneous
premise, they proceed to the equally erroneous
conclusion that "the legitime of the compulsory
heirs passes to them by operation of law and that
the testator can only dispose of the free portion,
that is, the remainder of the estate after deducting
the legitime of the compulsory heirs ... and all
testamentary dispositions, either in the nature of
institution of heirs or of devises or legacies, have to
be taken from the remainder of the testator's estate
constituting the free portion." 16
Oppositors err in their premises, for the
adjudications and assignments in the testatrix' will
of specific properties to specific heirs cannot be
considered all devises, for it clearly appear from the
whole context of the will and the disposition by the
testatrix of her whole estate (save for some small
properties of little value already noted at the
beginning of this opinion) that her clear intention
was to partition her whole estate through her will.
The repeated use of the words "I bequeath" in her
testamentary dispositions acquire no legal
significance, such as to convert the same into
devises to be taken solely from the free one-half
disposable portion of the estate. Furthermore, the
testatrix' intent that her testamentary dispositions
were by way of adjudications to the beneficiaries as
heirs and not as mere devisees, and that said
dispositions were therefore on account of the
respective legitimes of the compulsory heirs is
expressly borne out in the fourth paragraph of her
will, immediately following her testamentary
adjudications in the third paragraph in this wise:
"FOURTH: I likewise command that in case any of
52
those I named as my heirs in this testament any of
them shall die before I do, his forced heirs under
the law enforced at the time of my death shall
inherit the properties I bequeath to said
deceased." 17
Oppositors' conclusions necessarily are in error.
The testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not
have to be taken only from the free portion of the
estate, as contended, for the second paragraph of
Article 842 of the Civil Code precisely provides that
"(O)ne 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." And even going by oppositors' own
theory of bequests, the second paragraph of Article
912 Civil Code covers precisely the case of the
executrix-appellee, who admittedly was favored by
the testatrix with the large bulk of her estate in
providing that "(T)he devisee who is entitled to a
legitime may retain the entire property, provided its
value does not exceed that of the disposable
portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the
usual reason for making a testament; otherwise,
the decedent might as well die intestate." 18
Fundamentally, of course, the dispositions by the
testatrix constituted a partition by will, which by
mandate of Article 1080 of the Civil Code and of the
other cited codal provisions upholding the primacy
of the testator's last will and testament, have to be
respected insofar as they do not prejudice the
legitime of the other compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil
Code that "(P)roperty left by will is not deemed
subject to collation, if the testator has not otherwise
provided, but the legitime shall in any case remain
unimpaired" and invoking of the construction
thereof given by some authorities that "'not deemed
subject to collation' in this article really means not
imputable to or chargeable against the legitime",
while it may have some plausibility 19 in an
appropriate case, has no application in the present
case. Here, we have a case of a distribution and
partition of the entire estate by the testatrix, without
her having made any previous donations during her
lifetime which would require collation to determine
the legitime of each heir nor having left merely
some properties by will which would call for the
application of Articles 1061 to 1063 of the Civil
Code on collation. The amount of the legitime of the
heirs is here determined and undisputed.
 53

5. With this resolution of the decisive issue raised the testatrix has invariably been availed of and
by oppositors-appellants, the secondary issues are sanctioned. 21That her co-oppositors would receive
likewise necessarily resolved. Their right was their cash differentials only now when the value of
merely to demand completion of their legitime the currency has declined further, whereas they
under Article 906 of the Civil Code and this has could have received them earlier, like Bernardita, at
been complied with in the approved project of the time of approval of the project of partition and
partition, and they can no longer demand a further when the peso's purchasing value was higher, is
share from the remaining portion of the estate, as due to their own decision of pursuing the present
bequeathed and partitioned by the testatrix appeal.
principally to the executrix-appellee.
ACCORDINGLY, the orders appealed from are
Neither may the appellants legally insist on their hereby affirmed. Without cost.
legitime being completed with real properties of the
estate instead of being paid in cash, per the
approved project of partition. The properties are not
available for the purpose, as the testatrix had
specifically partitioned and distributed them to her
heirs, and the heirs are called upon, as far as
feasible to comply with and give effect to the
intention of the testatrix as solemnized in her will,
by implementing her manifest wish of transmitting
the real properties intact to her named
beneficiaries, principally the executrix-appellee.
The appraisal report of the properties of the estate
as filed by the commissioner appointed by the
lower court was approved in toto upon joint petition
of the parties, and hence, there cannot be said to
be any question — and none is presented — as to
fairness of the valuation thereof or that the legitime
of the heirs in terms of cash has been understated.
The plaint of oppositors that the purchasing value
of the Philippine peso has greatly declined since
the testatrix' death in January, 1961 provides no
legal basis or justification for overturning the wishes
and intent of the testatrix. The transmission of
rights to the succession are transmitted from the
moment of death of the decedent (Article 777, Civil
Code) and accordingly, the value thereof must be
reckoned as of then, as otherwise, estates would
never be settled if there were to be a revaluation
with every subsequent fluctuation in the values of
the currency and properties of the estate. There is
evidence in the record that prior to November 25,
1964, one of the oppositors, Bernardita, accepted
the sum of P50,000.00 on account of her
inheritance, which, per the parties'
manifestation, 20 "does not in any way affect the
adjudication made to her in the projects of partition
of either party as the same is a mere advance of
the cash that she should receive in both projects of
partition." The payment in cash by way of making
the proper adjustments in order to meet the
requirements of the law on non-impairment of
legitimes as well as to give effect to the last will of

G.R. No. L-15737 February 28, 1962
LEONOR VILLAFLOR VDA. DE
VILLANUEVA, plaintiff-appellant,
vs.
DELFIN N. JUICO, in his capacity as Judicial
Administrator of the testate estate of FAUSTA
NEPOMUCENO,defendant-appellee.
Amado G. Salazar for plaintiff-appellant.
Sycip, Salazar, Luna and Associates for defendant-
appellee.
REYES, J.B.L., J.:
Subject to this direct appeal to us on points of law
is the decision of the Court of First Instance of
Rizal, in its Civil Case No. Q-2809, dismissing
plaintiff-appellant's complaint for the recovery of
certain properties that were originally owned by the
plaintiff's granduncle, Nicolas Villaflor, and which
he granted to his widow, Doña Fausta
Nepomuceno, bequeathing to her "su uso y
posesion mientras viva y no se case en segundas
nupcias".
The following facts appear of record: On October 9,
1908, Don Nicolas Villaflor, a wealthy man of
Castillejos, Zambales, executed a will in Spanish in
his own handwriting, devising and bequeathing in
favor of his wife, Dona Fausta Nepomuceno, one-
half of all his real and personal properties, giving
the other half to his brother Don Fausto Villaflor.
Clause 6th, containing the institution of heirs, reads
as follows: .
SEXTO — En virtud de las facultades que
me conceden las leyes, instituyo per mis
unicos y universales herederos de todos
mis derechos y acciones a mi hermano D.
Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que partan todos mis
bienes que me pertenescan, en iguales
partes, para despues de mi muerte,
exceptuando las donaciones y legados que,
abajo mi mas expontanea voluntad, lo hago
en la forma siguiente: .
SEPTIMO: — Lego para dispues de mi
muerte a mi esposa Da. Fausta
Nepomuceno, en prueba de mi amor y
54
carino, los bienes, alhajas y muebles que a
continuacion se expresan; .
OCTAVO: — Que estos legades disfrutaria
mi referida esposa Da. Fausta Nepomuceno
su uso y posesion mientras viva y no se
case en segundas nupcias, de la contrario,
pasara a ser propiedad estos dichos
legados de mi sobrina nieta Leonor Villaflor.
The 12th clause of the will provided, however, that
Clauses 6th and 7th thereof would be deemed
annulled from the moment he bore any child with
Doña Fausta Nepomuceno. Said Clause 12th reads
as follows: .
DUODECIMO: — Quedan anulados las
parrafos 6.0 y 7.0 de este testamento que
tratan de institucion de herederos y los
legados que se haran despues de mi
muerte a favor de mi esposa, en el
momento que podre tener la dicha de
contrar con hijo y hijos legitimos o
legitimados, pues estos, conforme a ley
seran mis herederos.
Don Nicolas Villaflor died on March 3, 1922, without
begetting any child with his wife Doña Fausta
Nepomuceno. The latter, already a widow,
thereupon instituted Special Proceeding No. 203 of
the Court of First Instance of Zambales, for the
settlement of her husband's estate and in that
proceeding, she was appointed judicial
administratrix. In due course of administration, she
submitted a project of partition, now Exhibit "E". In
the order of November 24, 1924, now exhibit "C",
the probate court approved the project of partition
and declared the proceeding closed. As the project
of partition, Exhibit "E", now shows Doña Fausta
Nepomuceno received by virtue thereof the
ownership and possession of a considerable
amount of real and personal estate. By virtue also
of the said project of partition, she received the use
and possession of all the real and personal
properties mentioned and referred to in Clause 7th
of the will. The order approving the project of
partition (Exh. "C"), however, expressly provided
that approval thereof was "sin perjuicio de lo
dispuesto en la clausula 8.o del testamento de
Nicolas Villaflor." .
On May 1, 1956, Doña Fausta Nepomuceno died
without having contracted a second marriage, and
without having begotten any child with the

deceased Nicolas Villaflor. Her estate is now being
settled in Special Proceeding No. Q-1563 in the
lower court, with the defendant Delfin N. Juico as
the duly appointed and qualified judicial
administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is
admitted to be the same Leonor Villaflor mentioned
by Don Nicolas Villaflor in his will as his "sobrina
nieta Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present action
against the administrator of the estate of the widow
Fausta Nepomuceno, on February 8, 1958,
contending that upon the widow's death, said
plaintiff became vested with the ownership of the
real and personal properties bequeathed by the late
Nicolas Villaflor to clause 7 of his will, pursuant to
its eight (8th) clause. Defendant's position, adopted
by the trial court, is that the title to the properties
aforesaid became absolutely vested in the widow
upon her death, on account of the fact that she
never remarried.
We agree with appellant that the plain desire and
intent of the testator, as manifested in clause 8 of
his testament, was to invest his widow with only a
usufruct or life tenure in the properties described in
the seventh clause, subject to the further condition
(admitted by the appellee) that if the widow
remarried, her rights would thereupon cease, even
during her own lifetime. That the widow was meant
to have no more than a life interest in those
properties, even if she did not remarry at all, is
evident from the expressions used by the deceased
"uso y posesion mientras viva" (use and
possession while alive) in which the first half of the
phrase "uso y posesion" instead of "dominio" or
"propiedad") reinforces the second ("mientras
viva"). The testator plainly did not give his widow
the full ownership of these particular properties, but
only the right to their possession and use (or
enjoyment) during her lifetime. This is in contrast
with the remainder of the estate in which she was
instituted universal heir together with the testator's
brother (clause 6). 1äwphï1.ñët
SEXTO: — En virtud de las facultades que
me conceden las leyes, instituyo por mis
unicos y universales herederos de todos
mis derechos y acciones a mi hermano D.
Fausto Villaflor y a mi esposa Da. Fausta
Nepomuceno para que parten todos mis
bienes que me pertenescan, en iguales
55
partes, para despues de mi muerte,
exceptuando las donaciones y legados que,
abajo mi mas expontanea voluntad, lo hago
en la forma siguiente.
The court below, in holding that the appellant
Leonor Villaflor, as reversionary legatee, could
succeed to the properties bequeathed by clause 7
of the testament only in the event that the widow
remarried, has unwarrantedly discarded the
expression "mientras viva," and considered the
words "uso y posesion" as equivalent to "dominio"
(ownership). In so doing, the trial court violated
Article 791 of the Civil Code of the Philippines, as
well as section 59 of Rule 123 of the Rules of
Court.
ART. 791. 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 one is to be preferred
which will prevent intestacy." .
SEC. 59. Instrument construed so as to give
effect to all provisions. — In the construction
of an instrument where there are several
provisions or particulars, such a
construction is, if possible, to be adopted as
will give effect to all." .
Speculation as to the motives of the testator in
imposing the conditions contained in clause 7 of his
testament should not be allowed to obscure the
clear and unambiguous meaning of his plain words,
which are over the primary source in ascertaining
his intent. It is well to note that if the testator had
intended to impose as sole condition the non-
remarriage of his widow, the words "uso y posesion
mientras viva" would have been unnecessary,
since the widow could only remarry during her own
lifetime.
The Civil Code, in Article 790, p. 1 (Article 675 of
the Code of 1889), expressly enjoins the following: .
ART. 790. The words of a will are to be
taken in their ordinary and grammatical
sense, unless a clear intention to use them
in another sense can be gathered, and that
other can be ascertained." .
 56

Technical words in a will are to be taken in PREMISES CONSIDERED, the decision appealed
their technical sense, unless the context from is reversed, and the appellant Leonor Villaflor
clearly indicates a contrary intention, or Vda. de VILLANUEVA is declared entitled to the
unless it satisfactorily appears that the will ownership and fruits of the properties described in
was drawn solely by the testator, and that clause 7 of the will or testament, from the date of
he was unacquainted with such technical the death of Doña Fausta Nepomuceno. The
sense. (675a) records are ordered remanded to the court of origin
for liquidation, accounting and further proceedings
In consonance with this rule, this Supreme Court conformably to this decision. Costs against the
has laid the doctrine in In re Estate of Calderon, 26 Administrator-appellee.
Phil., 233, that the intention and wishes of the
testator, when clearly expressed in his will,
constitute the fixed law of interpretation, and all
questions raised at the trial, relative to its execution
and fulfillment, must be settled in accordance
therewith, following the plain and literal meaning of
the testator's words, unless it clearly appears that
his intention was otherwise. The same rule is
adopted by the Supreme Court of Spain (TS. Sent.
20 Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16
Enero 1915; 23 Oct. 1925).

La voluntad del testador, clara, precisa y

constantemente expresada al ordenar su
ultimo voluntad, es ley unica, imperativa y
obligatoria que han de obedecer y cumplir
fieldmente albaceas, legatarios y heredera,
hoy sus sucesores, sin que esa voluntad
patente, que no ha menester de
interpretaciones, pues no ofrece la menor
duda, pueda sustituirse, pues no ofrece la
menor duda, pueda sustituirse por ningun
otro criterio de alguna de los interesados, ni
tampoco por el judicial. (Tribunal Supremo
of Spain, Sent. 20 March 1918) .

The American decisions invoked by appellee in his

brief inapplicable, because they involve cases
where the only condition imposed on the legatee
was that she should remain a widow. As already
shown, the testament of Don Nicolas Villaflor
clearly and unmistakably provided that his widow
should have the possession and use of the legacies
while alive and did not remarry. It necessarily
follows that by the express provisions of the 8th
clause of his will, the legacies should pass to the
testator's "sobrinanieta", appellant herein, upon the
widow's death, even if the widow never remarried in
her lifetime. Consequently, the widow had no right
to retain or dispose of the aforesaid properties, and
her estate is accountable to the reversionary
legatee for their return, unless they had been lost
due to fortuitous event, or for their value should
rights of innocent third parties have intervened.

G.R. No. 1027 May 19, 1903
RAMON DEL ROSARIO, plaintiff-appellee,
vs.
CLEMENTE DEL ROSARIO, defendant-appellant.
Lucas Gonzalez for appellant.
Rodriguez and Foz for appellee.
WILLARD, J.:
I. Don Nicolas del Rosario died in this city on July
14, 1897, leaving a last will, the eighth, ninth,
eleventh, and eighteenth clauses of which are as
follows:
Eight. The testator declares that the 5,000
pesos which he brought to his marriage he
hereby bequeathes to his nephew Enrique
Gloria y Rosario and Ramon del Rosario,
natural children of his brother Clemente del
Rosario, notwithstanding the fact that they
purport to be the issue of the marriage of
Escolastico Gloria and Rosendo del
Rosario, successively.
Ninth. The testator declares that the said
sum of 5,000 pesos is to be divided, 3,000
pesos for the first named and 2,000 pesos
for the second named, the delivery of the
said sums to be effected by the wife of the
testator, provided that these young men
behave themselves as they have done up to
the present time, and do not cease to study
until taking the degree of bachelor of arts,
and then take a business course, if their
health will permit, their support to be paid
out of the testamentary estate and they to
live in the house of the widow.
Eleventh. The testator declares that in a
case the said young men should be still
engaged in study at the time of the death of
the testator's wife, they shall continue to be
supported at the expense of the
testamentary estate, without deducting such
expenses from their legacies, if they should
desire to continue the same studies.
Eighteenth. The testator further states that
although his wife is at the present time fifty-
five years of age, and consequently is not
likely to marry again, as she herself says,
57
nevertheless it is impossible that the
opposite of what she asserts might occur,
and, if so, then it is to be regarded as
sufficient reason to authorize the young
men Ramon and Enrique, so often referred
to, separate from their aunt, in which event
they are to be supported by the
testamentary estate on a small allowance of
twenty-five pesos per month, provided that
they continue their studies or should be in
poor health, this without in any respect
reducing the amount of their shares.
Don Ramon del Rosario, one of the persons
mentioned in these clauses, brought this action in
1902 against Don Clemente del Rosario, the then
executor, asking, among other things, that the said
executor pay him an allowance from the death of
the widow of the testator at the rate of 75 pesos a
month, and that the executor allow him to live in the
house in which the widow was living at that time.
The widow of the testator, Doña Honorata Valdez,
died on July 7, 1900.
The court below ordered judgment in respect to this
allowance, and the right to live in the house as
prayed for by the plaintiff. In this we think that the
court erred.
While by the eight clause the support of the plaintiff
and of Don Enrique Gloria is charged against the
estate, yet the eleventh clause makes it plain that
this unconditional right was to last only during the
lifetime of the widow. After her death the right to
this allowance is made to depend on the
continuance of their studies. That this is the correct
construction of the will is made more plain by the
eighteenth clause above quoted. In the case of
their separation from their aunt by her remarriage,
they were entitled to the specified allowance of 25
pesos a month only on condition that they were
pursuing their studies or were in poor health.
The court did not find that the plaintiff was still
pursuing his studies. On the contrary, he found that
the plaintiff had fulfilled the condition by obtaining
the degree of bachelor of arts in 1898.
The right to live in the house of the widow
terminated at her death.
II. The seventh clause of the will of Don Nicolas is
as follows:

Seventh. The testator states that in the
present condition of his affairs he has
acquired, during his married life, some tens
of thousands of dollars, of which one-half
belongs to his wife as her share of the
profits of the conjugal partnership, and the
other half belongs to him as his share of
such profits; but, in view of the agreement
entered into between the two spouses, the
property will not be partitioned, and upon
the death of the testator all the said property
will pass to his wife, in order that she may
enjoy the revenue therefrom during her
lifetime, but without authority to convey any
of such property, inasmuch as she, being
grateful for the benefit resulting to her, binds
herself in turn to deliver said property at her
death to the testator's brothers, Don
Clemente del Rosario and Don Rosendo del
Rosario, and his sister, Doña Luisa del
Rosario, who shall enjoy the revenue from
the said property during their respective
lives, and shall then, in turn, transmit the
same to their male children, both those born
in wedlock and natural children who may be
known.
This was later modified by a codicil, as follows:
That in seventh clause of said testament he
desires and wills that in the distribution of
his property and that of his wife among the
male children of his brothers, Clemente and
Rosendo del Rosario, and those of his
sister, Luisa del Rosario, in such distribution
his nephews Enrique Gloria and Ramon del
Rosario must be understood to be included,
in addition to the legacies mentioned in his
said testament.
The thirteenth clause of his will was as follows:
The testator declares that in
case Doña Luisa del Rosario should die
before or after the wife of the testator, then
the legacy due her by virtue of this will shall
not pass in its entirety to her male children,
except as to the sum of 1,000 pesos, the
remainder to pass to Don Enrique Gloria
Rosario and Don Ramon del Rosario,
natural sons of Don Clemente del Rosario,
as already stated.
This was modified by the codicil as follows:
58
That in the thirteenth clause the testator
provided that upon the death of his sister,
Luisa del Rosario, her male children were to
inherit from her up to the sum of 1,000
pesos, and this he rectifies, for better
understanding, to the effect that it is his will
that the remainder of all her portion should
be divided into equal parts, one-third to go
to his brother Don Clemente del Rosario
and the other two-thirds to be divided
equally among his said nephews, Enrique
Gloria and Ramon del Rosario.
Doña Honorata Valdez made her will three days
after that of her husband. The seventh clause is as
follows:
The testatrix declares that she institutes her
beloved husband, Don Nicolas del Rosario
y Alejo, as her heir to all the property which
she may have at her death, and in the
unexpected case of the death of her said
husband then she institute as heirs her
brothers-in-law, Don Rosendo and Don
Clemente del Rosario y Alejo, and her
sister-in-law, Doña Luisa del Rosario, who
shall enjoy the usufruct during their lifetime
of all the revenue of the said property. Upon
the death of any of them, the property shall
pass to the male children of her said
brothers-in-law and sister-in-law, the issue
of lawful marriage or natural children who
may be known; that upon the death of her
sister-in-law, Doña Luisa, then her share
shall not pass in its entirety to her male
children, except the sum of 1,000 pesos,
Enrique Gloria and Don Ramon del Rosario,
natural children of her brother-in-law Don
Clemente del Rosario.
Doña Luisa died one yea after Don Nicolas and two
years before the death of Doña Honorata, which, as
has been said, occurred on July, 7, 1900.
Don Enrique Gloria died on July 6, 1900.
Don Ramon del Rosario claims in this action that
he is now entitled, by virtue of both wills, to a
certain part of the share of the estates left to
said Doña Luisa during her life, and he asks that
the defendant be directed to render accounts and
to proceed to the partition of the said estates. The
controversy between the parties upon this branch
of the case is as follows:

The defendant claims that the plaintiff is entitled to
nothing under the wills, because the gift to him was
conditional, the condition being that he should be
the natural son of Don Clemente, recognized by the
latter as such in one of the ways pointed out by the
Civil Code; that he can not prove such recognition,
the parol evidence presented at the trial being
prohibited by said Code, and that he has therefore
not complied with the condition.
The plaintiff claims that such evidence was proper,
that both wills state that Don Ramon del Rosario is
the natural son of Don Clemente, and that in any
event the bequests are made to the plaintiff by
name.
The court below, holding the parol evidence
immaterial, ordered judgment for the plaintiff as
prayed for.
(1) So far as the disposition of that part of the
inheritance left in the aunt's will to Doña Luisa for
life is concerned, the question is free from doubt. It
is distinctly declared that Ramon del Rosario and
Enrique Gloria shall take certain parts of it after
1,000 pesos have been deducted. They are pointed
out by name as the legatees. It is true that they are
called the natural sons of Don Clemente. But this is
merely a further description of persons already well
identified, and, if false, can be rejected in
accordance with the provision of article 773 of the
Civil Code, which by article 789 is applicable to
legatees.
(2) The ninth clause of the will of Doña Honorata is
as follows:
The testatrix bequeaths the sum of 3,000 pesos to
her nephews Enrique Gloria and Ramon del
Rosario in equal parts — that is, 1,500 pesos each.
The plaintiff was entitled to one-half of this legacy in
his own right. This has been paid to him. Don
Enrique Gloria died before his the testatrix. By the
provisions of articles 982 and 983 of the Civil Code
the right of accretion exists as to the other half in
favor of the plaintiff and he is entitled to have it paid
to him.
(3) The will of Doña Honorata plainly declares that,
on the death of any one of the life tenants, the male
children of such tenant shall inherit, and in respect
to Doña Luisa it is expressly declared that this shall
take place whether she dies before or after the
59
testatrix. The derecho de acrecer did not therefore
exist in favor of the other two life tenants, Don
Clemente and Don Rosendo. "En la sucesion
testada es ley preferente la voluntad del testador,
de modo que este prohibiendo expresamente el
derecho de acrecer, nombrando sustitutos, o
marcando el destino especial de cada porcion
vacante, excluye la aplicacion de los articulos que
vamos a examinar." (7 Manresa, Comentarios al
Codigo Civil, p. 276.)
This right does, however, exist in the share
of Doña Luisa in favor of the plaintiff, for the
reasons stated in connection with the legacy of
3,000 pesos.
(4) We have passed upon the rights of the plaintiff
to the share of Doña Luis under the will
of Doña Honorata, because the interest is
expressly left to him (en concepto de legado) as a
legacy. This is controlling. (5 Manresa, 315.)
These or equivalent words are wanting in the will of
Don Nicolas. Applying article 668 of the Civil Code,
we must hold that any interest which the plaintiff
may have taken in the share of Doña Luisa under
the will of Don Nicolas he took as an heir and not
as a legatee.
The distinction between the two is constantly
maintained throughout the Code, and their rights
and obligations differ materially. (Arts. 660, 668,
768, 790, 858, 891, 1003.)
(5) The legatee can demand his legacy from the
heir or from the executor, when the latter is
authorized to give it. (Art. 885.) The powers given
to the executors by the will of Doña Honorata are
contained in the fourteenth clause, which is as
follows:
The testatrix appoints as the executors of
her will, in the first place, her beloved
husband, Nicolas del Rosario y Alejo, in the
second place her brother-in-law Clemente
del Rosario, in the third place her brother-in-
law Rosendo del Rosario, in the fourth place
Don Ramon del Rosario when he shall
attain his majority, all of them without bond
and free from the obligation of terminating
the administration within the legal term. At
her death they shall take possession of all
such goods and things as may be her
property, and are hereby authorized fully

and as required by law to prepare an
inventory of said property, and to effect the
division and partition of the estate among
her heirs. She also authorizes them to
execute and sign deeds of partition, sales
with a resolutory condition, cancellations,
receipts, acquittances, and such other
documents as may be necessary.
The twenty-first clause of the will of Don Nicolas is
substantially the same. Each will prohibited any
judicial intervention in the settlement of the estates.
The clause in the will of Doña Honorata which is a
copy of that in the will of Don Nicolas is as follows:
The testatrix declares that she expressly
prohibits any judicial intervention in this her
will, although minors, absentees, or persons
under disability be interested therein, as it is
her wish and will that all the proceedings be
conducted extrajudicially, and in case a
family council should be necessary, she
designates the persons who, in accordance
with the provisions of the Civil Code now in
force, should form such council, or else
leaves their appointment to the discretion of
her executors.
If the executor was not authorized to pay these
legacies, the heirs must pay them.
The life tenants and the heirs who take the
remainder under these wills are numerous. If they
did not pay the legacies and did not agree upon an
administrator, judicial intervention would be
necessary, the very thing which the testators had
expressly prohibited. The important power of
making the partition was attempted to be given to
the executors. In view of these considerations and
a study of the whole will, we hold that the executors
are given power to pay the legacies.
The action, therefore, was properly directed against
the executor so far as it related to the allowance
and the legacy of 3,000 pesos. As to these
legacies, the action may be supported also under
article 902, 2, which allows executors to pay money
legacies.
It was also properly directed against him, so far as
it related to the share to which the plaintiff is
entitled under the will of Doña Honorata in the
portion to Doña Luisa for life.
60
The provisions of articles 1025-1027 are no
obstacle to this suit. That an inventory is being
formed, or that the creditors have not been paid, is
a matter of defense which should have been set up
in the answer.
It was not properly directed against him in so far as
it related to the similar share left to him by the will
of Don Nicolas. He took that as heir and not a
legatee, and the heir can maintain no such action
against the executor.
The fact that the plaintiff under the will
of Doña Honorata is a legatee of an aliquot part of
the estate, having become entitled to receive one-
third of it on the death of Doña Luisa, does not
prevent him from maintaining this action against the
executor. Though such a legatee closely resembles
an heir, yet, like all other legatees, he must seek
his share from the heir or executor. (6 Manresa,
561.)
(6) While in this action he has a right to have his
interest as legatee declared, yet it can not be
delivered to him without a partition of the estate.
It remains to be considered whether the executor
has power to make the partition. Such power is
expressly given by the will. This provision is,
however, void under the terms of article 1057 of the
Civil Code, which is as follows:
The testator may, by an act inter
vivos or causa mortis, intrust the mere
power of making the division after his death
to any person who is not one of the coheirs.
The provisions of this and the foregoing
articles shall be observed even should there
be a minor or a person subject to
guardianship among the coheirs; but the
trustee must in such case make an
inventory of the property of the inheritance,
citing the coheirs, the creditors, and the
legatees.
Don Clemente, the executor, against whom the
action was directed, was not only an heir as a life
tenant but also in the fee after his death of Don
Rosendo if the latter died without issue. Upon the
death of the widow, Doña Luisa then being dead, it
became his duty to divide the estate into three
parts, or at least to set off the third, which was to
pass to the plaintiff by the death of the widow

and Doña Luisa. In this partition he was directly
interested, for, with his brother Don Rosendo, he
had a life interest in the part of the estate not set off
to the plaintiff. Article 1057 prohibited an heir from
being contador for this very reason, namely, that
the partition should be made impartially.
Although the executor has no power to make the
partition, the heirs can do so. Arts. 1058-1060, Civil
Code.)
The plaintiff is not bound to remain a co-owner with
the other heirs. Being a legatee of an aliqout part,
he has the same right to seek a partition that an
heir has. (7 Manresa, 578; art. 1051, Codigo Civil.)
But in so seeking it he must make parties to his suit
all persons interested in the estate (7 Manresa,
577). This he has not done in this suit, and he
consequently is not entitled to the partition ordered
by the court below.
(7) We have held that the only thing that can be
decided in this case is the rights of the plaintiff as
legatee.
The court below ordered the executor to render
accounts of his administration of both estates.
As to the estate of Don Nicolas, the only thing here
in question is the right to the allowance. As we hold
that the plaintiff is not entitled to it, he is not entitled
to any statement of accounts as such pretended
legatee.
As to the estate of Doña Honorata, he is entitled to
be paid a legacy of 1,500 pesos. Article 907
requires the executor to render accounts to the
heir, not to the legatee; and although by article 789
all of the provisions of Chapter II (in which both
articles are found) relating to heirs are made
applicable to legatees, we can not hold that this
requires an executor to submit his accounts to one
who has no interest in the estate except to a money
legacy when there is no suggestion that it will not
be paid when the right to it is established.
In respect to the share of Doña Luisa, there is
reason for saying that a legatee on an aliquot part
is entitled to an accounting. But, inasmuch as in
this case there can be no final determination of the
rights of the parties interested in the estate,
because they are not all parties to this suit, the
executor should not in this suit be ordered to submit
his accounts.
61
(8) The plaintiff in his complaint has limited himself
to claiming the allowance, his rights to the share
of Doña Luisa, and the legacies left to him.
The question as to whether he would be entitled to
any part of the share of Don Clemente upon the
latter's death, under the seventh clause of the two
wills, was not presented by the complaint nor
passed upon by the court and is not before us for
decision.
(9) The result of the foregoing considerations is:
1. The plaintiff is not entitled to any allowance
under either will.
2. He is not entitled to live in the house No. 128
Calle Clavel.
3. He is entitled to be paid, under the ninth clause
of the will of Doña Honorata, the sum of 1,500
pesos, in addition to the 1,500 pesos already
received under that clause.
4. He is entitled to the share of the estate left by the
will of Doña Honorata to Doña Luisa during her life,
after deducting 1,000 pesos.
5. This share can not be set off to him in this suit,
but only in a proceeding to which all persons
interested in the estate are parties.
6. His interest in the share left to Doña Luis during
her life by the will of Don Nicolas can not be
determined in this suit.
7. The executor can not be required to render in
this suit his accounts as such executor.
8. The plaintiff's rights under the seventh clause of
the two wills, to the share left to Don Clemente for
life are not before us for decision.
III. After judgment had been rendered in the court
below and a bill of exceptions allowed, but before
the record had been sent to this court, Don
Clemente del Rosario, the defendant, died. After
his death Don Rosendo del Rosario, who was
named in both wills to succeed to the executorship
on the death of Don Clemente, appeared in the
court below and withdrew the appeal and bill of
exceptions. Thereupon the widow of Don
Clemente, for herself and in representation of the
 62

minor son of her late husband, asked and was

granted leave to prosecute the appeal.

This ruling was correct. According to the Spanish

authorities, anyone legally affected by the judgment
might appeal. According to the American
authorities, if a trustee refuses to appeal, the
beneficiary may do so in his name.

That the son of Don Clemente has a direct interest

in the question of the allowance of 75 pesos a
month to the plaintiff is plain. We have held that in
respect to this allowance the executor represents
the estate and the judgment against him binds it.

It would be manifestly unjust to allow an executor,

with perhaps only a slight personal interest in an
estate, by withdrawing an appeal, to fasten upon
the estate a claim which, as we hold, it should not
bear.

IV. At the argument of this case on the merits, after

the appellant had closed, the respondent made the
point for the first time that the appellant's brief
contained no assignment of errors.

This is true. But a full assignment of errors is found

in the bill of exceptions at pages 14 and 15. The
appellee answered the brief of the appellant without
making any suggestion of this mistake. He has
been in no way prejudiced by it, and we can not
affirm the judgment on this ground.

The judgment of the court below is reversed and

the case remanded with directions to the court
below to enter judgment in accordance with this
opinion. The costs of this instance will be equally
divided between the parties. So ordered.

SEE BALANAY JR. V. MARTINEZ CASE


ARTICLE 789
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND
FATHER PASCUAL RIGOR. THE PARISH
PRIEST OF THE ROMAN CATHOLIC CHURCH
OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA
ESCOBAR DE RIGOR and JOVITA ESCOBAR
DE FAUSTO, respondents-appellees.
D. Tañedo, Jr. for appellants.
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or
enforceability of a devise of ricelands located at
Guimba, Nueva Ecija, with a total area of around
forty- four hectares That devise was made in the
will of the late Father Pascual Rigor, a native of
Victoria Tarlac, in favor of his nearest male relative
who would study for the priesthood.
The parish priest of Victoria, who claimed to be a
trustee of the said lands, appealed to this Court
from the decision of the Court of Appeals affirming
the order of the probate court declaring that the
said devise was inoperative (Rigor vs. Parish Priest
of the Roman Catholic Church of Victoria, Tarlac,
CA-G.R. No. 24319-R, August 1, 1963).
The record discloses that Father Rigor, the parish
priest of Pulilan, Bulacan, died on August 9, 1935,
leaving a will executed on October 29, 1933 which
was probated by the Court of First Instance of
Tarlac in its order of December 5, 1935. Named as
devisees in the will were the testators nearest
relatives, namely, his three sisters: Florencia Rigor-
Escobar, Belina Rigor-Manaloto and Nestora Rigor-
Quiambao. The testator gave a devise to his
cousin, Fortunato Gamalinda.
In addition, the will contained the following
controversial bequest (paragraphing supplied to
facilitate comprehension of the testamentary
provisions):
63
Doy y dejo como legado CUATRO
(4) PARCELAS de terreno palayeros
situados en el municipiooo de
Guimba de la provinciaaa de
NUEVA ECIJA, cuyo num. de
CERTIFICADO DE
TRANSFERENCIA DE TITULO
SON; — Titulo Num. 6530, mide
16,249 m. cuadrados de superficie
Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie y annual
6525, mide 62,665 m. cuadrados de
superficie; y Titulo Num. 6521, mide
119,251 m. cuadrados de superficie;
a cualquier pariente mio varon mas
cercano que estudie la carrera
eclesiatica hasta ordenarse de
Presbiterado o sea Sacerdote; las
condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta
de estos terrenos arriba situados
objectos de este legado;
(2.a) Que el legatario pariente mio
mas cercano tendra derecho de
empezar a gozar y administrar de
este legado al principiar a curzar la
Sagrada Teologio, y ordenado de
Sacerdote, hasta su muerte; pero
que pierde el legatario este derecho
de administrar y gozar de este
legado al dejar de continuar sus
estudios para ordenarse de
Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote
ya estara obligado a celebrar cada
año VEINTE (20) Misas rezadas en
sufragio de mi alma y de mis padres
difuntos, y si el actual legatario,
quedase excomulgado, IPSO
FACTO se le despoja este legado, y
la administracion de esto pasara a
cargo del actual Parroco y sus
sucesores de la Iglecia Catolica de
Victoria, Tarlac.
Y en intervalo de tiempo que no
haya legatario acondicionado segun
lo arriba queda expresado, pasara la
administracion de este legado a
cargo del actual Parroco Catolico y
sus sucesores, de Victoria, Tarlac.

El Parroco administrador de estate
legado, acumulara, anualmente
todos los productos que puede tener
estate legado, ganando o sacando
de los productos anuales el CINCO
(5) por ciento para su
administracion, y los derechos
correspondientes de las VEINTE
(20) Misas rezadas que debiera el
Parroco celebrar cada año,
depositando todo lo restante de los
productos de estate legado, en un
banco, a nombre de estate legado.
To implement the foregoing bequest, the
administratix in 1940 submitted a project containing
the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the
legacy purported to be given to the
nearest male relative who shall take
the priesthood, and in the interim to
be administered by the actual
Catholic Priest of the Roman
Catholic Church of Victoria, Tarlac,
Philippines, or his successors, the
real properties hereinbelow
indicated, to wit:
Title Lot Area in Tax Ass.
No. No. Has. Dec. Value
T-6530 3663 1.6249 18740 P 340.00
T-6548 3445- 24.2998 18730 7,290.00
C June 28, 1957. The parish priest filed two motions
T-6525 3670 6.2665 18736 1,880.00
T-6521 3666 11.9251 18733 3,580.00
Total amount and value — 44.1163
P13,090.00
Judge Roman A. Cruz in his order of August 15,
1940, approving the project of partition, directed
that after payment of the obligations of the estate
(including the sum of P3,132.26 due to the church
of the Victoria parish) the administratrix should
deliver to the devisees their respective shares.
It may be noted that the administratrix and Judge
Cruz did not bother to analyze the meaning and
implications of Father Rigor's bequest to his
nearest male relative who would study for the
64
priesthood. Inasmuch as no nephew of the testator
claimed the devise and as the administratrix and
the legal heirs believed that the parish priest of
Victoria had no right to administer the ricelands, the
same were not delivered to that ecclesiastic. The
testate proceeding remained pending.
About thirteen years after the approval of the
project of partition, or on February 19, 1954, the
parish priest of Victoria filed in the pending testate
proceeding a petition praying for the appointment of
a new administrator (succeeding the deceased
administration Florencia Rigor), who should deliver
to the church the said ricelands, and further praying
that the possessors thereof be ordered to render an
accounting of the fruits. The probate court granted
the petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another
petition for the delivery of the ricelands to the
church as trustee.
The intestate heirs of Father Rigor countered with a
petition dated March 25, 1957 praying that the
bequest be d inoperative and that they be adjudged
as the persons entitled to the said ricelands since,
as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever
studied for the priesthood" (pp. 25 and 35, Record
on Appeal). That petition was opposed by the
parish priest of Victoria.
Finding that petition to be meritorious, the lower
court, through Judge Bernabe de Aquino, declared
the bequest inoperative and adjudicated the
ricelands to the testator's legal heirs in his order of
for reconsideration.
Judge De Aquino granted the respond motion for
reconsideration in his order of December 10, 1957
on the ground that the testator had a grandnephew
named Edgardo G. Cunanan (the grandson of his
first cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The
administrator was directed to deliver the ricelands
to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It
reversed that order. It held that Father Rigor had
created a testamentary trust for his nearest male
relative who would take the holy orders but that
such trust could exist only for twenty years because
to enforce it beyond that period would violate "the
rule against perpetuities. It ruled that since no

legatee claimed the ricelands within twenty years
after the testator's death, the same should pass to
his legal heirs, citing articles 888 and 912(2) of the
old Civil Code and article 870 of the new Civil
Code.
The parish priest in this appeal contends that the
Court of Appeals erred in not finding that the
testator created a public charitable trust and in not
liberally construing the testamentary provisions so
as to render the trust operative and to prevent
intestacy.
As refutation, the legal heirs argue that the Court of
Appeals d the bequest inoperative because no one
among the testator's nearest male relatives had
studied for the priesthood and not because the trust
was a private charitable trust. According to the legal
heirs, that factual finding is binding on this Court.
They point out that appellant priest's change of
theory cannot be countenanced in this appeal .
In this case, as in cases involving the law of
contracts and statutory construction, where the
intention of the contracting parties or of the
lawmaking body is to be ascertained, the primary
issue is the determination of the testator's intention
which is the law of the case (dicat testor et erit lex.
Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez
vs. Court of Appeals, L-28734, March 28, 1969, 27
SCRA 546).
The will of the testator is the first and principal law
in the matter of testaments. When his intention is
clearly and precisely expressed, any interpretation
must be in accord with the plain and literal meaning
of his words, except when it may certainly appear
that his intention was different from that literally
expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the
construction of wills." It is "the life and soul of a will
It is "the first greatest rule, the sovereign guide, the
polestar, in giving effect to a will". (See Dissent of
Justice Moreland in Santos vs. Manarang, 27 Phil.
209, 223, 237-8.)
One canon in the interpretation of the testamentary
provisions is that "the testator's intention is to be
ascertained from the words of the wilt taking into
consideration the circumstances under which it was
made", but excluding the testator's oral declarations
as to his intention (Art. 789, Civil Code of the
Philippines).
65
To ascertain Father Rigor's intention, it may be
useful to make the following re-statement of the
provisions of his will.
1. that he bequeathed the ricelands to anyone of
his nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.
3. That the devisee at the inception of his studies in
sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could
continue enjoying and administering the same up to
the time of his death but the devisee would cease
to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be
obligated to celebrate every year twenty masses
with prayers for the repose of the souls of Father
Rigor and his parents.
5. That if the devisee is excommunicated, he would
be divested of the legacy and the administration of
the riceland would pass to the incumbent parish
priest of Victoria and his successors.
6. That during the interval of time that there is no
qualified devisee as contemplated above, the
administration of the ricelands would be under the
responsibility of the incumbent parish priest of
Victoria and his successors, and
7. That the parish priest-administrator of the
ricelands would accumulate annually the products
thereof, obtaining or getting from the annual
produce five percent thereof for his administration
and the fees corresponding to the twenty masses
with prayers that the parish priest would celebrate
for each year, depositing the balance of the income
of the devise in the bank in the name of his
bequest.
From the foregoing testamentary provisions, it may
be deduced that the testator intended to devise the
ricelands to his nearest male relative who would
become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he
discontinued his studies for the priesthood, or
having been ordained a priest, he was
excommunicated, and who would be obligated to

say annually twenty masses with prayers for the
repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest
of Victoria would administer the ricelands only in
two situations: one, during the interval of time that
no nearest male relative of the testator was
studying for the priesthood and two, in case the
testator's nephew became a priest and he was
excommunicated.
What is not clear is the duration of "el intervalo de
tiempo que no haya legatario acondicionado", or
how long after the testator's death would it be
determined that he had a nephew who would
pursue an ecclesiastical vocation. It is that patent
ambiguity that has brought about the controversy
between the parish priest of Victoria and the
testator's legal heirs.
Interwoven with that equivocal provision is the time
when the nearest male relative who would study for
the priesthood should be determined. Did the
testator contemplate only his nearest male
relative at the time of his death? Or did he have in
mind any of his nearest male relatives at anytime
after his death?
We hold that the said bequest refers to the
testator's nearest male relative living at the time of
his death and not to any indefinite time thereafter.
"In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
succession opens, except in case of
representation, when it is proper" (Art. 1025, Civil
Code).
The said testamentary provisions should be
sensibly or reasonably construed. To construe
them as referring to the testator's nearest male
relative at anytime after his death would render the
provisions difficult to apply and create uncertainty
as to the disposition of his estate. That could not
have been his intention.
In 1935, when the testator died, his nearest leagal
heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs.
Quiambao. Obviously, when the testator specified
his nearest male relative, he must have had in mind
his nephew or a son of his sister, who would be his
third-degree relative, or possibly a grandnephew.
But since he could not prognosticate the exact date
of his death or state with certitude what category of
66
nearest male relative would be living at the time of
his death, he could not specify that his nearest
male relative would be his nephew or
grandnephews (the son of his nephew or niece)
and so he had to use the term "nearest male
relative".
It is contended by the legal heirs that the said
devise was in reality intended for Ramon
Quiambao, the testator's nephew and godchild,
who was the son of his sister, Mrs. Quiambao. To
prove that contention, the legal heirs presented in
the lower court the affidavit of Beatriz Gamalinda,
the maternal grandmother of Edgardo Cunanan,
who deposed that after Father Rigor's death her
own son, Valentin Gamalinda, Jr., did not claim the
devise, although he was studying for the priesthood
at the San Carlos Seminary, because she (Beatriz)
knew that Father Rigor had intended that devise for
his nearest male relative beloning to the Rigor
family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own
grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that
Edgardo's father told her that he was not consulted
by the parish priest of Victoria before the latter filed
his second motion for reconsideration which was
based on the ground that the testator's
grandnephew, Edgardo, was studying for the
priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture
that Edgardo ceased to be a seminarian in 1961.
For that reason, the legal heirs apprised the Court
of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of
Victoria had no more leg to stand on (p. 84,
Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is
tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative
value. Our opinion that the said bequest refers to
the testator's nephew who was living at the time of
his death, when his succession was opened and
the successional rights to his estate became
vested, rests on a judicious and unbiased reading
of the terms of the will.
Had the testator intended that the "cualquier
pariente mio varon mas cercano que estudie la
camera eclesiatica" would include indefinitely
anyone of his nearest male relatives born after his

death, he could have so specified in his will He
must have known that such a broad provision
would suspend for an unlimited period of time the
efficaciousness of his bequest.
What then did the testator mean by "el intervalo de
tiempo que no haya legatario acondicionado"? The
reasonable view is that he was referring to a
situation whereby his nephew living at the time of
his death, who would like to become a priest, was
still in grade school or in high school or was not yet
in the seminary. In that case, the parish priest of
Victoria would administer the ricelands before the
nephew entered the seminary. But the moment the
testator's nephew entered the seminary, then he
would be entitled to enjoy and administer the
ricelands and receive the fruits thereof. In that
event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry
would be whether at the time Father Rigor died in
1935 he had a nephew who was studying for the
priesthood or who had manifested his desire to
follow the ecclesiastical career. That query is
categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January
31, 1957. He unequivocally alleged therein that "not
male relative of the late (Father) Pascual Rigor has
ever studied for the priesthood" (pp. 25 and 35,
Record on Appeal).
Inasmuch as the testator was not survived by any
nephew who became a priest, the unavoidable
conclusion is that the bequest in question was
ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest
of Victoria, as envisaged in the wilt was likewise
inoperative.
The appellant in contending that a public charitable
trust was constituted by the testator in is favor
assumes that he was a trustee or a substitute
devisee That contention is untenable. A reading of
the testamentary provisions regarding the disputed
bequest not support the view that the parish priest
of Victoria was a trustee or a substitute devisee in
the event that the testator was not survived by a
nephew who became a priest.
It should be understood that the parish priest of
Victoria could become a trustee only when the
testator's nephew living at the time of his death,
who desired to become a priest, had not yet
entered the seminary or, having been ordained a
67
priest, he was excommunicated. Those two
contingencies did not arise, and could not have
arisen in this case because no nephew of the
testator manifested any intention to enter the
seminary or ever became a priest.
The Court of Appeals correctly ruled that this case
is covered by article 888 of the old Civil Code, now
article 956, which provides that if "the bequest for
any reason should be inoperative, it shall be
merged into the estate, except in cases of
substitution and those in which the right of
accretion exists" ("el legado ... por qualquier causa,
no tenga efecto se refundira en la masa de la
herencia, fuera de los casos de sustitucion y
derecho de acrecer").
This case is also covered by article 912(2) of the
old Civil Code, now article 960 (2), which provides
that legal succession takes place when the will
"does not dispose of all that belongs to the
testator." There being no substitution nor accretion
as to the said ricelands the same should be
distributed among the testator's legal heirs. The
effect is as if the testator had made no disposition
as to the said ricelands.
The Civil Code recognizes that a person may die
partly testate and partly intestate, or that there may
be mixed succession. The old rule as to the
indivisibility of the testator's win is no longer valid.
Thus, if a conditional legacy does not take effect,
there will be intestate succession as to the property
recovered by the said legacy (Macrohon Ong Ham
vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate
Court's decision is affirmed. Costs against the
petitioner.
SO ORDERED

SEE DEL ROSARIO v. DEL ROSARIO CASE
SEE RABADILLA v. CA CASE
ARTICLE 791
SEE RIVERA v. DIZON CASE
SEE VDA DE VILLA FLOR VILLANUEVA v.
JUICO CASE
G.R. No. L-10763 April 29, 1961
DELFIN YAMBAO, plaintiff-appellant,
vs.
ANGELINA GONZALES, ET AL., defendants-
appellees.
Marcial G. Mendiola for plaintiff-appellant.
Onofre P. Guevara for defendants-appellees.
BAUTISTA ANGELO, J.:
This is an action filed by Delfin Yambao against
Angelina Gonzales and Maria Pablo praying that
the latter be ordered to appoint and employ him as
tenant during his lifetime on the parcels of land
bequeathed to and inherited by them from Maria
Gonzales, as well as to deliver to him the value of
the harvests belonging to him as tenant of said
parcels of land. In their answer, defendants averred
that the provisions of the will relied upon by plaintiff
is not mandatory; that the determination of who
should be the tenant of the land is vested in a
special court; and that the present action is not the
proper remedy.
After trial, the court dismissed the complaint for lack
of sufficient cause of action. It held that the
provisions of the will relied upon by plaintiff merely
amount to a suggestion to the defendants who,
though morally bound, are not legally compelled to
follow said suggestion, invoking as authority Article
797 of the old Civil Code. Plaintiff has appealed.
The pertinent provisions of the will relied upon by
appellant read as follows:
Dapat din naman malaman ng dalawa kong
tagapagmana na sila MARIA PABLO at
ANGELINA GONZALES na sila ay may
dapat TUNGKULIN O GANGPANAN GAYA
ng mga sumusunod:
68
xxx xxx xxx
(2) Pahihintulutan nila na si Delfin Yambao
ang makapagtrabajo ng bukid habang
panahon, at ang nasabing bukid ay
isasailalim ng pamamahala ng Albasea
samantalang ang bukid ay nasa usapin at
may utang pa.
It appears that on August 10, 1942, Maria Gonzales
executed a will bequeathing to appellees all her
properties situated in Sta. Rosa, Laguna. The will
was probated in 1948. Immediately, thereafter,
appellant went to appellees to request that he be
placed as tenant of the riceland which, by an
express provision of said will, they were directed to
give to him for cultivation, as tenant, and when they
refused alleging that they had already given it to
another tenant he filed the present action.
In holding that the provisions of the will relied upon
by appellant imposes only a moral but not
a legal obligation, the trial court went on to consider
the import of the word "Pahihintulutan" employed
with reference to appellant. In its opinion said word
only means to permit or to allow, but not to direct
appellees to appoint appellant as tenant. Rather, it
opines, it merely contains a suggestion to employ
because the testatrix did not use the words
"ipinaguutos ko" which she used in connection with
other provisions of the will, so that there is no clear
indication that it was her intention to make such
provision compulsory.
We believe, however, that the trial court has not
properly interpreted the real import of the wish of
the testatrix. Analyzing it carefully we will find that
the same contains a clear directive to employ
appellant as may be seen from the words
preceding the word "pahihintulutan", which say:
"Dapat din naman malaman ng dalawa kong
tagapagmana na sila MARIA PABLO at ANGELINA
GONZALES na sila ay may dapat TUNGKULIN O
GANGPANAN GAYA ng mga sumusunod." The
words 'dapat TUNGKULIN O GANGPANAN"
mean to do or to carry out as a mandate or
directive, and having reference to the word
"pahihintulutan", can convey no other meaning than
to impose a duty upon appellees. To follow the
interpretation given by the trial court would be to
devoid the wish of the testatrix of its real and true
meaning.
 69

Article 797 of the old Civil Code, invoked by the trial

court, is inapplicable. That refers to an institution of
an heir intended to be conditional by providing that
a statement to the effect cannot be considered as a
condition unless it appears clearly that such is the
intention of the testator. We are not faced here with
any conditional institution of heirship. What we
have is a clear-cut mandate which the heirs cannot
fail to carry out.

WHEREFORE, the decision appealed from is

reversed. Appellees are hereby ordered to employ
appellant as tenant immediately after this decision
has become final. Costs against appellees.

SEE BALANAY JR. CASE


ARTICLE 795
G.R. No. L-14074 November 7, 1918
In the matter of the probation of the will of Jose
Riosa.
MARCELINO CASAS, applicant-appellant,
Vicente de Vera for petitioner-appellant.
MALCOLM, J.:
The issue which this appeal presents is whether in
the Philippine Islands the law existing on the date
of the execution of a will, or the law existing at the
death of the testator, controls.
Jose Riosa died on April 17, 1917. He left a will
made in the month of January, 1908, in which he
disposed of an estate valued at more than P35,000.
The will was duly executed in accordance with the
law then in force, namely, section 618 of the Code
of Civil Procedure. The will was not executed in
accordance with Act No. 2645, amendatory of said
section 618, prescribing certain additional
formalities for the signing and attestation of wills, in
force on and after July 1, 1916. In other words, the
will was in writing, signed by the testator, and
attested and subscribed by three credible
witnesses in the presence of the testator and of
each other; but was not signed by the testator and
the witnesses on the left margin of each and every
page, nor did the attestation state these facts. The
new law, therefore, went into effect after the making
of the will and before the death of the testator,
without the testator having left a will that conforms
to the new requirements.
Section 618 of the Code of Civil Procedure reads:
No will, except as provided in the preceding
section, shall be valid to pass any estate,
real or personal, nor charge or affect the
same, unless it be in writing and signed by
the testator, or by the testator's name
written by some other person in his
presence, and by his express direction, and
attested and subscribed by three or more
credible witnesses in the presence of the
testator and of each other. The attestation
70
shall state the fact that the testator signed
the will, or caused it to be signed by some
other person, at his express direction, in the
presence of three witnesses, and that they
attested and subscribed it in his presence
and in the presence of each other. But the
absence of such form of attestation shall not
render the will invalid if it is proven that the
will was in fact signed and attested as in this
section provided.
Act No. 2645 has amended section 618 of the
Code of Civil Procedure so as to make said section
read as follows:
SEC. 618. Requisites of will. — No will,
except as provided in the preceding section,
shall be valid to pass any estate, real or
personal, nor charge or affect the same,
unless it be written in the language or
dialect known by the testator and signed by
him, or by the testator's name written by
some other person in his presence, and by
his express direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of each other. The testator or the
person requested by him to write his name
and the instrumental witnesses of the will,
shall also sign, as aforesaid, each, and
every page thereof, on the left margin, and
said pages shall be numbered correlatively
in letters placed on the upper part of each
sheet. The attestation shall state the
number of sheets or pages used, upon
which the will is written, and the fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express direction,
in the presence of three witnesses, and the
latter witnessed and signed the will and all
pages thereof in the presence of the testator
and of each other.
This court has heretofore held in a decision handed
down by the Chief Justice, as to a will made after
the date Act No. 2645 went into effect, that it must
comply with the provisions of this law. (Caraig vs
Tatlonghari, R. G. No. 12558, dated March 23,
1918 [not published].) The court has further held in
a decision handed down by Justice Torres, as to
will executed by a testator whose death took place
prior to the operative date of Act No. 2645, that the
amendatory act is inapplicable. (Bona vs. Briones,

[1918], 38 Phil., 276.) The instant appeal presents
an entirely different question. The will was execute
prior to the enactment of Act No. 2645 and the
death occurred after the enactment of this law.
There is a clear cleavage of authority among the
cases and the text-writers, as to the effect of a
change in the statutes prescribing the formalities
necessary to be observed in the execution of a will,
when such change is made intermediate to the
execution of a will and the death of a testator.
(See generally 40 Cyc., 1076. and any textbook on
Wills, and Lane's Appeal from Probate [1889], 57
Conn., 182.) The rule laid down by the courts in
many jurisdictions is that the statutes in force at the
testator's death are controlling, and that a will not
executed in conformity with such statutes is invalid,
although its execution was sufficient at the time it
was made. The reasons assigned for applying the
later statute are the following: "As until the death of
the testator the paper executed by him, expressing
his wishes, is not a will, but a mere inchoate act
which may or may not be a will, the law in force at
the testator's death applies and controls the proof
of the will." (Sutton vs. Chenault [1855], 18 Ga., 1.)
Were we to accept the foregoing proposition and
the reasons assigned for it, it would logically result
that the will of Jose Riosa would have to be held
invalid.
The rule prevailing in many other jurisdictions is
that the validity of the execution of a will must be
tested by the statutes in force at the time of its
execution and that statutes subsequently enacted
have no retrospective effect. This doctrine is
believed to be supported by the weight of authority.
It was the old English view; in Downs (or
Downing) vs. Townsend (Ambler, 280), Lord
Hardwicke is reported to have said that "the
general rule as to testaments is, that the time of the
testament, and not the testator's death, is
regarded." It is also the modern view, including
among other decisions one of the Supreme Court
of Vermont from which State many of the sections
of the Code if Civil Procedure of the Philippine
Islands relating to wills are taken.
(Giddings vs. Turgeon [1886], 58 Vt., 103.)
Of the numerous decisions of divergent tendencies,
the opinion by the learned Justice Sharswood
(Taylor vs.Mitchell [1868], 57 Pa. St., 209) is
regarded to be the best considered. In this opinion
is found the following:
71
Retrospective laws generally if not
universally work injustice, and ought to be
so construed only when the mandate of the
legislature is imperative. When a testator
makes a will, formally executed according to
the requirements of the law existing at the
time of its execution, it would unjustly
disappoint his lawful right of disposition to
apply to it a rule subsequently enacted,
though before his death.
While it is true that every one is presumed
to know the law, the maxim in fact is
inapplicable to such a case; for he would
have an equal right to presume that no new
law would affect his past act, and rest
satisfied in security on that presumption. . . .
It is true, that every will is ambulatory until
the death of the testator, and the disposition
made by it does not actually take effect until
then. General words apply to the property of
which the testator dies possessed, and he
retains the power of revocation as long as
he lives. The act of bequeathing or devising,
however, takes place when the will is
executed, though to go into effect at a future
time.
A third view, somewhat larger in conception than
the preceding one, finding support in the States of
Alabama and New York, is that statutes relating to
the execution of wills, when they increase the
necessary formalities, should be construed so as
not to impair the validity of a will already made and,
when they lessen the formalities required, should
be construed so as to aid wills defectively executed
according to the law in force at the time of their
making (Hoffman vs. Hoffman, [1855], 26 Ala., 535;
Price vs. Brown, 1 Bradf., Surr. N.Y., 252.)
This court is given the opportunity to choose
between the three rules above described. Our
selection, under such circumstances, should
naturally depend more on reason than on
technicality. Above all, we cannot lose sight of the
fact that the testator has provided in detail for the
disposition of his property and that his desires
should be respected by the courts. Justice is a
powerful pleader for the second and third rules on
the subject.
The plausible reasoning of the authorities which
back the first proposition is, we think, fallacious.
The act of bequeathing or devising is something
 72

more than inchoate or ambulatory. In reality, it effective as to testaments made antecedent to that
becomes a completed act when the will is executed date.
and attested according to the law, although it does
not take effect on the property until a future To answer the question with which we began this
time.lawphil.net decision, we adopt as our own the second rule,
particularly as established by the Supreme Court of
It is, of course, a general rule of statutory Pennsylvania. The will of Jose Riosa is valid.
construction, as this court has said, that "all
statutes are to be construed as having only a The order of the Court of First Instance for the
prospective operation unless the purpose and Province of Albay of December 29, 1917,
intention of the Legislature to give them a disallowing the will of Jose Riosa, is reversed, and
retrospective effect is expressly declared or is the record shall be returned to the lower court with
necessarily implied from the language used. In direction to admit the said will to probate, without
every case of doubt, the doubt must be resolved special findings as to costs. So ordered.
against the restrospective effect."
(Montilla vs. Corporacion de PP. Agustinos [1913],
24 Phil., 220. See also Chew Heong vs. U.S.
[1884], 112 U.S., 536; U.S. vs American Sugar Ref.
Co. [1906], 202 U.S., 563.) Statute law, as found in
the Civil Code, is corroborative; article 3 thereof
provides that "laws shall not have a retroactive
effect, unless therein otherwise prescribed." The
language of Act No. 2645 gives no indication of
retrospective effect. Such, likewise, has been the
uniform tendency of the Supreme Court of the
Philippine Islands on cases having special
application to testamentary succession.
(Abello vs. Kock de Monaterio [1904], 3 Phil., 558;
Timbol vs. Manalo [1906], 6 Phil., 254;
Bona vs. Briones, supra; In the Matter of the
Probation of the Will of Bibiana Diquiña [1918], R.
G. No. 13176, 1 concerning the language of the
Will. See also section 617, Code of Civil
Procedure.)

The strongest argument against our accepting the

first two rules comes out of section 634 of the Code
of Civil Procedure which, in negative terms,
provides that a will shall be disallowed in either of
five cases, the first being "if not executed and
attested as in this Act provided." Act No. 2645 has,
of course, become part and parcel of the Code of
Civil Procedure. The will in question is admittedly
not executed and attested as provided by the Code
of Civil Procedure as amended. Nevertheless, it is
proper to observe that the general principle in the
law of wills inserts itself even within the provisions
of said section 634. Our statute announces a
positive rule for the transference of property which
must be complied with as completed act at the time
of the execution, so far as the act of the testator is
concerned, as to all testaments made subsequent
to the enactment of Act No. 2645, but is not

G.R. No. L-7188 August 9, 1954
In re: Will and Testament of the deceased
REVEREND SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET
AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa
and B. G. Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia,
parish priest of Talisay, Cebu, executed a
document purporting to be his Last Will and
Testament now marked Exhibit "A". Resident of the
City of Cebu, he died on January 14, 1943, in the
municipality of Aloguinsan, Cebu, where he was an
evacuee. He left properties estimated at P8,000 in
value. On October 2, 1946, one Andres Enriquez,
one of the legatees in Exhibit "A", filed a petition for
its probate in the Court of First Instance of Cebu.
Some cousins and nephews who would inherit the
estate of the deceased if he left no will, filed
opposition.
During the hearing one of the attesting witnesses,
the other two being dead, testified without
contradiction that in his presence and in the
presence of his co-witnesses, Father Sancho wrote
out in longhand Exhibit "A" in Spanish which the
testator spoke and understood; that he (testator)
signed on he left hand margin of the front page of
each of the three folios or sheets of which the
document is composed, and numbered the same
with Arabic numerals, and finally signed his name
at the end of his writing at the last page, all this, in
the presence of the three attesting witnesses after
telling that it was his last will and that the said three
witnesses signed their names on the last page after
the attestation clause in his presence and in the
presence of each other. The oppositors did not
submit any evidence.
The learned trial court found and declared Exhibit
"A" to be a holographic will; that it was in the
handwriting of the testator and that although at the
time it was executed and at the time of the
testator's death, holographic wills were not
permitted by law still, because at the time of the
hearing and when the case was to be decided the
73
new Civil Code was already in force, which Code
permitted the execution of holographic wills, under
a liberal view, and to carry out the intention of the
testator which according to the trial court is the
controlling factor and may override any defect in
form, said trial court by order dated January 24,
1952, admitted to probate Exhibit "A", as the Last
Will and Testament of Father Sancho Abadia. The
oppositors are appealing from that decision; and
because only questions of law are involved in the
appeal, the case was certified to us by the Court of
Appeals.
The new Civil Code (Republic Act No. 386) under
article 810 thereof provides that a person may
execute a holographic will which must be entirely
written, dated and signed by the testator himself
and need not be witnessed. It is a fact, however,
that at the time that Exhibit "A" was executed in
1923 and at the time that Father Abadia died in
1943, holographic wills were not permitted, and the
law at the time imposed certain requirements for
the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters
and signing on the left hand margin by the testator
and by the three attesting witnesses, requirements
which were not complied with in Exhibit "A"
because the back pages of the first two folios of the
will were not signed by any one, not even by the
testator and were not numbered, and as to the
three front pages, they were signed only by the
testator.
Interpreting and applying this requirement this
Court in the case of In re Estate of Saguinsin, 41
Phil., 875, 879, referring to the failure of the testator
and his witnesses to sign on the left hand margin of
every page, said:
. . . . This defect is radical and totally vitiates
the testament. It is not enough that the
signatures guaranteeing authenticity should
appear upon two folios or leaves; three
pages having been written on, the
authenticity of all three of them should be
guaranteed by the signature of the alleged
testatrix and her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700,
referring to the same requirement, this Court
declared:
From an examination of the document in
question, it appears that the left margins of
 74

the six pages of the document are signed observe and follow the legal requirements at the
only by Ventura Prieto. The noncompliance time of its execution then upon his death he should
with section 2 of Act No. 2645 by the be regarded and declared as having died intestate,
attesting witnesses who omitted to sign with and his heirs will then inherit by intestate
the testator at the left margin of each of the succession, and no subsequent law with more
five pages of the document alleged to be liberal requirements or which dispenses with such
the will of Ventura Prieto, is a fatal defect requirements as to execution should be allowed to
that constitutes an obstacle to its probate. validate a defective will and thereby divest the heirs
of their vested rights in the estate by intestate
What is the law to apply to the probate of Exh. "A"? succession. The general rule is that the Legislature
May we apply the provisions of the new Civil Code can not validate void wills (57 Am. Jur., Wills, Sec.
which not allows holographic wills, like Exhibit "A" 231, pp. 192-193).
which provisions were invoked by the appellee-
petitioner and applied by the lower court? But In view of the foregoing, the order appealed from is
article 795 of this same new Civil Code expressly reversed, and Exhibit "A" is denied probate. With
provides: "The validity of a will as to its form costs.
depends upon the observance of the law in force at
the time it is made." The above provision is but an
expression or statement of the weight of authority
to the affect that the validity of a will is to be judged
not by the law enforce at the time of the testator's
death or at the time the supposed will is presented
in court for probate or when the petition is decided
by the court but at the time the instrument was
executed. One reason in support of the rule is that
although the will operates upon and after the death
of the testator, the wishes of the testator about the
disposition of his estate among his heirs and
among the legatees is given solemn expression at
the time the will is executed, and in reality, the
legacy or bequest then becomes a completed act.
This ruling has been laid down by this court in the
case of In re Will of Riosa, 39 Phil., 23. It is a
wholesome doctrine and should be followed.

Of course, there is the view that the intention of the

testator should be the ruling and controlling factor
and that all adequate remedies and interpretations
should be resorted to in order to carry out said
intention, and that when statutes passed after the
execution of the will and after the death of the
testator lessen the formalities required by law for
the execution of wills, said subsequent statutes
should be applied so as to validate wills defectively
executed according to the law in force at the time of
execution. However, we should not forget that from
the day of the death of the testator, if he leaves a
will, the title of the legatees and devisees under it
becomes a vested right, protected under the due
process clause of the constitution against a
subsequent change in the statute adding new legal
requirements of execution of wills which would
invalidate such a will. By parity of reasoning, when
one executes a will which is invalid for failure to

G.R. No. L-5064 February 27, 1953
BIENVENIDO A. IBARLE, plaintiff-appellant,
vs.
ESPERANZA M. PO, defendant-appellant.
Quirico del Mar for appellant.
Daniel P. Tumulak and Conchita F. Miel appellee.
TUASON, J.:
This action commenced in the Court of First
Instance of Cebu to annul a deed of sale conveying
to the defendant, in consideration of P1,700, one
undivided half of a parcel of land which previously
had been sold, along with the other half, by the
same vendor to the plaintiff's grantors. judgment
was against the plaintiff.
The case was submitted for decision upon an
agreed statement of facts, the pertinent parts of
which are thus summarized in the appealed
decision:
1st. — That Leonard j. Winstanley and
Catalina Navarro were husband and wife,
the former having died on June 6, 1946
leaving heir the surviving spouse and some
minor children;
2nd. — hat upon the death of L.J.
Winstanley, he left a parcel of land
described under Transfer Certificate of title
No. 2391 of the Registry of Deeds of the
Province of Cebu;
3rd. — That the above mentioned property
was a conjugal property;
4th. — That on April 15, 1946, the surviving
spouse Catalina Navarro Vda. de
Winstanley sold the entire parcel of land to
the spouses Maria Canoy, alleging among
other things, that she needed money for the
support of her children;
5th. — That on May 24, 1947, the spouses
Maria Canoy and Roberto Canoy sold the
same parcel of land to the plaintiff in this
case named Bienvenido A. Ebarle;
75
6th. — That the two deeds of sale referred
to above were not registered and have
never been registered up to the date;
7th. — That on January 17, 1948 surviving
spouse Catalina Navarro Vda. de
Winstanley, after her appointment as
guardian of her children by this court
(Special proceeding no. 212-R) sold one-
half of the land mentioned above to
Esperanza M. Po, defendant in the instant
case, which portion belongs to the children
of the above named spouses.
As stated by the trial Judge, the sole question for
determination is the validity of the sale to
Esperanza M. Po, the last purchaser. This question
in turn depends upon the validity of the prior ale to
Maria Canoy and Roberto Canoy.
Article 657 of the old Civil Code provides: "The
rights to the succession of a person are transmitted
from the moment of his death." in a slightly different
language, this article is incorporated in the new
Civil Code as article 777.
Manresa, commending on article 657 of the Civil
Code of Spain, says:
The moment of death is the determining
factor when the heirs acquire a definite right
to the inheritance, whether such right be
pure or contingent. It is immaterial whether
a short or long period of time lapses
between the death of the predecessor and
the entry into possession of the property of
the inheritance because the right is always
deemed to be retroactive from the moment
of death. (5 Manresa, 317.)
The above provision and comment make it clear
that when Catalina Navarro Vda. de Winstanley
sold the entire parcel to the Canoy spouses, one-
half of it already belonged to the seller's children.
No formal or judicial declaration being needed to
confirm the children's title, it follows that the first
sale was null and void in so far as it included the
children's share.
On the other hand, the sale to the defendant having
been made by authority of the competent court was
undeniably legal and effective. The fact that it has
not been recorded is of no consequence. If
registration were necessary, still the non-
 76

registration would not avail the plaintiff because it

was due to no other cause than his own opposition.

The decision will be affirmed subject to the

reservation, made in said decision, of the right of
the plaintitff and/or the Canoy spouses to bring
such action against Catalina Navarro Vda. de
Winstanley as may be appropriate for such
damages as they may have incurred by reason of
the voiding of the sale in their favor.

G.R. No. 147145 January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO
ABADA, BELINDA CAPONONG-
NOBLE, petitioner,
vs.
ALIPIO ABAJA and NOEL
ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing
the Decision2 of the Court of Appeals of 12 January
2001 in CA-G.R. CV No. 47644. The Court of
Appeals sustained the Resolution3 of the Regional
Trial Court of Kabankalan, Negros Occidental,
Branch 61 ("RTC-Kabankalan"), admitting to
probate the last will and testament of Alipio Abada
("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow
Paula Toray ("Toray") died sometime in September
1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio")
filed with the then Court of First Instance of Negros
Occidental (now RTC-Kabankalan) a
petition,5 docketed as SP No. 070 (313-8668), for
the probate of the last will and testament ("will") of
Abada. Abada allegedly named as his testamentary
heirs his natural children Eulogio Abaja ("Eulogio")
and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the
petition on the ground that Abada left no will when
he died in 1940. Caponong further alleged that the
will, if Abada really executed it, should be
disallowed for the following reasons: (1) it was not
executed and attested as required by law; (2) it was
not intended as the last will of the testator; and (3) it
was procured by undue and improper pressure and
influence on the part of the beneficiaries. Citing the
same grounds invoked by Caponong, the alleged
intestate heirs of Abada, namely, Joel, Julian, Paz,
Evangeline, Geronimo, Humberto, Teodora and
Elena Abada ("Joel Abada, et al."), and Levi,
Leandro, Antonio, Florian, Hernani and Carmela
77
Tronco ("Levi Tronco, et al."), also opposed the
petition. The oppositors are the nephews, nieces
and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another
petition6 before the RTC-Kabankalan, docketed as
SP No. 071 (312-8669), for the probate of the last
will and testament of Toray. Caponong, Joel
Abada, et al., and Levi Tronco, et al. opposed the
petition on the same grounds they cited in SP No.
070 (313-8668).
On 20 September 1968, Caponong filed a
petition7 before the RTC-Kabankalan, docketed as
SP No. 069 (309), praying for the issuance in his
name of letters of administration of the intestate
estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-
Kabankalan admitted to probate the will of Toray.
Since the oppositors did not file any motion for
reconsideration, the order allowing the probate of
Toray’s will became final and executory.8
In an order dated 23 November 1990, the RTC-
Kabankalan designated Belinda Caponong-Noble
("Caponong-Noble") Special Administratrix of the
estate of Abada and Toray.9 Caponong-Noble
moved for the dismissal of the petition for probate
of the will of Abada. The RTC-Kabankalan denied
the motion in an Order dated 20 August 1991.10
Sometime in 1993, during the proceedings,
Presiding Judge Rodolfo S. Layumas discovered
that in an Order dated 16 March 1992, former
Presiding Judge Edgardo Catilo had already
submitted the case for decision. Thus, the RTC-
Kabankalan rendered a Resolution dated 22 June
1994, as follows:
There having been sufficient notice to the heirs as
required by law; that there is substantial
compliance with the formalities of a Will as the law
directs and that the petitioner through his testimony
and the deposition of Felix Gallinero was able to
establish the regularity of the execution of the said
Will and further, there being no evidence of bad
faith and fraud, or substitution of the said Will, the
Last Will and Testament of Alipio Abada dated
June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar11 is
appointed administrator of the estate of Paula
Toray who shall discharge his duties as such after

letters of administration shall have been issued in
his favor and after taking his oath and filing a bond
in the amount of Ten Thousand (₱10,000.00)
Pesos.
Mrs. Belinda C. Noble, the present administratrix of
the estate of Alipio Abada shall continue
discharging her duties as such until further orders
from this Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue
raised by the oppositors in their motions to dismiss
the petition for probate, that is, whether the will of
Abada has an attestation clause as required by law.
The RTC-Kabankalan further held that the failure of
the oppositors to raise any other matter forecloses
all other issues.
Not satisfied with the Resolution, Caponong-Noble
filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the
Court of Appeals affirmed the Resolution of the
RTC-Kabankalan. The appellate court found that
the RTC-Kabankalan properly admitted to probate
the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last
will of Abada;
2. Whether the will of Abada requires
acknowledgment before a notary public;13
3. Whether the will must expressly state that
it is written in a language or dialect known to
the testator;
4. Whether the will of Abada has an
attestation clause, and if so, whether the
attestation clause complies with the
requirements of the applicable laws;
5. Whether Caponong-Noble is precluded
from raising the issue of whether the will of
78
Abada is written in a language known to
Abada;
6. Whether evidence aliunde may be
resorted to in the probate of the will of
Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the
RTC-Kabankalan in admitting to probate the will of
Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws
in force at that time are the Civil Code of 1889 or
the Old Civil Code, and Act No. 190 or the Code of
Civil Procedure14 which governed the execution of
wills before the enactment of the New Civil Code.
The matter in dispute in the present case is
the attestation clause in the will of Abada. Section
618 of the Code of Civil Procedure, as amended by
Act No. 2645,15 governs the form of the attestation
clause of Abada’s will.16Section 618 of the Code of
Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. – No will, except as
provided in the preceding section,17 shall be valid to
pass any estate, real or personal, nor charge or
affect the same, unless it be written in the language
or dialect known by the testator and signed by him,
or by the testator’s name written by some other
person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of each other. The testator or the
person requested by him to write his name and the
instrumental witnesses of the will, shall also sign,
as aforesaid, each and every page thereof, on the
left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of
each sheet. The attestation shall state the number
of sheets or pages used, upon which the will is
written, and the fact that the testator signed the will
and every page thereof, or caused some other
person to write his name, under his express
direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of
each other.

Requisites of a Will under the Code of Civil
Procedure
Under Section 618 of the Code of Civil Procedure,
the requisites of a will are the following:
(1) The will must be written in the language
or dialect known by the testator;
(2) The will must be signed by the testator,
or by the testator’s name written by some
other person in his presence, and by his
express direction;
(3) The will must be attested and subscribed
by three or more credible witnesses in the
presence of the testator and of each other;
(4) The testator or the person requested by
him to write his name and the instrumental
witnesses of the will must sign each and
every page of the will on the left margin;
(5) The pages of the will must be numbered
correlatively in letters placed on the upper
part of each sheet;
(6) The attestation shall state the number of
sheets or pages used, upon which the will is
written, and the fact that the testator signed
the will and every page of the will, or caused
some other person to write his name, under
his express direction, in the presence of
three witnesses, and the witnesses
witnessed and signed the will and all pages
of the will in the presence of the testator and
of each other.
Caponong-Noble asserts that the will of Abada
does not indicate that it is written in a language or
dialect known to the testator. Further, she
maintains that the will is not acknowledged before a
notary public. She cites in particular Articles 804
and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed
in [a] language or dialect known to the testator.
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses.
xxx18
79
Caponong-Noble actually cited Articles 804 and
806 of the New Civil Code.19 Article 804 of the Old
Civil Code is about the rights and obligations of
administrators of the property of an absentee, while
Article 806 of the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new
provisions. Article 804 of the New Civil Code is
taken from Section 618 of the Code of Civil
Procedure.20 Article 806 of the New Civil Code is
taken from Article 685 of the Old Civil Code21 which
provides:
Art. 685. The notary and two of the witnesses who
authenticate the will must be acquainted with the
testator, or, should they not know him, he shall be
identified by two witnesses who are acquainted with
him and are known to the notary and to the
attesting witnesses. The notary and the witnesses
shall also endeavor to assure themselves that the
testator has, in their judgment, the legal capacity
required to make a will.
Witnesses authenticating a will without the
attendance of a notary, in cases falling under
Articles 700 and 701, are also required to know the
testator.
However, the Code of Civil Procedure22 repealed
Article 685 of the Old Civil Code. Under the Code of
Civil Procedure, the intervention of a notary is not
necessary in the execution of any will.23 Therefore,
Abada’s will does not require acknowledgment
before a notary public.1awphi1.nét
Caponong-Noble points out that nowhere in the will
can one discern that Abada knew the Spanish
language. She alleges that such defect is fatal and
must result in the disallowance of the will. On this
issue, the Court of Appeals held that the matter
was not raised in the motion to dismiss, and that it
is now too late to raise the issue on appeal. We
agree with Caponong-Noble that the doctrine of
estoppel does not apply in probate
proceedings.24 In addition, the language used in the
will is part of the requisites under Section 618 of the
Code of Civil Procedure and the Court deems it
proper to pass upon this issue.
Nevertheless, Caponong-Noble’s contention must
still fail. There is no statutory requirement to state in
the will itself that the testator knew the language or
dialect used in the will.25 This is a matter that a
party may establish by proof aliunde.26 Caponong-

Noble further argues that Alipio, in his testimony,
has failed, among others, to show that Abada knew
or understood the contents of the will and the
Spanish language used in the will. However, Alipio
testified that Abada used to gather Spanish-
speaking people in their place. In these gatherings,
Abada and his companions would talk in the
Spanish language.27 This sufficiently proves that
Abada speaks the Spanish language.
The Attestation Clause of Abada’s Will
A scrutiny of Abada’s will shows that it has an
attestation clause. The attestation clause of
Abada’s will reads:
Suscrito y declarado por el testador Alipio Abada
como su ultima voluntad y testamento en presencia
de nosotros, habiendo tambien el testador firmado
en nuestra presencia en el margen izquierdo de
todas y cada una de las hojas del mismo. Y en
testimonio de ello, cada uno de nosotros lo
firmamos en presencia de nosotros y del testador
al pie de este documento y en el margen izquierdo
de todas y cada una de las dos hojas de que esta
compuesto el mismo, las cuales estan paginadas
correlativamente con las letras "UNO" y "DOS’ en
la parte superior de la carrilla.28
Caponong-Noble proceeds to point out several
defects in the attestation clause. Caponong-Noble
alleges that the attestation clause fails to state the
number of pages on which the will is written.
The allegation has no merit. The phrase "en el
margen izquierdo de todas y cada una de las dos
hojas de que esta compuesto el mismo" which
means "in the left margin of each and every one of
the two pages consisting of the same" shows that
the will consists of two pages. The pages are
numbered correlatively with the letters "ONE" and
"TWO" as can be gleaned from the phrase "las
cuales estan paginadas correlativamente con las
letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation
clause fails to state expressly that the testator
signed the will and its every page in the presence
of three witnesses. She then faults the Court of
Appeals for applying to the present case the rule on
substantial compliance found in Article 809 of the
New Civil Code.29
80
The first sentence of the attestation clause reads:
"Suscrito y declarado por el testador Alipio Abada
como su ultima voluntad y testamento en presencia
de nosotros, habiendo tambien el testador firmado
en nuestra presencia en el margen izquierdo de
todas y cada una de las hojas del mismo." The
English translation is: "Subscribed and professed
by the testator Alipio Abada as his last will and
testament in our presence, the testator having also
signed it in our presence on the left margin of each
and every one of the pages of the same." The
attestation clause clearly states that Abada signed
the will and its every page in the presence of the
witnesses.
However, Caponong-Noble is correct in saying that
the attestation clause does not indicate the number
of witnesses. On this point, the Court agrees with
the appellate court in applying the rule on
substantial compliance in determining the number
of witnesses. While the attestation clause does not
state the number of witnesses, a close inspection of
the will shows that three witnesses signed it.
This Court has applied the rule on substantial
compliance even before the effectivity of the New
Civil Code. In Dichoso de Ticson v. De
Gorostiza,30 the Court recognized that there are
two divergent tendencies in the law on wills, one
being based on strict construction and the other on
liberal construction. In Dichoso, the Court noted
that Abangan v. Abangan,31 the basic case on the
liberal construction, is cited with approval in later
decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the
petitioner, arguing for liberal construction of
applicable laws, enumerated a long line of cases to
support her argument while the respondent,
contending that the rule on strict construction
should apply, also cited a long series of cases to
support his view. The Court, after examining the
cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a
general rule, rigid and inflexible, which would be
applicable to all cases. More than anything else,
the facts and circumstances of record are to be
considered in the application of any given rule. If
the surrounding circumstances point to a regular
execution of the will, and the instrument appears to
have been executed substantially in accordance
with the requirements of the law, the inclination
should, in the absence of any suggestion of bad
 81

faith, forgery or fraud, lean towards its admission to signed the will and all its pages in the presence of
probate, although the document may suffer from the testator and of each other. This Court has ruled:
some imperfection of language, or other non-
essential defect. x x x. Precision of language in the drafting of an
attestation clause is desirable. However, it is not
An attestation clause is made for the purpose of imperative that a parrot-like copy of the words of
preserving, in permanent form, a record of the facts the statute be made. It is sufficient if from the
attending the execution of the will, so that in case of language employed it can reasonably be deduced
failure of the memory of the subscribing witnesses, that the attestation clause fulfills what the law
or other casualty, they may still be proved. expects of it.35
(Thompson on Wills, 2d ed., sec. 132.) A will,
therefore, should not be rejected where its The last part of the attestation clause states "en
attestation clause serves the purpose of the law. x testimonio de ello, cada uno de nosotros lo
x x 331a\^/phi1.net firmamos en presencia de nosotros y del testador."
In English, this means "in its witness, every one of
We rule to apply the liberal construction in the us also signed in our presence and of the testator."
probate of Abada’s will. Abada’s will clearly shows This clearly shows that the attesting witnesses
four signatures: that of Abada and of three other witnessed the signing of the will of the testator, and
persons. It is reasonable to conclude that there are that each witness signed the will in the presence of
three witnesses to the will. The question on the one another and of the testator.
number of the witnesses is answered by an
examination of the will itself and without the need WHEREFORE, we AFFIRM the Decision of the
for presentation of evidence aliunde. The Court Court of Appeals of 12 January 2001 in CA-G.R.
explained the extent and limits of the rule on liberal CV No. 47644.
construction, thus:
SO ORDERED.
[T]he so-called liberal rule does not offer any puzzle
or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when
and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to
fill a void in any part of the document or supply
missing details that should appear in the will
itself.l^vvphi1.net They only permit a probe into
the will, an exploration within its confines, to
ascertain its meaning or to determine the
existence or absence of the requisite formalities
of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire
results.34 (Emphasis supplied)

The phrase "en presencia de nosotros" or "in our

presence" coupled with the signatures appearing
on the will itself and after the attestation clause
could only mean that: (1) Abada subscribed to and
professed before the three witnesses that the
document was his last will, and (2) Abada signed
the will and the left margin of each page of the will
in the presence of these three witnesses.

Finally, Caponong-Noble alleges that the

attestation clause does not expressly state the
circumstances that the witnesses witnessed and

ARTICLE 16
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN
MICIANO, administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased
Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a
scheme of partition. Andre Brimo, one of the
brothers of the deceased, opposed it. The court,
however, approved it.
The errors which the oppositor-appellant assigns
are:
(1) The approval of said scheme of partition; (2)
denial of his participation in the inheritance; (3) the
denial of the motion for reconsideration of the order
approving the partition; (4) the approval of the
purchase made by the Pietro Lana of the
deceased's business and the deed of transfer of
said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the
failure not to postpone the approval of the scheme
of partition and the delivery of the deceased's
business to Pietro Lanza until the receipt of the
depositions requested in reference to the Turkish
laws.
The appellant's opposition is based on the fact that
the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not
in accordance with the laws of his Turkish
nationality, for which reason they are void as being
in violation or article 10 of the Civil Code which,
among other things, provides the following:
Nevertheless, legal and testamentary
successions, in respect to the order of
succession as well as to the amount of the
82
successional rights and the intrinsic validity
of their provisions, shall be regulated by the
national law of the person whose
succession is in question, whatever may be
the nature of the property or the country in
which it may be situated.
But the fact is that the oppositor did not prove that
said testimentary dispositions are not in
accordance with the Turkish laws, inasmuch as he
did not present any evidence showing what the
Turkish laws are on the matter, and in the absence
of evidence on such laws, they are presumed to be
the same as those of the Philippines. (Lim and
Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what
the Turkish laws are. He, himself, acknowledges it
when he desires to be given an opportunity to
present evidence on this point; so much so that he
assigns as an error of the court in not having
deferred the approval of the scheme of partition
until the receipt of certain testimony requested
regarding the Turkish laws on the matter.
The refusal to give the oppositor another
opportunity to prove such laws does not constitute
an error. It is discretionary with the trial court, and,
taking into consideration that the oppositor was
granted ample opportunity to introduce competent
evidence, we find no abuse of discretion on the part
of the court in this particular. There is, therefore, no
evidence in the record that the national law of the
testator Joseph G. Brimo was violated in the
testamentary dispositions in question which, not
being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition
in this respect was not erroneous.
In regard to the first assignment of error which
deals with the exclusion of the herein appellant as a
legatee, inasmuch as he is one of the persons
designated as such in will, it must be taken into
consideration that such exclusion is based on the
last part of the second clause of the will, which
says:
Second. I like desire to state that although
by law, I am a Turkish citizen, this
citizenship having been conferred upon me
by conquest and not by free choice, nor by
nationality and, on the other hand, having
 83

resided for a considerable length of time in
the Philippine Islands where I succeeded in
acquiring all of the property that I now
possess, it is my wish that the distribution of
my property and everything in connection
with this, my will, be made and disposed of
in accordance with the laws in force in the
Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I
annul and cancel beforehand whatever
disposition found in this will favorable to the
person or persons who fail to comply with
this request.
The institution of legatees in this will is conditional,
and the condition is that the instituted legatees
must respect the testator's will to distribute his
property, not in accordance with the laws of his
nationality, but in accordance with the laws of the
Philippines.
All of the remaining clauses of said will with all their
dispositions and requests are perfectly valid and
effective it not appearing that said clauses are
contrary to the testator's national law.
Therefore, the orders appealed from are modified
and it is directed that the distribution of this estate
be made in such a manner as to include the herein
appellant Andre Brimo as one of the legatees, and
the scheme of partition submitted by the judicial
administrator is approved in all other respects,
without any pronouncement as to costs.
So ordered.

If this condition as it is expressed were legal and

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

The fact is, however, that the said condition is void,

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

Impossible conditions and those contrary to

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

And said condition is contrary to law because it

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

Said condition then, in the light of the legal

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

It results from all this that the second clause of the

will regarding the law which shall govern it, and to
the condition imposed upon the legatees, is null
and void, being contrary to law.

G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS,
deceased.
PEOPLE'S BANK and TRUST
COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for
oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-
appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis,
et al.
J. R. Balonkita for appellee People's Bank & Trust
Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B.
Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question
purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving
the project of partition filed by the executor in Civil
Case No. 37089 therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the
State of Texas and of the United States." By his
first wife, Mary E. Mallen, whom he divorced, he
had five legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in infancy),
Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who
survived him, he had three legitimate children:
Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis;
and finally, he had three illegitimate children: Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Bellis.
On August 5, 1952, Amos G. Bellis executed a will
in the Philippines, in which he directed that after all
taxes, obligations, and expenses of administration
are paid for, his distributable estate should be
divided, in trust, in the following order and manner:
(a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after the
84
foregoing two items have been satisfied, the
remainder shall go to his seven surviving children
by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna
Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis
died a resident of San Antonio, Texas, U.S.A. His
will was admitted to probate in the Court of First
Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as
executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of
shares of stock to Mary E. Mallen and to the three
(3) illegitimate children, Amos Bellis, Jr., Maria
Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of
their respective legacies, or a total of P120,000.00,
which it released from time to time according as the
lower court approved and allowed the various
motions or petitions filed by the latter three
requesting partial advances on account of their
respective legacies.
On January 8, 1964, preparatory to closing its
administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration
and Project of Partition" wherein it reported, inter
alia, the satisfaction of the legacy of Mary E. Mallen
by the delivery to her of shares of stock amounting
to $240,000.00, and the legacies of Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis in
the amount of P40,000.00 each or a total of
P120,000.00. In the project of partition, the
executor — pursuant to the "Twelfth" clause of the
testator's Last Will and Testament — divided the
residuary estate into seven equal portions for the
benefit of the testator's seven legitimate children by
his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and
Miriam Palma Bellis filed their respective
oppositions to the project of partition on the ground
that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory
heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite
notice to him, proof of service of which is evidenced
by the registry receipt submitted on April 27, 1964
by the executor.1

After the parties filed their respective memoranda
and other pertinent pleadings, the lower court, on
April 30, 1964, issued an order overruling the
oppositions and approving the executor's final
account, report and administration and project of
partition. Relying upon Art. 16 of the Civil Code, it
applied the national law of the decedent, which in
this case is Texas law, which did not provide for
legitimes.
Their respective motions for reconsideration having
been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to
raise the issue of which law must apply — Texas
law or Philippine law.
In this regard, the parties do not submit the case
on, nor even discuss, the doctrine of renvoi, applied
by this Court in Aznar v. Christensen Garcia, L-
16749, January 31, 1963. Said doctrine is usually
pertinent where the decedent is a national of one
country, and a domicile of another. In the present
case, it is not disputed that the decedent was both
a national of Texas and a domicile thereof at the
time of his death.2 So that even assuming Texas
has a conflict of law rule providing that the
domiciliary system (law of the domicile) should
govern, the same would not result in a reference
back (renvoi) to Philippine law, but would still refer
to Texas law. Nonetheless, if Texas has a conflicts
rule adopting the situs theory (lex rei sitae) calling
for the application of the law of the place where the
properties are situated, renvoi would arise, since
the properties here involved are found in the
Philippines. In the absence, however, of proof as to
the conflict of law rule of Texas, it should not be
presumed different from ours.3 Appellants' position
is therefore not rested on the doctrine of renvoi. As
stated, they never invoked nor even mentioned it in
their arguments. Rather, they argue that their case
falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of
the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code,
render applicable the national law of the decedent,
in intestate or testamentary successions, with
regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic
validity of the provisions of the will; and (d) the
capacity to succeed. They provide that —
85
ART. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate and testamentary
successions, both with respect to the order
of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person
whose succession is under consideration,
whatever may he the nature of the property
and regardless of the country wherein said
property may be found.
ART. 1039. Capacity to succeed is
governed by the law of the nation of the
decedent.
Appellants would however counter that Art. 17,
paragraph three, of the Civil Code, stating that —
Prohibitive laws concerning persons, their
acts or property, and those which have for
their object public order, public policy and
good customs shall not be rendered
ineffective by laws or judgments
promulgated, or by determinations or
conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par. 2 of the
Civil Code afore-quoted. This is not correct.
Precisely, Congress deleted the phrase,
"notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of
the old Civil Code as Art. 17 of the new Civil Code,
while reproducing without substantial change the
second paragraph of Art. 10 of the old Civil Code
as Art. 16 in the new. It must have been their
purpose to make the second paragraph of Art. 16 a
specific provision in itself which must be applied in
testate and intestate succession. As further
indication of this legislative intent, Congress added
a new provision, under Art. 1039, which decrees
that capacity to succeed is to be governed by the
national law of the decedent.
It is therefore evident that whatever public policy or
good customs may be involved in our System of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it
has specifically chosen to leave, inter alia,
the amount of successional rights, to the
 86

decedent's national law. Specific provisions must

prevail over general ones.

Appellants would also point out that the decedent

executed two wills — one to govern his Texas
estate and the other his Philippine estate —
arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such
was the decedent's intention in executing a
separate Philippine will, it would not alter the law,
for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the
effect that his properties shall be distributed in
accordance with Philippine law and not with his
national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that
Article 10 — now Article 16 — of the Civil Code
states said national law should govern.

The parties admit that the decedent, Amos G.

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

Wherefore, the order of the probate court is hereby

affirmed in toto, with costs against appellants. So
ordered.

G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF
EDWARD E. CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY
CHRISTENSEN, Heir of the deceased, Executor
and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-
appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for
oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of
First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said
court, dated September 14, 1949, approving among
things the final accounts of the executor, directing
the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen
Christensen Garcia as her legacy, and declaring
Maria Lucy Christensen entitled to the residue of
the property to be enjoyed during her lifetime, and
in case of death without issue, one-half of said
residue to be payable to Mrs. Carrie Louise C.
Borton, etc., in accordance with the provisions of
the will of the testator Edward E. Christensen. The
will was executed in Manila on March 5, 1951 and
contains the following provisions:
3. I declare ... that I have but ONE (1) child,
named MARIA LUCY CHRISTENSEN (now
Mrs. Bernard Daney), who was born in the
Philippines about twenty-eight years ago,
and who is now residing at No. 665 Rodger
Young Village, Los Angeles, California,
U.S.A.
4. I further declare that I now have no living
ascendants, and no descendants except my
above named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA
HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of
age and who, notwithstanding the fact that
87
she was baptized Christensen, is not in any
way related to me, nor has she been at any
time adopted by me, and who, from all
information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine Currency
the same to be deposited in trust for the
said Maria Helen Christensen with the
Davao Branch of the Philippine National
Bank, and paid to her at the rate of One
Hundred Pesos (P100.00), Philippine
Currency per month until the principal
thereof as well as any interest which may
have accrued thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath,
unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY
(Mrs. Bernard Daney), now residing as
aforesaid at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A., all the
income from the rest, remainder, and
residue of my property and estate, real,
personal and/or mixed, of whatsoever kind
or character, and wheresoever situated, of
which I may be possessed at my death and
which may have come to me from any
source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted
provisions that the executor in his final account and
project of partition ratified the payment of only
P3,600 to Helen Christensen Garcia and proposed
that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition
was filed by Helen Christensen Garcia, insofar as it
deprives her (Helen) of her legitime as an
acknowledged natural child, she having been
declared by Us in G.R. Nos. L-11483-84 an
acknowledged natural child of the deceased
Edward E. Christensen. The legal grounds of
opposition are (a) that the distribution should be
governed by the laws of the Philippines, and (b)
that said order of distribution is contrary thereto
insofar as it denies to Helen Christensen, one of
two acknowledged natural children, one-half of the
estate in full ownership. In amplification of the
above grounds it was alleged that the law that
should govern the estate of the deceased

Christensen should not be the internal law of
California alone, but the entire law thereof because
several foreign elements are involved, that the
forum is the Philippines and even if the case were
decided in California, Section 946 of the California
Civil Code, which requires that the domicile of the
decedent should apply, should be applicable. It was
also alleged that Maria Helen Christensen having
been declared an acknowledged natural child of the
decedent, she is deemed for all purposes legitimate
from the time of her birth.
The court below ruled that as Edward E.
Christensen was a citizen of the United States and
of the State of California at the time of his death,
the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law
of California, in accordance with which a testator
has the right to dispose of his property in the way
he desires, because the right of absolute dominion
over his property is sacred and inviolable (In re
McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d
952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192,
cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed
various motions for reconsideration, but these were
denied. Hence, this appeal.
The most important assignments of error are as
follows:
I In the proceedings for admission of the will
THE LOWER COURT ERRED IN IGNORING THE
DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED
NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN
DEPRIVING HER OF HER JUST SHARE IN THE
INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY
IGNORING AND/OR FAILING TO RECOGNIZE
THE EXISTENCE OF SEVERAL FACTORS,
ELEMENTS AND CIRCUMSTANCES CALLING
FOR THE APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO
RECOGNIZE THAT UNDER INTERNATIONAL
88
LAW, PARTICULARLY UNDER THE RENVOI
DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE
DISTRIBUTION OF THE ESTATE OF THE
DECEASED EDWARD E. CHRISTENSEN
SHOULD BE GOVERNED BY THE LAWS OF THE
PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT
DECLARING THAT THE SCHEDULE OF
DISTRIBUTION SUBMITTED BY THE EXECUTOR
IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT
DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS
ENTITLED TO ONE-HALF (1/2) OF THE ESTATE
IN FULL OWNERSHIP.
There is no question that Edward E. Christensen
was a citizen of the United States and of the State
of California at the time of his death. But there is
also no question that at the time of his death he
was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in
appellee's brief:
to probate, the facts of record show that the
deceased Edward E. Christensen was born
on November 29, 1875 in New York City,
N.Y., U.S.A.; his first arrival in the
Philippines, as an appointed school teacher,
was on July 1, 1901, on board the U.S.
Army Transport "Sheridan" with Port of
Embarkation as the City of San Francisco,
in the State of California, U.S.A. He stayed
in the Philippines until 1904.
In December, 1904, Mr. Christensen
returned to the United States and stayed
there for the following nine years until 1913,
during which time he resided in, and was
teaching school in Sacramento, California.
Mr. Christensen's next arrival in the
Philippines was in July of the year 1913.
However, in 1928, he again departed the
Philippines for the United States and came

back here the following year, 1929. Some
nine years later, in 1938, he again returned
to his own country, and came back to the
Philippines the following year, 1939.
Wherefore, the parties respectfully pray that
the foregoing stipulation of facts be admitted
and approved by this Honorable Court,
without prejudice to the parties adducing
other evidence to prove their case not
covered by this stipulation of
facts. 1äwphï1.ñët
Being an American citizen, Mr. Christensen
was interned by the Japanese Military
Forces in the Philippines during World War
II. Upon liberation, in April 1945, he left for
the United States but returned to the
Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp.
Proc. 622, as Exhibits "AA", "BB" and "CC-
Daney"; Exhs. "MM", "MM-l", "MM-2-Daney"
and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen
returned once more to California shortly
after the making of his last will and
testament (now in question herein) which he
executed at his lawyers' offices in Manila on
March 5, 1951. He died at the St. Luke's
Hospital in the City of Manila on April 30,
1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the
deceased is the Philippines, we are persuaded by
the fact that he was born in New York, migrated to
California and resided there for nine years, and
since he came to the Philippines in 1913 he
returned to California very rarely and only for short
visits (perhaps to relatives), and considering that he
appears never to have owned or acquired a home
or properties in that state, which would indicate that
he would ultimately abandon the Philippines and
make home in the State of California.
Sec. 16. Residence is a term used with
many shades of meaning from mere
temporary presence to the most permanent
abode. Generally, however, it is used to
denote something more than mere physical
presence. (Goodrich on Conflict of Laws, p.
29)
89
As to his citizenship, however, We find that the
citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to
1913, was never lost by his stay in the Philippines,
for the latter was a territory of the United States
(not a state) until 1946 and the deceased appears
to have considered himself as a citizen of California
by the fact that when he executed his will in 1951
he declared that he was a citizen of that State; so
that he appears never to have intended to abandon
his California citizenship by acquiring another. This
conclusion is in accordance with the following
principle expounded by Goodrich in his Conflict of
Laws.
The terms "'residence" and "domicile" might
well be taken to mean the same thing, a
place of permanent abode. But domicile, as
has been shown, has acquired a technical
meaning. Thus one may be domiciled in a
place where he has never been. And he
may reside in a place where he has no
domicile. The man with two homes,
between which he divides his time, certainly
resides in each one, while living in it. But if
he went on business which would require
his presence for several weeks or months,
he might properly be said to have sufficient
connection with the place to be called a
resident. It is clear, however, that, if he
treated his settlement as continuing only for
the particular business in hand, not giving
up his former "home," he could not be a
domiciled New Yorker. Acquisition of a
domicile of choice requires the exercise of
intention as well as physical presence.
"Residence simply requires bodily presence
of an inhabitant in a given place, while
domicile requires bodily presence in that
place and also an intention to make it one's
domicile." Residence, however, is a term
used with many shades of meaning, from
the merest temporary presence to the most
permanent abode, and it is not safe to insist
that any one use et the only proper one.
(Goodrich, p. 29)
The law that governs the validity of his
testamentary dispositions is defined in Article 16 of
the Civil Code of the Philippines, which is as
follows:

ART. 16. Real property as well as personal
property is subject to the law of the country
where it is situated.
However, intestate and testamentary
successions, both with respect to the order
of succession and to the amount of
successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property
and regardless of the country where said
property may be found.
The application of this article in the case at bar
requires the determination of the meaning of the
term "national law"is used therein.
There is no single American law governing the
validity of testamentary provisions in the United
States, each state of the Union having its own
private law applicable to its citizens only and in
force only within the state. The "national law"
indicated in Article 16 of the Civil Code above
quoted can not, therefore, possibly mean or apply
to any general American law. So it can refer to no
other than the private law of the State of California.
The next question is: What is the law in California
governing the disposition of personal property? The
decision of the court below, sustains the contention
of the executor-appellee that under the California
Probate Code, a testator may dispose of his
property by will in the form and manner he desires,
citing the case of Estate of McDaniel, 77 Cal. Appl.
2d 877, 176 P. 2d 952. But appellant invokes the
provisions of Article 946 of the Civil Code of
California, which is as follows:
If there is no law to the contrary, in the place
where personal property is situated, it is
deemed to follow the person of its owner,
and is governed by the law of his domicile.
The existence of this provision is alleged in
appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is
there. Appellee, on the other hand, relies on the
case cited in the decision and testified to by a
witness. (Only the case of Kaufman is correctly
cited.) It is argued on executor's behalf that as the
deceased Christensen was a citizen of the State of
California, the internal law thereof, which is that
90
given in the abovecited case, should govern the
determination of the validity of the testamentary
provisions of Christensen's will, such law being in
force in the State of California of which Christensen
was a citizen. Appellant, on the other hand, insists
that Article 946 should be applicable, and in
accordance therewith and following the doctrine of
the renvoi, the question of the validity of the
testamentary provision in question should be
referred back to the law of the decedent's domicile,
which is the Philippines.
The theory of doctrine of renvoi has been defined
by various authors, thus:
The problem has been stated in this way:
"When the Conflict of Laws rule of the forum
refers a jural matter to a foreign law for
decision, is the reference to the purely
internal rules of law of the foreign system;
i.e., to the totality of the foreign law minus
its Conflict of Laws rules?"
On logic, the solution is not an easy one.
The Michigan court chose to accept the
renvoi, that is, applied the Conflict of Laws
rule of Illinois which referred the matter back
to Michigan law. But once having
determined the the Conflict of Laws
principle is the rule looked to, it is difficult to
see why the reference back should not have
been to Michigan Conflict of Laws. This
would have resulted in the "endless chain of
references" which has so often been
criticized be legal writers. The opponents of
the renvoi would have looked merely to the
internal law of Illinois, thus rejecting the
renvoi or the reference back. Yet there
seems no compelling logical reason why the
original reference should be the internal law
rather than to the Conflict of Laws rule. It is
true that such a solution avoids going on a
merry-go-round, but those who have
accepted the renvoi theory avoid
this inextricabilis circulas by getting off at
the second reference and at that point
applying internal law. Perhaps the
opponents of the renvoi are a bit more
consistent for they look always to internal
law as the rule of reference.
Strangely enough, both the advocates for
and the objectors to the renvoi plead that
greater uniformity will result from adoption

of their respective views. And still more
strange is the fact that the only way to
achieve uniformity in this choice-of-law
problem is if in the dispute the two states
whose laws form the legal basis of the
litigation disagree as to whether
the renvoi should be accepted. If both
reject, or both accept the doctrine, the result
of the litigation will vary with the choice of
the forum. In the case stated above, had the
Michigan court rejected the renvoi,
judgment would have been against the
woman; if the suit had been brought in the
Illinois courts, and they too rejected
the renvoi, judgment would be for the
woman. The same result would happen,
though the courts would switch with respect
to which would hold liability, if both courts
accepted the renvoi.
The Restatement accepts the renvoi theory
in two instances: where the title to land is in
question, and where the validity of a decree
of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land,
or the domicile of the parties in the divorce
case, is applied by the forum, but any
further reference goes only to the internal
law. Thus, a person's title to land,
recognized by the situs, will be recognized
by every court; and every divorce, valid by
the domicile of the parties, will be valid
everywhere. (Goodrich, Conflict of Laws,
Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies
intestate, domiciled in France, leaving
movable property in Massachusetts,
England, and France. The question arises
as to how this property is to be distributed
among X's next of kin.
Assume (1) that this question arises in a
Massachusetts court. There the rule of the
conflict of laws as to intestate succession to
movables calls for an application of the law
of the deceased's last domicile. Since by
hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to
do would be to turn to French statute of
distributions, or whatever corresponds
thereto in French law, and decree a
distribution accordingly. An examination of
French law, however, would show that if a
91
French court were called upon to determine
how this property should be distributed, it
would refer the distribution to the national
law of the deceased, thus applying the
Massachusetts statute of distributions. So
on the surface of things the Massachusetts
court has open to it alternative course of
action: (a) either to apply the French law is
to intestate succession, or (b) to resolve
itself into a French court and apply the
Massachusetts statute of distributions, on
the assumption that this is what a French
court would do. If it accepts the so-
called renvoidoctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is
presented which the conflict-of-laws rule of
the forum refers to a foreign law, the
conflict-of-laws rule of which, in turn, refers
the matter back again to the law of the
forum. This is renvoi in the narrower sense.
The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review,
Vol. 31, pp. 523-571.)
After a decision has been arrived at that a
foreign law is to be resorted to as governing
a particular case, the further question may
arise: Are the rules as to the conflict of laws
contained in such foreign law also to be
resorted to? This is a question which, while
it has been considered by the courts in but a
few instances, has been the subject of
frequent discussion by textwriters and
essayists; and the doctrine involved has
been descriptively designated by them as
the "Renvoyer" to send back, or the
"Ruchversweisung", or the
"Weiterverweisung", since an affirmative
answer to the question postulated and the
operation of the adoption of the foreign law
in toto would in many cases result in
returning the main controversy to be
decided according to the law of the forum.
... (16 C.J.S. 872.)
Another theory, known as the "doctrine
of renvoi", has been advanced. The theory
of the doctrine of renvoi is that the court of
the forum, in determining the question
before it, must take into account the whole
law of the other jurisdiction, but also its rules
as to conflict of laws, and then apply the law

to the actual question which the rules of the
other jurisdiction prescribe. This may be the
law of the forum. The doctrine of
the renvoi has generally been repudiated by
the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been
defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in
the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-
531. The pertinent parts of the article are quoted
herein below:
The recognition of the renvoi theory implies
that the rules of the conflict of laws are to be
understood as incorporating not only the
ordinary or internal law of the foreign state
or country, but its rules of the conflict of
laws as well. According to this theory 'the
law of a country' means the whole of its law.
xxx xxx xxx
Von Bar presented his views at the meeting
of the Institute of International Law, at
Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its
country as regards the application of foreign
laws.
(2) Provided that no express provision to the
contrary exists, the court shall respect:
(a) The provisions of a foreign law
which disclaims the right to bind its
nationals abroad as regards their
personal statute, and desires that
said personal statute shall be
determined by the law of the
domicile, or even by the law of the
place where the act in question
occurred.
(b) The decision of two or more
foreign systems of law, provided it
be certain that one of them is
necessarily competent, which agree
in attributing the determination of a
question to the same system of law.
xxx xxx xxx
92
If, for example, the English law directs its
judge to distribute the personal estate of an
Englishman who has died domiciled in
Belgium in accordance with the law of his
domicile, he must first inquire whether the
law of Belgium would distribute personal
property upon death in accordance with the
law of domicile, and if he finds that the
Belgian law would make the distribution in
accordance with the law of nationality —
that is the English law — he must accept
this reference back to his own law.
We note that Article 946 of the California Civil Code
is its conflict of laws rule, while the rule applied in In
re Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of
California are to be enforced jointly, each in its own
intended and appropriate sphere, the principle cited
In re Kaufman should apply to citizens living in the
State, but Article 946 should apply to such of its
citizens as are not domiciled in California but in
other jurisdictions. The rule laid down of resorting to
the law of the domicile in the determination of
matters with foreign element involved is in accord
with the general principle of American law that the
domiciliary law should govern in most matters or
rights which follow the person of the owner.
When a man dies leaving personal property
in one or more states, and leaves a will
directing the manner of distribution of the
property, the law of the state where he was
domiciled at the time of his death will be
looked to in deciding legal questions about
the will, almost as completely as the law of
situs is consulted in questions about the
devise of land. It is logical that, since the
domiciliary rules control devolution of the
personal estate in case of intestate
succession, the same rules should
determine the validity of an attempted
testamentary dispostion of the property.
Here, also, it is not that the domiciliary has
effect beyond the borders of the domiciliary
state. The rules of the domicile are
recognized as controlling by the Conflict of
Laws rules at the situs property, and the
reason for the recognition as in the case of
intestate succession, is the general
convenience of the doctrine. The New York
court has said on the point: 'The general
principle that a dispostiton of a personal
property, valid at the domicile of the owner,

is valid anywhere, is one of the universal
application. It had its origin in that
international comity which was one of the
first fruits of civilization, and it this age,
when business intercourse and the process
of accumulating property take but little
notice of boundary lines, the practical
wisdom and justice of the rule is more
apparent than ever. (Goodrich, Conflict of
Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil
Code of the Philippines pointed out as the national
law is the internal law of California. But as above
explained the laws of California have prescribed
two sets of laws for its citizens, one for residents
therein and another for those domiciled in other
jurisdictions. Reason demands that We should
enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of
laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we
are bound to go, as so declared in Article 16 of our
Civil Code, then we must enforce the law of
California in accordance with the express mandate
thereof and as above explained, i.e., apply the
internal law for residents therein, and its conflict-of-
laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if
there is no law to the contrary in the place where
the property is situated" in Sec. 946 of the
California Civil Code refers to Article 16 of the Civil
Code of the Philippines and that the law to the
contrary in the Philippines is the provision in said
Article 16 that the national law of the deceased
should govern. This contention can not be
sustained. As explained in the various authorities
cited above the national law mentioned in Article 16
of our Civil Code is the law on conflict of laws in the
California Civil Code, i.e., Article 946, which
authorizes the reference or return of the question to
the law of the testator's domicile. The conflict of
laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is
not domiciled in California, to the law of his
domicile, the Philippines in the case at bar. The
court of the domicile can not and should not refer
the case back to California; such action would
leave the issue incapable of determination because
the case will then be like a football, tossed back
and forth between the two states, between the
country of which the decedent was a citizen and the
country of his domicile. The Philippine court must
93
apply its own law as directed in the conflict of laws
rule of the state of the decedent, if the question has
to be decided, especially as the application of the
internal law of California provides no legitime for
children while the Philippine law, Arts. 887(4) and
894, Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of the
parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39
Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano
vs. Brimo, 50 Phil. 867; Babcock Templeton vs.
Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to
support the decision can not possibly apply in the
case at bar, for two important reasons, i.e., the
subject in each case does not appear to be a
citizen of a state in the United States but with
domicile in the Philippines, and it does not appear
in each case that there exists in the state of which
the subject is a citizen, a law similar to or identical
with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the
deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will
depriving his acknowledged natural child, the
appellant, should be governed by the Philippine
Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of
California..
WHEREFORE, the decision appealed from is
hereby reversed and the case returned to the lower
court with instructions that the partition be made as
the Philippine law on succession provides.
Judgment reversed, with costs against appellees.

G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as
the Presiding Judge of Branch XXXVIII, Court of
First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to
annul the order of the respondent judge of the
Court of First Instance of Manila, Branch XXXVIII,
which admitted to and allowed the probate of the
last will and testament of Adoracion C. Campos,
after an ex-parte presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C. Campos died,
leaving her father, petitioner Hermogenes Campos
and her sisters, private respondent Nenita C.
Paguia, Remedios C. Lopez and Marieta C. Medina
as the surviving heirs. As Hermogenes Campos
was the only compulsory heir, he executed an
Affidavit of Adjudication under Rule 74, Section I of
the Rules of Court whereby he adjudicated unto
himself the ownership of the entire estate of the
deceased Adoracion Campos.
Eleven months after, on November 25, 1977,
Nenita C. Paguia filed a petition for the reprobate of
a will of the deceased, Adoracion Campos, which
was allegedly executed in the United States and for
her appointment as administratrix of the estate of
the deceased testatrix.
In her petition, Nenita alleged that the testatrix was
an American citizen at the time of her death and
was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while
temporarily residing with her sister at 2167
Leveriza, Malate, Manila; that during her lifetime,
the testatrix made her last wig and testament on
July 10, 1975, according to the laws of
Pennsylvania, U.S.A., nominating Wilfredo Barzaga
94
of New Jersey as executor; that after the testatrix
death, her last will and testament was presented,
probated, allowed, and registered with the Registry
of Wins at the County of Philadelphia, U.S.A., that
Clement L. McLaughlin, the administrator who was
appointed after Dr. Barzaga had declined and
waived his appointment as executor in favor of the
former, is also a resident of Philadelphia, U.S.A.,
and that therefore, there is an urgent need for the
appointment of an administratrix to administer and
eventually distribute the properties of the estate
located in the Philippines.
On January 11, 1978, an opposition to the
reprobate of the will was filed by herein petitioner
alleging among other things, that he has every
reason to believe that the will in question is a
forgery; that the intrinsic provisions of the will are
null and void; and that even if pertinent American
laws on intrinsic provisions are invoked, the same
could not apply inasmuch as they would work
injustice and injury to him.
On December 1, 1978, however, the petitioner
through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of
Rights or Interests) stating that he "has been able
to verify the veracity thereof (of the will) and now
confirms the same to be truly the probated will of
his daughter Adoracion." Hence, an ex-
partepresentation of evidence for the reprobate of
the questioned will was made.
On January 10, 1979, the respondent judge issued
an order, to wit:
At the hearing, it has been
satisfactorily established that
Adoracion C. Campos, in her
lifetime, was a citizen of the United
States of America with a permanent
residence at 4633 Ditman Street,
Philadelphia, PA 19124, (Exhibit D)
that when alive, Adoracion C.
Campos executed a Last Will and
Testament in the county of
Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat
(Exhibits E-3 to E-3-b) that while in
temporary sojourn in the Philippines,
Adoracion C. Campos died in the
City of Manila (Exhibit C) leaving
property both in the Philippines and
in the United States of America; that

the Last Will and Testament of the
late Adoracion C. Campos was
admitted and granted probate by the
Orphan's Court Division of the Court
of Common Pleas, the probate court
of the Commonwealth of
Pennsylvania, County of
Philadelphia, U.S.A., and letters of
administration were issued in favor
of Clement J. McLaughlin all in
accordance with the laws of the said
foreign country on procedure and
allowance of wills (Exhibits E to E-
10); and that the petitioner is not
suffering from any disqualification
which would render her unfit as
administratrix of the estate in the
Philippines of the late Adoracion C.
Campos.
WHEREFORE, the Last Will and
Testament of the late Adoracion C.
Campos is hereby admitted to and
allowed probate in the Philippines,
and Nenita Campos Paguia is
hereby appointed Administratrix of
the estate of said decedent; let
Letters of Administration with the
Will annexed issue in favor of said
Administratrix upon her filing of a
bond in the amount of P5,000.00
conditioned under the provisions of
Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on
April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his
voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a
petition for relief, praying that the order allowing the
will be set aside on the ground that the withdrawal
of his opposition to the same was secured through
fraudulent means. According to him, the "Motion to
Dismiss Opposition" was inserted among the
papers which he signed in connection with two
Deeds of Conditional Sales which he executed with
the Construction and Development Corporation of
the Philippines (CDCP). He also alleged that the
lawyer who filed the withdrawal of the opposition
was not his counsel-of-record in the special
proceedings case.
95
The petition for relief was set for hearing but the
petitioner failed to appear. He made several
motions for postponement until the hearing was set
on May 29, 1980.
On May 18, 1980, petitioner filed another motion
entitled "Motion to Vacate and/or Set Aside the
Order of January 10, 1979, and/or dismiss the case
for lack of jurisdiction. In this motion, the notice of
hearing provided:
Please include this motion in your
calendar for hearing on May 29,
1980 at 8:30 in the morning for
submission for reconsideration and
resolution of the Honorable Court.
Until this Motion is resolved, may I
also request for the future setting of
the case for hearing on the
Oppositor's motion to set aside
previously filed.
The hearing of May 29, 1980 was re-set by the
court for June 19, 1980. When the case was called
for hearing on this date, the counsel for petitioner
tried to argue his motion to vacate instead of
adducing evidence in support of the petition for
relief. Thus, the respondent judge issued an order
dismissing the petition for relief for failure to present
evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was
denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit.
Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has
been questioned by the respondent, his children
and forced heirs as, on its face, patently null and
void, and a fabrication, appointing Polly Cayetano
as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute
herself as petitioner in the instant case which was
granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that
the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the
respondent and her sisters, only remaining children
and forced heirs was denied on September 12,
1983.

Petitioner Cayetano persists with the allegations
that the respondent judge acted without or in
excess of his jurisdiction when:
1) He ruled the petitioner lost his
standing in court deprived the Right
to Notice (sic) upon the filing of the
Motion to Dismiss opposition with
waiver of rights or interests against
the estate of deceased Adoracion C.
Campos, thus, paving the way for
the hearing ex-parte of the petition
for the probate of decedent will.
2) He ruled that petitioner can waive,
renounce or repudiate (not made in
a public or authenticated
instrument), or by way of a petition
presented to the court but by way of
a motion presented prior to an order
for the distribution of the estate-the
law especially providing that
repudiation of an inheritance must
be presented, within 30 days after it
has issued an order for the
distribution of the estate in
accordance with the rules of Court.
3) He ruled that the right of a forced
heir to his legitime can be divested
by a decree admitting a will to
probate in which no provision is
made for the forced heir in complete
disregard of Law of Succession
4) He denied petitioner's petition for
Relief on the ground that no
evidence was adduced to support
the Petition for Relief when no
Notice nor hearing was set to afford
petitioner to prove the merit of his
petition — a denial of the due
process and a grave abuse of
discretion amounting to lack of
jurisdiction.
5) He acquired no jurisdiction over
the testate case, the fact that the
Testator at the time of death was a
usual resident of Dasmariñas,
Cavite, consequently Cavite Court of
First Instance has exclusive
jurisdiction over the case (De Borja
96
vs. Tan, G.R. No. L-7792, July
1955).
The first two issues raised by the petitioner are
anchored on the allegation that the respondent
judge acted with grave abuse of discretion when he
allowed the withdrawal of the petitioner's opposition
to the reprobate of the will.
We find no grave abuse of discretion on the part of
the respondent judge. No proof was adduced to
support petitioner's contention that the motion to
withdraw was secured through fraudulent means
and that Atty. Franco Loyola was not his counsel of
record. The records show that after the firing of the
contested motion, the petitioner at a later date, filed
a manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary act
and deed. Moreover, at the time the motion was
filed, the petitioner's former counsel, Atty. Jose P.
Lagrosa had long withdrawn from the case and had
been substituted by Atty. Franco Loyola who in turn
filed the motion. The present petitioner cannot,
therefore, maintain that the old man's attorney of
record was Atty. Lagrosa at the time of filing the
motion. Since the withdrawal was in order, the
respondent judge acted correctly in hearing the
probate of the will ex-parte, there being no other
opposition to the same.
The third issue raised deals with the validity of the
provisions of the will. As a general rule, the probate
court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the
testatrix's testamentary capacity and the
compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will
normally comes only after the court has declared
that the will has been duly authenticated. However,
where practical considerations demand that the
intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the
issue. (Maninang vs. Court of Appeals, 114 SCRA
478).
In the case at bar, the petitioner maintains that
since the respondent judge allowed the reprobate
of Adoracion's will, Hermogenes C. Campos was
divested of his legitime which was reserved by the
law for him.
This contention is without merit.

Although on its face, the will appeared to have
preterited the petitioner and thus, the respondent
judge should have denied its reprobate outright, the
private respondents have sufficiently established
that Adoracion was, at the time of her death, an
American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore,
under Article 16 par. (2) and 1039 of the Civil Code
which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary
successions, both with respect to the
order of succession and to the
amount of successional rights and to
the intrinsic validity of testamentary
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the
country wherein said property may
be found.
Art. 1039.
Capacity to succeed is governed by
the law of the nation of the
decedent.
the law which governs Adoracion Campo's will is
the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the parties
admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given
away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply
because it would be contrary to the sound and
established public policy and would run counter to
the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic
validity of the provisions of the will, as provided for
by Article 16(2) and 1039 of the Civil Code, the
national law of the decedent must apply. This was
squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:
It is therefore evident that whatever
public policy or good customs may
97
be involved in our system of
legitimes, Congress has not
intended to extend the same to the
succession of foreign nationals. For
it has specifically chosen to leave,
inter alia, the amount of
successional rights, to the
decedent's national law. Specific
provisions must prevail over general
ones.
xxx xxx xxx
The parties admit that the decedent,
Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and under
the law of Texas, there are no forced
heirs or legitimes. Accordingly, since
the intrinsic validity of the provision
of the will and the amount of
successional rights are to be
determined under Texas law, the
Philippine Law on legitimes cannot
be applied to the testacy of Amos G.
Bellis.
As regards the alleged absence of notice of hearing
for the petition for relief, the records wig bear the
fact that what was repeatedly scheduled for hearing
on separate dates until June 19, 1980 was the
petitioner's petition for relief and not his motion to
vacate the order of January 10, 1979. There is no
reason why the petitioner should have been led to
believe otherwise. The court even admonished the
petitioner's failing to adduce evidence when his
petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that
he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing,
the motion to vacate would be heard and given
preference in lieu of the petition for relief.
Furthermore, such request should be embodied in
a motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to
the issue of jurisdiction utterly devoid of merit.
Under Rule 73, Section 1, of the Rules of Court, it
is provided that:
SECTION 1. Where estate of
deceased persons settled. — If the
decedent is an inhabitant of the
Philippines at the time of his death,
whether a citizen or an alien, his will
 98

shall be proved, or letters of

administration granted, and his
estate settled, in the Court of First
Instance in the province in which he
resided at the time of his death, and
if he is an inhabitant of a foreign
country, the Court of First Instance
of any province in which he had
estate. The court first taking
cognizance of the settlement of the
estate of a decedent, shall exercise
jurisdiction to the exclusion of all
other courts. The jurisdiction
assumed by a court, so far as it
depends on the place of residence
of the decedent, or of the location of
his estate, shall not be contested in
a suit or proceeding, except in an
appeal from that court, in the original
case, or when the want of
jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion

Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it
was alleged and proven that Adoracion at the time
of her death was a citizen and permanent resident
of Pennsylvania, United States of America and not
a "usual resident of Cavite" as alleged by the
petitioner. Moreover, petitioner is now estopped
from questioning the jurisdiction of the probate
court in the petition for relief. It is a settled rule that
a party cannot invoke the jurisdiction of a court to
secure affirmative relief, against his opponent and
after failing to obtain such relief, repudiate or
question that same jurisdiction. (See Saulog
Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R.
No. 63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and

prohibition is hereby dismissed for lack of merit.

SO ORDERED.

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.
San Juan, Africa, Gonzales and San Agustin for
Philippine Commercial and Industrial Bank.
Manglapus Law Office, Antonio Law Office and
Rizal R. Quimpo for private respondents and
appellees Avelina A. Magno, etc., et al.
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
99
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
100
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:
101
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
102
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",
103
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
Likewise the following:
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
104
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.)
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
105
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
106
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
107
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 administratrix, Miss Avelina A.
Magno, the Court finds that
everything that happened before
September 3, 1964, which was
resolved on September 8, 1964, to
the satisfaction of parties, was
simply due to a misunderstanding
between the representative of the
Philippine Commercial and Industrial
Bank and Miss Magno and 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 on October 3, as formerly
agreed upon between counsels,
Attys. Ozaeta, Gibbs and Ozaeta,
Attys. Tirol and Tirol and Atty. Rizal
Quimpo.
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
108
of October 27, 1965, on pages 292-295 of the
Green Record on Appeal, as follows:
On record is an urgent motion to
allow PCIB to open all doors and
locks in the Hodges Office at 206-
208 Guanco Street, Iloilo City, to
take immediate and exclusive
possession thereof and to place its
own locks and keys for security
purposes of the PCIB dated October
27, 1965 thru Atty. Cesar Tirol. It is
alleged in said urgent motion 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 is prayed that an
order be issued authorizing it (PCIB)
to open all doors and locks in the
said office, to take immediate and
exclusive possession thereof and
place thereon its own locks and keys
for security purposes; instructing the
clerk of court or any available deputy
to witness and supervise the
opening of all doors and locks and
taking possession of the PCIB.
A written opposition has been filed
by Administratrix Magno of even
date (Oct. 27) thru counsel Rizal
Quimpo stating therein that she was
compelled to close the office for the
reason that the PCIB failed to
comply with the order of this Court
signed by Judge Anacleto I.
Bellosillo dated September 11, 1964
to the effect that both estates should
remain in status quo to their modus
operandi as of September 1, 1964.
To arrive at a happy solution of the
dispute and in order not to interrupt
the operation 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.

After due consideration, the Court
hereby orders Magno to open all
doors and locks in the Hodges Office
at 206-208 Guanco Street, Iloilo City
in the presence of the PCIB or its
duly authorized representative and
deputy clerk of court Albis of this
branch not later than 7:30 tomorrow
morning October 28, 1965 in order
that the office of said estates could
operate for business.
Pursuant to the order of this Court
thru Judge Bellosillo dated
September 11, 1964, it is hereby
ordered:
(a) That all cash collections should
be deposited in the joint account of
the estates of Linnie Jane Hodges
and estates of C.N. Hodges;
(b) That whatever cash collections
that had been deposited in the
account of either of the estates
should be withdrawn and since then
deposited in the joint account of the
estate of Linnie Jane Hodges and
the estate of C.N. Hodges;
(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 records of the
transactions of both estates for the
109
protection of the estate of Linnie
Jane Hodges; and in like manner the
accountant or any authorized
representative of the estate of C.N.
Hodges shall have access to the
records of transactions of the Linnie
Jane Hodges estate for the
protection of the estate of C.N.
Hodges.
Once the estates' office shall have
been opened by Administratrix
Magno in the presence of the PCIB
or its duly authorized representative
and deputy clerk Albis or his duly
authorized representative, both
estates or any of the estates should
not close it without previous consent
and authority from this court.
SO ORDERED.
As may be noted, in this order, the respondent
court required that all collections from the
properties in the name of Hodges should be
deposited in a joint account of the two estates,
which indicates that seemingly the so-called modus
operandi was no longer operative, but again there
is nothing to show when this situation started.
Likewise, in paragraph 3 of the petitioner's motion
of September 14, 1964, on pages 188-201 of the
Green Record on Appeal, (also found on pp. 83-91
of the Yellow Record on Appeal) it is alleged that:
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 Ardell 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 aforementioned 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 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
110
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.
111
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,
112
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
113
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
 114

Sale for Registered Land and Simplicio Tingson,

Cancellations of Mortgages" (CFI Iloilo City
Record, Sp. Proc. No. 1307, Vol. Amado Magbanua,
VIII, pp. 6570-6596) the allegations Pototan, Iloilo
of which read: Roselia M. Baes,
Bolo, Roxas City
"1. In his lifetime, the late C. N. William Bayani, Rizal
Hodges executed "Contracts to Sell" Estanzuela, Iloilo City
real property, and the prospective Elpidio Villarete,
buyers under said contracts have Molo, Iloilo City
already paid the price and complied Norma T. Ruiz, Jaro,
with the terms and conditions Iloilo City
thereof;
"4. That the approval
"2. In the course of administration of of the aforesaid
both estates, mortgage debtors have documents will not
already paid their debts secured by reduce the assets of
chattel mortgages in favor of the late the estates so as to
C. N. Hodges, and are now entitled prevent any creditor
to release therefrom; from receiving his full
debt or diminish his
"3. There are attached hereto dividend."
documents executed jointly by the
Administratrix in Sp. Proc. No. 1307 And the prayer of this motion is
and the Administrator in Sp. Proc. indeed very revealing:
No. 1672, consisting of deeds of
sale in favor — "WHEREFORE, it is respectfully
prayed that, under Rule 89, Section
Fernando Cano, 8 of the Rules of Court, this
Bacolod City, Occ. honorable court approve the
Negros aforesaid deeds of sale and
Fe Magbanua, Iloilo cancellations of mortgages." (Pp.
City 113-117, Appellee's Brief.)
Policarpio M. Pareno,
La Paz, Iloilo City None of these assertions is denied in Petitioner's
Rosario T. Libre, reply brief.
Jaro, Iloilo City
Federico B. Torres, Further indicating lack of concrete perspective or
Iloilo City orientation on the part of the respondent court and
Reynaldo T. Lataquin, its hesitancy to clear up matters promptly, in its
La Paz, Iloilo City other appealed order of November 23, 1965, on
Anatolio T. Viray, pages 334-335 of the Green Record on Appeal,
Iloilo City said respondent court allowed the movant Ricardo
Benjamin Rolando, Salas, President of appellee Western Institute of
Jaro, Iloilo City Technology (successor of Panay Educational
Institutions, Inc.), one of the parties with whom
and cancellations of mortgages in Hodges had contracts that are in question in the
favor of — appeals herein, to pay petitioner, as Administrator
of the estate of Hodges and/or respondent Magno,
Pablo Manzano, as Administrator of the estate of Mrs. Hodges, thus:
Oton, Iloilo
Ricardo M. Diana, Considering that in both cases there
Dao, San Jose, is as yet no judicial declaration of
Antique 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.
SO ORDERED.
(Pp. 334-335, Green Record on
Appeal.)
On the other hand, as stated earlier, there were
instances when respondent Magno was given
authority to act alone. For instance, in the other
appealed order of December 19, 1964, on page
221 of the Green Record on Appeal, the
respondent court approved payments made by her
of overtime pay to some employees of the court
who had helped in gathering and preparing copies
of parts of the records in both estates as follows:
Considering that the expenses
subject of the motion to approve
payment of overtime 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 Hodges, the
said expenses are hereby
APPROVED and to be charged
against the testate estate of the late
Linnie Jane Hodges. The
administrator of the testate estate of
the late Charles Newton Hodges is
hereby ordered to countersign the
check or checks necessary to pay
the said overtime pay as shown by
the bills marked Annex "A", "B" and
"C" of the motion.
SO ORDERED.
(Pp. 221-222, Green Record on
Appeal.)
115
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 the death of his wife. The orders of
this nature which are also on appeal herein are the
following:
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
116
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
 117

THE DECEASED (p. 44, Rec. Sp. Proc.

LINNIE JANE 1307; emphasis
HODGES AND C N. supplied.)
HODGES EXISTING
AS OF MAY 23, 1957 issued the following order:
PLUS ALL THE
RENTS, "As prayed for by
EMOLUMENTS AND Attorney Gellada,
INCOME counsel for the
THEREFROM. Executory, for the
reasons stated in his
COMES NOW the co-administrator motion dated
of the estate of C. N. Hodges, Joe December 11, 1957
Hodges, through his undersigned which the court
attorneys in the above-entitled considers well taken,
proceedings, and to this Honorable all the sales,
Court respectfully alleges: conveyances, leases
and mortgages of all
(1) On May 23, 1957 Linnie Jane properties left by the
Hodges died in Iloilo City. deceased Linnie Jane
Hodges are hereby
(2) On June 28, 1957 this Honorable APPROVED. The
Court admitted to probate the Last said executor is
Will and Testament of the deceased further authorized to
Linnie Jane Hodges executed execute subsequent
November 22, 1952 and appointed sales, conveyances,
C. N. Hodges as Executor of the leases and
estate of Linnie Jane Hodges (pp. mortgages of the
24-25, Rec. Sp. Proc. 1307). properties left by the
said deceased Linnie
(3) On July 1, 1957 this Honorable Jane Hodges in
Court issued Letters Testamentary consonance with the
to C. N. Hodges in the Estate of wishes contained in
Linnie Jane Hodges (p. 30, Rec. Sp. the last will and
Proc. 1307). testament of the
latter."
(4) On December 14, 1957 this
Honorable Court, on the basis of the (p. 46, Rec. Sp. Proc.
following allegations in a Motion 1307; emphasis
dated December 11, 1957 filed by supplied.)
Leon P. Gellada as attorney for the
executor C. N. Hodges: (5) On April 21, 1959 this Honorable
Court approved the inventory and
"That herein accounting submitted by C. N.
Executor, (is) not only Hodges through his counsel Leon P.
part owner of the Gellada on April 14, 1959 wherein
properties left as he alleged among other things
conjugal, but also, the
successor to all the "That no person
properties left by the interested in the
deceased Linnie Jane Philippines of the time
Hodges." and place of
examining the herein
account, be given
 118

notice, as herein Philippines be given

executor is the only notice, of the time
devisee or legatee of and place of
the deceased, in examining the herein
accordance with the account, as herein
last will and Executor is the only
testament already devisee or legatee of
probated by the the deceased Linnie
Honorable Court." Jane Hodges, in
accordance with the
(pp. 77-78, Rec. Sp. last will and
Proc. 1307; emphasis testament of the
supplied.). deceased, already
probated by this
(6) On July 30, 1960 this Honorable Honorable Court.
Court approved the "Annual
Statement of Account" submitted by (pp. 90-91. Rec. Sp.
C. N. Hodges through his counsel Proc. 1307; emphasis
Leon P. Gellada on July 21, 1960 supplied.)
wherein he alleged among other
things: (8) On December 25, 1962, C.N.
Hodges died.
"That no person
interested in the (9) On December 25, 1962, on the
Philippines of the time Urgent Ex-parte Motion of Leon P.
and place of Gellada filed only in Special
examining the herein Proceeding No. 1307, this
account, be given Honorable Court appointed Avelina
notice as herein A. Magno
executor is the only
devisee or legatee of "Administratrix of the estate of Linnie
the deceased Linnie Jane Hodges and as Special
Jane Hodges, in Administratrix of the estate of
accordance with the Charles Newton Hodges, in the latter
last will and case, because the last will of said
testament of the Charles Newton Hodges is still kept
deceased, already in his vault or iron safe and that the
probated by this real and personal properties of both
Honorable Court." spouses may be lost, damaged or
go to waste, unless a Special
(pp. 81-82. Rec. Sp. Administratrix is appointed."
Proc. 1307; emphasis
supplied.) (p. 100. 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, 1961 wherein he
alleged:
That no person
interested in the
(10) On December 26, 1962 Letters
of Administration were issued to
Avelina Magno pursuant to this
Honorable Court's aforesaid Order
of December 25, 1962
"With full authority to
take possession of all
the property of said
deceased in any
 119

province or provinces vender, firmados, en

in which it may be vida, por el finado
situated and to Charles Newton
perform all other acts Hodges, cada vez
necessary for the que el precio
preservation of said estipulado en cada
property, said contrato este
Administratrix and/or totalmente pagado.
Special Administratrix Se autoriza
having filed a bond igualmente a la
satisfactory to the misma a firmar
Court." escrituras de
cancelacion de
(p. 102, Rec. Sp. hipoteca tanto de
Proc. 1307) bienes reales como
personales cada vez
(11) On January 22, 1963 this que la consideracion
Honorable Court on petition of Leon de cada hipoteca este
P. Gellada of January 21, 1963 totalmente pagada.
issued Letters of Administration to:
"Cada una de dichas
(a) Avelina A. Magno as escrituras que se
Administratrix of the estate of Linnie otorguen debe ser
Jane Hodges; sometida para la
aprobacion de este
(b) Avelina A. Magno as Special Juzgado."
Administratrix of the Estate of
Charles Newton Hodges; and (p. 117, Sp. Proc.
1307).
(c) Joe Hodges as Co-Special
Administrator of the Estate of [Par 1 (c), Reply to
Charles Newton Hodges. Motion For Removal
of Joe Hodges]
(p. 43, Rec. Sp. Proc. 1307)
(13) On September l6, 1963 Leon P.
(12) On February 20, 1963 this Gellada, acting as attorney for
Honorable Court on the basis of a Avelina A. Magno as Administratrix
motion filed by Leon P. Gellada as of the estate of Linnie Jane Hodges,
legal counsel on February 16, 1963 alleges:
for Avelina A. Magno acting as
Administratrix of the Estate of 3. — That since
Charles Newton Hodges (pp. 114- January, 1963, both
116, Sp. Proc. 1307) issued the estates of Linnie Jane
following order: Hodges and Charles
Newton Hodges have
"... se autoriza a been receiving in full,
aquella (Avelina A. payments for those
Magno) a firmar "contracts to sell"
escrituras de venta entered into by C. N.
definitiva de Hodges during his
propiedades lifetime, and the
cubiertas por purchasers have
contratos para been demanding the
execution of definite
 120

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." (16) Avelina A. Magno, it is alleged
on information and belief, has paid
(14) The properties involved in the and still is paying sums of money to
aforesaid motion of September 16, sundry persons.
1963 are all registered in the name
of the deceased C. N. Hodges. (17) Joe Hodges through the
undersigned attorneys manifested
(15) Avelina A. Magno, it is alleged during the hearings before this
on information and belief, has been Honorable Court on September 5
advertising in the newspaper in Iloilo and 6, 1963 that the estate of C. N.
thusly: Hodges was claiming all of the
assets belonging to the deceased
For Sale spouses Linnie Jane Hodges and C.
N. Hodges situated in Philippines
Testate Estate of Linnie Jane because of the aforesaid election by
Hodges and Charles Newton C. N. Hodges wherein he claimed
Hodges. and took possession as sole owner
of all of said assets during the
All Real Estate or Personal Property administration of the estate of Linnie
will be sold on First Come First Jane Hodges on the ground that he
Served Basis. was the sole devisee and legatee
under her Last Will and Testament.
A
(18) Avelina A.vMagno has
submitted no inventory
e and
accounting of herl administration as
Administratrix ofi the estate of Linnie
Jane Hodges and n Special
Administratrix ofa the estate of C. N.
Hodges. However, from
manifestations Amade by Avelina A.
Magno and her. legal counsel, Leon
P. Gellada, there is no question she
will claim that at
Mleast fifty per cent
(50%) of the conjugal
a assets of the
 121

deceased spouses and the rents, petitioner Philippine Commercial and Industrial
emoluments and income therefrom Bank as sole administrator, pursuant to an
belong to the Higdon family who are agreement of all the heirs of Hodges approved by
named in paragraphs Fourth and the court, and because the above motion of
Fifth of the Will of Linnie Jane October 5, 1963 had not yet been heard due to the
Hodges (p. 5, Rec. Sp. Proc. 1307). absence from the country of Atty. Gibbs, petitioner
filed the following:
WHEREFORE, premises
considered, movant respectfully MANIFESTATION
prays that this Honorable Court, AND MOTION,
after due hearing, order: INCLUDING MOTION
TO SET FOR
(1) Avelina A. Magno to submit an HEARING AND
inventory and accounting of all of the RESOLVE "URGENT
funds, properties and assets of any MOTION FOR AN
character belonging to the deceased ACCOUNTING AND
Linnie Jane Hodges and C. N. DELIVERY TO
Hodges which have come into her ADMINISTRATORS
possession, with full details of what OF THE ESTATE OF
she has done with them; C. N. HODGES OF
ALL THE ASSETS
(2) Avelina A. Magno to turn over OF THE CONJUGAL
and deliver to the Administrator of PARTNERSHIP OF
the estate of C. N. Hodges all of the THE DECEASED
funds, properties and assets of any LINNIE JANE
character remaining in her HODGES AND C. N.
possession; HODGES EXISTING
AS OF MAY 23, 1957
(3) Pending this Honorable Court's PLUS ALL OF THE
adjudication of the aforesaid issues, RENTS,
Avelina A. Magno to stop, unless EMOLUMENTS AND
she first secures the conformity of INCOME
Joe Hodges (or his duly authorized THEREFROM OF
representative, such as the OCTOBER 5, 1963.
undersigned attorneys) as the Co-
administrator and attorney-in-fact of COMES NOW Philippine
a majority of the beneficiaries of the Commercial and Industrial Bank
estate of C. N. Hodges: (hereinafter referred to as PCIB), the
administrator of the estate of C. N.
(a) Advertising the sale and the sale Hodges, deceased, in Special
of the properties of the estates: Proceedings No. 1672, through its
undersigned counsel, and to this
(b) Employing personnel and paying Honorable Court respectfully alleges
them any compensation. that:

(4) Such other relief as this 1. On October 5, 1963, Joe Hodges

Honorable Court may deem just and
equitable in the premises. (Annex
"T", Petition.)
Almost a year thereafter, or on September 14,
1964, after the co-administrators Joe Hodges and
Fernando P. Mirasol were replaced by herein
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
122
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
 123

to reopen same until the 1964 income

ordered to do so by taxes reported due
this Honorable Court and payable by the
on September 7, estate of C.N.
1964. Hodges.

(b) Avelina A. Magno 7. Under and pursuant to the orders

illegally acts as of this Honorable Court, particularly
though she alone those of January 24 and February 1,
may decide how the 1964, and the mandate contained in
assets of the estate of its Letters of Administration issued
C.N. Hodges should on January 24, 1964 to the PCIB, it
be administered, who has
the PCIB shall
employ and how "full
much they may be authori
paid as evidenced in ty to
party by her refusal to take
sign checks issued by posses
the PCIB payable to sion of
the undersigned all the
counsel pursuant to propert
their fee agreement y of
approved by this the
Honorable Court in its deceas
order dated March ed C.
31, 1964. N.
Hodge
(c) Avelina A. Magno s
illegally gives access
to and turns over "and to perform all
possession of the other acts necessary
records and assets of for the preservation of
the estate of C.N. said property." (p.
Hodges to the 914, CFI Rec., S.P.
attorney-in-fact of the No. 1672.)
Higdon Family, Mr.
James L. Sullivan, as 8. As administrator of the estate of
evidenced in part by C. N. Hodges, the PCIB claims the
the cashing of his right to the immediate exclusive
personal checks. possession and control of all of the
properties, accounts receivables,
(d) Avelina A. Magno court cases, bank accounts and
illegally refuses to other assets, including the
execute checks documentary records evidencing
prepared by the PCIB same, which existed in the
drawn to pay Philippines on the date of C. N.
expenses of the Hodges' death, December 25, 1962,
estate of C. N. and were in his possession and
Hodges as evidenced registered in his name alone. The
in part by the check PCIB knows of no assets in the
drawn to reimburse Philippines registered in the name of
the PCIB's advance Linnie Jane Hodges, the estate of
of P48,445.50 to pay Linnie Jane Hodges, or, C. N.
 124

Hodges, Executor of the Estate of Hodges along with

Linnie Jane Hodges on December Avelina A. Magno
25, 1962. All of the assets of which (pp. 108-111, CFI
the PCIB has knowledge are either Rec., S. P. No. 1307).
registered in the name of C. N.
Hodges, alone or were derived (c) On January 22,
therefrom since his death on 1963, with the
December 25, 1962. conformity of Avelina
A. Magno, Harold K.
9. The PCIB as the current Davies resigned in
administrator of the estate of C. N. favor of Joe Hodges
Hodges, deceased, succeeded to all (pp. 35-36, CFI Rec.,
of the rights of the previously duly S.P. No. 1672) who
appointed administrators of the thereupon was
estate of C. N. Hodges, to wit: appointed on January
22, 1963 by this
(a) On December 25, Honorable Court as
1962, date of C. N. special co-
Hodges' death, this administrator of the
Honorable Court estate of C.N.
appointed Miss Hodges (pp. 38-40 &
Avelina A. Magno 43, CFI Rec. S.P. No.
simultaneously as: 1672) along with Miss
Magno who at that
(i) Administratrix of time was still acting
the estate of Linnie as special co-
Jane Hodges (p. 102, administratrix of the
CFI Rec., S.P. No. estate of C. N.
1307) to replace the Hodges.
deceased C. N.
Hodges who on May (d) On February 22,
28, 1957 was 1963, without
appointed Special objection on the part
Administrator (p. 13. of Avelina A. Magno,
CFI Rec. S.P. No. this Honorable Court
1307) and on July 1, appointed Joe
1957 Executor of the Hodges and
estate of Linnie Jane Fernando P. Mirasol
Hodges (p. 30, CFI as co-administrators
Rec., S. P. No. 1307). of the estate of C.N.
Hodges (pp. 76-78,
(ii) Special 81 & 85, CFI Rec.,
Administratrix of the S.P. No. 1672).
estate of C. N.
Hodges (p. 102, CFI 10. Miss Avelina A. Magno, pursuant
Rec., S.P. No. 1307). to the orders of this Honorable Court
of December 25, 1962, took
(b) On December 29, possession of all Philippine Assets
1962 this Honorable now claimed by the two estates.
Court appointed Legally, Miss Magno could take
Harold K. Davies as possession of the assets registered
co-special in the name of C. N. Hodges alone
administrator of the only in her capacity as Special
estate of C.N. Administratrix of the Estate of C.N.
 125

Hodges. With the appointment by Jane Hodges (pp. 18,

this Honorable Court on February 25-33, CFI Rec., S. P.
22, 1963 of Joe Hodges and No. 1672).
Fernando P. Mirasol as the co-
administrators of the estate of C.N. Note: This accounting was approved
Hodges, they legally were entitled to by this Honorable Court on January
take over from Miss Magno the full 22, 1963 (p. 34, CFI Rec., S. P. No.
and exclusive possession of all of 1672).
the assets of the estate of C.N.
Hodges. With the appointment on (b) The accounting of
January 24, 1964 of the PCIB as the Joe Hodges and
sole administrator of the estate of Fernando P. Mirasol
C.N. Hodges in substitution of Joe as of January 23,
Hodges and Fernando P. Mirasol, 1964, filed February
the PCIB legally became the only 24, 1964 (pp. 990-
party entitled to the sole and 1000, CFI Rec. S.P.
exclusive possession of all of the No. 1672 and pp.
assets of the estate of C. N. Hodges. 1806-1848, CFI Rec.
S.P. No. 1307).
11. The PCIB's predecessors
submitted their accounting and this Note: This accounting was approved
Honorable Court approved same, to by this Honorable Court on March 3,
wit: 1964.

(a) The accounting of (c) The PCIB and its

Harold K. Davies undersigned lawyers
dated January 18, are aware of no
1963 (pp. 16-33, CFI report or accounting
Rec. S.P. No. 1672); submitted by Avelina
which shows or its A. Magno of her acts
face the: as administratrix of
the estate of Linnie
(i) Conformity of Jane Hodges or
Avelina A. Magno special administratrix
acting as of the estate of C.N.
"Administratrix of the Hodges, unless it is
Estate of Linnie Jane the accounting of
Hodges and Special Harold K. Davies as
Administratrix of the special co-
Estate of C. N. administrator of the
Hodges"; estate of C.N.
Hodges dated
(ii) Conformity of January 18, 1963 to
Leslie Echols, a which Miss Magno
Texas lawyer acting manifested her
for the heirs of C.N. conformity (supra).
Hodges; and
12. In the aforesaid agreement of January 24,
(iii) Conformity of 1964, Miss Avelina A. Magno agreed to receive
William Brown, a P10,000.00
Texas lawyer acting
for the Higdon family "for her services as
who claim to be the administratrix of the
only heirs of Linnie

estate of Linnie Jane
Hodges"
and in addition she agreed to be
employed, starting February 1, 1964,
at
"a monthly salary of
P500.00 for her
services as an
employee of both
estates."
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.
126
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,
127
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 Will and Testament, a
copy of which is hereto attached
as Annex "A". The bequests in said
will pertinent to the present issue are
the second, third,
and fourth provisions, which we
quote in full hereunder.
 128

SECOND: I give, income from said

devise and bequeath estate shall belong to
all of the rest, residue him, and he is further
and remainder of my authorized to use any
estate, both personal part of the principal of
and real, wherever said estate as he may
situated, or located, need or desire. It is
to my husband, provided herein,
Charles Newton however, that he shall
Hodges, to have and not sell or otherwise
to hold unto him, my dispose of any of the
said husband during improved property
his natural lifetime. now owned by us
located at, in or near
THIRD: I desire, the City of Lubbock,
direct and provide Texas, but he shall
that my husband, have the full right to
Charles Newton lease, manage and
Hodges, shall have enjoy the same
the right to manage, during his lifetime, as
control, use and enjoy above provided. He
said estate during his shall have the right to
lifetime, and he is sub-divide any
hereby given the right farmland and sell lots
to make any changes therein, and may sell
in the physical unimproved town lots.
properties of said
estate by sale of any FOURTH: At the
part thereof which he death of my said
think best, and the husband, Charles
purchase of any other Newton Hodges, I
or additional property give, devise and
as he may think best; bequeath all of the
to execute rest, residue and
conveyances with or remainder of my
without general or estate both real and
special warranty, personal, wherever
conveying in fee situated or located, to
simple or for any be equally divided
other term or time, among my brothers
any property which he and sisters, share
may deem proper to and share alike,
dispose of; to lease namely:
any of the real
property for oil, gas "Esta Higdon, Emma
and/or other minerals, Howell, Leonard
and all such deeds or Higdon, Roy Higdon,
leases shall pass the Sadie Rascoe, Era
absolute fee simple Boman and Nimray
title to the interest so Higdon."
conveyed in such
property as he may 4. On November 14, 1953, C. N.
elect to sell. All rents, Hodges executed in the City of Iloilo
emoluments and his Last Will and Testament, a copy
 129

of which is hereto attached as Annex nature of the property

"B ". In said Will, C. N. Hodges and regardless of the
designated his wife, Linnie Jane country wherein said
Hodges, as his beneficiary using the property may be
identical language she used in the found", shall prevail.
second and third provisos of her However, the Conflict
Will, supra. of Law of Texas,
which is the "national
5. On May 23, 1957 Linnie Jane law" of the testatrix,
Hodges died in Iloilo City, Linnie Jane Hodges,
predeceasing her husband by more provide that the
than five (5) years. At the time of her domiciliary law
death, she had no forced or (Philippine law — see
compulsory heir, except her paragraph 2, supra)
husband, C. N. Hodges. She was should govern the
survived also by various brothers testamentary
and sisters mentioned in her Will dispositions and
(supra), which, for convenience, we successional rights
shall refer to as the HIGDONS. over movables
(personal properties),
6. On June 28, 1957, this Honorable and the law of the
Court admitted to probate the Last situs of the property
Will and Testament of the deceased (also Philippine law
Linnie Jane Hodges (Annex "A"), as to properties
and appointed C. N. Hodges as located in the
executor of her estate without bond. Philippines) with
(CFI Record, Sp. Proc. No. 1307, regards immovable
pp. 24-25). On July 1, 1957, this (real properties).
Honorable Court issued letters Thus applying the
testamentary to C. N. Hodges in the "Renvoi Doctrine", as
estate of Linnie Jane Hodges. (CFI approved and applied
Record, Sp. Proc. No. 1307, p. 30.) by our Supreme
Court in the case of
7. The Will of Linnie Jane Hodges, "In The Matter Of The
with respect to the order of Testate Estate of
succession, the amount of Eduard E.
successional rights, and the intrinsic Christensen", G.R.
of its testamentary provisions, No.
should be governed by Philippine L-16749, promulgated
laws because: January 31, 1963,
Philippine law should
(a) The testatrix, apply to the Will of
Linnie Jane Hodges, Linnie Jane Hodges
intended Philippine and to the
laws to govern her successional rights to
Will; her estate insofar as
her movable and imm
ovable assets in the
(b) Article 16 of the
Philippines are
Civil Code provides
concerned. We shall
that "the national law
not, at this stage,
of the person whose
discuss what law
succession is under
should govern the
consideration,
assets of Linnie Jane
whatever may be the

Hodges located in
Oklahoma and Texas,
because the only
assets in issue in this
motion are those
within the jurisdiction
of this motion Court in
the two above-
captioned Special
Proceedings.
8. Under Philippine and Texas law,
the conjugal or community estate of
spouses shall, 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 Hodges spouses constituting
their conjugal estate pertained
automatically to Charles 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 estate
capable of inheritance by her heirs.
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. Linnie Jane Hodges' Will
provides that "all rents, emoluments
and income from said estate shall
belong to him (C. N. Hodges) and he
is further authorized to use any part
of the principal of said estate as he
may need or desire." (Paragraph 3,
Annex "A".) Thus, by specific
provision of Linnie Jane Hodges'
Will, "all rents, emoluments and
income" 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 her heirs,
consisted exclusively of no more
130
than one-half (1/2) of the conjugal
estate, computed as of the time of
her death on May 23, 1957.
10. Articles 900, 995 and 1001 of the
New Civil Code provide that the
surviving spouse of a deceased
leaving no ascendants or
descendants is entitled, as a matter
of right and by way of irrevocable
legitime, to at least one-half (1/2) of
the estate of the deceased, and no
testamentary disposition by the
deceased can legally and validly
affect this right of the surviving
spouse. In fact, her husband is
entitled to said one-half (1/2) portion
of her estate by way of legitime.
(Article 886, Civil Code.) Clearly,
therefore, immediately upon the
death of Linnie Jane Hodges, C. N.
Hodges was the owner of at least
three-fourths (3/4) or seventy-five
(75%) percent of all of the conjugal
assets of the spouses, (1/2 or 50%
by way of conjugal partnership share
and 1/4 or 25% by way of
inheritance and legitime) plus all
"rents, emoluments and income"
accruing to said conjugal estate from
the moment of Linnie Jane Hodges'
death (see paragraph 9, supra).
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 all the assets constituting
her estate, except only with regards
certain properties "owned by us,
located at, in or near the City of
Lubbock, Texas". Thus, even
without 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 his wife's estate in the Philippines.
12. Article 777 of the New Civil Code
provides that "the rights of the
successor are transmitted from the
death of the decedent". Thus, title to

the estate of Linnie Jane Hodges
was transmitted to C. N. Hodges
immediately upon her death on May
23, 1957. 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 with Philippine law and
the Will of Linnie Jane Hodges.
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 to
himself the entirety of her estate. He
operated all the assets, engaged in
business and performed all acts in
connection with the entirety of the
conjugal estate, in his own name
alone, just as he had been
operating, engaging and doing while
the late Linnie Jane Hodges was still
alive. Upon his death on December
25, 1962, therefore, all said conjugal
assets were in his sole possession
and control, and registered in his
name alone, not as executor, but as
exclusive owner of all said assets.
14. All these acts of C. N. Hodges
were authorized and sanctioned
expressly and impliedly by various
orders of this Honorable Court, as
follows:
(a) In an Order dated May 27, 1957,
this Honorable Court ruled that C. N.
Hodges "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." (CFI Record,
Sp. Proc. No. 1307, p. 11.)
(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:
131
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.' (CFI
Record, Sp. Proc. No. 1307, p. 44;
emphasis supplied.)
issued the following 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 the 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." (CFI
Record. Sp. Proc. No. 1307, p. 46;
emphasis supplied.)
24 ems
(c) On April 21, 1959, this Honorable
Court approved the verified
inventory and accounting submitted
by C. N. Hodges through his counsel
Leon P. Gellada on April 14, 1959
wherein he alleged among other
things,
"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, in
accordance with the
last will and
testament already
 132

probated by the (CFI Record, Sp. Proc. No. 1307,

Honorable Court." pp. 90-91; emphasis supplied.)
(CFI Record, Sp.
Proc. No. 1307, pp. 15. Since C. N. Hodges was the sole
77-78; emphasis and exclusive heir of Linnie Jane
supplied.) Hodges, not only by law, but in
accordance with the dispositions of
(d) On July 20, 1960, this Honorable her will, there was, in fact, no need
Court approved the verified "Annual to liquidate the conjugal estate of the
Statement of Account" submitted by spouses. The entirely of said
C. N. Hodges through his counsel conjugal estate pertained to him
Leon P. Gellada on July 21, 1960 exclusively, therefore this Honorable
wherein he alleged, among other Court sanctioned and authorized, as
things. above-stated, C. N. Hodges to
manage, operate and control all the
"That no person conjugal assets as owner.
interested in the
Philippines of the time 16. By expressly authorizing C. N.
and place of Hodges to act as he did in
examining the herein connection with the estate of his
account, be given wife, this Honorable Court has (1)
notice as herein declared C. N. Hodges as the sole
executor is the only heir of the estate of Linnie Jane
devisee or legatee of Hodges, and (2) delivered and
the deceased Linnie distributed her estate to C. N.
Jane Hodges, in Hodges as sole heir in accordance
accordance with the with the terms and conditions of her
last will and Will. Thus, although the "estate of
testament ofthe Linnie Jane Hodges" still exists as a
deceased, already legal and juridical personality, it had
probated by this no assets or properties located in
Honorable Court." the Philippines registered in its name
(CFI Record, Sp. whatsoever at the time of the death
Proc. No. 1307, pp. of C. N. Hodges on December 25,
81-82; emphasis 1962.
supplied.)
17. The Will of Linnie Jane Hodges
(e) On May 2, 1961, this Honorable (Annex "A"), fourth paragraph,
Court approved the verified "Annual provides as follows:
Statement of Account By The
Executor For the Year 1960" "At the death of my
submitted through Leon P. Gellada said husband,
on April 20, 1961 wherein he Charles Newton
alleged: Hodges, I give,
devise and bequeath
"That no person interested in the all of the rest, residue
Philippines be given notice, ofthe and remainder of my
time and place of examining the estate both real and
herein account, as herein executor is personal, wherever
the only devisee or legatee of the situated or located, to
deceased Linnie Jane Hodges, in be equally divided
accordance with the last will and among my brothers
testament ofthe deceased, already and sisters, share
probated by this Honorable Court."
 133

and share alike, estate. In a recent

namely: case involving a very
similar testamentary
"Esta provision, the
Higdon Supreme Court held
, that the heir first
Emma designated acquired
Howell full ownership of the
, property bequeathed
Leonar by the will, not mere
d usufructuary rights.
Higdon (Consolacion
, Roy Florentino de
Higdon Crisologo, et al., vs.
, Sadie Manuel Singson, G.
Rasco R. No. L-13876,
e, Era February 28, 1962.)
Boman
and (b) Article 864, 872
Nimray and 886 of the New
Higdon Civil Code clearly
." provide that no
charge, condition or
Because of the facts hereinabove substitution
set out there is no "rest, residue and whatsoever upon the
remainder", at least to the extent of legitime can be
the Philippine assets, which remains imposed by a
to vest in the HIGDONS, assuming testator. Thus, under
this proviso in Linnie Jane Hodges' the provisions of
Will is valid and binding against the Articles 900, 995 and
estate of C. N. Hodges. 1001 of the New Civil
Code, the legitime of
18. Any claims by the HIGDONS a surviving spouse is
under the above-quoted provision of 1/2 of the estate of
Linnie Jane Hodges' Will is without the deceased spouse.
merit because said provision is void Consequently, the
and invalid at least as to the above-mentioned
Philippine assets. It should not, in provision in the Will of
anyway, affect the rights of the Linnie Jane Hodges
estate of C. N. Hodges or his heirs is clearly invalid
to the properties, which C. N. insofar as the legitime
Hodges acquired by way of of C. N. Hodges was
inheritance from his wife Linnie Jane concerned, which
Hodges upon her death. consisted of 1/2 of the
1/2 portion of the
(a) In spite of the conjugal estate, or
above-mentioned 1/4 of the entire
provision in the Will of conjugal estate of the
Linnie Jane Hodges, deceased.
C. N. Hodges
acquired, not merely (c) There are
a usufructuary right, generally only two
but absolute title and kinds of substitution
ownership to her provided for and
 134

authorized by our therefore, the

Civil Code (Articles substitution provided
857-870), namely, for by the above-
(1) simple or quoted provision of
common substitution, the Will is not
sometimes referred to authorized by the
as vulgar substitution Code, and, therefore,
(Article 859), and (2) it is void. Manresa,
fideicommissary commenting on these
substitution (Article kisses of substitution,
863). All other meaningfully stated
substitutions are that: "... cuando el
merely variations of testador instituyeun
these. The primer heredero, y
substitution provided por fallecimiento de
for by paragraph four este nombra otro u
of the Will of Linnie otros, ha de
Jane Hodges is not entenderse que estas
fideicommissary segundas
substitution, because designaciones solo
there is clearly no han de llegar a tener
obligation on the part efectividad en el caso
of C. N. Hodges as de que el primer
the first heir instituido muera antes
designated, to que el testador, fuera
preserve the o no esta su
properties for the verdadera intencion.
substitute heirs. ...". (6 Manresa, 7 a
(Consolacion ed., pag. 175.) In
Florentino de other words, when
Crisologo et al. vs. another heir is
Manuel Singson, G. designated to inherit
R. No. upon the death of a
L-13876.) At most, it first heir, the second
is designation can have
a vulgar or simple sub effect only in case the
stitution. However, in first instituted heir
order that dies before the
a vulgar or simple sub testator, whether or
stitution can be valid, not that was the true
three alternative intention of said
conditions must be testator. Since C. N.
present, namely, that Hodges did not die
the first designated before Linnie Jane
heir (1) should die Hodges, the provision
before the testator; or for substitution
(2) should not wish to contained in Linnie
accept the Jane Hodges' Willis
inheritance; or (3) void.
should be
incapacitated to do (d) In view of the
so. None of these invalidity of the
conditions apply to C. provision for
N. Hodges, and, 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;
135
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
 136

the City of Iloilo after having estate, both personal

amassed and accumulated and real, wherever
extensive properties in the situated or located, to
Philippines; my beloved husband,
Charles Newton
2. That on November 22, 1952, Hodges to have and
Linnie Jane Hodges executed a last to hold unto him, my
will and testament (the original of said husband, during
this will now forms part of the his natural lifetime.
records of these proceedings as
Exhibit "C" and appears as Sp. Proc. THIRD: I desire,
No. 1307, Folio I, pp. 17-18); direct and provide
that my husband,
3. That on May 23, 1957, Linnie Charles Newton
Jane Hodges died at the City of Iloilo Hodges, shall have
at the time survived by her husband, the right to manage,
Charles Newton Hodges, and control, use and enjoy
several relatives named in her last said estate during his
will and testament; lifetime, and, he is
hereby given the right
4. That on June 28, 1957, a petition to make any changes
therefor having been priorly filed and in the physical
duly heard, this Honorable Court properties of said
issued an order admitting to probate estate, by sale of any
the last will and testament of Linnie part thereof which he
Jane Hodges (Sp. Proc. No. 1307, may think best, and
Folio I, pp. 24-25, 26-28); the purchase of any
other or additional
5. That the required notice to property as he may
creditors and to all others who may think best; to execute
have any claims against the conveyances with or
decedent, Linnie Jane Hodges has without general or
already been printed, published and special warranty,
posted (Sp. Proc. No. 1307, Folio I. conveying in fee
pp. 34-40) and the reglamentary simple or for any
period for filing such claims has long other term or time,
ago lapsed and expired without any any property which he
claims having been asserted against may deem proper to
the estate of Linnie Jane Hodges, dispose of; to lease
approved by the any of the real
Administrator/Administratrix of the property for oil, gas
said estate, nor ratified by this and/or other minerals,
Honorable Court; and all such deeds or
leases shall pass the
6. That the last will and testament of absolute fee simple
Linnie Jane Hodges already title to the interest so
admitted to probate contains an conveyed in such
institution of heirs in the following property as he elect
words: to sell. All rents,
emoluments and
income from said
"SECOND: I give,
estate shall belong to
devise and bequeath
him, and he is further
all of the rest, residue
authorized to use any
and remainder of my
 137

part of the principal of Newton Hodges, then

said estate as he may it is my will and
need or desire. It is bequest that the heirs
provided herein, of such deceased
however, that he shall brother or sister shall
not sell or otherwise take jointly the share
dispose of any of the which would have
improved property gone to such brother
now owned by us or sister had she or
located at, in or near he survived."
the City of Lubbock
Texas, but he shall 7. That under the provisions of the
have the full right to last will and testament already
lease, manage and above-quoted, Linnie Jane Hodges
enjoy the same gave a life-estate or a usufruct over
during his lifetime, all her estate to her husband,
above provided. He Charles Newton Hodges, and a
shall have the right to vested remainder-estate or the
subdivide any farm naked title over the same estate to
land and sell lots her relatives named therein;
therein, and may sell
unimproved town lots. 8. That after the death of Linnie Jane
Hodges and after the admission to
FOURTH: At the probate of her last will and
death of my said testament, but during the lifetime of
husband, Charles Charles Newton Hodges, the said
Newton Hodges, I Charles Newton Hodges with full
give, devise and and complete knowledge of the life-
bequeath all of the estate or usufruct conferred upon
rest, residue and him by the will since he was then
remainder of my acting as Administrator of the estate
estate, both real and and later as Executor of the will of
personal, wherever Linnie Jane Hodges, unequivocably
situated or located, to and clearly through oral and written
be equally divided declarations and sworn public
among my brothers statements, renounced, disclaimed
and sisters, share and repudiated his life-estate and
and share alike, usufruct over the estate of Linnie
namely: Jane Hodges;

Esta Higdon, Emma 9. That, accordingly, the only heirs

Howell, Leonard left to receive the estate of Linnie
Higdon, Roy Higdon, Jane Hodges pursuant to her last
Sadie Rascoe, Era will and testament, are her named
Boman and Nimroy brothers and sisters, or their heirs, to
Higdon. wit: Esta Higdon, Emma Howell,
Leonard Higdon, Aline Higdon and
FIFTH: In case of the David Higdon, the latter two being
death of any of my the wife and son respectively of the
brothers and/or deceased Roy Higdon, Sadie
sisters named in item Rascoe Era Boman and Nimroy
Fourth, above, prior Higdon, all of legal ages, American
to the death of my citizens, with residence at the State
husband, Charles of Texas, United States of America;
 138

10. That at the time of the death of and income" as that of the share
Linnie Jane Hodges on May 23, pertaining to Linnie Jane Hodges,
1957, she was the co-owner continued to be burdened by
(together with her husband Charles charges, expenditures, and other
Newton Hodges) of an undivided dispositions which are purely
one-half interest in their conjugal personal to him in nature, until the
properties existing as of that date, death of Charles Newton Hodges
May 23, 1957, which properties are himself on December 25, 1962;
now being administered sometimes
jointly and sometimes separately by 14. That of all the assets of the
the Administratrix of the estate of combined conjugal estate of Linnie
Linnie Jane Hodges and/or the Jane Hodges and Charles Newton
Administrator of the estate of C. N. Hodges as they exist today, the
Hodges but all of which are under estate of Linnie Jane Hodges is
the control and supervision of this clearly entitled to a portion more
Honorable Court; than fifty percent (50%) as
compared to the portion to which the
11. That because there was no estate of Charles Newton Hodges
separation or segregation of the may be entitled, which portions can
interests of husband and wife in the be exactly determined by the
combined conjugal estate, as there following manner:
has been no such separation or
segregation up to the present, both a. An inventory must
interests have continually earned be made of the
exactly the same amount of "rents, assets of the
emoluments and income", the entire combined conjugal
estate having been continually estate as they existed
devoted to the business of the on the death of Linnie
spouses as if they were alive; Jane Hodges on May
23, 1957 — one-half
12. That the one-half interest of of these assets
Linnie Jane Hodges in the combined belong to the estate
conjugal estate was earning "rents, of Linnie Jane
emoluments and income" until her Hodges;
death on May 23, 1957, when it
ceased to be saddled with any more b. An accounting
charges or expenditures which are must be made of the
purely personal to her in nature, and "rents, emoluments
her estate kept on earning such and income" of all
"rents, emoluments and income" by these assets — again
virtue of their having been expressly one-half of these
renounced, disclaimed and belong to the estate
repudiated by Charles Newton of Linnie Jane
Hodges to whom they were Hodges;
bequeathed for life under the last will
and testament of Linnie Jane c. Adjustments must
Hodges; be made, after
making a deduction of
13. That, on the other hand, the one- charges,
half interest of Charles Newton disbursements and
Hodges in the combined conjugal other dispositions
estate existing as of May 23, 1957, made by Charles
while it may have earned exactly the Newton Hodges
same amount of "rents, emoluments 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)
139
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.
140
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.
141
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
142
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:
 143

It cannot be over-stressed that the conveyances, leases and mortgages

motion of December 11, 1957 was of all properties left by the deceased
based on the fact that: Linnie Jane Hodges executed by the
late Charles Newton Hodges, but
a. Under the last will also authorized "all subsequent
and testament of the sales, conveyances, leases and
deceased, Linnie mortgages of the properties left by
Jane Hodges, the late the said deceased Linnie Jane
Charles Newton Hodges. (Annex "X", Petition)
Hodges was the sole
heir instituted insofar and reiterated its fundamental pose that the Testate
as her properties in Estate of Linnie Jane Hodges had already been
the Philippines are factually, although not legally, closed with the
concerned; virtual declaration of Hodges and adjudication to
him, as sole universal heir of all the properties of
b. Said last will and the estate of his wife, in the order of December 14,
testament vested 1957, Annex G. Still unpersuaded, on July 18,
upon the said late 1967, respondent court denied said motion for
Charles Newton reconsideration and held that "the court believes
Hodges rights over that there is no justification why the order of
said properties which, October 12, 1966 should be considered or
in sum, spell modified", and, on July 19, 1967, the motion of
ownership, absolute respondent Magno "for official declaration of heirs
and in fee simple; of the estate of Linnie Jane Hodges", already
referred to above, was set for hearing.
c. Said late Charles
Newton Hodges was, In consequence of all these developments, the
therefore, "not only present petition was filed on August 1, 1967 (albeit
part owner of the petitioner had to pay another docketing fee on
properties left as August 9, 1967, since the orders in question were
conjugal, but also, the issued in two separate testate estate proceedings,
successor to all the Nos. 1307 and 1672, in the court below).
properties left by the
deceased Linnie Jane Together with such petition, there are now pending
Hodges. before Us for resolution herein, appeals from the
following:
Likewise, it cannot be over-stressed
that the aforesaid motion was 1. The order of December 19, 1964
granted by this Honorable Court "for authorizing payment by respondent
the reasons stated" therein. Magno of overtime pay, (pp. 221,
Green Record on Appeal) together
Again, the motion of December 11, with the subsequent orders of
1957 prayed that not only "all the January 9, 1965, (pp. 231-232,id.)
sales, conveyances, leases, and October 27, 1965, (pp. 227, id.) and
mortgages executed by" the late February 15, 1966 (pp. 455-456, id.)
Charles Newton Hodges, but also all repeatedly denying motions for
"the subsequent sales, reconsideration thereof.
conveyances, leases, and
mortgages ..." be approved and 2. The order of August 6, 1965 (pp.
authorized. This Honorable Court, in 248, id.) requiring that deeds
its order of December 14, 1957, "for executed by petitioner to be co-
the reasons stated" in the aforesaid signed by respondent Magno, as
motion, granted the same, and not well as the order of October 27,
only approved all the sales,

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
144
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
APPELLEES, PEPITO G.

IYULORES, ESPIRIDION
PARTISALA, WINIFREDO C.
ESPADA AND ROSARIO
ALINGASA, COVERING PARCELS
OF LAND FOR WHICH THEY HAVE
NEVER PAID IN FULL IN
ACCORDANCE WITH THE
ORIGINAL CONTRACTS TO SELL.
IX to XII
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL
PROPERTY OF THE APPELLEES,
PEPITO G. IYULORES,
ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND
ROSARIO ALINGASA, WHILE
ACTING AS A PROBATE COURT.
XIII to XV
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE
APPELLEES ADELFA
PREMAYLON (LOT NO. 102),
SANTIAGO PACAONSIS, AND
ADELFA PREMAYLON (LOT NO.
104), 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.
XVI to XVIII
THE LOWER COURT ERRED IN
APPROVING THE DEEDS OF
SALE IN FAVOR OF THE
APPELLEES ADELFA
PREMAYLON (LOT NO. 102),
SANTIAGO PACAONSIS, AND
ADELFA PREMAYLON (LOT NO.
104) COVERING PARCELS OF
LAND FOR WHICH THEY HAVE
NEVER PAID IN FULL IN
ACCORDANCE WITH THE
ORIGINAL CONTRACTS TO SELL.
145
XIX to XXI
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL
PROPERTY OF THE APPELLEES
ADELFA PREMAYLON (LOT NO.
102), SANTIAGO PACAONSIS,
AND ADELFA PREMAYLON (LOT
NO. 104) WHILE ACTING AS A
PROBATE COURT.
XXII to XXV
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE
APPELLEES LORENZO CARLES,
JOSE PABLICO, ALFREDO
CATEDRAL AND SALVADOR S.
GUZMAN, 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.
XXVI to XXIX
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEED OF
SALE EXECUTED IN FAVOR OF
THE APPELLEES, LORENZO
CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND
SALVADOR S. GUZMAN
PURSUANT TO CONTRACTS TO
SPELL WHICH WERE CANCELLED
AND RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
OWNERSHIP OVER REAL
PROPERTY OF THE LORENZO
CARLES, JOSE PABLICO,
ALFREDO CATEDRAL AND
SALVADOR S. GUZMAN, WHILE
ACTING AS A PROBATE COURT.

XXXV to XXXVI
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE
APPELLEES, FLORENIA BARRIDO
AND PURIFICACION CORONADO,
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.
XXXVII to XXXVIII
THE LOWER COURT ERRED IN
APPROVING THE DEEDS OF
SALE IN FAVOR OF THE
APPELLEES, FLORENIA BARRIDO
AND PURIFICACION CORONADO,
ALTHOUGH THEY WERE IN
ARREARS IN THE PAYMENTS
AGREED UPON IN THE ORIGINAL
CONTRACT TO SELL WHICH
THEY EXECUTED WITH THE
DECEASED, CHARLES NEWTON
HODGES, IN THE AMOUNT OF
P10,680.00 and P4,428.90,
RESPECTIVELY.
XXXIX to XL
THE LOWER COURT ERRED IN
DEPRIVING THE DECEASED,
CHARLES NEWTON HODGES, OF
THE CONTRACTUAL RIGHT,
EXERCISED THROUGH HIS
ADMINISTRATOR, THE INSTANT
APPELLANT, TO CANCEL THE
CONTRACTS TO SELL OF THE
APPELLEES, FLORENIA BARRIDO
AND PURIFICACION CORONADO.
XLI to XLIII
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE
APPELLEES, GRACIANO
LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN,
146
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.
XLIV to XLVI
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEED OF
SALE IN FAVOR OF THE
APPELLEES, GRACIANO
LUCERO, ARITEO THOMAS JAMIR
AND MELQUIADES BATISANAN,
PURSUANT TO CONTRACTS TO
SELL EXECUTED BY THEM WITH
THE DECEASED, CHARLES
NEWTON HODGES, THE TERMS
AND CONDITIONS OF WHICH
THEY HAVE NEVER COMPLIED
WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN
DEPRIVING THE DECEASED,
CHARLES NEWTON 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 DETERMINING THE RIGHTS OF
THE SAID APPELLEES OVER
REAL PROPERTY WHILE ACTING
AS A PROBATE COURT.
L
THE LOWER COURT ERRED IN
APPROVING THE FINAL DEEDS
OF SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING,
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.
LI
THE LOWER COURT ERRED IN
APPROVING THE DEEDS OF
SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING,
ALTHOUGH HE WAS IN ARREARS
IN THE PAYMENTS AGREED
UPON IN THE ORIGINAL
CONTRACT TO SELL WHICH HE
EXECUTED WITH THE
DECEASED, CHARLES NEWTON
HODGES, IN THE AMOUNT OF
P2,337.50.
LII
THE LOWER COURT ERRED IN
APPROVING THE DEED OF SALE
IN FAVOR OF THE APPELLEE,
BELCESAR CAUSING, ALTHOUGH
THE SAME WAS NOT EXECUTED
IN ACCORDANCE WITH THE
RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN
ORDERING THE APPELLANT,
PHILIPPINE COMMERCIAL AND
INDUSTRIAL BANK TO
SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF
TITLE OVER THE RESPECTIVE
LOTS COVERED BY THE DEEDS
OF SALE EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO,
IN FAVOR OF THE OTHER
APPELLEES, JOSE PABLICO,
ALFREDO CATEDRAL, SALVADOR
S. GUZMAN, FLRENIA BARRIDO,
PURIFICACION CORONADO,
BELCESAR CAUSING, ARITEO
THOMAS JAMIR, MAXIMA
BATISANAN AND GRACIANO L.
LUCERO.
LXII
147
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
COMMERCIAL & INDUSTRIAL
BANK.
LXIII
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 NOVEMBER
20, 1965.
LXIV
THE LOWER COURT ERRED IN
GRANTING THE APPELLEE,
WESTERN INSTITUTE OF
TECHNOLOGY A RELIEF OTHER
THAN THAT PRAYED FOR IN ITS
MOTION, DATED NOVEMBER 3,
1965, IN THE ABSENCE OF A
PRAYER FOR GENERAL RELIEF
CONTAINED THEREIN.
LXV
THE LOWER COURT ERRED IN
ALLOWING THE APPELLEE,
WESTERN INSTITUTE OF
TECHNOLOGY, TO CONTINUE
PAYMENTS UPON A CONTRACT
TO SELL THE TERMS AND
CONDITIONS OF WHICH IT HAS
FAILED TO FULFILL.
LXVI
THE LOWER COURT ERRED IN
DETERMINING THE RIGHTS OF
THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY

OVER THE REAL PROPERTY
SUBJECT MATTER OF THE
CONTRACT TO SELL IT
EXECUTED WITH THE
DECEASED, CHARLES NEWTON
HODGES, WHILE ACTING AS A
PROBATE COURT.
LXVII
LOWER COURT ERRED IN
ALLOWING THE CONTINUATION
OF PAYMENTS BY THE
APPELLEE, WESTERN INSTITUTE
OF TECHNOLOGY, UPON A
CONTRACT TO SELL EXECUTED
BY IT AND THE DECEASED,
CHARLES NEWTON HODGES, TO
A PERSON OTHER THAN HIS
LAWFULLY APPOINTED
ADMINISTRATOR.
LXVIII
THE LOWER COURT ERRED IN
ORDERING THE PAYMENT OF
RETAINER'S FEES FROM THE
SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE
HODGES, WHEN THERE IS
NEITHER SUCH ESTATE NOR
ASSETS THEREOF.
LXIX
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.
LXX
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.
148
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
149
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.
150
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.
151
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
152
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
153
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.
In the case at bar, as already pointed out above,
the two orders relied upon by petitioner do not
appear ex-facie to be of the same tenor and nature
as the order just quoted, and, what is more, the
circumstances attendant to its issuance do not
suggest that such was the intention of the court, for
nothing could have been more violative of the will of
Mrs. Hodges.
Indeed, to infer from Hodges' said motions and
from his statements of accounts for the years 1958,
1959 and 1960, A Annexes I, K and M,
respectively, wherein he repeatedly claimed that
"herein executor (being) the only devisee or legatee
of the deceased, in accordance with the last will
and testament already probated," there is "no
(other) person interested in the Philippines of the
time and place of examining herein account to be
154
given notice", an intent to adjudicate unto himself
the whole of his wife's estate in an absolute manner
and without regard to the contingent interests of her
brothers and sisters, is to impute bad faith to him,
an imputation which is not legally permissible,
much less warranted by the facts of record herein.
Hodges knew or ought to have known that, legally
speaking, the terms of his wife's will did not give
him such a right. Factually, there are enough
circumstances extant in the records of these cases
indicating that he had no such intention to ignore
the rights of his co-heirs. In his very motions in
question, Hodges alleged, thru counsel, that the
"deceased Linnie Jane Hodges died leaving no
descendants and ascendants, except brothers and
sisters and herein petitioner, as surviving spouse,
to inherit the properties of the decedent", and even
promised that "proper accounting will be had — in
all these transactions" which he had submitted for
approval and authorization by the court, thereby
implying that he was aware of his responsibilities
vis-a-vis his co-heirs. As alleged by respondent
Magno in her brief as appellee:
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.)
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, 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 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
155
the records "in order (that) 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".
Thus, he recognized, if in his own way, the
separate identity of his wife's estate from his own
share of the conjugal partnership up to the time of
his death, more than five years after that of his wife.
He never considered the whole estate as a single
one belonging exclusively to himself. The only
conclusion one can gather from this is that he could
have been preparing the basis for the eventual
transmission of his wife's estate, or, at least, so
much thereof as he would not have been able to
dispose of during his lifetime, to her brothers and
sisters in accordance with her expressed desire, as
intimated in his tax return in the United States to be
more extensively referred to anon. And assuming
that he did pay the corresponding estate and
inheritance taxes in the Philippines on the basis of
his being sole heir, such payment is not necessarily
inconsistent with his recognition of the rights of his
co-heirs. Without purporting to rule definitely on the
matter in these proceedings, We might say here
that We are inclined to the view that under the
peculiar provisions of his wife's will, and for
purposes of the applicable inheritance tax laws,
Hodges had to be considered as her sole heir,
pending the actual transmission of the remaining
portion of her estate to her other heirs, upon the
eventuality of his death, and whatever adjustment
might be warranted should there be any such
remainder then is a matter that could well be taken
care of by the internal revenue authorities in due
time.
It is to be noted that the lawyer, Atty. Leon P.
Gellada, who signed the motions of May 27, 1957
and December 11, 1957 and the aforementioned
statements of account was the very same one who
also subsequently signed and filed the motion of
December 26, 1962 for the appointment of
respondent Magno as "Administratrix of the Estate
of Mrs. Linnie Jane Hodges" wherein it was alleged
that "in accordance with 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 among their
heirs." And it appearing that said attorney was
Hodges' lawyer as Executor of the estate of his

wife, it stands to reason that his understanding of
the situation, implicit in his allegations just quoted,
could somehow be reflective of Hodges' own
understanding thereof.
As a matter of fact, the allegations in the motion of
the same Atty. Gellada dated July 1, 1957, a
"Request for Inclusion of the Name of Roy Higdon
in the Order of the Court dated July 19, 1957, etc.",
reference to which is made in the above quotation
from respondent Magno's brief, are over the oath of
Hodges himself, who 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
156
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
157
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
158
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
159
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 are deemed to be objectively for the
protection of the rights of everybody concerned with
the estate of the 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 Rule
78 fixing the priority among those to whom letters of
administration should be granted that the criterion
in the selection of the administrator is not his
impartiality alone but, more importantly, the extent
of his interest in the estate, so much so that the one
assumed to have greater interest is preferred to
another who has less. Taking both of these
considerations into account, inasmuch as,
according to Hodges' own inventory submitted by
him as Executor of the estate of his wife, practically
all their properties were conjugal which means that
the spouses have equal shares therein, it is but
logical that both estates should be administered
jointly by representatives of both, pending their
segregation from each other. Particularly is such an
arrangement warranted because the actuations so
far of PCIB evince a determined, albeit groundless,
intent to exclude the other heirs of Mrs. Hodges
from their inheritance. Besides, to allow PCIB, the
administrator of his estate, to perform now what
Hodges was duty bound to do as executor is to
violate the spirit, if not the letter, of Section 2 of
Rule 78 which expressly provides that "The
executor of an executor shall not, as such,
administer the estate of the first testator." It goes
without saying that this provision refers also to the
administrator of an executor like PCIB here.
We are not unmindful of the fact that under Section
2 of Rule 73, "When the marriage is dissolved by
the death of the husband or wife, the community
property shall be inventoried, administered, and
liquidated, 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." Indeed, it is true that the last
sentence of this provision allows or permits the
conjugal partnership of spouses who are both
160
deceased to be settled or liquidated in the testate
or intestate proceedings of either, but precisely
because said sentence allows or permits that the
liquidation be made in either proceeding, it is a
matter of sound judicial discretion in which one it
should be made. After all, the former rule referring
to the administrator of the husband's estate in
respect to such liquidation was done away with by
Act 3176, the pertinent provisions of which are now
embodied in the rule just cited.
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 executor of the latter's will who had, as such,
failed for more than five years to see to it that the
same was terminated earliest, which was not
difficult to do, since from ought that appears in the
record, there were no serious obstacles on the way,
the estate not being indebted and there being no
immediate heirs other than Hodges himself. Such
dilatory or indifferent attitude could only spell
possible prejudice of his co-heirs, whose rights to
inheritance depend entirely on the existence of any
remainder of Mrs. Hodges' share in the community
properties, and who are now faced with the pose of
PCIB that there is no such remainder. Had Hodges
secured as early as possible the settlement of his
wife's estate, this problem would not arisen. All
things considered, We are fully convinced that the
interests of justice will be better served by not
permitting or allowing PCIB or any administrator of
the estate of Hodges exclusive administration of all
the properties in question. We are of the
considered opinion and so hold that what would be
just and proper is for both administrators of the two
estates to act conjointly until after said estates have
been segregated from each other.
At this juncture, it may be stated that we are not
overlooking the fact that it is PCIB's contention that,
viewed as a substitution, the testamentary
disposition in favor of Mrs. Hodges' brothers and
sisters may not be given effect. To a certain extent,
this contention is correct. Indeed, legally speaking,
Mrs. Hodges' will provides neither for a simple or
vulgar substitution under Article 859 of the Civil
Code nor for a fideicommissary substitution under
Article 863 thereof. There is no vulgar substitution
therein because there is no provision for either (1)
predecease of the testator by the designated heir or
(2) refusal or (3) incapacity of the latter to accept
the inheritance, as required by Article 859; and

neither is there a fideicommissary substitution
therein because no obligation is imposed thereby
upon Hodges to preserve the estate or any part
thereof for anyone else. But from these premises, it
is not correct to jump to the conclusion, as PCIB
does, that the testamentary dispositions in question
are therefore inoperative and invalid.
The error in PCIB's position lies simply in the fact
that it views the said disposition exclusively in the
light of substitutions covered by the Civil Code
section on that subject, (Section 3, Chapter 2, Title
IV, Book III) when it is obvious that substitution
occurs only when another heir is appointed in a will
"so that he may enter into inheritance in default of
the heir originally instituted," (Article 857, id.) and,
in the present case, no such possible default is
contemplated. The brothers and sisters of Mrs.
Hodges are not substitutes for Hodges because,
under her will, they are not to inherit what Hodges
cannot, would not or may not inherit, but what he
would not dispose of from his inheritance; rather,
therefore, they are also heirs instituted
simultaneously with Hodges, subject, however, to
certain conditions, partially resolutory insofar as
Hodges was concerned and correspondingly
suspensive with reference to his brothers and
sisters-in-law. It is partially resolutory, since it
bequeaths unto Hodges the whole of her estate to
be owned and enjoyed by him as universal and
sole heir with absolute dominion over them6 only
during his lifetime, which means that while he could
completely and absolutely dispose of any portion
thereof inter vivos to anyone other than himself, he
was not free to do so mortis causa, and all his
rights to what might remain upon his death would
cease entirely upon the occurrence of that
contingency, inasmuch as the right of his brothers
and sisters-in-law to the inheritance, although
vested already upon the death of Mrs. Hodges,
would automatically become operative upon the
occurrence of the death of Hodges in the event of
actual existence of any remainder of her estate
then.
Contrary to the view of respondent Magno,
however, it was not the usufruct alone of her estate,
as contemplated in Article 869 of the Civil Code,
that she bequeathed to Hodges during his lifetime,
but the full ownership thereof, although the same
was to last also during his lifetime only, even as
there was no restriction whatsoever against his
disposing or conveying the whole or any portion
thereof to anybody other than himself. The Court
161
sees no legal impediment to this kind of institution,
in this jurisdiction or under Philippine law, except
that it cannot apply to the legitime of Hodges as the
surviving spouse, 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.)
But relative precisely to the question of how much
of Mrs. Hodges' share of the conjugal partnership
properties may be considered as her estate, the
parties are in disagreement as to how Article 16 of
the Civil Code7 should be applied. On the one
hand, petitioner claims that inasmuch as Mrs.
Hodges was a resident of the Philippines at the
time of her death, under said Article 16, construed
in relation to the pertinent laws of Texas and the
principle of renvoi, what should be applied here
should be the rules of succession under the Civil
Code of the Philippines, and, therefore, her estate
could consist of no more than one-fourth of the said
conjugal properties, the other fourth being, as
already explained, the legitime of her husband (Art.
900, Civil Code) which she could not have disposed
of nor burdened with any condition (Art. 872, Civil
Code). On the other hand, respondent Magno
denies that Mrs. Hodges died a resident of the
Philippines, since allegedly she never changed nor
intended to change her original residence of birth in
Texas, United States of America, and contends
that, anyway, regardless of the question of her
residence, she being indisputably a citizen of
Texas, under said Article 16 of the Civil Code, the
distribution of her estate is subject to the laws of
said State which, according to her, do not provide
for any legitime, hence, the brothers and sisters of
Mrs. Hodges are entitled to the remainder of the
whole of her share of the conjugal partnership
properties consisting of one-half thereof.
Respondent Magno further maintains that, in any
event, Hodges had renounced his rights under the
will in favor of his co-heirs, as allegedly proven by
the documents touching on the point already
mentioned earlier, the genuineness and legal
significance of which petitioner seemingly
questions. Besides, the parties are disagreed as to
what the pertinent laws of Texas provide. In the
interest of settling the estates herein involved
soonest, it would be best, indeed, if these
conflicting claims of the parties were determined in
these proceedings. The Court regrets, however,
that it cannot do so, for the simple reason that
neither the evidence submitted by the parties in the
court below nor their discussion, in their respective

briefs and memoranda before Us, of their
respective contentions on 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 upon by respondent Magno is disputed. And
there are a number of still other conceivable related
issues 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 court in the proceedings hereafter to
be held therein for the purpose of ascertaining and
adjudicating and/or distributing the estate of Mrs.
Hodges to her heirs in accordance with her duly
probated will.
To be more explicit, all that We can and do decide
in connection with the petition for certiorari and
prohibition are: (1) that regardless of which
corresponding laws are applied, whether of the
Philippines or of Texas, and taking for granted
either of the respective contentions of the parties as
to provisions of the 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 by Hodges himself, as
Executor of his wife's estate, that there are
properties which should constitute the estate of
Mrs. Hodges and ought to be disposed of or
distributed among her heirs pursuant to her will in
said Special Proceedings 1307; (2) that, more
specifically, inasmuch as the question of what are
the pertinent laws of Texas applicable to the
situation herein is basically one of fact, and,
considering that the sole difference in the positions
of the parties as to the effect of said laws has
reference to the supposed legitime of Hodges — it
being the stand of PCIB that Hodges had such a
legitime whereas Magno claims the negative - it is
now beyond controversy for all future purposes of
these proceedings that whatever be the provisions
actually of the laws of Texas applicable hereto, the
estate of Mrs. Hodges is at least, one-fourth of the
conjugal estate of the spouses; the existence and
effects of foreign laws being questions of fact, and
it being the position now of PCIB that the estate of
Mrs. Hodges, pursuant to the laws of Texas, should
only be one-fourth of the conjugal estate, such
contention constitutes an admission of fact, and
162
consequently, it would be in estoppel in any further
proceedings in these cases to claim that said estate
could be less, 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 or distribution yet
of the estate therein involved; and (4) that
respondent Magno remains and continues to be the
Administratrix therein. Hence, nothing in the
foregoing opinion is intended to resolve the issues
which, as already stated, are not properly before
the Court now, namely, (1) whether or not Hodges
had in fact and in law waived or renounced his
inheritance from Mrs. Hodges, in whole or in part,
and (2) assuming there had been no such waiver,
whether or not, by the application of Article 16 of
the Civil Code, 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 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
those properties are, to the more concrete and
specific evidence which the parties are supposed to
present in support of their respective positions in
regard to the foregoing main legal and factual
issues. In the interest of justice, the parties should
be allowed to present such further evidence in
relation to all these issues in a joint hearing of the
two probate proceedings herein involved. After all,
the court a quo has not yet passed squarely on
these issues, and it is best for all concerned that it
should do so in the first instance.
Relative to Our holding above that the estate of
Mrs. Hodges cannot be less than the remainder of
one-fourth of the conjugal partnership properties, it
may be mentioned here that during the
deliberations, the point was raised as to whether or
not said holding might be inconsistent with Our
other ruling here also that, since there is no reliable
evidence as to what are the applicable laws of
Texas, U.S.A. "with respect to the order of
succession and to the amount of successional
rights" that may be willed by a testator which, under
Article 16 of the Civil Code, are controlling in the

instant cases, in view of the undisputed Texan
nationality of the deceased Mrs. Hodges, these
cases should be returned to the court a quo, so that
the parties may prove what said law provides, it is
premature for Us to make any specific ruling now
on either the validity of the testamentary
dispositions herein involved or the amount of
inheritance to which the brothers and sisters of Mrs.
Hodges are entitled. After nature reflection, We are
of the considered view that, at this stage and in the
state of the records before Us, the feared
inconsistency is more apparent than real. Withal, it
no longer lies in the lips of petitioner PCIB to make
any claim that under the laws of Texas, the estate
of Mrs. Hodges could in any event be less than that
We have fixed above.
It should be borne in mind that as above-indicated,
the question of what are the laws of Texas
governing the matters herein issue is, in the first
instance, one of fact, not of law. Elementary is the
rule that foreign 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 actual knowledge of the
court, such as when they are well and generally
known or they have been actually ruled upon in
other cases before it and none of the parties
concerned do not claim otherwise. (5 Moran,
Comments on the Rules of Court, p. 41, 1970 ed.)
In Fluemer vs. Hix, 54 Phil. 610, it was held:
It is the theory of the petitioner that the alleged will
was executed in Elkins West Virginia, on November
3, 1925, by Hix who had his residence in that
jurisdiction, and that the laws of West Virginia
govern. To this end, there was submitted a copy of
section 3868 of Acts 1882, c. 84 as found in West
Virginia Code, Annotated, by Hogg Charles E., vol.
2, 1914, p. 1960, and as certified to by the Director
of the National Library. But this was far from a
compliance with the law. The laws of a foreign
jurisdiction do not prove themselves in our courts.
The courts of the Philippine Islands are not
authorized to take judicial notice of the laws of the
various States of the American Union. Such laws
must be proved as facts. (In re Estate of Johnson
[1918], 39 Phil., 156.) Here the requirements of the
law were not met. There was no showing that the
book from which an extract was taken was printed
or published under the authority of the State of
West Virginia, as provided in section 300 of the
Code of Civil Procedure. Nor was the extract from
163
the law attested by the certificate of the officer
having charge of the original, under the seal of the
State of West Virginia, as provided in section 301 of
the Code of Civil Procedure. No evidence was
introduced to show that the extract from the laws of
West Virginia was in force at the time the alleged
will was executed."
No evidence of the nature thus suggested by the
Court may be found in the records of the cases at
bar. Quite to the contrary, the parties herein have
presented opposing versions in their respective
pleadings and memoranda regarding the matter.
And even if We took into account that in Aznar vs.
Garcia, the Court did make reference to certain
provisions regarding succession in the laws of
Texas, the disparity in the material dates of that
case and the present ones would not permit Us to
indulge in the hazardous conjecture that said
provisions have not been amended or changed in
the meantime.
On the other hand, in In re Estate of Johnson, 39
Phil. 156, We held:
Upon the other point — as to
whether the will was executed in
conformity with the statutes of the
State of Illinois — we note that it
does not affirmatively appear from
the transcription of the testimony
adduced in the trial court that any
witness was examined with
reference to the law of Illinois on the
subject of the execution of will. The
trial judge no doubt was satisfied
that the will was properly executed
by 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 of Civil
Procedure. If so, he was in our
opinion mistaken. That section
authorizes the courts here to take
judicial notice, among other things,
of the acts of the legislative
department of the United States.
These words clearly have reference
to Acts of the Congress of the United
States; and we would hesitate to

hold that our courts can, under this
provision, take judicial notice of the
multifarious laws of the various
American States. Nor do we think
that any such authority can be
derived from the broader language,
used in the same section, where it is
said that our courts may take judicial
notice of matters of public
knowledge "similar" to those therein
enumerated. The proper rule we
think is to require proof of the
statutes of the States of the
American Union whenever their
provisions are determinative of the
issues in any action litigated in the
Philippine courts.
Nevertheless, even supposing that
the trial court may have erred in
taking judicial notice of the law of
Illinois on the point in question, such
error is not now available to the
petitioner, first, because the petition
does not state any fact from which it
would appear that the law of Illinois
is different from what the court
found, and, secondly, because the
assignment of error and argument
for the appellant in this court raises
no question based on such
supposed error. Though the trial
court may have acted upon 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 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
Illinois, but this is merely a
conclusion of law. The affidavits by
which the petition is 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 conclusion of the
trial court. It is very clear, therefore,
164
that this point cannot be urged as of
serious moment.
It is implicit in the above ruling that when, with
respect to certain aspects of the foreign laws
concerned, 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 agreement indicates, without the
need of requiring the presentation of what
otherwise would be the competent evidence on the
point. Thus, in the instant cases wherein it results
from the respective contentions of both parties that
even if the pertinent laws of Texas were known and
to be applied, the amount of the inheritance
pertaining to the heirs of Mrs. Hodges is as We
have fixed above, the absence of evidence to the
effect that, actually and in fact, under said laws, it
could be otherwise is of no longer of any
consequence, unless the purpose is to show that it
could be more. In other words, since PCIB, the
petitioner-appellant, concedes that upon application
of Article 16 of the Civil Code and the pertinent
laws of Texas, the amount of the estate in
controversy is just as We have determined it to be,
and respondent-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
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.
In its main brief dated February 26, 1968, PCIB
asserts:
The law governing successional
rights.
As recited above, there is no
question that the deceased, Linnie
Jane Hodges, was an American
citizen. There is also no question
that she was a national of the State
of Texas, U.S.A. Again, there is
likewise no question that she had
her domicile of choice in the City of
Iloilo, Philippines, as this has already
been pronounced by the above-cited
orders of the lower court,
pronouncements which are by
now res adjudicata (par. [a], See. 49,
Rule 39, Rules of Court; In re Estate
of Johnson, 39 Phil. 156).
Article 16 of the Civil Code provides:
"Real property as well as personal
property is subject to the law of the
country where it is situated.
However, intestate and testamentary
successions, both with respect to the
order of succession and to the
amount of successional rights and to
the intrinsic validity of testamentary
165
provisions, shall be regulated by the
national law of the person whose
succession is under consideration,
whatever may be the nature of the
property and regardless of the
country wherein said property may
be found."
Thus the aforecited provision of the
Civil Code points towards the
national law of the deceased, Linnie
Jane Hodges, which is the law of
Texas, as governing succession
"both with respect to the order of
succession and to the amount of
successional rights and to the
intrinsic validity of testamentary
provisions ...". But the law of Texas,
in its conflicts of law rules, provides
that the domiciliary law governs the
testamentary dispositions and
successional rights over movables
or personal property, while the law of
the situs governs with respect to
immovable property. Such that with
respect to both movable property, as
well as immovable property situated
in the Philippines, the law of Texas
points to the law of 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.
The subject of successional rights.
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 In the summary of its arguments in its
widower, she or he memorandum dated April 30, 1968, the following
shall be entitled to appears:
one-half of the
hereditary estate of
the deceased spouse,
and the testator may
freely dispose of the
other half.
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,
166
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.
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
167
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
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, allegedly with the sanction of
the trial court per its order of December 14, 1957,
there has been, since said 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 case, with the
foregoing resolution holding such posture to be
untenable in fact and in law and that it is in the best
interest of justice that for the time being the two
estates should be administered conjointly by the
respective administrators of the two estates, it
should follow that said assignments of error have
lost their fundamental reasons for being. There are
certain matters, however, relating peculiarly to the
respective orders in question, if commonly among
some of them, which need further clarification. For
instance, some of them authorized respondent
Magno to act alone or without concurrence of PCIB.
And with respect to many of said orders, PCIB
further claims that either the matters involved were
not properly within the probate jurisdiction of the
trial court or that the procedure followed was not in
168
accordance with the rules. Hence, the necessity of
dealing separately with the merits of each of the
appeals.
Indeed, inasmuch as the said two estates have until
now remained commingled pro-indiviso, due to the
failure of Hodges and the lower court to liquidate
the conjugal partnership, to recognize appellee
Magno as Administratrix of the Testate Estate of
Mrs. Hodges which is still unsegregated from that
of Hodges is not to say, without any qualification,
that she was therefore authorized to do and
perform all her acts complained of in these appeals,
sanctioned though they might have been by the trial
court. As a matter of fact, it is such
commingling pro-indiviso of the two estates that
should deprive appellee of freedom to act
independently from PCIB, as administrator of the
estate of Hodges, just as, for the same reason, the
latter should not have authority to act independently
from her. And considering that the lower court failed
to adhere consistently 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 circumstances of each of
the appealed orders to be able to determine
whether any of them has to be set aside or they
may all be legally maintained notwithstanding the
failure of the court a quo to observe the pertinent
procedural technicalities, to the end only that graver
injury to the substantive rights of the parties
concerned and unnecessary and undesirable
proliferation of incidents in the subject proceedings
may be forestalled. In other words, We have to
determine, whether or not, in the light of the
unusual circumstances extant in the record, there is
need to be more pragmatic and to adopt a rather
unorthodox approach, so as to cause the least
disturbance in rights already being exercised by
numerous innocent third parties, even if to do so
may not appear to be strictly in accordance with the
letter of the applicable purely adjective rules.
Incidentally, it may be mentioned, at this point, that
it was principally on account of the confusion that
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, 1972 the modification of
the injunction issued pursuant to the resolutions of

August 8, October 4 and December 6, 1967, by
virtue of which respondent Magno was completely
barred from any participation in the administration
of the properties herein involved. In the September
8 resolution, We ordered that, pending this
decision, Special Proceedings 1307 and 1672
should proceed jointly and that the respective
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 the said properties to the
exclusion of the administratrix of Mrs. Hodges'
estate might place the heirs of Hodges at an unduly
advantageous position which could result in
considerable, if not irreparable, damage or injury to
the other parties concerned. It is indeed to be
regretted that apparently, up to this date, more than
a year after said resolution, the same has not been
given due regard, as may be gleaned from the fact
that recently, respondent Magno has filed in these
proceedings a motion to declare PCIB in contempt
for alleged failure to abide therewith,
notwithstanding that its repeated motions for
reconsideration thereof have all been denied soon
after they were filed.9
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.
Assignments of error numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order
of the trial court of August 6, 1965 providing that
"the deeds of sale (therein referred to involving
properties in the name of Hodges) should be
signed jointly by the PCIB, as Administrator of
Testate Estate of C.N. Hodges, and Avelina A.
Magno, as 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," (p. 248, Green Rec. on Appeal) (2)
the order of October 27, 1965 denying the motion
for reconsideration of the foregoing order, (pp. 276-
277, id.) (3) the other order also dated October 27,
1965 enjoining inter alia, that "(a) all cash
collections should be deposited in the joint account
169
of the estate of Linnie Jane Hodges and estate of
C. N. Hodges, (b) that whatever cash collections
(that) had been deposited in the account of either of
the estates should be 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, 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" and "(e) that the accountant
of the estate of Linnie Jane Hodges shall have
access to all records of the transactions of both
estates for the protection of the estate of Linnie
Jane Hodges; and in like manner, the accountant or
any authorized representative of the estate of C. N.
Hodges shall have access to the records of
transactions of the Linnie Jane Hodges estate for
the protection of the estate of C. N. Hodges", (pp.
292-295, id.) and (4) the order of February 15,
1966, denying, among others, the motion for
reconsideration of the order of October 27, 1965
last referred to. (pp. 455-456, id.)
As may be readily seen, the thrust of all these four
impugned orders is in line with the Court's above-
mentioned resolution of September 8, 1972
modifying the injunction previously issued on
August 8, 1967, and, more importantly, with what
We have said the trial court should have always
done pending the liquidation of the conjugal
partnership of the Hodges spouses. In fact, as
already stated, that is the arrangement We are
ordering, by this decision, to be followed. Stated
differently, since the questioned orders provide for
joint action by the two administrators, and that is
precisely what We are holding out to have been
done and should be done until the two estates are
separated from each other, the said orders must be
affirmed. Accordingly the foregoing assignments of
error must be, as they are hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.
The orders complained of under these assignments
of error commonly deal with expenditures made by
appellee Magno, as Administratrix of the Estate of
Mrs. Hodges, in connection with her administration
thereof, albeit additionally, assignments of error
Numbers LXIX to LXXI put into question the
payment of attorneys fees provided for in the

contract for the purpose, as constituting, in effect,
premature advances to the heirs of Mrs. Hodges.
More specifically, assignment Number LXXIII refers
to reimbursement of overtime pay paid to six
employees of the court and three other persons for
services in copying the court records to enable the
lawyers of the administration to be fully informed of
all the incidents in the proceedings. The
reimbursement was approved as proper legal
expenses of administration per the order of
December 19, 1964, (pp. 221-222, id.) and
repeated motions for reconsideration thereof were
denied by the orders of January 9, 1965, (pp. 231-
232, id.) October 27, 1965, (p. 277, id.) and
February 15, 1966. (pp. 455-456, id.) On the other
hand, Assignments Numbers LXVIII to LXXI, LXXIV
and LXXV question the trial court's order of
November 3, 1965 approving the agreement of
June 6, 1964 between Administratrix Magno and
James L. Sullivan, attorney-in-fact of the heirs of
Mrs. Hodges, as Parties of the First Part, and
Attorneys Raul 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 pending litigation in the
Court of First Instance of Iloilo —, more specifically
in Special Proceedings 1307 and 1672 —" (pp.
126-129, id.) and directing Administratrix Magno "to
issue and sign whatever check or checks maybe
needed to implement the approval of the
agreement annexed to the motion" as well as the
"administrator of the estate of C. N. Hodges — to
countersign the said check or checks as the case
maybe." (pp. 313-320, id.), reconsideration of which
order of approval was denied in the order of
February 16, 1966, (p. 456, id.) Assignment
Number LXXVI imputes error to the lower court's
order of October 27, 1965, already referred to
above, insofar as it orders that "PCIB should
counter sign the check in the amount of P250 in
favor of Administratrix Avelina A. Magno as her
compensation as administratrix of Linnie Jane
Hodges estate chargeable to the Testate Estate of
Linnie Jane Hodges only." (p. 294, id.)
Main contention again of appellant PCIB in regard
to these eight assigned errors is that there is no
such estate as the estate of Mrs. Hodges for which
the questioned expenditures were made, hence
what were authorized were in effect expenditures
from the estate of Hodges. As We have already
demonstrated in Our resolution above of the
170
petition for certiorari and prohibition, this posture is
incorrect. Indeed, in whichever way the remaining
issues between the parties in these cases are
ultimately resolved, 10 the final result will surely be
that there are properties constituting the estate of
Mrs. Hodges of which Magno is the current
administratrix. It follows, therefore, that said
appellee had the right, as such administratrix, to
hire the persons whom she paid overtime pay and
to be paid for her own services as administratrix.
That she has not yet collected and is not collecting
amounts as substantial as that paid to or due
appellant PCIB is to her credit.
Of course, she is also entitled to the services of
counsel and to that end had the authority to enter
into contracts for attorney's fees in the manner she
had done in the agreement of June 6, 1964. And as
regards 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 the obvious size of the
estate in question and the nature of the issues
between the parties as well as the 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.
PCIB insists, however, that said agreement of June
6, 1964 is not for legal services to the estate but to
the 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.
Upon the premise We have found plausible that
there is an existing estate of Mrs. Hodges, it results
that juridically and factually the interests involved in
her estate are distinct and different from those
involved in her estate of Hodges and vice versa.
Insofar as the matters related exclusively to the
estate of Mrs. Hodges, PCIB, as administrator of
the estate of Hodges, is a complete stranger and it
is without personality to question the actuations of
the administratrix thereof regarding matters not
affecting the estate of Hodges. Actually,
considering the obviously considerable size of the
estate of Mrs. Hodges, We see no possible cause
for apprehension that when the two estates are
segregated from each other, the amount of

attorney's fees stipulated in the agreement in
question will prejudice any portion that would
correspond to Hodges' estate.
And as regards the other heirs of Mrs. Hodges who
ought to be the ones who should have a say on the
attorney's fees and other expenses of
administration assailed by PCIB, suffice it to say
that they appear to have been duly represented in
the agreement itself by their attorney-in-fact, James
L. Sullivan and have not otherwise interposed any
objection to any of the expenses incurred by Magno
questioned by PCIB in these appeals. As a matter
of fact, as ordered by the trial court, all the
expenses in question, including the attorney's fees,
may be paid without awaiting the determination and
segregation of the estate of Mrs. Hodges.
Withal, the weightiest consideration in connection
with the point under discussion is that at this stage
of the controversy among the parties herein, the
vital issue refers to the existence or non-existence
of the estate of Mrs. Hodges. In this respect, the
interest of respondent Magno, as the appointed
administratrix of the said estate, is to maintain that
it exists, which is naturally common and identical
with and inseparable from the interest of the
brothers and sisters of Mrs. Hodges. Thus, it should
not be wondered why both Magno and these heirs
have seemingly agreed to retain but one counsel.
In fact, such an arrangement should be more
convenient and economical to both. The possibility
of conflict of interest between Magno and the heirs
of Mrs. Hodges would be, at this stage, quite
remote and, in any event, rather insubstantial.
Besides, should any substantial conflict of interest
between them arise in the future, the same would
be a 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 cogent reason
why, at this stage, the estate and the heirs of Mrs.
Hodges cannot be represented by a common
counsel.
Now, as to whether or not the portion of the fees in
question that should correspond to the heirs
constitutes premature partial distribution of the
estate of Mrs. Hodges is also a matter in which
neither PCIB nor the heirs of Hodges have any
interest. In any event, since, as far as the records
show, the estate has no creditors and the
corresponding estate and inheritance taxes, except
171
those of the brothers and sisters of Mrs. Hodges,
have already been paid, 11 no prejudice can caused
to anyone by the comparatively small amount of
attorney's fees in question. And in this connection,
it may be added that, although strictly speaking, the
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-fact of the heirs has given his conformity
thereto, it would be idle effort to inquire whether or
not the sanction given to said fees by the probate
court is proper.
For the foregoing reasons, Assignments of Error
LXVIII to LXXI and LXXIII to LXXVI should be as
they are hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXX VI, XLI to XLIII and L.
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 Sell" previously executed by Hodges
during the interim between May 23, 1957, when his
wife died, and December 25, 1962, the day he died.
As stated on pp. 118-120 of appellant's main brief,
"These are: the, contract to sell between the
deceased, Charles Newton Hodges, and the
appellee, Pepito G. Iyulores executed on February
5, 1961; the contract to sell between the deceased,
Charles Newton Hodges, and the appellant
Esperidion Partisala, executed on April 20, 1960;
the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Winifredo C.
Espada, executed on April 18, 1960; the contract to
sell between the deceased, Charles Newton
Hodges, and the appellee, Rosario Alingasa,
executed on August 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 the
appellee, Salvador S. Guzman, executed on
September 13, 1960; the contract to sell between
the deceased, Charles Newton Hodges, and the
appellee, Florenia Barrido, executed on February
21, 1958; the contract to sell between the
deceased, Charles Newton Hodges, and the

appellee, Purificacion Coronado, executed on
August 14, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and 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, 11* 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
172
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
173
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
174
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
175
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
176
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
177
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
178
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
179
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, the trial court acted correctly and within its
jurisdiction. Accordingly, the petition
for certiorari and prohibition has to be denied. The
Court feels however, that pending the liquidation of
the conjugal partnership and the determination of
the specific properties constituting her estate, the
two administrators should act conjointly as ordered
in the Court's resolution of September 8, 1972 and
as further clarified in the dispositive portion of its
decision.
Anent the appeals from the orders of the lower
court sanctioning payment by appellee Magno, as
administratrix, of expenses of administration and

attorney's fees, it is obvious that, with Our holding
that there is such an estate of Mrs. Hodges, and for
the reasons stated in the body of this opinion, the
said orders should be affirmed. This We do on the
assumption We find justified by the evidence of
record, and seemingly agreed to by appellant PCIB,
that the size and value of the properties that should
correspond to the estate of Mrs. Hodges far exceed
the total of the attorney's fees and administration
expenses in question.
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 earlier above, a distinction must be made
between those predicated on contracts to sell
executed by Hodges before the death of his wife,
on the one hand, and those premised on contracts
to sell entered into by him 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 to her intent obviously reflected in the
relevant provisions of her will, on the assumption
that the size and value of the properties to
correspond to the estate of Mrs. Hodges would
exceed the total value of all the 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 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
180
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 Estate of Linnie Jane
Hodges, in Special Proceedings 1307, should act
thenceforth always conjointly, never independently
from each other, as such administrators, is
reiterated, and the same is made part of this
judgment and shall continue in force, pending the
liquidation of the conjugal partnership of the
deceased spouses and the determination and
segregation from each other of their respective
estates, provided, that upon the finality of this
judgment, the trial court should immediately
proceed to the partition of the 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 respondent
for her exclusive administration in Special
Proceedings 1307, while the other one-fourth shall
 181

remain under the joint administration of said

respondent and petitioner under a joint proceedings
in Special Proceedings 1307 and 1672, whereas
the half unquestionably pertaining to Hodges shall
be administered by petitioner exclusively in Special
Proceedings 1672, without prejudice to the
resolution by the trial court of the pending motions
for its removal as administrator12; and this
arrangement shall be maintained until the final
resolution of the two issues of renvoi and
renunciation hereby reserved for 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.

Generally and in all other respects, the parties and

the court a quo are directed to adhere henceforth,
in all their actuations in Special Proceedings 1307
and 1672, to the views passed and ruled upon by
the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5)

days from notice hereof, thirty-one additional
appeal docket fees, but this decision shall
nevertheless become final as to each of the parties
herein after fifteen (15) days from the respective
notices to them hereof in accordance with the rules.

Costs against petitioner-appellant PCIB.


G.R. No. 119064 August 22, 2000
NENG "KAGUI KADIGUIA" MALANG, petitioner,
vs.
HON. COROCOY MOSON, Presiding Judge of
5th Shari'a District Court, Cotabato City, HADJI
MOHAMMAD ULYSSIS MALANG, HADJI
ISMAEL MALINDATU MALANG, FATIMA
MALANG, DATULNA MALANG, LAWANBAI
MALANG, JUBAIDA KADO MALANG, NAYO
OMAL MALANG and MABAY GANAP
MALANG,respondents.
DECISION
GONZAGA-REYES, J.:
Presented for resolution in this special civil action
of certiorari is the issue of whether or not the
regime of conjugal partnership of gains governed
the property relationship of two Muslims who
contracted marriage prior to the effectivity of the
Code of Muslim Personal Laws of the Philippines
(hereafter, "P.D. 1083" or "Muslim Code"). The
question is raised in connection with the settlement
of the estate of the deceased husband.
Hadji Abdula Malang, a Muslim, contracted
marriage with Aida (Kenanday) Limba. They begot
three sons named Hadji Mohammad Ulyssis, Hadji
Ismael Malindatu and Datulna, and a daughter
named Lawanbai. Hadji Abdula Malang was
engaged in farming, tilling the land that was Aida’s
dowry (mahr or majar). Thereafter, he bought a
parcel of land in Sousa, Cotabato. Hadji Abdula
and Aida already had two children when he married
for the second time another Muslim named Jubaida
Kado in Kalumamis, Talayan, Maguindanao. No
child was born out of Hadji Abdula’s second
marriage. When Aida, the first wife, was pregnant
with their fourth child, Hadji Abdula divorced her.
In 1965, Hadji Abdula married another Muslim,
Nayo H. Omar but they were childless. Thereafter,
Hadji Abdula contracted marriage with Hadji Mabai
(Mabay) H. Adziz in Kalumamis, Talayan,
Maguindanao and soon they had a daughter
named Fatima (Kueng). Hadji Abdula and Hadji
Mabai stayed in that place to farm while Hadji
Abdula engaged in the business of buying and
selling of rice, corn and other agricultural products.
Not long after, Hadji Abdula married three other
Muslim women named Saaga, Mayumbai and
Sabai but he eventually divorced them.
182
Hadji Abdula then migrated to Tambunan where, in
1972, he married petitioner Neng "Kagui Kadiguia"
Malang, his fourth wife, excluding the wives he had
divorced. They established residence in Cotabato
City but they were childless. For a living, they relied
on farming and on the business of buying and
selling of agricultural products. Hadji Abdula
acquired vast tracts of land in Sousa and
Talumanis, Cotabato City, some of which were
cultivated by tenants. He deposited money in such
banks as United Coconut Planters Bank,
Metrobank and Philippine Commercial and
Industrial Bank.
On December 18, 1993, while he was living with
petitioner in Cotabato City, Hadji Abdula died
without leaving a will. On January 21, 1994,
petitioner filed with the Shari’a District Court in
Cotabato City a petition for the settlement of his
estate with a prayer that letters of administration be
issued in the name of her niece, Tarhata Lauban.
Petitioner claimed in that petition that she was the
wife of Hadji Abdula; that his other legal heirs are
his three children named Teng Abdula, Keto Abdula
and Kueng Malang, and that he left seven (7)
parcels of land, five (5) of which are titled in Hadji
Abdula’s name "married to Neng P. Malang," and a
pick-up jeepney.
On February 7, 1994, the Shari’a District Court
ordered the publication of the petition.1 After such
publication2 or on March 16, 1994, Hadji
Mohammad Ulyssis Malang ("Hadji Mohammad",
for brevity), the eldest son of Hadji Abdula, filed his
opposition to the petition. He alleged among other
matters that his father’s surviving heirs are as
follows: (a) Jubaida Malang, surviving spouse; (b)
Nayo Malang, surviving spouse; (c) Mabay Malang,
surviving spouse; (d) petitioner Neng Malang,
surviving spouse; (e) oppositor Hadji Mohammad
Ulyssis Malang who is also known as "Teng
Abdula," son; (f) Hadji Ismael Malindatu Malang,
also known as "Keto Abdula," son, (g) Fatima
Malang, also known as "Kueng Malang," daughter;
(h) Datulna Malang, son, and (i) Lawanbai Malang,
daughter. Oppositor Hadji Mohammad Ulyssis
Malang alleged that since he and his brother, Hadji
Ismael Malindatu Malang, had helped their father in
his business, then they were more competent to be
administrators of his estate.3
On March 30, 1994, Jubaida Malang, Ismael
Malindatu Malang, Nayo Malang, Fatima Malang,

Mabay Malang, Datulna Malang and Lawanbai
Malang filed an opposition to the petition, adopting
as their own the written opposition of Hadji
Mohammad.4
On April 7, 1994, the Shari’a District Court issued
an Order appointing Hadji Mohammad
administrator of his father’s properties outside
Cotabato City. The same order named petitioner
and Hadji Ismael Malindatu Malang as joint
administrators of the estate in Cotabato City. Each
administrator was required to post a bond in the
amount of P100,000.00.5 On April 13, 1994, letters
of administration were issued to Hadji Mohammad
after he had posted the required bond. He took his
oath on the same day.6 The following day, Hadji
Ismael and petitioner likewise filed their respective
bonds and hence, they were allowed to take their
oath as administrators.7
On April 25, 1994 and May 3, 1994, petitioner filed
two motions informing the court that Hadji Abdula
had outstanding deposits with nine (9) major
banks.8 Petitioner prayed that the managers of
each of those banks be ordered to submit a bank
statement of the outstanding deposit of Hadji
Abdula.9 The Shari’a District Court having granted
the motions,10 Assistant Vice President Rockman
O. Sampuha of United Coconut Planters Bank
informed the court that as of April 24, 1994, the
outstanding deposit of Hadji Abdula amounted to
one million five hundred twenty thousand four
hundred pesos and forty-eight centavos
(₱1,520,400.48).11 The Senior Manager of the
Cotabato branch of Metrobank also certified that as
of December 18, 1993, "Hadji Abdula Malang or
Malindatu Malang" had on savings deposit the
balance of three hundred seventy-eight thousand
four hundred ninety-three pesos and 32/100
centavos (P378,493.32).12 PCIB likewise issued a
certification that Hadji Abdula had a balance of
eight hundred fifty pesos (P850.00) in his current
account as of August 11, 1994.13
During the pendency of the case, petitioner
suffered a congestive heart failure that required
immediate medical treatment. On May 5, 1994, she
filed a motion praying that on account of her
ailment, she be allowed to withdraw from UCPB the
amount of three hundred thousand pesos
(P300,000.00) that shall constitute her advance
share in the estate of Hadji Abdula.14 After due
hearing, the Sharia District Court allowed petitioner
183
to withdraw the sum of two hundred fifty thousand
pesos (P250,000.00).15
On May 12, 1994, the Shari’a District Court
required petitioner and Hadji Ismael as joint
administrators to submit an inventory and appraisal
of all properties of Hadji Abdula.16 In compliance
therewith, Hadji Ismael submitted an inventory
showing that in Cotabato City, Hadji Abdula had
seven (7) residential lots with assessed value
ranging from P5,020.00 to P25,800.00, an
agricultural land with assessed value of P860.00,
three (3) one-storey residential buildings, and one
(1) two-storey residential building.17 All these
properties were declared for taxation purposes in
Hadji Abdula’s name.
For her part, petitioner submitted an inventory
showing that Hadji Abdula "married to Neng
Malang" had seven (7) residential lots with a total
assessed value of P243,840.00 in Cotabato City,
an Isuzu pick-up jeepney valued at P30,000.00 and
bank deposits.18
In the Memorandum that she filed with the
Shari’a District Court, petitioner asserted that all the
properties located in Cotabato City, including the
vehicle and bank deposits, were conjugal
properties in accordance with Article 160 of the
Civil Code and Article 116 of the Family Code while
properties located outside of Cotabato City were
exclusive properties of the decedent.19
On the other hand, the oppositors contended in
their own Memorandum that all the properties left
by Hadji Abdula were his exclusive properties for
various reasons. First, Hadji Abdula had no
conjugal partnership with petitioner because his
having contracted eight (8) marriages with different
Muslim women was in violation of the Civil Code
that provided for a monogamous marriage; a
conjugal partnership presupposes a valid civil
marriage, not a bigamous marriage or a common-
law relationship. Second, the decedent adopted a
"complete separation of property regime" in his
marital relations; while his wives Jubaida Kado,
Nayo Hadji Omal and Mabay Ganap Hadji Adzis
contributed to the decedent’s properties, there is no
evidence that petitioner had contributed funds for
the acquisition of such properties. Third, the
presumption that properties acquired during the
marriage are conjugal properties is inapplicable
because at the time he acquired the properties, the
decedent was married to four (4) women. Fourth,

the properties are not conjugal in nature
notwithstanding that some of these properties were
titled in the name of the decedent "married to Neng
Malang" because such description is not conclusive
of the conjugal nature of the property. Furthermore,
because petitioner admitted in her verified petition
that the properties belonged "to the estate of
decedent," she was estopped from claiming, after
formal offer of evidence, that the properties were
conjugal in nature just because some of the
properties were titled in Hadji Abdula’s name
"married to Neng Malang." Fifth, if it is true that the
properties were conjugal properties, then these
should have been registered in the names of both
petitioner and the decedent.20
In its Order of September 26, 1994, the
Shari’a District Court presided by Judge Corocoy D.
Moson held that there was no conjugal partnership
of gains between petitioner and the decedent
primarily because the latter married eight times.
The Civil Code provision on conjugal partnership
cannot be applied if there is more than one wife
because "conjugal partnership presupposes a valid
civil marriage, not a plural marriage or a common-
law relationship." The court further found that the
decedent was "the chief, if not the sole,
breadwinner of his families" and that petitioner did
not contribute to the properties unlike the other
wives named Jubaida, Nayo and Mabay. The
description "married to Neng Malang" in the titles to
the real properties is no more than that –-- the
description of the relationship between petitioner
and the decedent. Such description is insufficient to
prove that the properties belong to the conjugal
partnership of gains. The court stated:
In the instant case, decedent had four (4) wives at
the time he acquired the properties in question. To
sustain the contention of the petitioner that the
properties are her conjugal property with the
decedent is doing violence to the provisions of the
Civil Code. Be it noted that at the time of the
marriage of the petitioner with the decedent, there
were already three (3) existing marriages.
Assuming for the moment that petitioner and the
decedent had agreed that the property regime
between them will be governed by the regime of
conjugal partnership property, that agreement is
null and void for it is against the law, public policy,
public order, good moral(s) and customs.
Under Islamic law, the regime of property
relationship is complete separation of property, in
184
the absence of any stipulation to the contrary in the
marriage settlements or any other contract (Article
38, P.D. 1083). There being no evidence of such
contrary stipulation or contract, this Court
concludes as it had begun, that the properties in
question, both real and personal, are not conjugal,
but rather, exclusive property of the decedent.21
Thus, the Shari’a District Court held that the Islamic
law should be applied in the distribution of the
estate of Hadji Abdula and accordingly disposed of
the case as follows:
WHEREFORE, premises considered, the Court
orders the following:
1) That the estate shall pay the
corresponding estate tax, reimburse the
funeral expenses in the amount of
P50,000.00, and the judicial expenses in the
amount of P2,040.80;
2) That the net estate, consisting of real and
personal properties, located in Talayan,
Maguindanao and in Cotabato City, is
hereby ordered to be distributed and
adjudicated as follows:
a) Jubaida Kado Malang ---------------
---------- 2/64 of the estate
b) Nayo Omar Malang ------------------
------- 2/64 - do -
c) Mabai Aziz Malang -------------------
------ 2/64 - do -
d) Neng "Kagui Kadiguia" Malang ---
---------------- 2/64 - do -
e) Mohammad Ulyssis Malang--------
-----------------14/64 - do -
f) Ismael Malindatu Malang-------------
--------------14/64 - do -
g) Datulna Malang -----------------------
-- 14/64 - do -
h) Lawanbai Malang ---------------------
---- 7/64 - do -

i) Fatima (Kueng) Malang --------------
----------- 7/64 - do -
Total------------------------ 64/64
3) That the amount of P250,000.00 given to
Neng "Kagui Kadiguia" Malang by way of
advance be charged against her share and
if her share is not sufficient, to return the
excess; and
4) That the heirs are hereby ordered to
submit to this court their Project of Partition
for approval, not later than three (3) months
from receipt of this order.
SO ORDERED.
On October 4, 1994, petitioner filed a motion for the
reconsideration of that Order. The oppositors
objected to that motion. On January 10, 1995, the
Shari’a District Court denied petitioner’s motion for
reconsideration.22 Unsatisfied, petitioner filed a
notice of appeal.23 However, on January 19, 1995,
she filed a manifestation withdrawing the notice of
appeal on the strength of the following provisions of
P.D. No. 1083:
Art. 145. Finality of Decisions – The decisions of
the Shari’a District Courts whether on appeal from
the Shari’aCircuit Court or not shall be final.
Nothing herein contained shall affect the original
and appellate jurisdiction of the Supreme Court as
provided in the Constitution.
Petitioner accordingly informed the court that she
would be filing "an original action of certiorari with
the Supreme Court."24
On March 1, 1995, petitioner filed the instant
petition for certiorari with preliminary injunction
and/or restraining order. She contends that the
Shari’a District Court gravely erred in: (a) ruling that
when she married Hadji Abdula Malang, the latter
had three existing marriages with Jubaida Kado
Malang, Nayo Omar Malang and Mabay Ganap
Malang and therefore the properties acquired
during her marriage could not be considered
conjugal, and (b) holding that said properties are
not conjugal because under Islamic Law, the
regime of relationship is complete separation of
property, in the absence of stipulation to the
185
contrary in the marriage settlement or any other
contract.25
As petitioner sees it, "the law applicable on issues
of marriage and property regime is the New Civil
Code", under which all property of the marriage is
presumed to belong to the conjugal partnership.
The Shari’a Court, meanwhile, viewed the Civil
Code provisions on conjugal partnership as
incompatible with plural marriage, which is
permitted under Muslim law, and held the
applicable property regime to be complete
separation of property under P.D. 1083.
Owing to the complexity of the issue presented,
and the fact that the case is one of first impression -
-- this is a singular situation where the issue on
what law governs the property regime of a Muslim
marriage celebrated prior to the passage of the
Muslim Code has been elevated from a Shari’a
court for the Court’s resolution --- the Court decided
to solicit the opinions of two amici curiae, Justice
Ricardo C. Puno26 and former Congressman
Michael O. Mastura27 . The Court extends its
warmest thanks to the amici curiae for their
valuable inputs in their written memoranda28 and in
the hearing of June 27, 2000.
Resolution of the instant case is made more difficult
by the fact that very few of the pertinent dates of
birth, death, marriage and divorce are established
by the record. This is because, traditionally,
Muslims do not register acts, events or judicial
decrees affecting civil status.29 It also explains why
the evidence in the instant case consisted
substantially of oral testimonies.
What is not disputed is that: Hadji Abdula
contracted a total of eight marriages, counting the
three which terminated in divorce; all eight
marriages were celebrated during the effectivity of
the Civil Code and before the enactment of the
Muslim Code; Hadji Abdula divorced four wives ---
namely, Aida, Saaga, Mayumbai and Sabai --- all
divorces of which took place before the enactment
of the Muslim Code; and, Hadji Abdula died on
December 18, 1993, after the Muslim Code and
Family Code took effect, survived by four wives
(Jubaida, Nayo, Mabay and Neng) and five
children, four of whom he begot with Aida and one
with Mabay. It is also clear that the following laws
were in force, at some point or other, during the
marriages of Hadji Abdula: the Civil Code, which
took effect on August 30, 1950; Republic Act No.

394 ("R.A. 394"), authorizing Muslim divorces,
which was effective from June 18, 1949 to June 13,
1969; the Muslim Code, which took effect February
4, 1977; and the Family Code, effective August 3,
1988.
Proceeding upon the foregoing, the Court has
concluded that the record of the case is simply
inadequate for purposes of arriving at a fair and
complete resolution of the petition. To our mind,
any attempt at this point to dispense with the basic
issue given the scantiness of the evidence before
us could result in grave injustice to the parties in
this case, as well as cast profound implications on
Muslim families similarly or analogously situated to
the parties herein. Justice and accountability dictate
a remand; trial must reopen in order to supply the
factual gaps or, in Congressman Mastura’s words,
"missing links", that would be the bases for
judgment and accordingly, allow respondent court
to resolve the instant case. In ordering thus,
however, we take it as an imperative on our part to
set out certain guidelines in the interpretation and
application of pertinent laws to facilitate the task of
respondent court.
It will also be recalled that the main issue presented
by the petition --- concerning the property regime
applicable to two Muslims married prior to the
effectivity of the Muslim Code --- was interposed in
relation to the settlement of the estate of the
deceased husband. Settlement of estates of
Muslims whose civil acts predate the enactment of
the Muslim Code may easily result in the
application of the Civil Code and other personal
laws, thus convincing the Court that it is but
propitious to go beyond the issue squarely
presented and identify such collateral issues as are
required to be resolved in a settlement of estate
case. As amicus curiae Congressman Mastura puts
it, the Court does not often come by a case as the
one herein, and jurisprudence will be greatly
enriched by a discussion of the "watershed of
collateral issues" that this case presents.30
The Court has identified the following collateral
issues, which we hereby present in question form:
(1) What law governs the validity of a Muslim
marriage celebrated under Muslim rites before the
effectivity of the Muslim Code? (2) Are multiple
marriages celebrated before the effectivity of the
Muslim Code valid? (3) How do the Court’s
pronouncements in People vs. Subano, 73 Phil.
692 (1942), and People vs. Dumpo, 62 Phil. 246
186
(1935), affect Muslim marriages celebrated before
the effectivity of the Muslim Code? (4) What laws
govern the property relationship of Muslim multiple
marriages celebrated before the Muslim Code? (5)
What law governs the succession to the estate of a
Muslim who died after the Muslim Code and the
Family Code took effect? (6) What laws apply to the
dissolution of property regimes in the cases of
multiple marriages entered into before the Muslim
Code but dissolved (by the husband’s death) after
the effectivity of the Muslim Code? and (7) Are
Muslim divorces effected before the enactment of
the Muslim Code valid?
The succeeding guidelines, which derive mainly
from the Compliance of amicus curiae Justice
Puno, are hereby laid down by the Court for the
reference of respondent court, and for the direction
of the bench and bar:
First Collateral Issue: The Law(s) Governing
Validity of Muslim Marriages Celebrated Before the
Muslim Code
The time frame in which all eight marriages of Hadji
Abdula were celebrated was during the effectivity of
the Civil Code which, accordingly, governs the
marriages. Article 78 of the Civil Code31 recognized
the right of Muslims to contract marriage in
accordance with their customs and rites, by
providing that ---
Marriages between Mohammedans or pagans who
live in the non-Christian provinces may be
performed in accordance with their customs, rites
or practices. No marriage license or formal
requisites shall be necessary. Nor shall the persons
solemnizing these marriages be obliged to comply
with article 92.
However, thirty years after the approval of this
Code, all marriages performed between Muslims or
other non-Christians shall be solemnized in
accordance with the provisions of this Code. But
the President of the Philippines, upon
recommendation of the Commissioner of National
Integration, may at any time before the expiration of
said period, by proclamation, make any of said
provisions applicable to the Muslims and non-
Christian inhabitants of any of the non-Christian
provinces.
Notably, before the expiration of the thirty-year
period after which Muslims are enjoined to

solemnize their marriages in accordance with the
Civil Code, P.D. 1083 or the Muslim Code was
passed into law. The enactment of the Muslim
Code on February 4, 1977 rendered nugatory the
second paragraph of Article 78 of the Civil Code
which provides that marriages between Muslims
thirty years after the approval of the Civil Code shall
be solemnized in accordance with said Code.
Second and Third Collateral Issues: The Validity of
Muslim Multiple Marriages Celebrated Before the
Muslim Code; The Effect of People vs.
Subano and People vs. Dumpo
Prior to the enactment of P.D. 1083, there was no
law in this jurisdiction which sanctioned multiple
marriages.32 It is also not to be disputed that the
only law in force governing marriage relations
between Muslims and non-Muslims alike was the
Civil Code of 1950.
The Muslim Code, which is the first comprehensive
codification33 of Muslim personal laws,34 also
provides in respect of acts that transpired prior to
its enactment:
Art. 186. Effect of code on past acts. --- (1) Acts
executed prior to the effectivity of this Code shall be
governed by the laws in force at the time of their
execution, and nothing herein except as otherwise
specifically provided, shall affect their validity or
legality or operate to extinguish any right acquired
or liability incurred thereby.
The foregoing provisions are consistent with the
principle that all laws operate prospectively, unless
the contrary appears or is clearly, plainly and
unequivocably expressed or necessarily
implied;35 accordingly, every case of doubt will be
resolved against the retroactive opertion of
laws.36 Article 186 aforecited enunciates the
general rule of the Muslim Code to have its
provisions applied prospectively, and implicitly
upholds the force and effect of a pre-existing body
of law, specifically, the Civil Code --- in respect of
civil acts that took place before the Muslim Code’s
enactment.
Admittedly, an apparent antagonism arises when
we consider that what the provisions of the Civil
Code contemplate and nurture is a monogamous
marriage. "Bigamous or polygamous marriages"
are considered void and inexistent from the time of
their performance.37 The Family Code which
187
superseded the Civil Code provisions on marriage
emphasizes that a subsequent marriage celebrated
before the registration of the judgment declaring a
prior marriage void shall likewise be void.38 These
provisions illustrate that the marital relation
perceived by the Civil Code is one that is
monogamous, and that subsequent marriages
entered into by a person with others while the first
one is subsisting is by no means countenanced.
Thus, when the validity of Muslim plural marriages
celebrated before the enactment of the Muslim
Code was touched upon in two criminal cases, the
Court applied the perspective in the Civil Code that
only one valid marriage can exist at any given time.
In People vs. Subano, supra, the Court convicted
the accused of homicide, not parricide, since ---
(f)rom the testimony of Ebol Subano, father of the
deceased, it appears that the defendant has three
wives and that the deceased was the last in point of
time. Although the practice of polygamy is
approved by custom among these non-Christians,
polygamy, however, is not sanctioned by the
Marriage Law39 , which merely recognizes tribal
marriage rituals. The deceased, under our law, is
not thus the lawful wife of the defendant and this
precludes conviction for the crime of parricide.
In People vs. Dumpo, supra, Mora Dumpo was
prosecuted for bigamy when, legally married to
Moro Hassan, she allegedly contracted a second
marriage with Moro Sabdapal. The Court acquitted
her on the ground that it was not duly proved that
the alleged second marriage had all the essential
requisites to make it valid were it not for the
subsistence of the first marriage. As it appears that
the consent of the bride’s father is an indispensable
requisite to the validity of a Muslim marriage, and
as Mora Dumpo’s father categorically affirmed that
he did not give his consent to her union with Moro
Sabdapal, the Court held that such union could not
be a marriage otherwise valid were it not for the
existence of the first one, and resolved to acquit her
of the charge of bigamy.
The ruling in Dumpo indicates that, had it been
proven as a fact that the second marriage
contained all the essential requisites to make it
valid, a conviction for bigamy would have
prospered. 40

Fourth Collateral Issue: Law(s) Governing Property
Relations of Muslim Marriages Celebrated Before
the Muslim Code
This is the main issue presented by the instant
petition. In keeping with our holding that the validity
of the marriages in the instant case is determined
by the Civil Code, we hold that it is the same Code
that determines and governs the property relations
of the marriages in this case, for the reason that at
the time of the celebration of the marriages in
question the Civil Code was the only law on
marriage relations, including property relations
between spouses, whether Muslim or non-Muslim.
Inasmuch as the Family Code makes substantial
amendments to the Civil Code provisions on
property relations, some of its provisions are also
material, particularly to property acquired from and
after August 3, 1988.
Which law would govern depends upon: (1) when
the marriages took place; (2) whether the parties
lived together as husband and wife; and (3) when
and how the subject properties were acquired.
Following are the pertinent provisions of the Civil
Code:
Art. 119. The future spouses may in the marriage
settlements agree upon absolute or relative
community of property, or upon complete
separation of property, or upon any other regime. In
the absence of marriage settlements, or when the
same are void, the system of relative community or
conjugal partnership of gains as established in this
Code shall govern the property relations between
husband and wife.
Art. 135. All property brought by the wife to the
marriage, as well as all property she acquires
during the marriage, in accordance with article 148,
is paraphernal.
Art. 136. The wife retains the ownership of the
paraphernal property.
Art. 142. By means of the conjugal partnership of
gains the husband and wife place in a common
fund the fruits of their separate property and the
income from their work or industry, and divide
equally, upon the dissolution of the marriage or of
the partnership, the net gains or benefits obtained
indiscriminately by either spouse during the
marriage.
188
Art. 143. All property of the conjugal partnership of
gains is owned in common by the husband and
wife.
The Civil Code also provides in Article 144:
When a man and a woman live together as
husband and wife, but they are not married, or their
marriage is void from the beginning, the property
acquired by either or both of them through their
work or industry or their wages and salaries shall
be governed by the rules on co-ownership.
In a long line of cases, this Court has interpreted
the co-ownership provided in Article 144 of the Civil
Code to require that the man and woman living
together as husband and wife without the benefit of
marriage or under a void marriage must not in any
way be incapacitated to marry.41 Situating these
rulings to the instant case, therefore, the co-
ownership contemplated in Article 144 of the Civil
Code cannot apply to Hadji Abdula’s marriages
celebrated subsequent to a valid and legally
existing marriage, since from the point of view of
the Civil Code Hadji Abdula is not capacitated to
marry. However, the wives in such marriages are
not precluded from proving that property acquired
during their cohabitation with Hadji Abdula is
their exclusive property, respectively.42 Absent such
proof, however, the presumption is that property
acquired during the subsistence of a valid marriage
--- and in the Civil Code, there can only be one
validly existing marriage at any given time --- is
conjugal property of such subsisting marriage. 43
With the effectivity of the Family Code on August 3,
1988, the following provisions of the said Code are
pertinent:
Art. 147. When a man and a woman who are
capacitated to marry each other live exclusively
with each other as husband and wife without the
benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them in
equal shares and the property acquired by both of
them through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be
presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition of

the other party of any property shall be deemed to
have contributed jointly in the acquisition thereof if
the former’s efforts consisted in the care and
maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter
vivos of his or her share in the property acquired
during cohabitation and owned in common, without
the consent of the other, until after the termination
of the cohabitation.
When only one of the parties to a void marriage is
in good faith, the share of the party in bad faith in
the co-ownership shall be forfeited in favor of their
common children. In case of default or of waiver by
any or all of the common children or their
descendants, each vacant share shall belong to the
respective surviving descendants. In the absence
of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take
place upon termination of the cohabitation.
Art. 148. In cases of cohabitation not falling under
the preceding Article, only the properties acquired
by both of the parties through their actual joint
contribution of money, property, or industry shall be
owned by them in common in proportion to their
respective contributions. In the absence of proof to
the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule
and presumption shall apply to joint deposits of
money and evidences of credit.
If one of the parties is validly married to another, his
or her share in the co-ownership shall accrue to the
absolute community or conjugal partnership
existing in such valid marriage. If the party who
acted in bad faith is not validly married to another,
his or her share shall be forfeited in the manner
provided in the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall likewise
apply even if both parties are in bad faith.
It will be noted that while the Civil Code merely
requires that the parties "live together as husband
and wife" the Family Code in Article 147 specifies
that they "live exclusively with each other as
husband and wife." Also, in contrast to Article 144
of the Civil Code as interpreted by jurisprudence,
Article 148 of the Family Code allows for co-
ownership in cases of cohabitation where, for
instance, one party has a pre-existing valid
189
marriage, provided that the parties prove their
"actual joint contribution of money, property, or
industry" and only to the extent of their
proportionate interest therein. The rulings
in Juaniza vs. Jose, 89 SCRA 306, Camporodendo
vs. Garcia, 102 Phil. 1055, and related cases are
embodied in the second paragraph of Article 148,
which declares that the share of the party validly
married to another shall accrue to the property
regime of such existing marriage.
Fifth and Sixth Collateral Issues: Law(s) on
Succession and Dissolution of Property Regimes
Hadji Abdula died intestate on December 16, 1993.
Thus, it is the Muslim Code which should determine
the identification of the heirs in the order of
intestate succession and the respective shares of
the heirs.
Meanwhile, the status and capacity to succeed on
the part of the individual parties who entered into
each and every marriage ceremony will depend
upon the law in force at the time of the performance
of the marriage rite.
The status and capacity to succeed of the children
will depend upon the law in force at the time of
conception or birth of the child. If the child was
conceived or born during the period covered by the
governance of the Civil Code, the Civil Code
provisions on the determination of the legitimacy or
illegitimacy of the child would appear to be in point.
Thus, the Civil Code provides:
Art. 255. Children born after one hundred and
eighty days following the celebration of the
marriage, and before three hundred days following
its dissolution or the separation of the spouses shall
be presumed to be legitimate.
Against this presumption no evidence shall be
admitted other than that of the physical impossibility
of the husband’s having access to his wife within
the first one hundred and twenty days of the three
hundred which preceded the birth of the child.
This physical impossibility may be caused:
(1) By the impotence of the husband;

(2) By the fact that the husband and wife
were living separately, in such a way that
access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate,
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress.
If the child was conceived or born during the period
covered by the governance of the Muslim
Code, i.e., from February 4, 1977 up to the death of
Hadji Abdula on December 18, 1993, the Muslim
Code determines the legitimacy or illegitimacy of
the child. Under the Muslim Code:
Art. 58. Legitimacy, how established. --- Legitimacy
of filiation is established by the evidence of valid
marriage between the father and the mother at the
time of the conception of the child.
Art. 59. Legitimate children. ---
(1) Children conceived in lawful wedlock
shall be presumed to be legitimate.
Whoever claims illegitimacy of or impugns
such filiation must prove his allegation.
(2) Children born after six months following
the consummation of marriage or within two
years after the dissolution of the marriage
shall be presumed to be legitimate. Against
this presumption no evidence shall be
admitted other than that of physical
impossibility of access between the parents
at or about the time of the conception of the
child.
Art. 60. Children of subsequent marriage. ---
Should the marriage be dissolved and the wife
contracts another marriage after the expiration of
her ‘idda, the child born within six months from the
dissolution of the prior marriage shall be presumed
to have been conceived during the former
marriage, and if born thereafter, during the latter.
Art. 61. Pregnancy after dissolution. --- If, after the
dissolution of marriage, the wife believes that she is
pregnant by her former husband, she shall, within
thirty days from the time she became aware of her
pregnancy, notify the former husband or his heirs of
190
that fact. The husband or his heirs may ask the
court to take measures to prevent a simulation of
birth.
Upon determination of status and capacity to
succeed based on the foregoing provisions, the
provisions on legal succession in the Muslim Code
will apply. Under Article 110 of the said Code, the
sharers to an inheritance include:
(a) The husband, the wife;
(b) The father, the mother, the grandfather,
the grandmother;
(c) The daughter and the son’s daughter in
the direct line;
(d) The full sister, the consanguine sister,
the uterine sister and the uterine brother.
When the wife survives with a legitimate child or a
child of the decedent’s son, she is entitled to one-
eighth of the hereditary estate; in the absence of
such descendants, she shall inherit one-fourth of
the estate.44 The respective shares of the other
sharers, as set out in Article 110 abovecited, are
provided for in Articles 113 to 122 of P.D. 1083.
Seventh Collateral Issue: Muslim Divorces Before
the Effectivity of the Muslim Code
R.A. 394 authorized absolute divorce among
Muslims residing in non-Christian provinces, in
accordance with Muslim custom, for a period of 20
years from June 18, 1949 (the date of approval of
R.A. 394) to June 13, 1969.45Thus, a Muslim
divorce under R.A. 394 is valid if it took place from
June 18, 1949 to June 13, 1969.
From the seven collateral issues that we discussed,
we identify four corollary issues as to further situate
the points of controversy in the instant case for the
guidance of the lower court. Thus:
1. Which of the several marriages was
validly and legally existing at the time of the
opening of the succession of Hadji Abdula
when he died in 1993? The validly and
legally existing marriage would be that
marriage which was celebrated at a time
when there was no other subsisting
marriage standing undissolved by a valid

divorce or by death. This is because all of
the marriages were celebrated during the
governance of the Civil Code, under the
rules of which only one marriage can exist
at any given time.
Whether or not the marriage was validly
dissolved by a Muslim divorce depends
upon the time frame and the applicable
law.1âwphi1 A Muslim divorce under R.A.
No. 394 is valid if it took place from June 18,
1949 to June 13, 1969, and void if it took
place from June 14, 1969. 46
2. There being a dispute between the
petitioner and the oppositors as regards the
heirship of the children begotten from
different marriages, who among the
surviving children are legitimate and who
are illegitimate?The children conceived and
born of a validly existing marriage as
determined by the first corollary issue are
legitimate. The fact and time of conception
or birth may be determined
by proof or presumption depending upon
the time frame and the applicable law.
3. What properties constituted the estate of
Hadji Abdula at the time of his death on
December 18, 1993? The estate of Hadji
Abdula consists of the following:
a. Properties acquired during the
existence of a valid marriage as
determined by the first corollary
issue are conjugal properties and
should be liquidated and divided
between the spouses under the
Muslim Code, this being the law in
force at the time of Hadji Abdula’s
death.
b. Properties acquired under the
conditions prescribed in Article 144
of the Civil Code during the period
August 30, 1950 to August 2, 1988
are conjugal properties and should
be liquidated and divided between
the spouses under the Muslim Code.
However, the wives other than the
lawful wife as determined under the
first corollary issue may submit their
respective evidence to prove that
191
any of such property is theirs
exclusively.
c. Properties acquired under the
conditions set out in Articles 147 and
148 of the Family Code during the
period from and after August 3, 1988
are governed by the rules on co-
ownership.
d. Properties acquired under
conditions not covered by the
preceding paragraphs and obtained
from the exclusive efforts or assets
of Hadji Abdula are his exclusive
properties.
4. Who are the legal heirs of Hadji Abdula,
and what are their shares in intestacy? The
following are Hadji Abdula’s legal heirs: (a)
the lawful wife, as determined under the first
corollary issue, and (2) the children, as
determined under the second corollary
issue. The Muslim Code, which was already
in force at the time of Hadji Abdula’s death,
will govern the determination of their
respective shares.
As we have indicated early on, the evidence in this
case is inadequate to resolve in its entirety the
main, collateral and corollary issues herein
presented and a remand to the lower court is in
order. Accordingly, evidence should be received to
supply the following proofs: (1) the exact dates of
the marriages performed in accordance with
Muslim rites or practices; (2) the exact dates of the
dissolutions of the marriages terminated by death
or by divorce in accordance with Muslim rites and
practices, thus indicating which marriage resulted in
a conjugal partnership under the criteria prescribed
by the first, second, and third collateral issues and
the first corollary issue; (3) the exact periods of
actual cohabitation ("common life" under a
"common roof") of each of the marriages during
which time the parties lived together; (4) the
identification of specific properties acquired during
each of the periods of cohabitation referred to in
paragraph 3 above, and the manner and source of
acquisition, indicating joint or individual effort, thus
showing the asset as owned separately, conjugally
or in co-ownership; and (5) the identities of the
children (legitimate or illegitimate) begotten from
the several unions, the dates of their respective
conceptions or births in relation to paragraphs 1
 192

and 2 above, thereby indicating their status as

lawful heirs.

Amicus curiae Congressman Mastura agrees that

since the marriage of petitioner to decedent took
place in 1972 the Civil Code is the law applicable
on the issue of marriage settlement, 47 but
espouses that customs or established practices
among Muslims in Mindanao must also be applied
with the force of law to the instant
case.48 Congressman Mastura’s disquisition has
proven extremely helpful in impressing upon us the
background in which Islamic law and the Muslim
Code need to be interpreted, particularly the
interconnectedness of law and religion for
Muslims49 and the impracticability of a strict
application of the Civil Code to plural marriages
recognized under Muslim law.50Regrettably, the
Court is duty-bound to resolve the instant case
applying such laws and rights as are in existence at
the time the pertinent civil acts took place.
Corollarily, we are unable to supplant governing law
with customs, albeit how widely observed. In the
same manner, we cannot supply a perceived hiatus
in P.D. 1083 concerning the distribution of property
between divorced spouses upon one of the
spouses’ death.51

WHEREFORE, the decision dated September 26,

1994 of the Fifth Shari’a District Court of Cotabato
City in Special Proceeding No. 94-40 is SET
ASIDE, and the instant petition is REMANDED for
the reception of additional evidence and the
resolution of the issues of the case based on the
guidelines set out in this Decision.

SO ORDERED.

G.R. No. 124371 November 23, 2000
PAULA T. LLORENTE, petitioner,
vs.
COURT OF APPEALS and ALICIA F.
LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of
the Court of Appeals1 modifying that of the Regional
Trial Court, Camarines Sur, Branch 35, Iriga
City2 declaring respondent Alicia F. Llorente
(herinafter referred to as "Alicia"), as co-owners of
whatever property she and the deceased Lorenzo
N. Llorente (hereinafter referred to as "Lorenzo")
may have acquired during the twenty-five (25)
years that they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted
serviceman of the United States Navy from March
10, 1927 to September 30, 1957.3
On February 22, 1937, Lorenzo and petitioner
Paula Llorente (hereinafter referred to as "Paula")
were married before a parish priest, Roman
Catholic Church, in Nabua, Camarines Sur.4
Before the outbreak of the Pacific War, Lorenzo
departed for the United States and Paula stayed in
the conjugal home in barrio Antipolo, Nabua,
Camarines Sur.5
On November 30, 1943, Lorenzo was admitted to
United States citizenship and Certificate of
Naturalization No. 5579816 was issued in his favor
by the United States District Court, Southern
District of New York.6
Upon the liberation of the Philippines by the
American Forces in 1945, Lorenzo was granted an
accrued leave by the U. S. Navy, to visit his wife
and he visited the Philippines.7 He discovered that
his wife Paula was pregnant and was "living in" and
193
having an adulterous relationship with his brother,
Ceferino Llorente.8
On December 4, 1945, Paula gave birth to a boy
registered in the Office of the Registrar of Nabua as
"Crisologo Llorente," with the certificate stating that
the child was not legitimate and the line for the
father’s name was left blank.9
Lorenzo refused to forgive Paula and live with her.
In fact, on February 2, 1946, the couple drew a
written agreement to the effect that (1) all the family
allowances allotted by the United States Navy as
part of Lorenzo’s salary and all other obligations for
Paula’s daily maintenance and support would be
suspended; (2) they would dissolve their marital
union in accordance with judicial proceedings; (3)
they would make a separate agreement regarding
their conjugal property acquired during their marital
life; and (4) Lorenzo would not prosecute Paula for
her adulterous act since she voluntarily admitted
her fault and agreed to separate from Lorenzo
peacefully. The agreement was signed by both
Lorenzo and Paula and was witnessed by Paula’s
father and stepmother. The agreement was
notarized by Notary Public Pedro Osabel.10
Lorenzo returned to the United States and on
November 16, 1951 filed for divorce with the
Superior Court of the State of California in and for
the County of San Diego. Paula was represented
by counsel, John Riley, and actively participated in
the proceedings. On November 27, 1951, the
Superior Court of the State of California, for the
County of San Diego found all factual allegations to
be true and issued an interlocutory judgment of
divorce.11
On December 4, 1952, the divorce decree became
final.12
In the meantime, Lorenzo returned to the
Philippines.
On January 16, 1958, Lorenzo married Alicia F.
Llorente in Manila.13 Apparently, Alicia had no
knowledge of the first marriage even if they resided
in the same town as Paula, who did not oppose the
marriage or cohabitation.14
From 1958 to 1985, Lorenzo and Alicia lived
together as husband and wife.15 Their twenty-five
(25) year union produced three children, Raul, Luz
and Beverly, all surnamed Llorente.16

On March 13, 1981, Lorenzo executed a Last Will
and Testament. The will was notarized by Notary
Public Salvador M. Occiano, duly signed by
Lorenzo with attesting witnesses Francisco Hugo,
Francisco Neibres and Tito Trajano. In the will,
Lorenzo bequeathed all his property to Alicia and
their three children, to wit:
"(1) I give and bequeath to my wife ALICIA R.
FORTUNO exclusively my residential house and
lot, located at San Francisco, Nabua, Camarines
Sur, Philippines, including ALL the personal
properties and other movables or belongings that
may be found or existing therein;
"(2) I give and bequeath exclusively to my wife
Alicia R. Fortuno and to my children, Raul F.
Llorente, Luz F. Llorente and Beverly F. Llorente, in
equal shares, all my real properties whatsoever and
wheresoever located, specifically my real properties
located at Barangay Aro-Aldao, Nabua, Camarines
Sur; Barangay Paloyon, Nabua, Camarines Sur;
Barangay Baras, Sitio Puga, Nabua, Camarines
Sur; and Barangay Paloyon, Sitio Nalilidong,
Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto
my wife Alicia R. Fortuno and unto my children,
Raul F. Llorente, Luz F. Llorente and Beverly F.
Llorente, in equal shares, my real properties
located in Quezon City Philippines, and covered by
Transfer Certificate of Title No. 188652; and my
lands in Antipolo, Rizal, Philippines, covered by
Transfer Certificate of Title Nos. 124196 and
165188, both of the Registry of Deeds of the
province of Rizal, Philippines;
"(4) That their respective shares in the above-
mentioned properties, whether real or personal
properties, shall not be disposed of, ceded, sold
and conveyed to any other persons, but could only
be sold, ceded, conveyed and disposed of by and
among themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be
the sole executor of this my Last Will and
Testament, and in her default or incapacity of the
latter to act, any of my children in the order of age,
if of age;
"(6) I hereby direct that the executor named herein
or her lawful substitute should served (sic) without
bond;
194
"(7) I hereby revoke any and all my other wills,
codicils, or testamentary dispositions heretofore
executed, signed, or published, by me;
"(8) It is my final wish and desire that if I die, no
relatives of mine in any degree in the Llorente’s
Side should ever bother and disturb in any manner
whatsoever my wife Alicia R. Fortunato and my
children with respect to any real or personal
properties I gave and bequeathed respectively to
each one of them by virtue of this Last Will and
Testament."17
On December 14, 1983, Lorenzo filed with the
Regional Trial Court, Iriga, Camarines Sur, a
petition for the probate and allowance of his last will
and testament wherein Lorenzo moved that Alicia
be appointed Special Administratrix of his estate.18
On January 18, 1984, the trial court denied the
motion for the reason that the testator Lorenzo was
still alive.19
On January 24, 1984, finding that the will was duly
executed, the trial court admitted the will to
probate.20
On June 11, 1985, before the proceedings could be
terminated, Lorenzo died.21
On September 4, 1985, Paula filed with the same
court a petition22 for letters of administration over
Lorenzo’s estate in her favor. Paula contended (1)
that she was Lorenzo’s surviving spouse, (2) that
the various property were acquired during their
marriage, (3) that Lorenzo’s will disposed of all his
property in favor of Alicia and her children,
encroaching on her legitime and 1/2 share in the
conjugal property.23
On December 13, 1985, Alicia filed in the testate
proceeding (Sp. Proc. No. IR-755), a petition for the
issuance of letters testamentary.24
On October 14, 1985, without terminating the
testate proceedings, the trial court gave due course
to Paula’s petition in Sp. Proc. No. IR-888.25
On November 6, 13 and 20, 1985, the order was
published in the newspaper "Bicol Star".26
On May 18, 1987, the Regional Trial Court issued a
joint decision, thus:

"Wherefore, considering that this court has so
found that the divorce decree granted to the late
Lorenzo Llorente is void and inapplicable in the
Philippines, therefore the marriage he contracted
with Alicia Fortunato on January 16, 1958 at Manila
is likewise void. This being so the petition of Alicia
F. Llorente for the issuance of letters testamentary
is denied. Likewise, she is not entitled to receive
any share from the estate even if the will especially
said so her relationship with Lorenzo having gained
the status of paramour which is under Art. 739 (1).
"On the other hand, the court finds the petition of
Paula Titular Llorente, meritorious, and so declares
the intrinsic disposition of the will of Lorenzo
Llorente dated March 13, 1981 as void and
declares her entitled as conjugal partner and
entitled to one-half of their conjugal properties, and
as primary compulsory heir, Paula T. Llorente is
also entitled to one-third of the estate and then one-
third should go to the illegitimate children, Raul, Luz
and Beverly, all surname (sic) Llorente, for them to
partition in equal shares and also entitled to the
remaining free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal
administrator of the estate of the deceased,
Lorenzo Llorente. As such let the corresponding
letters of administration issue in her favor upon her
filing a bond in the amount (sic) of P100,000.00
conditioned for her to make a return to the court
within three (3) months a true and complete
inventory of all goods, chattels, rights, and credits,
and estate which shall at any time come to her
possession or to the possession of any other
person for her, and from the proceeds to pay and
discharge all debts, legacies and charges on the
same, or such dividends thereon as shall be
decreed or required by this court; to render a true
and just account of her administration to the court
within one (1) year, and at any other time when
required by the court and to perform all orders of
this court by her to be performed.
"On the other matters prayed for in respective
petitions for want of evidence could not be granted.
"SO ORDERED."27
In time, Alicia filed with the trial court a motion for
reconsideration of the aforequoted decision.28
On September 14, 1987, the trial court denied
Alicia’s motion for reconsideration but modified its
195
earlier decision, stating that Raul and Luz Llorente
are not children "legitimate or otherwise" of Lorenzo
since they were not legally adopted by
him.29 Amending its decision of May 18, 1987, the
trial court declared Beverly Llorente as the only
illegitimate child of Lorenzo, entitling her to one-
third (1/3) of the estate and one-third (1/3) of the
free portion of the estate.30
On September 28, 1987, respondent appealed to
the Court of Appeals.31
On July 31, 1995, the Court of Appeals
promulgated its decision, affirming with modification
the decision of the trial court in this wise:
"WHEREFORE, the decision appealed from is
hereby AFFIRMED with the MODIFICATION that
Alicia is declared as co-owner of whatever
properties she and the deceased may have
acquired during the twenty-five (25) years of
cohabitation.
"SO ORDERED."32
On August 25, 1995, petitioner filed with the Court
of Appeals a motion for reconsideration of the
decision.33
On March 21, 1996, the Court of Appeals,34 denied
the motion for lack of merit.
Hence, this petition.35
The Issue
Stripping the petition of its legalese and sorting
through the various arguments raised,36 the issue is
simple. Who are entitled to inherit from the late
Lorenzo N. Llorente?
We do not agree with the decision of the Court of
Appeals. We remand the case to the trial court for
ruling on the intrinsic validity of the will of the
deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became
an American citizen long before and at the time of:
(1) his divorce from Paula; (2) marriage to Alicia;
(3) execution of his will; and (4) death, is duly
established, admitted and undisputed.

Thus, as a rule, issues arising from these incidents
are necessarily governed by foreign law.
The Civil Code clearly provides:
"Art. 15. Laws relating to family rights and duties, or
to the status, condition and legal capacity of
persons are binding upon citizens of the
Philippines, even though living abroad.
"Art. 16. Real property as well as personal property
is subject to the law of the country where it is
situated.
"However, intestate and testamentary succession,
both with respect to the order of succession and to
the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property and
regardless of the country wherein said property
may be found." (emphasis ours)
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to
take judicial notice of them. Like any other fact,
they must be alleged and proved.37
While the substance of the foreign law was
pleaded, the Court of Appeals did not admit the
foreign law. The Court of Appeals and the trial court
called to the fore the renvoi doctrine, where the
case was "referred back" to the law of the
decedent’s domicile, in this case, Philippine law.
We note that while the trial court stated that the law
of New York was not sufficiently proven, in the
same breath it made the categorical, albeit equally
unproven statement that "American law follows the
‘domiciliary theory’ hence, Philippine law applies
when determining the validity of Lorenzo’s will.38
First, there is no such thing as one American
law.1ªwph!1 The "national law" indicated in Article
16 of the Civil Code cannot possibly apply to
general American law. There is no such law
governing the validity of testamentary provisions in
the United States. Each State of the union has its
own law applicable to its citizens and in force only
within the State. It can therefore refer to no other
than the law of the State of which the decedent was
a resident.39 Second, there is no showing that the
196
application of the renvoi doctrine is called for or
required by New York State law.
The trial court held that the will was intrinsically
invalid since it contained dispositions in favor of
Alice, who in the trial court’s opinion was a
mere paramour. The trial court threw the will out,
leaving Alice, and her two children, Raul and Luz,
with nothing.
The Court of Appeals also disregarded the will. It
declared Alice entitled to one half (1/2) of whatever
property she and Lorenzo acquired during their
cohabitation, applying Article 144 of the Civil Code
of the Philippines.
The hasty application of Philippine law and the
complete disregard of the will, already probated as
duly executed in accordance with the formalities of
Philippine law, is fatal, especially in light of the
factual and legal circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.40 we held that owing to
the nationality principle embodied in Article 15 of
the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces, the
same being considered contrary to our concept of
public policy and morality. In the same case, the
Court ruled that aliens may obtain divorces abroad,
provided they are valid according to their national
law.
Citing this landmark case, the Court held in Quita v.
Court of Appeals,41 that once proven that
respondent was no longer a Filipino citizen when
he obtained the divorce from petitioner, the ruling
in Van Dorn would become applicable and
petitioner could "very well lose her right to inherit"
from him.
In Pilapil v. Ibay-Somera,42 we recognized the
divorce obtained by the respondent in his country,
the Federal Republic of Germany. There, we stated
that divorce and its legal effects may be recognized
in the Philippines insofar as respondent is
concerned in view of the nationality principle in our
civil law on the status of persons.
For failing to apply these doctrines, the decision of
the Court of Appeals must be reversed.43 We hold
that the divorce obtained by Lorenzo H. Llorente
 197

from his first wife Paula was valid and recognized in
this jurisdiction as a matter of comity. Now, the
effects of this divorce (as to the succession to the
estate of the decedent) are matters best left to the
determination of the trial court.
Validity of the Will
In lieu thereof, the Court REVERSES the decision
of the Regional Trial Court and RECOGNIZES as
VALID the decree of divorce granted in favor of the
deceased Lorenzo N. Llorente by the Superior
Court of the State of California in and for the
County of San Diego, made final on December 4,
1952.

The Civil Code provides:
"Art. 17. The forms and solemnities of contracts,
wills, and other public instruments shall be
governed by the laws of the country in which they
are executed.
"When the acts referred to are executed before the
diplomatic or consular officials of the Republic of
the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution." (underscoring ours)
Further, the Court REMANDS the cases to the
court of origin for determination of the intrinsic
validity of Lorenzo N. Llorente’s will and
determination of the parties’ successional rights
allowing proof of foreign law with instructions that
the trial court shall proceed with all deliberate
dispatch to settle the estate of the deceased within
the framework of the Rules of Court.
No costs.
SO ORDERED.

The clear intent of Lorenzo to bequeath his

property to his second wife and children by her is
glaringly shown in the will he executed. We do not
wish to frustrate his wishes, since he was a
foreigner, not covered by our laws on "family rights
and duties, status, condition and legal capacity."44

Whether the will is intrinsically valid and who shall

inherit from Lorenzo are issues best proved by
foreign law which must be pleaded and proved.
Whether the will was executed in accordance with
the formalities required is answered by referring to
Philippine law. In fact, the will was duly probated.

As a guide however, the trial court should note that

whatever public policy or good customs may be
involved in our system of legitimes, Congress did
not intend to extend the same to the succession of
foreign nationals. Congress specifically left the
amount of successional rights to the decedent's
national law.45

Having thus ruled, we find it unnecessary to pass

upon the other issues raised.

The Fallo

WHEREFORE, the petition is GRANTED. The

decision of the Court of Appeals in CA-G. R. SP
No. 17446 promulgated on July 31, 1995 is SET
ASIDE.

G.R. Nos. L-3087 and L-3088 July 31,
1954
In re: Testate Estate of the deceased JOSE B.
SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B.
SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First
Instance of Bulacan disallowing the alleged will and
testament executed in Manila on November 1929,
and the alleged last will and testament executed in
Kulangsu, Amoy, China, on 4 January 1931, by
Jose B. Suntay. The value of the estate left by the
deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen
and resident of the Philippines, died in the city of
Amoy, Fookien province, Republic of China, leaving
real and personal properties in the Philippines and
a house in Amoy, Fookien province, China, and
children by the first marriage had with the late
Manuela T. Cruz namely, Apolonio, Concepcion,
Angel, Manuel, Federico, Ana, Aurora, Emiliano,
and Jose, Jr. and a child named Silvino by the
second marriage had with Maria Natividad Lim
Billian who survived him. Intestate proceedings
were instituted in the Court of First Instance of
Bulacan (special proceedings No. 4892) and after
hearing letters of administration were issued to
Apolonio Suntay. After the latter's death Federico
C. Suntay was appointed administrator of the
estate. On 15 October 1934 the surviving widow
filed a petition in the Court of First Instance of
Bulacan for the probate of a last will and testament
claimed to have been executed and signed in the
Philippines on November 1929 by the late Jose B.
Suntay. This petition was denied because of the
loss of said will after the filing of the petition and
before the hearing thereof and of the insufficiency
of the evidence to establish the loss of the said will.
An appeal was taken from said order denying the
probate of the will and this Court held the evidence
before the probate court sufficient to prove the loss
of the will and remanded the case to the Court of
First Instance of Bulacan for the further
proceedings (63 Phil., 793). In spite of the fact that
198
a commission from the probate court was issued on
24 April 1937 for the taking of the deposition of Go
Toh, an attesting witness to the will, on 7 February
1938 the probate court denied a motion for
continuance of the hearing sent by cablegram from
China by the surviving widow and dismissed the
petition. In the meantime the Pacific War
supervened. After liberation, claiming that he had
found among the files, records and documents of
his late father a will and testament in Chinese
characters executed and signed by the deceased
on 4 January 1931 and that the same was filed,
recorded and probated in the Amoy district court,
Province of Fookien, China, Silvino Suntay filed a
petition in the intestate proceedings praying for the
probate of the will executed in the Philippines on
November 1929 (Exhibit B) or of the will executed
in Amoy, Fookien, China, on 4 January 1931
(Exhibit N).
There is no merit in the contention that the
petitioner Silvino Suntay and his mother Maria
Natividad Lim Billian are estopped from asking for
the probate of the lost will or of the foreign will
because of the transfer or assignment of their share
right, title and interest in the estate of the late Jose
B. Suntay to Jose G. Gutierrez and the spouses
Ricardo Gutierrez and Victoria Goño and the
subsequent assignment thereof by the assignees to
Francisco Pascual and by the latter to Federico C.
Suntay, for the validity and legality of such
assignments cannot be threshed out in this
proceedings which is concerned only with the
probate of the will and testament executed in the
Philippines on November 1929 or of the foreign will
allegedly executed in Amoy on 4 January 1931 and
claimed to have been probated in the municipal
district court of Amoy, Fookien province, Republic
of China.
As to prescription, the dismissal of the petition for
probate of the will on 7 February 1938 was no bar
to the filing of this petition on 18 June 1947, or
before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or
destroyed will unless the execution and
validity of the same be established, and the
will is proved to have been in existence at
the time of the death of the testator, or is
shown to have been fraudulently or
accidentally destroyed in the lifetime of the

testator without his knowledge, nor unless
its provisions are clearly and distinctly
proved by at least two credible witnesses.
When a lost will is proved, the provisions
thereof must be distinctly stated and
certified by the judge, under the seal of the
court, and the certificate must be filed and
recorded as other wills are filed and
recorded.
The witnesses who testified to the provisions of the
lost will are Go Toh, an attesting witness, Anastacio
Teodoro and Ana Suntay. Manuel Lopez, who was
an attesting witness to the lost will, was dead at the
time of the hearing of this alternative petition. In his
deposition Go Toh testifies that he was one of the
witnesses to the lost will consisting of twenty-three
sheets signed by Jose B. Suntay at the bottom of
the will and each and every page thereof in the
presence of Alberto Barretto, Manuel Lopez and
himself and underneath the testator's signature the
attesting witnesses signed and each of them signed
the attestation clause and each and every page of
the will in the presence of the testator and of the
other witnesses (answers to the 31st, 41st, 42nd,
49th, 50th, 55th and 63rd interrogatories, Exhibit D-
1), but did not take part in the drafting thereof
(answer to the 11th interrogatory, Id.); that he knew
the contents of the will written in Spanish although
he knew very little of that language (answers to the
22nd and 23rd interrogatories and to X-2 cross-
interrogatory, Id.) and all he knows about the
contends of the lost will was revealed to him by
Jose B. Suntay at the time it was executed
(answers to the 25th interrogatory and to X-4 and
X-8 cross-interrogatories, Id.); that Jose B. Suntay
told him that the contents thereof are the same as
those of the draft (Exhibit B) (answers to the 33rd
interrogatory and to X-8 cross-interrogatory, Id.)
which he saw in the office of Alberto Barretto in
November 1929 when the will was signed (answers
to the 69th, 72nd, and 74th interrogatories, Id); that
Alberto Barretto handed the draft and said to Jose
B. Suntay: "You had better see if you want any
correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose B.
Suntay put the "Exhibit B" in his pocket and had the
original signed and executed" (answers to the 91st
interrogatory, and to X-18 cross-interrogatory, Id.);
that Mrs. Suntay had the draft of the will (Exhibit B)
translated into Chinese and he read the translation
(answers to the 67th interrogatory, Id.); that he did
not read the will and did not compare it (check it up)
199
with the draft (Exhibit B) (answers to X-6 and X-20
cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September
1934 in the house of her brother Apolonio Suntay
she learned that her father left a will "because of
the arrival of my brother Manuel Suntay, who was
bringing along with him certain document and he
told us or he was telling us that it was the will of our
father Jose B. Suntay which was taken from Go
Toh. ..." (p. 524, t. s. n., hearing of 24 February
1948); that she saw her brother Apolonio Suntay
read the document in her presence and of Manuel
and learned of the adjudication made in the will by
her father of his estate, to wit: one-third to his
children, one-third to Silvino and his mother and the
other third to Silvino, Apolonio, Concepcion and
Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that
"after Apolonio read that portion, then he turned
over the document to Manuel, and he went away,"
(p. 528, t. s. n., Id.). On cross-examination, she
testifies that she read the part of the will on
adjudication to know what was the share of each
heir (pp. 530, 544, t. s. n., Id.) and on redirect she
testifies that she saw the signature of her father, Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t.
s. n., Id.).
Anastacio Teodoro testifies that one day in
November 1934 (p. 273, t. s. n., hearing of 19
January 1948), before the last postponement of the
hearing granted by the Court, Go Toh arrived at his
law office in the De los Reyes Building and left an
envelope wrapped in red handkerchief [Exhibit C]
(p. 32, t. s. n., hearing of 13 October 1947); that he
checked up the signatures on the envelope Exhibit
A with those on the will placed in the envelope (p.
33, t. s. n., Id.); that the will was exactly the same
as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by
Go Toh to Anastacio Teodoro And returned by the
latter to the former because they could not agree
on the amount of fees, the former coming to the
latter's office straight from the boat (p. 315, t. s. n.,
hearing of 19 January 1948) that brought him to the
Philippines from Amoy, and that delivery took place
in November 1934 (p. 273, t. s. n., Id.), then the
testimony of Ana Suntay that she saw and heard
her brother Apolonio Suntay read the will sometime
in September 1934 (p. 524, t. s. n., hearing of 24
February 1948), must not be true.

Although Ana Suntay would be a good witness
because she was testifying against her own
interest, still the fact remains that she did not read
the whole will but only the adjudication (pp. 526-8,
530-1, 542, t. s. n., Id.) and saw only the signature,
of her father and of the witnesses Go Toh, Manuel
Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But
her testimony on cross-examination that she read
the part of the will on adjudication is inconsistent
with her testimony in chief that after Apolonio had
read that part of the will he turned over or handed
the document to Manuel who went away (p. 528, t.
s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the
office of Alberto Barretto in November 1929 when
the will was signed, then the part of his testimony
that Alberto Barretto handed the draft to Jose B.
Suntay to whom he said: "You had better see if you
want any correction" and that "after checking Jose
B. Suntay put the "Exhibit B" in his pocket and had
the original signed and executed" cannot be true,
for it was not the time for correcting the draft of the
will, because it must have been corrected before
and all corrections and additions written in lead
pencil must have been inserted and copied in the
final draft of the will which was signed on that
occasion. The bringing in for the draft (Exhibit B) on
that occasion is just to fit it within the framework of
the appellant's theory. At any rate, all of Go Toh's
testimony by deposition on the provisions of the
alleged lost will is hearsay, because he came to
know or he learned to them from information given
him by Jose B. Suntay and from reading the
translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico
C. Suntay who testifies that he read the supposed
will or the alleged will of his father and that the
share of the surviving widow, according to the will,
is two-thirds of the estate (p. 229, t. s. n., hearing of
24 October 1947). But this witness testified to
oppose the appointment of a co-administrator of the
estate, for the reason that he had acquired the
interest of the surviving widow not only in the estate
of her deceased husband but also in the conjugal
property (pp. 148, 205, 228, 229, 231, t. s. n., Id.)
Whether he read the original will or just the copy
thereof (Exhibit B) is not clear. For him the
important point was that he had acquired all the
share, participation and interest of the surviving
widow and of the only child by the second marriage
in the estate of his deceased father. Be that as it
may, his testimony that under the will the surviving
200
widow would take two-thirds of the estate of the late
Jose B. Suntay is at variance with Exhibit B and the
testimony of Anastacio Teodoro. According to the
latter, the third for strict legitime is for the ten
children; the third for betterment is for Silvino,
Apolonio, Concepcion and Jose Jr.; and the third
for free disposal is for the surviving widow and her
child Silvino.
Hence, granting that there was a will duly executed
by Jose B. Suntay placed in the envelope (Exhibit
A) and that it was in existence at the time of, and
not revoked before, his death, still the testimony of
Anastacio Teodoro alone falls short of the legal
requirement that the provisions of the lost will must
be "clearly and distinctly proved by at least two
credible witnesses." Credible witnesses mean
competent witnesses and those who testify to facts
from or upon hearsay are neither competent nor
credible witnesses.
On the other hand, Alberto Barretto testifies that in
the early part of 1929 he prepared or drew up two
mills for Jose B. Suntay at the latter's request, the
rough draft of the first will was in his own
handwriting, given to Manuel Lopez for the final
draft or typing and returned to him; that after
checking up the final with the rough draft he tore it
and returned the final draft to Manuel Lopez; that
this draft was in favor of all the children and the
widow (pp. 392-4, 449, t. s. n., hearing of 21
February 1948); that two months later Jose B.
Suntay and Manuel Lopez called on him and the
former asked him to draw up another will favoring
more his wife and child Silvino; that he had the
rough draft of the second will typed (pp. 395, 449 t.
s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s.
n., Id.); that he did not sign as witness the second
will of Jose B. Suntay copied from the typewritten
draft [Exhibit B] (p. 420, t. s. n., Id.); that the
handwritten insertions or additions in lead pencil to
Exhibit B are not his (pp. 415-7 435-6, 457, t. s.
n., Id.); that the final draft of the first will made up of
four or five pages (p. 400, t. s. n., Id.) was signed
and executed, two or three months after Suntay
and Lopez had called on him (pp. 397-8, 403, 449,
t. s. n., Id.) in his office at the Cebu Portland
Cement in the China Banking Building on
Dasmariñas street by Jose B. Suntay, Manuel
Lopez and a Chinaman who had all come from
Hagonoy (p. 398, t. s. n., Id.); that on that occasion
they brought an envelope (Exhibit A) where the
following words were written: "Testamento de Jose
B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the

signing of the will it was placed inside the envelope
(Exhibit A) together with an inventory of the
properties of Jose B. Suntay and the envelope was
sealed by the signatures of the testator and the
attesting witnesses (pp. 398, 401, 441, 443, 461, t.
s. n., Id.); that he again saw the envelope (Exhibit
A) in his house one Saturday in the later part of
August 1934, brought by Go Toh and it was then in
perfect condition (pp. 405-6, 411, 440-2, t. s.
n., Id.); that on the following Monday Go Toh went
to his law office bringing along with him the
envelope (Exhibit A) in the same condition; that he
told Go Toh that he would charge P25,000 as fee
for probating the will (pp. 406, 440-2, Id.); that Go
Toh did not leave the envelope (Exhibit A) either in
his house or in his law office (p. 407, t. s. n., Id.);
that Go Toh said he wanted to keep it and on no
occasion did Go Toh leave it to him (pp. 409, 410, t.
s. n., Id.).
The testimony of Go Toh taken and heard by
Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for
the alleged snatching of the envelope (Exhibit A),
corroborates the testimony of Alberto Barretto to
the effect that only one will was signed by Jose B.
Suntay at his office in which he (Alberto Barretto),
Manuel Lopez and Go Toh took part as attesting
witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified
before the same assistant fiscal that he did not
leave the will in the hands of Anastacio Teodoro (p.
26, t. s. n., Exhibit 6). He said, quoting his own
words, "Because I can not give him this envelope
even though the contract (on fees) was signed. I
have to bring that document to court or to anywhere
else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4
January 1931 in Amoy, China, the law on the point
in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign
country, according to the laws of such
country, may be allowed, filed, and recorded
by the proper Court of First Instance in the
Philippines.
Section 2 provides:
When a copy of such will and the allowance
thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by
the executor or other person interested, in
the court having jurisdiction, such court shall
201
fix a time and place for the hearing, and
cause notice thereof to be given as in case
of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will
should be allowed in the Philippines, the
court shall so allow it, and a certificate of its
allowance, signed by the Judge, and
attested by the seal of the courts, to which
shall be attached a copy of the will, shall be
filed and recorded by the clerk, and the will
shall have the same effect as if originally
proved and allowed in such court.
The fact that the municipal district court of Amoy,
China, is a probate court must be proved. The law
of China on procedure in the probate or allowance
of wills must also be proved. The legal
requirements for the execution of a valid will in
China in 1931 should also be established by
competent evidence. There is no proof on these
points. The unverified answers to the questions
propounded by counsel for the appellant to the
Consul General of the Republic of China set forth in
Exhibits R-1 and R-2, objected to by counsel for the
appellee, are inadmissible, because apart from the
fact that the office of Consul General does not
qualify and make the person who holds it an expert
on the Chinese law on procedure in probate
matters, if the same be admitted, the adverse party
would be deprived of his right to confront and
cross-examine the witness. Consuls are appointed
to attend to trade matters. Moreover, it appears that
all the proceedings had in the municipal district
court of Amoy were for the purpose of taking the
testimony of two attesting witnesses to the will and
that the order of the municipal district court of Amoy
does not purport to probate the will. In the absence
of proof that the municipal district court of Amoy is
a probate court and on the Chinese law of
procedure in probate matters, it may be presumed
that the proceedings in the matter of probating or
allowing a will in the Chinese courts are the a
deposition or to a perpetuation of testimony, and
even if it were so it does not measure same as
those provided for in our laws on the subject. It is a
proceedings in rem and for the validity of such
proceedings personal notice or by publication or
both to all interested parties must be made. The
interested parties in the case were known to reside
in the Philippines. The evidence shows that no
such notice was received by the interested parties
 202

residing in the Philippines (pp. 474, 476, 481, 503-

4, t. s. n., hearing of 24 February 1948). The
proceedings had in the municipal district court of
Amoy, China, may be likened toe or come up to the
standard of such proceedings in the Philippines for
lack of notice to all interested parties and the
proceedings were held at the back of such
interested parties.

The order of the municipal district court of Amoy,

China, which reads as follows:

ORDER:

SEE BELOW

The above minutes were satisfactorily

confirmed by the interrogated parties, who
declare that there are no errors, after said
minutes were loudly read and announced
actually in the court.

Done and subscribed on the Nineteenth day

of the English month of the 35th year of the
Republic of China in the Civil Section of the
Municipal District Court of Amoy, China.

HUANG KUANG CHENG

Clerk of Court

CHIANG TENG HWA

Judge

(Exhibit N-13, p. 89 Folder of Exhibits.).

does not purport to probate or allow the will which

was the subject of the proceedings. In view thereof,
the will and the alleged probate thereof cannot be
said to have been done in accordance with the
accepted basic and fundamental concepts and
principles followed in the probate and allowance of
wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of
Amoy, China, cannot be deemed and accepted as
proceedings leading to the probate or allowance of
a will and, therefore, the will referred to therein
cannot be allowed, filed and recorded by a
competent court of this country.

The decree appealed from is affirmed, without

pronouncement as to costs.
203

G.R. No. 139868 June 8, 2006
ALONZO Q. ANCHETA, Petitioner,
vs.
CANDELARIA GUERSEY-
DALAYGON, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Spouses Audrey O’Neill (Audrey) and W. Richard
Guersey (Richard) were American citizens who
have resided in the Philippines for 30 years. They
have an adopted daughter, Kyle Guersey Hill
(Kyle). On July 29, 1979, Audrey died, leaving a
will. In it, she bequeathed her entire estate to
Richard, who was also designated as
executor.1 The will was admitted to probate before
the Orphan’s Court of Baltimore, Maryland, U.S.A,
which named James N. Phillips as executor due to
Richard’s renunciation of his appointment.2 The
court also named Atty. Alonzo Q. Ancheta
(petitioner) of the Quasha Asperilla Ancheta Pena
& Nolasco Law Offices as ancillary administrator.3
In 1981, Richard married Candelaria Guersey-
Dalaygon (respondent) with whom he has two
children, namely, Kimberly and Kevin.
On October 12, 1982, Audrey’s will was also
admitted to probate by the then Court of First
Instance of Rizal, Branch 25, Seventh Judicial
District, Pasig, in Special Proceeding No. 9625.4 As
administrator of Audrey’s estate in the Philippines,
petitioner filed an inventory and appraisal of the
following properties: (1) Audrey’s conjugal share in
real estate with improvements located at 28 Pili
Avenue, Forbes Park, Makati, Metro Manila, valued
at P764,865.00 (Makati property); (2) a current
account in Audrey’s name with a cash balance
of P12,417.97; and (3) 64,444 shares of stock in
A/G Interiors, Inc. worth P64,444.00.5
On July 20, 1984, Richard died, leaving a will,
wherein he bequeathed his entire estate to
respondent, save for his rights and interests over
the A/G Interiors, Inc. shares, which he left to
Kyle.6 The will was also admitted to probate by the
Orphan’s Court of Ann Arundel, Maryland, U.S.A,
and James N. Phillips was likewise appointed as
executor, who in turn, designated Atty. William
Quasha or any member of the Quasha Asperilla
204
Ancheta Pena & Nolasco Law Offices, as ancillary
administrator.
Richard’s will was then submitted for probate
before the Regional Trial Court of Makati, Branch
138, docketed as Special Proceeding No. M-
888.7 Atty. Quasha was appointed as ancillary
administrator on July 24, 1986.8
On October 19, 1987, petitioner filed in Special
Proceeding No. 9625, a motion to declare Richard
and Kyle as heirs of Audrey.9 Petitioner also filed
on October 23, 1987, a project of partition of
Audrey’s estate, with Richard being apportioned the
¾ undivided interest in the Makati property, 48.333
shares in A/G Interiors, Inc., and P9,313.48 from
the Citibank current account; and Kyle, the ¼
undivided interest in the Makati property, 16,111
shares in A/G Interiors, Inc., and P3,104.49 in
cash.10
The motion and project of partition was granted and
approved by the trial court in its Order dated
February 12, 1988.11 The trial court also issued an
Order on April 7, 1988, directing the Register of
Deeds of Makati to cancel TCT No. 69792 in the
name of Richard and to issue a new title in the joint
names of the Estate of W. Richard Guersey (¾
undivided interest) and Kyle (¼ undivided interest);
directing the Secretary of A/G Interiors, Inc. to
transfer 48.333 shares to the Estate of W. Richard
Guersey and 16.111 shares to Kyle; and directing
the Citibank to release the amount of P12,417.97 to
the ancillary administrator for distribution to the
heirs.12
Consequently, the Register of Deeds of Makati
issued on June 23, 1988, TCT No. 155823 in the
names of the Estate of W. Richard Guersey and
Kyle.13
Meanwhile, the ancillary administrator in Special
Proceeding No. M-888 also filed a project of
partition wherein 2/5 of Richard’s ¾ undivided
interest in the Makati property was allocated to
respondent, while 3/5 thereof were allocated to
Richard’s three children. This was opposed by
respondent on the ground that under the law of the
State of Maryland, "a legacy passes to the
legatee the entire interest of the testator in the
property subject of the legacy."14 Since Richard
left his entire estate to respondent, except for his
rights and interests over the A/G Interiors, Inc,

shares, then his entire ¾ undivided interest in the
Makati property should be given to respondent.
The trial court found merit in respondent’s
opposition, and in its Order dated December 6,
1991, disapproved the project of partition insofar as
it affects the Makati property. The trial court also
adjudicated Richard’s entire ¾ undivided interest in
the Makati property to respondent.15
On October 20, 1993, respondent filed with the
Court of Appeals (CA) an amended complaint for
the annulment of the trial court’s Orders dated
February 12, 1988 and April 7, 1988, issued in
Special Proceeding No. 9625.16Respondent
contended that petitioner willfully breached his
fiduciary duty when he disregarded the laws of the
State of Maryland on the distribution of Audrey’s
estate in accordance with her will. Respondent
argued that since Audrey devised her entire estate
to Richard, then the Makati property should be
wholly adjudicated to him, and not merely ¾
thereof, and since Richard left his entire estate,
except for his rights and interests over the A/G
Interiors, Inc., to respondent, then the entire Makati
property should now pertain to respondent.
Petitioner filed his Answer denying respondent’s
allegations. Petitioner contended that he acted in
good faith in submitting the project of partition
before the trial court in Special Proceeding No.
9625, as he had no knowledge of the State of
Maryland’s laws on testate and intestate
succession. Petitioner alleged that he believed that
it is to the "best interests of the surviving children
that Philippine law be applied as they would receive
their just shares." Petitioner also alleged that the
orders sought to be annulled are already final and
executory, and cannot be set aside.
On March 18, 1999, the CA rendered the assailed
Decision annulling the trial court’s Orders dated
February 12, 1988 and April 7, 1988, in Special
Proceeding No. 9625.17 The dispositive portion of
the assailed Decision provides:
WHEREFORE, the assailed Orders of February 12,
1998 and April 7, 1988 are hereby ANNULLED
and, in lieu thereof, a new one is entered ordering:
(a) The adjudication of the entire estate of
Audrey O’Neill Guersey in favor of the
estate of W. Richard Guersey; and
205
(b) The cancellation of Transfer Certificate
of Title No. 15583 of the Makati City
Registry and the issuance of a new title in
the name of the estate of W. Richard
Guersey.
SO ORDERED.18
Petitioner filed a motion for reconsideration, but this
was denied by the CA per Resolution dated August
27, 1999.19
Hence, the herein petition for review on certiorari
under Rule 45 of the Rules of Court alleging that
the CA gravely erred in not holding that:
A) THE ORDERS OF 12 FEBRUARY 1988
AND 07 APRIL 1988 IN SPECIAL
PROCEEDINGS NO. 9625 "IN THE
MATTER OF THE PETITION FOR
PROBATE OF THE WILL OF THE
DECEASED AUDREY GUERSEY,
ALONZO Q. ANCHETA, ANCILLARY
ADMINISTRATOR", ARE VALID AND
BINDING AND HAVE LONG BECOME
FINAL AND HAVE BEEN FULLY
IMPLEMENTED AND EXECUTED AND
CAN NO LONGER BE ANNULLED.
B) THE ANCILLARY ADMINISTRATOR
HAVING ACTED IN GOOD FAITH, DID
NOT COMMIT FRAUD, EITHER
EXTRINSIC OR INTRINSIC, IN THE
PERFORMANCE OF HIS DUTIES AS
ANCILLARY ADMINISTRATOR OF
AUDREY O’NEIL GUERSEY’S ESTATE IN
THE PHILIPPINES, AND THAT NO
FRAUD, EITHER EXTRINSIC OR
INTRINSIC, WAS EMPLOYED BY [HIM] IN
PROCURING SAID ORDERS.20
Petitioner reiterates his arguments before the CA
that the Orders dated February 12, 1988 and April
7, 1988 can no longer be annulled because it is a
final judgment, which is "conclusive upon the
administration as to all matters involved in such
judgment or order, and will determine for all time
and in all courts, as far as the parties to the
proceedings are concerned, all matters therein
determined," and the same has already been
executed.21
Petitioner also contends that that he acted in good
faith in performing his duties as an ancillary

administrator. He maintains that at the time of the
filing of the project of partition, he was not aware of
the relevant laws of the State of Maryland, such
that the partition was made in accordance with
Philippine laws. Petitioner also imputes knowledge
on the part of respondent with regard to the terms
of Aubrey’s will, stating that as early as 1984, he
already apprised respondent of the contents of the
will and how the estate will be divided.22
Respondent argues that petitioner’s breach of his
fiduciary duty as ancillary administrator of Aubrey’s
estate amounted to extrinsic fraud. According to
respondent, petitioner was duty-bound to follow the
express terms of Aubrey’s will, and his denial of
knowledge of the laws of Maryland cannot stand
because petitioner is a senior partner in a
prestigious law firm and it was his duty to know the
relevant laws.
Respondent also states that she was not able to file
any opposition to the project of partition because
she was not a party thereto and she learned of the
provision of Aubrey’s will bequeathing entirely her
estate to Richard only after Atty. Ancheta filed a
project of partition in Special Proceeding No. M-888
for the settlement of Richard’s estate.
A decree of distribution of the estate of a deceased
person vests the title to the land of the estate in the
distributees, which, if erroneous may be corrected
by a timely appeal. Once it becomes final, its
binding effect is like any other judgment in
rem.23 However, in exceptional cases, a final
decree of distribution of the estate may be set aside
for lack of jurisdiction or fraud.24 Further, in Ramon
v. Ortuzar,25 the Court ruled that a party interested
in a probate proceeding may have a final liquidation
set aside when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence.26
The petition for annulment was filed before the CA
on October 20, 1993, before the issuance of the
1997 Rules of Civil Procedure; hence, the
applicable law is Batas Pambansa Blg. 129 (B.P.
129) or the Judiciary Reorganization Act of 1980.
An annulment of judgment filed under B.P. 129 may
be based on the ground that a judgment is void for
want of jurisdiction or that the judgment was
obtained by extrinsic fraud.27 For fraud to become a
basis for annulment of judgment, it has to be
206
extrinsic or actual,28 and must be brought within
four years from the discovery of the fraud.29
In the present case, respondent alleged extrinsic
fraud as basis for the annulment of the RTC Orders
dated February 12, 1988 and April 7, 1988. The CA
found merit in respondent’s cause and found that
petitioner’s failure to follow the terms of Audrey’s
will, despite the latter’s declaration of good faith,
amounted to extrinsic fraud. The CA ruled that
under Article 16 of the Civil Code, it is the national
law of the decedent that is applicable, hence,
petitioner should have distributed Aubrey’s estate in
accordance with the terms of her will. The CA also
found that petitioner was prompted to distribute
Audrey’s estate in accordance with Philippine laws
in order to equally benefit Audrey and Richard
Guersey’s adopted daughter, Kyle Guersey Hill.
Petitioner contends that respondent’s cause of
action had already prescribed because as early as
1984, respondent was already well aware of the
terms of Audrey’s will,30 and the complaint was filed
only in 1993. Respondent, on the other hand,
justified her lack of immediate action by saying that
she had no opportunity to question petitioner’s acts
since she was not a party to Special Proceeding
No. 9625, and it was only after Atty. Ancheta filed
the project of partition in Special Proceeding No. M-
888, reducing her inheritance in the estate of
Richard that she was prompted to seek another
counsel to protect her interest.31
It should be pointed out that the prescriptive period
for annulment of judgment based on extrinsic fraud
commences to run from the discovery of the fraud
or fraudulent act/s. Respondent’s knowledge of
the terms of Audrey’s will is immaterial in this case
since it is not the fraud complained of. Rather, it is
petitioner’s failure to introduce in evidence the
pertinent law of the State of Maryland that is the
fraudulent act, or in this case, omission, alleged to
have been committed against respondent, and
therefore, the four-year period should be counted
from the time of respondent’s discovery thereof.
Records bear the fact that the filing of the project of
partition of Richard’s estate, the opposition thereto,
and the order of the trial court disallowing the
project of partition in Special Proceeding No. M-888
were all done in 1991.32Respondent cannot be
faulted for letting the assailed orders to lapse into
finality since it was only through Special
Proceeding No. M-888 that she came to

comprehend the ramifications of petitioner’s acts.
Obviously, respondent had no other recourse under
the circumstances but to file the annulment case.
Since the action for annulment was filed in 1993,
clearly, the same has not yet prescribed.
Fraud takes on different shapes and faces. In
Cosmic Lumber Corporation v. Court of
Appeals,33 the Court stated that "man in his
ingenuity and fertile imagination will always contrive
new schemes to fool the unwary."
There is extrinsic fraud within the meaning of Sec.
9 par. (2), of B.P. Blg. 129, where it is one the
effect of which prevents a party from hearing a trial,
or real contest, or from presenting all of his case to
the court, or where it operates upon matters, not
pertaining to the judgment itself, but to the manner
in which it was procured so that there is not a fair
submission of the controversy. In other words,
extrinsic fraud refers to any fraudulent act of the
prevailing party in the litigation which is committed
outside of the trial of the case, whereby the
defeated party has been prevented from exhibiting
fully his side of the case by fraud or deception
practiced on him by his opponent. Fraud is extrinsic
where the unsuccessful party has been prevented
from exhibiting fully his case, by fraud or deception
practiced on him by his opponent, as by keeping
him away from court, a false promise of a
compromise; or where the defendant never had any
knowledge of the suit, being kept in ignorance by
the acts of the plaintiff; or where an attorney
fraudulently or without authority connives at his
defeat; these and similar cases which show that
there has never been a real contest in the trial or
hearing of the case are reasons for which a new
suit may be sustained to set aside and annul the
former judgment and open the case for a new and
fair hearing.34
The overriding consideration when extrinsic fraud is
alleged is that the fraudulent scheme of the
prevailing litigant prevented a party from having his
day in court.35
Petitioner is the ancillary administrator of Audrey’s
estate. As such, he occupies a position of the
highest trust and confidence, and he is required to
exercise reasonable diligence and act in entire
good faith in the performance of that trust. Although
he is not a guarantor or insurer of the safety of the
estate nor is he expected to be infallible, yet the
same degree of prudence, care and judgment
207
which a person of a fair average capacity and
ability exercises in similar transactions of his own,
serves as the standard by which his conduct is to
be judged.36
Petitioner’s failure to proficiently manage the
distribution of Audrey’s estate according to the
terms of her will and as dictated by the applicable
law amounted to extrinsic fraud. Hence the CA
Decision annulling the RTC Orders dated February
12, 1988 and April 7, 1988, must be upheld.
It is undisputed that Audrey Guersey was an
American citizen domiciled in Maryland, U.S.A.
During the reprobate of her will in Special
Proceeding No. 9625, it was shown, among others,
that at the time of Audrey’s death, she was residing
in the Philippines but is domiciled in Maryland,
U.S.A.; her Last Will and Testament dated August
18, 1972 was executed and probated before the
Orphan’s Court in Baltimore, Maryland, U.S.A.,
which was duly authenticated and certified by the
Register of Wills of Baltimore City and attested by
the Chief Judge of said court; the will was admitted
by the Orphan’s Court of Baltimore City on
September 7, 1979; and the will was authenticated
by the Secretary of State of Maryland and the Vice
Consul of the Philippine Embassy.
Being a foreign national, the intrinsic validity of
Audrey’s will, especially with regard as to who are
her heirs, is governed by her national law, i.e., the
law of the State of Maryland, as provided in Article
16 of the Civil Code, to wit:
Art. 16. Real property as well as personal property
is subject to the law of the country where it is
situated.
However, intestate and testamentary succession,
both with respect to the order of succession and
to the amount of successional rights and to the
intrinsic validity of testamentary provisions,
shall be regulated by the national law of the
person whose succession is under
consideration, whatever may be the nature of
the property and regardless of the country
wherein said property may be found. (Emphasis
supplied)
Article 1039 of the Civil Code further provides that
"capacity to succeed is governed by the law of the
nation of the decedent."

As a corollary rule, Section 4, Rule 77 of the Rules
of Court on Allowance of Will Proved Outside the
Philippines and Administration of Estate
Thereunder, states:
SEC. 4. Estate, how administered.—When a will is
thus allowed, the court shall grant letters
testamentary, or letters of administration with the
will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the
payment of just debts and expenses of
administration, shall be disposed of according
to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed
of as is provided by law in cases of estates in the
Philippines belonging to persons who are
inhabitants of another state or country. (Emphasis
supplied)
While foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to
take judicial notice of them;37 however, petitioner,
as ancillary administrator of Audrey’s estate, was
duty-bound to introduce in evidence the pertinent
law of the State of Maryland.38
Petitioner admitted that he failed to introduce in
evidence the law of the State of Maryland on
Estates and Trusts, and merely relied on the
presumption that such law is the same as the
Philippine law on wills and succession. Thus, the
trial court peremptorily applied Philippine laws and
totally disregarded the terms of Audrey’s will. The
obvious result was that there was no fair
submission of the case before the trial court or a
judicious appreciation of the evidence presented.
Petitioner insists that his application of Philippine
laws was made in good faith. The Court cannot
accept petitioner’s protestation. How can petitioner
honestly presume that Philippine laws apply when
as early as the reprobate of Audrey’s will before the
trial court in 1982, it was already brought to fore
that Audrey was a U.S. citizen, domiciled in the
State of Maryland. As asserted by respondent,
petitioner is a senior partner in a prestigious law
firm, with a "big legal staff and a large library."39 He
had all the legal resources to determine the
applicable law. It was incumbent upon him to
exercise his functions as ancillary administrator
with reasonable diligence, and to discharge the
trust reposed on him faithfully. Unfortunately,
petitioner failed to perform his fiduciary duties.
208
Moreover, whether his omission was intentional or
not, the fact remains that the trial court failed to
consider said law when it issued the assailed RTC
Orders dated February 12, 1988 and April 7, 1988,
declaring Richard and Kyle as Audrey’s heirs, and
distributing Audrey’s estate according to the project
of partition submitted by petitioner. This eventually
prejudiced respondent and deprived her of her full
successional right to the Makati property.
In GSIS v. Bengson Commercial Bldgs., Inc.,40 the
Court held that when the rule that the negligence or
mistake of counsel binds the client deserts its
proper office as an aid to justice and becomes a
great hindrance and chief enemy, its rigors must be
relaxed to admit exceptions thereto and to prevent
a miscarriage of justice, and the court has the
power to except a particular case from the
operation of the rule whenever the purposes of
justice require it.
The CA aptly noted that petitioner was remiss in his
responsibilities as ancillary administrator of
Audrey’s estate. The CA likewise observed that the
distribution made by petitioner was prompted by his
concern over Kyle, whom petitioner believed should
equally benefit from the Makati property. The CA
correctly stated, which the Court adopts, thus:
In claiming good faith in the performance of his
duties and responsibilities, defendant Alonzo H.
Ancheta invokes the principle which presumes the
law of the forum to be the same as the foreign law
(Beam vs. Yatco, 82 Phil. 30, 38) in the absence of
evidence adduced to prove the latter law (Slade
Perkins vs. Perkins, 57 Phil. 205, 210). In
defending his actions in the light of the foregoing
principle, however, it appears that the defendant
lost sight of the fact that his primary responsibility
as ancillary administrator was to distribute the
subject estate in accordance with the will of Audrey
O’Neill Guersey. Considering the principle
established under Article 16 of the Civil Code of the
Philippines, as well as the citizenship and the
avowed domicile of the decedent, it goes without
saying that the defendant was also duty-bound to
prove the pertinent laws of Maryland on the matter.
The record reveals, however, that no clear effort
was made to prove the national law of Audrey
O’Neill Guersey during the proceedings before the
court a quo. While there is claim of good faith in
distributing the subject estate in accordance with
the Philippine laws, the defendant appears to put

his actuations in a different light as indicated in a
portion of his direct examination, to wit:
xxx
It would seem, therefore, that the eventual
distribution of the estate of Audrey O’Neill Guersey
was prompted by defendant Alonzo H. Ancheta’s
concern that the subject realty equally benefit the
plaintiff’s adopted daughter Kyle Guersey.
Well-intentioned though it may be, defendant
Alonzo H. Ancheta’s action appears to have
breached his duties and responsibilities as ancillary
administrator of the subject estate. While such
breach of duty admittedly cannot be considered
extrinsic fraud under ordinary circumstances,
the fiduciary nature of the said defendant’s
position, as well as the resultant frustration of
the decedent’s last will, combine to create a
circumstance that is tantamount to extrinsic
fraud. Defendant Alonzo H. Ancheta’s omission to
prove the national laws of the decedent and to
follow the latter’s last will, in sum, resulted in the
procurement of the subject orders without a fair
submission of the real issues involved in the
case.41 (Emphasis supplied)
This is not a simple case of error of judgment or
grave abuse of discretion, but a total disregard of
the law as a result of petitioner’s abject failure to
discharge his fiduciary duties. It does not rest upon
petitioner’s pleasure as to which law should be
made applicable under the circumstances. His onus
is clear. Respondent was thus excluded from
enjoying full rights to the Makati property through
no fault or negligence of her own, as petitioner’s
omission was beyond her control. She was in no
position to analyze the legal implications of
petitioner’s omission and it was belatedly that she
realized the adverse consequence of the same.
The end result was a miscarriage of justice. In
cases like this, the courts have the legal and moral
duty to provide judicial aid to parties who are
deprived of their rights.42
The trial court in its Order dated December 6, 1991
in Special Proceeding No. M-888 noted the law of
the State of Maryland on Estates and Trusts, as
follows:
Under Section 1-301, Title 3, Sub-Title 3 of the
Annotated Code of the Public General Laws of
Maryland on Estates and Trusts, "all property of a
209
decedent shall be subject to the estate of
decedents law, and upon his death shall pass
directly to the personal representative, who shall
hold the legal title for administration and
distribution," while Section 4-408 expressly
provides that "unless a contrary intent is expressly
indicated in the will, a legacy passes to the legatee
the entire interest of the testator in the property
which is the subject of the legacy". Section 7-101,
Title 7, Sub-Title 1, on the other hand, declares that
"a personal representative is a fiduciary" and as
such he is "under the general duty to settle and
distribute the estate of the decedent in accordance
with the terms of the will and the estate of
decedents law as expeditiously and with as little
sacrifice of value as is reasonable under the
circumstances".43
In her will, Audrey devised to Richard her entire
estate, consisting of the following: (1) Audrey’s
conjugal share in the Makati property; (2) the cash
amount of P12,417.97; and (3) 64,444 shares of
stock in A/G Interiors, Inc. worth P64,444.00. All
these properties passed on to Richard upon
Audrey’s death. Meanwhile, Richard, in his will,
bequeathed his entire estate to respondent, except
for his rights and interests over the A/G Interiors,
Inc. shares, which he left to Kyle. When Richard
subsequently died, the entire Makati property
should have then passed on to respondent. This, of
course, assumes the proposition that the law of the
State of Maryland which allows "a legacy to pass to
the legatee the entire estate of the testator in the
property which is the subject of the legacy," was
sufficiently proven in Special Proceeding No. 9625.
Nevertheless, the Court may take judicial notice
thereof in view of the ruling in Bohanan v.
Bohanan.44 Therein, the Court took judicial notice of
the law of Nevada despite failure to prove the
same. The Court held, viz.:
We have, however, consulted the records of the
case in the court below and we have found that
during the hearing on October 4, 1954 of the
motion of Magdalena C. Bohanan for withdrawal of
P20,000 as her share, the foreign law, especially
Section 9905, Compiled Nevada Laws, was
introduced in evidence by appellants' (herein)
counsel as Exhibit "2" (See pp. 77-79, Vol. II, and
t.s.n. pp. 24-44, Records, Court of First Instance).
Again said law was presented by the counsel for
the executor and admitted by the Court as Exhibit
"B" during the hearing of the case on January 23,

1950 before Judge Rafael Amparo (see Records,
Court of First Instance, Vol. 1).
In addition, the other appellants, children of the
testator, do not dispute the above-quoted provision
of the laws of the State of Nevada. Under all the
above circumstances, we are constrained to hold
that the pertinent law of Nevada, especially Section
9905 of the Compiled Nevada Laws of 1925, can
be taken judicial notice of by us, without proof of
such law having been offered at the hearing of the
project of partition.
In this case, given that the pertinent law of the
State of Maryland has been brought to record
before the CA, and the trial court in Special
Proceeding No. M-888 appropriately took note of
the same in disapproving the proposed project of
partition of Richard’s estate, not to mention that
petitioner or any other interested person for that
matter, does not dispute the existence or validity of
said law, then Audrey’s and Richard’s estate should
be distributed according to their respective wills,
and not according to the project of partition
submitted by petitioner. Consequently, the entire
Makati property belongs to respondent.
Decades ago, Justice Moreland, in his dissenting
opinion in Santos v. Manarang,45 wrote:
A will is the testator speaking after death. Its
provisions have substantially the same force and
effect in the probate court as if the testator stood
before the court in full life making the declarations
by word of mouth as they appear in the will. That
was the special purpose of the law in the creation
of the instrument known as the last will and
testament. Men wished to speak after they were
dead and the law, by the creation of that
instrument, permitted them to do so x x x All doubts
must be resolved in favor of the testator's having
meant just what he said.
Honorable as it seems, petitioner’s motive in
equitably distributing Audrey’s estate cannot prevail
over Audrey’s and Richard’s wishes. As stated in
Bellis v. Bellis:46
x x x whatever public policy or good customs may
be involved in our system of legitimes, Congress
has not intended to extend the same to the
succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount
of successional rights, to the decedent's national
210
Law. Specific provisions must prevail over general
ones.47
Before concluding, the Court notes the fact that
Audrey and Richard Guersey were American
citizens who owned real property in the Philippines,
although records do not show when and how the
Guerseys acquired the Makati property.
Under Article XIII, Sections 1 and 4 of the 1935
Constitution, the privilege to acquire and exploit
lands of the public domain, and other natural
resources of the Philippines, and to operate public
utilities, were reserved to Filipinos and entities
owned or controlled by them. In Republic v.
Quasha,48 the Court clarified that the Parity Rights
Amendment of 1946, which re-opened to American
citizens and business enterprises the right in the
acquisition of lands of the public domain, the
disposition, exploitation, development and
utilization of natural resources of the Philippines,
does not include the acquisition or exploitation of
private agricultural lands. The prohibition against
acquisition of private lands by aliens was carried on
to the 1973 Constitution under Article XIV, Section
14, with the exception of private lands acquired by
hereditary succession and when the transfer was
made to a former natural-born citizen, as provided
in Section 15, Article XIV. As it now stands, Article
XII, Sections 7 and 8 of the 1986 Constitution
explicitly prohibits non-Filipinos from acquiring or
holding title to private lands or to lands of the public
domain, except only by way of legal succession or
if the acquisition was made by a former natural-
born citizen.
In any case, the Court has also ruled that if land is
invalidly transferred to an alien who subsequently
becomes a citizen or transfers it to a citizen, the
flaw in the original transaction is considered cured
and the title of the transferee is rendered valid.49 In
this case, since the Makati property had already
passed on to respondent who is a Filipino, then
whatever flaw, if any, that attended the acquisition
by the Guerseys of the Makati property is now
inconsequential, as the objective of the
constitutional provision to keep our lands in Filipino
hands has been achieved.
WHEREFORE, the petition is denied. The Decision
dated March 18, 1999 and the Resolution dated
August 27, 1999 of the Court of Appeals
are AFFIRMED.
 211

Petitioner is ADMONISHED to be more

circumspect in the performance of his duties as an
official of the court.

No pronouncement as to costs.

SO ORDERED.