1. Article 776. The inheritance includes all the II.

That on the 28th of November, 1906, Paula

property, rights and obligations of a person Conde, in replying to the foregoing motion of
which are not extinguished by his death. Roman Abaya, filed a petition wherein she
stated that she acknowledged the relationship
G.R. No. L-4275 March 23, 1909 alleged by Roman Abaya, but that she
considered that her right was superior to his
PAULA CONDE, plaintiff-appellee, and moved for a hearing of the matter, and, in
vs. consequence of the evidence that she intended
ROMAN ABAYA, defendant-appellant. to present she prayed that she be declared to
have preferential rights to the property left by
Casiano Abaya, and that the same be
C. Oben for appellant.
adjudicated to her together with the
L. Joaquin for appellee.
corresponding products thereof.
ARELLANO, C.J.:
III. That the trial was held, both parties
presenting documentary and oral evidence,
From the hearing of the appeal interposed by and the court below entered the following
Roman Abaya in the special proceedings judgment:
brought in the Court of First Instance of La
Laguna for the settlement of the intestate
That the administrator of the estate of
estate and the distribution of the property of
Casiano Abaya should recognize
Casiano Abaya it appears:
Teopista and Jose Conde as being
natural children of Casiano Abaya; that
I. As antecedents: that Casiano Abaya, the petitioner Paula Conde should
unmarried, the son of Romualdo Abaya and succeed to the hereditary rights of her
Sabrina Labadia, died on the 6th of April, 1899; children with respect to the inheritance
that Paula Conde, as the mother of the natural of their deceased natural father
children Jose and Teopista Conde, whom the Casiano Abaya; and therefore, it is
states she had by Casiano Abaya, on the 6th hereby declared that she is the only
of November, 1905, moved the settlement of heir to the property of the said intestate
the said intestate succession; that an estate, to the exclusion of the
administrator having been appointed for the administrator, Roman Abaya.
said estate on the 25th of November, 1905,
Roman Abaya, a son of the said Romualdo
IV. That Roman Abaya excepted to the
Abaya and Sabrina Labadia, the parents of the
foregoing judgment, appealed to this court, and
late Casiano Abaya, came forward and
presented the following statement of errors:
opposed said appointment and claimed it for
himself as being the nearest relative of the
deceased; that this was granted by the court 1. The fact that the court below found that an
below on the 9th of January, 1906; that on the ordinary action for the acknowledgment of
17th of November, 1906, Roman Abaya moved natural children under articles 135 and 137 of
that, after due process of law, the court declare the Civil Code, might be brought in special
him to be the sole heir of Casiano Abaya, to the probate proceedings.
exclusion of all other persons, especially of
Paula Conde, and to be therefore entitled to 2. The finding that after the death of a person
take possession of all the property of said claimed to be an unacknowledged natural
estate, and that it be adjudicated to him; and child, the mother of such presumed natural
that on November 22, 1906, the court ordered child, as heir to the latter, may bring an action
the publication of notices for the declaration of to enforce the acknowledgment of her
heirs and distribution of the property of the deceased child in accordance with articles 135
estate. and 137 of the Civil Code.
3. The finding in the judgment that the alleged manner provided in the last preceding
continuos possession of the deceased children section.
of Paula Conde of the status of natural children
of the late Casiano Abaya, has been fully This court has decided the present question in
proven in these proceedings; and the manner shown in the case of Juana
Pimentel vs. Engracio Palanca (5 Phil. Rep.,
4. On the hypothesis that it was proper to 436.)
adjudicate the property of this intestate estate
to Paula Conde, as improperly found by the The main question with regard to the second
court below, the court erred in not having error assigned, is whether or not the mother of
declared that said property should be reserved a natural child now deceased, but who survived
in favor of relatives of Casiano Abaya to the the person who, it is claimed, was his natural
third degree, and in not having previously father, also deceased, may bring an action for
demanded securities from Paula Conde to the acknowledgment of the natural filiation in
guarantee the transmission of the property to favor of such child in order to appear in his
those who might fall within the reservation. behalf to receive the inheritance from the
person who is supposed to be his natural
As to the first error assigned, the question is set father.
up as to whether in special proceedings for the
administration and distribution of an intestate In order to decide in the affirmative the court
estate, an action might be brought to enforce below has assigned the following as the only
the acknowledgment of the natural child of the foundation:
person from whom the inheritance is derived,
that is to say, whether one might appear as heir In resolving a similar question Manresa
on the ground that he is a recognized natural says: "An acknowledgment can only be
child of the deceased, not having been so demanded by the natural child and his
recognized by the deceased either voluntarily descendants whom it shall benefit, and
or compulsorily by reason of a preexisting should they be minors or otherwise
judicial decision, but asking at the same time incapacitated, such person as legally
that, in the special proceeding itself, he be represents them; the mother may ask it
recognized by the presumed legitimate heirs of in behalf of her child so long as he is
the deceased who claim to be entitled to the under her authority." On this point no
succession opened in the special proceeding. positive declaration has been made,
undoubtedly because it was not
According to section 782 of the Code of Civil considered necessary. A private action
Procedure — is in question and the general rule must
be followed. Elsewhere the same
If there shall be a controversy before author adds: "It may so happen that the
the Court of First Instance as to who child dies before four years have
the lawful heirs of the deceased person expired after attaining majority, or that
are, or as to the distributive share to the document supporting his petition
which each person is entitled under the for acknowledgment is discovered after
law, the testimony as to such his death, such death perhaps
controversy shall be taken in writing by occurring after his parents had died, as
the judge, under oath, and signed by is supposed by article 137, or during
the witness. Any party in interest their lifetime. In any case such right of
whose distributive share is affected by action shall pertain to the descendants
the determination of such controversy, of the child whom the acknowledgment
may appeal from the judgment of the may interest." (See Commentaries to
Court of First Instance determining arts. 135 and 137, Civil Code, Vol. I.)
such controversy to the Supreme
Court, within the time and in the
The above doctrine, advanced by one of the ART. 118. The action to claim its
most eminent commentators of the Civil Code, legitimacy may be brought by the child
lacks legal and doctrinal foundation. The power at any time of its lifetime and shall be
to transmit the right of such action by the transmitted to its heirs, should it die
natural child to his descendants can not be during minority or in a state of insanity.
sustained under the law, and still less to his In such cases the heirs shall be allowed
mother. a period of five years in which to
institute the action.
It is without any support in law because the rule
laid down in the code is most positive, limiting The action already instituted by the child is
in form, when establishing the exception for the transmitted by its death to the heirs, if it has not
exercise of such right of action after the death lapsed before then.
of the presumed parents, as is shown
hereafter. It is not supported by any doctrine, ART. 137. The actions for the
because up to the present time no argument acknowledgment of natural children
has been presented, upon which even an can be instituted only during the life of
approximate conclusion could be based. the presumed parents, except in the
following cases:
Although the Civil Code considerably improved
the condition of recognized natural children, 1. If the father or mother died during the
granting them rights and actions that they did maturity of the child, in which case the
not possess under the former laws, they were latter may institute the action before
not, however, placed upon the same place as the expiration of the first four years of
legitimate ones. The difference that separates its maturity.
these two classes of children is still great, as
proven by so many articles dealing with the 2. If, after the death of the father or
rights of the family and the succession in mother, some instrument, before
relation to the members thereof. It may be laid unknown, should be discovered in
down as legal maxim, that whatever the code which the child is expressly
does not grant to the legitimate children, or in acknowledged.
connection with their rights, must still less be
understood as granted to recognized natural
In this case the action must be
children or in connection with their rights. There
instituted with the six months following
is not a single exception in its provisions.
the discovery of such instrument.
If legitimacy is the attribute that constitutes the
On this supposition the first difference that
basis of the absolute family rights of the child,
results between one action and the other
the acknowledgment of the natural child is,
consists in that the right of action for legitimacy
among illegitimate ones, that which unites him
lasts during the whole lifetime of the child, that
to the family of the father or the mother who
is, it can always be brought against the
recognized him, and affords him a participation
presumed parents or their heirs by the child
in the rights of the family, relatively
itself, while the right of action for the
advantageous according to whether they are
acknowledgment of a natural child does not
alone or whether they concur with other
last his whole lifetime, and, as a general rule, it
individuals of the family of his purely natural
can not be instituted against the heirs of the
father or mother.
presumed parents, inasmuch as it can be
exercised only during the life of the presumed
Thus, in order to consider the spirit of the Civil parents.
Code, nothing is more logical than to establish
a comparison between an action to claim the
With regard to the question at issue, that is, the
legitimacy, and one to enforce
transmission to the heirs of the presumed
acknowledgment.
parents of the obligation to admit the legitimate
filiation, or to recognize the natural filiation, or, as a general rule, conceded to the heirs of
there exists the most radical difference in that the legitimate child, but only relatively and as
the former continues during the life of the child an exception. Consequently, the pretension
who claims to be legitimate, and he may that the right of action on the part of the child to
demand it either directly and primarily from the obtain the acknowledgment of his natural
said presumed parents, or indirectly and filiation is transmitted to his descendants is
secondarily from the heirs of the latter; while altogether unfounded. No legal provision exists
the second does not endure for life; as a to sustain such pretension, nor can an
general rule, it only lasts during the life of the argument of presumption be based on the
presumed parents. Hence the other difference, lesser claim when there is no basis for the
derived as a consequence, that an action for greater one, and when it is only given as an
legitimacy is always brought against the heirs exception in well-defined cases. It is placing
of the presumed parents in case of the death of the heirs of the natural child on a better footing
the latter, while the action for acknowledgment than the heirs of the legitimate one, when, as a
is not brought against the heirs of such parents, matter of fact, the position of a natural child is
with the exception of the two cases prescribed no better than, no even equal to, that of a
by article 137 transcribed above. legitimate child.

So much for the passive transmission of the From the express and precise precepts of the
obligation to admit the legitimate filiation, or to code the following conclusions are derived:
acknowledge the natural filiation.
The right of action that devolves upon the child
As to the transmission to the heirs of the child to claim his legitimacy lasts during his whole
of the latter's action to claim his legitimacy, or life, while the right to claim the
to obtain the acknowledgment of his natural acknowledgment of a natural child lasts only
filiation, it is seen that the code grants it in the during the life of his presumed parents.
first case, but not in the second. It contains
provisions for the transmission of the right of Inasmuch as the right of action accruing to the
action which, for the purpose claiming his child to claim his legitimacy lasts during his
legitimacy inheres in the child, but it does not whole life, he may exercise it either against the
say a word with regard to the transmission of presumed parents, or their heirs; while the right
the right to obtain the acknowledgment of the of action to secure the acknowledgment of a
natural filiation. natural child, since it does not last during his
whole life, but depends on that of the presumed
Therefore, the respective corollary of each of parents, as a general rule can only be
the two above-cited articles is: (1) That the right exercised against the latter.
of action which devolves upon the child to claim
his legitimacy under article 118, may be Usually the right of action for legitimacy
transmitted to his heirs in certain cases devolving upon the child is of a personal
designated in the said article; (2) That the right character and pertains exclusively to him, only
of action for the acknowledgment of natural the child may exercise it at any time during his
children to which article 137 refers, can never lifetime. As an exception, and in three cases
be transmitted, for the reason that the code only, it may be transmitted to the heirs of the
makes no mention of it in any case, not even child, to wit, if he died during his minority, or
as an exception. while insane, or after action had been already
instituted.
It is most illogical and contrary to every rule of
correct interpretation, that the right of action to An action for the acknowledgment of a natural
secure acknowledgment by the natural child child may, as an exception, be exercised
should be presumed to be transmitted, against the heirs of the presumed parents in
independently, as a rule, to his heirs, while the two cases: first, in the event of the death of the
right of action to claim legitimacy from his latter during the minority of the child, and
predecessor is not expressly, independently,
second, upon the discovery of some instrument Article 118, taking into account the
of express acknowledgment of the child, privileges due to the legitimacy of
executed by the father or mother, the existence children, grants them the right to claim
of which was unknown during the life of the said legitimacy during their lifetime,
latter. and even authorizes the transmission
of said right for the space of five years
But such action for the acknowledgment of a to the heirs thereof, if the child die
natural child can only be exercised by him. It during his minority or in a state of
can not be transmitted to his descendants, or insanity. But as article 137 is based on
his ascendants. the consideration that in the case of a
natural child, ties are less strong and
In support of the foregoing the following sacred in the eyes of the law, it does
authorities may be cited: not fix such a long and indefinite period
for the exercise of the action; it limits it
to the life of the parents, excepting in
Sanchez Roman, in his Treatise of Civil Law,
the two cases mentioned in said article;
propounds the question as to whether said
and it does not allow, as does article
action should be considered transmissive to
118, the action to pass on to the heirs,
the heirs or descendants of the natural child,
inasmuch as, although it does not
whether he had or had not exercised it up to
prohibit it, and for that reason it might
the time of his death, and decides it as follows:
be deemed on general principles of law
to consent to it, such a supposition is
There is an entire absence of legal inadmissible for the reason that a
provisions, and at most, it might be comparison of both articles shows that
deemed admissible as a solution, that the silence of the law in the latter case
the right of action to claim the is not, nor it can be, an omission, but a
acknowledgment of a natural child is deliberate intent to establish a wide
transmitted by the analogy to his heirs difference between the advantages
on the same conditions and terms that granted to a legitimate child and to a
it is transmitted to the descendants of a natural one.
legitimate child, to claim his legitimacy,
under article 118, but nothing more;
(Ibid., Vol. II, 171.)
because on this point nothing warrants
placing the heirs of a natural child on a
better footing than those of the Navarro Amandi (Cuestionario del Código
legitimate child, and even to compare Civil) raises the question: "Can the heirs of a
them would not fail to be a strained and natural child claim the acknowledgment in
questionable matter, and one of those cases wherein the father or mother are
great difficulty for decision by the under obligation to acknowledge"? And says:
courts, for the simple reason that for
the heirs of the legitimate child, the said Opinions are widely divergent. The
article 118 exists, while for those of the court of Rennes held (on April 13,
natural child, as we have said, there is 1844) that the right of investigation
no provision in the code authorizing the forms a part of the estate of the child,
same, although on the other hand there and along with his patrimony is
is none that prohibits it. (Vol. V.) transmitted to his heirs. The affirmation
is altogether too categorical to be
Diaz Guijarro and Martinez Ruiz in their work admissible. If it were correct the same
on "The Civil Code as construed by the thing would happen as when the
supreme court of Spain," commenting upon legitimacy of a child is claimed, and as
article 137, say: already seen, the right of action to
demand the legitimacy is not
transmitted to the heirs in every case
and as an absolute right, but under
 certain limitations and circumstances. to the article 659 of the Civil Code, "the
Now, were we to admit the doctrine of inheritance includes all the property, rights, and
the court of Rennes, the result would obligations of a person, which are not
be that the claim for natural filiation extinguished by his death." If the mother is the
would be more favored than one for heir of her natural child, and the latter, among
legitimate filiation. This would be other rights during his lifetime was entitled to
absurd, because it can not be exercise an action of his acknowledgment
conceived that the legislator should against his father, during the life of the latter, if
have granted a right of action to the after his death in some of the excepting cases
heirs of the natural child, which is only of article 137, such right, which is a portion of
granted under great limitations and in his inheritance, is transmitted to his mother as
very few cases to those of a legitimate being his heir, and it was so understood by the
one. Some persons insist that the court of Rennes when it considered the right in
same rules that govern legitimate question, not as a personal and exclusive right
filiation apply by analogy to natural of the child which is extinguished by his death,
child are entitled to claim it in the cases but a any other right which might be transmitted
prescribed by the article 118. The after his death. This right of supposed
majority, however, are inclined to transmission is even less tenable than that
consider the right to claim sought to be sustained by the argument of
acknowledgment as a personal right, analogy.
and consequently, not transmissive to
the heirs. Really there are no legal The right of action pertaining to the child to
grounds to warrant the transmission. claim his legitimacy is in all respects superior
(Vol. 2, 229.) to that of the child who claims acknowledgment
as a natural child. And it is evident that the right
In a decision like the present one it is of action to claim his legitimacy is not one of
impossible to bring forward the argument of those rights which the legitimate child may
analogy for the purpose of considering that the transmit by inheritance to his heirs; it forms no
heirs of the natural child are entitled to the right part of the component rights of his inheritance.
of action which article 118 concedes to the If it were so, there would have been no
heirs of the legitimate child. The existence of a necessity to establish its transmissibility to
provision for the one case and the absence heirs as an exception in the terms and
thereof for the other is a conclusive argument conditions of article 118 of the code. So that, in
that inclusio unius est exclusio alterius, and it order that it may constitute a portion of the
can not be understood that the provision of law child's inheritance, it is necessary that the
should be the same when the same reason conditions and the terms contained in article
does not hold in the one case as in the other. 118 shall be present, since without them, the
right that the child held during his lifetime, being
The theory of law of transmission is also personal and exclusive in principle, and
entirely inapplicable in this case. This theory, therefore, as a general rule not susceptible of
which in the Roman Law expressed the transmission, would and should have been
general rule than an heir who did not accept an extinguished by his death. Therefore, where no
inheritance during his lifetime was express provision like that of article 118 exists,
incapacitated from transmitting it to his own the right of action for the acknowledgment of a
heirs, included at the same time the idea that if natural child is, in principle and without
the inheritance was not transmitted because exception, extinguished by his death, and can
the heir did not possess it, there were, not be transmitted as a portion of the
however, certain things which the heir held and inheritance of the deceased child.
could transmit. Such was the law and the right
to accept the inheritance, for the existing On the other hand, if said right of action formed
reason that all rights, both real and personal, a part of the child's inheritance, it would be
shall pass to the heir; quia haeres representat necessary to establish the doctrine that the
defunctum in omnibus et per omnia. According right to claim such an acknowledgment from
the presumed natural father and from his heirs Flaviano Moreto and Monica Maniega were
is an absolute right of the heirs of the child, not husband and wife. During their marriage, they
limited by certain circumstances as in the case acquired adjacent lots Nos. 1495, 4545, and
of the heirs of a natural child with a legitimate 1496 of the Calamba Friar Land Estate,
one to place the heirs of a natural child and his situated in Calamba, Laguna, containing 781-
inheritance on a better footing than those of a 544 and 1,021 square meters respectively and
legitimate child would not only be covered by certificates of title issued in the
unreasonable, but, as stated in one of the name of "Flaviano Moreto, married to Monica
above citations, most absurd and illegal in the Maniega."
present state of the law and in accordance with
the general principles thereof. The spouses Flaviano Moreto and Monica
Maniega begot during their marriage six (6)
For all of the foregoing reasons we hereby children, namely, Ursulo, Marta, La Paz, Alipio,
reverse the judgment appealed from in all its Pablo, and Leandro, all surnamed Moreto.
parts, without any special ruling as to the costs
of this instance. Ursulo Moreto died intestate on May 24, 1959
leaving as his heirs herein plaintiffs Vivencio,
Marcelo, Rosario, Victor, Paulina, Marta and
Eligio, all surnamed Moreto.
G.R. No. L-33187 March 31, 1980
Marta Moreto died also intestate on April 30,
CORNELIO PAMPLONA alias GEMINIANO 1938 leaving as her heir plaintiff Victoria Tuiza.
PAMPLONA and APOLONIA
ONTE, petitioners, La Paz Moreto died intestate on July 17, 1954
vs. leaving the following heirs, namely, herein
VIVENCIO MORETO, VICTOR MORETO, plaintiffs Pablo, Severina, Lazaro, and
ELIGIO MORETO, MARCELO MORETO, Lorenzo, all surnamed Mendoza.
PAULINA MORETO, ROSARIO MORETO,
MARTA MORETO, SEVERINA MENDOZA, Alipio Moreto died intestate on June 30, 1943
PABLO MENDOZA, LAZARO MENDOZA, leaving as his heir herein plaintiff Josefina
VICTORIA TUIZA, JOSEFINA MORETO, Moreto.
LEANDRO MORETO and LORENZO
MENDOZA, respondents. Pablo Moreto died intestate on April 25, 1942
leaving no issue and as his heirs his brother
E.P. Caguioa for petitioners. plaintiff Leandro Moreto and the other plaintiffs
herein.
Benjamin C. Yatco for respondents.
On May 6, 1946, Monica Maniega died
intestate in Calamba, Laguna.

GUERRERO, J.: On July 30, 1952, or more than six (6) years
after the death of his wife Monica Maniega,
This is a petition for certiorari by way of appeal Flaviano Moreto, without the consent of the
from the decision of the Court of Appeals 1 in heirs of his said deceased wife Monica, and
CA-G.R. No. 35962-R, entitled "Vivencio before any liquidation of the conjugal
Moreto, et al., Plaintiff-Appellees vs. Cornelio partnership of Monica and Flaviano could be
Pamplona, et al., Defendants-Appellants," effected, executed in favor of Geminiano
affirming the decision of the Court of First Pamplona, married to defendant Apolonia
Instance of Laguna, Branch I at Biñan. Onte, the deed of absolute sale (Exh. "1")
covering lot No. 1495 for P900.00. The deed of
The facts, as stated in the decision appealed sale (Exh. "1") contained a description of lot
from, show that: No. 1495 as having an area of 781 square
meters and covered by transfer certificate of the nullity of the deed of sale of July 30, 1952
title No. 14570 issued in the name of Flaviano above-mentioned as regards one-half of the
Moreto, married to Monica Maniega, although property subject matter of said deed; to declare
the lot was acquired during their marriage. As the plaintiffs as the rightful owners of the other
a result of the sale, the said certificate of title half of said lot; to allow the plaintiffs to redeem
was cancelled and a new transfer certificate of the one-half portion thereof sold to the
title No. T-5671 was issued in the name of defendants. "After payment of the other half of
Geminiano Pamplona married to Apolonia the purchase price"; to order the defendants to
Onte (Exh. "A"). vacate the portions occupied by them; to order
the defendants to pay actual and moral
After the execution of the above-mentioned damages and attorney's fees to the plaintiffs; to
deed of sale (Exh. "1"), the spouses Geminiano order the defendants to pay plaintiffs P120.00
Pamplona and Apolonia Onte constructed their a year from August 1958 until they have
house on the eastern part of lot 1496 as vacated the premises occupied by them for the
Flaviano Moreto, at the time of the sale, pointed use and occupancy of the same.
to it as the land which he sold to Geminiano
Pamplona. Shortly thereafter, Rafael The defendants claim that the sale made by
Pamplona, son of the spouses Geminiano Flaviano Moreto in their favor is valid as the lot
Pamplona and Apolonia Onte, also built his sold is registered in the name of Flaviano
house within lot 1496 about one meter from its Moreto and they are purchasers believing in
boundary with the adjoining lot. The vendor good faith that the vendor was the sole owner
Flaviano Moreto and the vendee Geminiano of the lot sold.
Pamplona thought all the time that the portion
of 781 square meters which was the subject After a relocation of lots 1495, 1496 and 4545
matter of their sale transaction was No. 1495 made by agreement of the parties, it was found
and so lot No. 1495 appears to be the subject out that there was mutual error between
matter in the deed of sale (Exh. "1") although Flaviano Moreto and the defendants in the
the fact is that the said portion sold thought of execution of the deed of sale because while the
by the parties to be lot No. 1495 is a part of lot said deed recited that the lot sold is lot No.
No. 1496. 1495, the real intention of the parties is that it
was a portion consisting of 781 square meters
From 1956 to 1960, the spouses Geminiano of lot No. 1496 which was the subject matter of
Pamplona and Apolonio Onte enlarged their their sale transaction.
house and they even constructed a piggery
corral at the back of their said house about one After trial, the lower court rendered judgment,
and one-half meters from the eastern boundary the dispositive part thereof being as follows:
of lot 1496.
WHEREFORE, judgment is
On August 12, 1956, Flaviano Moreto died hereby rendered for the
intestate. In 1961, the plaintiffs demanded on plaintiffs declaring the deed of
the defendants to vacate the premises where absolute sale dated July 30,
they had their house and piggery on the ground 1952 pertaining to the eastern
that Flaviano Moreto had no right to sell the lot portion of Lot 1496 covering an
which he sold to Geminiano Pamplona as the area of 781 square meters null
same belongs to the conjugal partnership of and void as regards the 390.5
Flaviano and his deceased wife and the latter square meters of which
was already dead when the sale was executed plaintiffs are hereby declared
without the consent of the plaintiffs who are the the rightful owners and entitled
heirs of Monica. The spouses Geminiano to its possession.
Pamplona and Apolonia Onte refused to
vacate the premises occupied by them and The sale is ordered valid with
hence, this suit was instituted by the heirs of respect to the eastern one-half
Monica Maniega seeking for the declaration of
(1/2) of 1781 square meters of The defendants-appellants, not being satisfied
Lot 1496 measuring 390.5 with said judgment, appealed to the Court of
square meters of which Appeals, which affirmed the judgment, hence
defendants are declared lawful they now come to this Court.
owners and entitled to its
possession. The fundamental and crucial issue in the case
at bar is whether under the facts and
After proper survey circumstances duly established by the
segregating the eastern one- evidence, petitioners are entitled to the full
half portion with an area of ownership of the property in litigation, or only
390.5 square meters of Lot one-half of the same.
1496, the defendants shall be
entitled to a certificate of title There is no question that when the petitioners
covering said portion and purchased the property on July 30, 1952 from
Transfer Certificate of Title No. Flaviano Moreto for the price of P900.00, his
9843 of the office of the wife Monica Maniega had already been dead
Register of Deeds of Laguna six years before, Monica having died on May 6,
shall be cancelled accordingly 1946. Hence, the conjugal partnership of the
and new titles issued to the spouses Flaviano Moreto and Monica Maniega
plaintiffs and to the defendants had already been dissolved. (Article 175, (1)
covering their respective New Civil Code; Article 1417, Old Civil Code).
portions. The records show that the conjugal estate had
not been inventoried, liquidated, settled and
Transfer Certificate of Title No. divided by the heirs thereto in accordance with
5671 of the office of the law. The necessary proceedings for the
Register of Deeds of Laguna liquidation of the conjugal partnership were not
covering Lot No. 1495 and instituted by the heirs either in the testate or
registered in the name of intestate proceedings of the deceased spouse
Cornelio Pamplona, married to pursuant to Act 3176 amending Section 685 of
Apolonia Onte, is by virtue of Act 190. Neither was there an extra-judicial
this decision ordered partition between the surviving spouse and the
cancelled. The defendants are heirs of the deceased spouse nor was an
ordered to surrender to the ordinary action for partition brought for the
office of the Register of Deeds purpose. Accordingly, the estate became the
of Laguna the owner's property of a community between the surviving
duplicate of Transfer Certificate husband, Flaviano Moreto, and his children
of Title No. 5671 within thirty with the deceased Monica Maniega in the
(30) days after this decision concept of a co-ownership.
shall have become final for
cancellation in accordance with The community property of the
this decision. marriage, at the dissolution of
this bond by the death of one of
Let copy of this decision be the spouses, ceases to belong
furnished the Register of to the legal partnership and
Deeds for the province of becomes the property of a
Laguna for his information and community, by operation of
guidance. law, between the surviving
spouse and the heirs of the
With costs against the deceased spouse, or the
defendants. 2 exclusive property of the
widower or the widow, it he or
she be the heir of the deceased
spouse. Every co-owner shall
 have full ownership of his part agreement of the parties during the
and in the fruits and benefits proceedings of the case below, the area sold
derived therefrom, and he was within Lot 1496.
therefore may alienate, assign
or mortgage it, and even Again, there is no dispute that the houses of
substitute another person in its the spouses Cornelio Pamplona and Apolonia
enjoyment, unless personal Onte as well as that of their son Rafael
rights are in question. (Marigsa Pamplona, including the concrete piggery coral
vs. Macabuntoc, 17 Phil. 107) adjacent thereto, stood on the land from 1952
up to the filing of the complaint by the private
In Borja vs. Addision, 44 Phil. 895, 906, the respondents on July 25, 1961, or a period of
Supreme Court said that "(t)here is no reason over nine (9) years. And during said period, the
in law why the heirs of the deceased wife may private respondents who are the heirs of
not form a partnership with the surviving Monica Maniega as well as of Flaviano Moreto
husband for the management and control of who also died intestate on August 12, 1956,
the community property of the marriage and lived as neighbors to the petitioner-vendees,
conceivably such a partnership, or rather yet lifted no finger to question the occupation,
community of property, between the heirs and possession and ownership of the land
the surviving husband might be formed without purchased by the Pamplonas, so that We are
a written agreement." In Prades vs. Tecson, 49 persuaded and convinced to rule that private
Phil. 230, the Supreme Court held that respondents are in estoppel by laches to claim
"(a)lthough, when the wife dies, the surviving half of the property, in dispute as null and void.
husband, as administrator of the community Estoppel by laches is a rule of equity which
property, has authority to sell the property bars a claimant from presenting his claim
with•ut the concurrence of the children of the when, by reason of abandonment and
marriage, nevertheless this power can be negligence, he allowed a long time to elapse
waived in favor of the children, with the result without presenting the same. (International
of bringing about a conventional ownership in Banking Corporation vs. Yared, 59 Phil. 92)
common between the father and children as to
such property; and any one purchasing with We have ruled that at the time of the sale in
knowledge of the changed status of the 1952, the conjugal partnership was already
property will acquire only the undivided interest dissolved six years before and therefore, the
of those members of the family who join in the estate became a co-ownership between
act of conveyance. Flaviano Moreto, the surviving husband, and
the heirs of his deceased wife, Monica
It is also not disputed that immediately after the Maniega. Article 493 of the New Civil Code is
execution of the sale in 1952, the vendees applicable and it provides a follows:
constructed their house on the eastern part of
Lot 1496 which the vendor pointed out to them Art. 493. Each co-owner shall
as the area sold, and two weeks thereafter, have the full ownership of his
Rafael who is a son of the vendees, also built part and of the fruits and
his house within Lot 1496. Subsequently, a benefits pertaining thereto, and
cemented piggery coral was constructed by the he may therefore alienate,
vendees at the back of their house about one assign or mortgage it, and even
and one-half meters from the eastern boundary substitute another person in its
of Lot 1496. Both vendor and vendees believed enjoyment, except when
all the time that the area of 781 sq. meters personal rights are involve. But
subject of the sale was Lot No. 1495 which the effect of the alienation or
according to its title (T.C.T. No. 14570) the mortgage, with respect to
contains an area of 781 sq. meters so that the the co-owners, shall be limited
deed of sale between the parties Identified and to the portion which may be
described the land sold as Lot 1495. But allotted to him in the division
actually, as verified later by a surveyor upon
 upon the termination of the co- tolerated such alienation, occupation and
ownership. possession, We rule that a factual partition or
termination of the co-ownership, although
We agree with the petitioner that there was a partial, was created, and barred not only the
partial partition of the co-ownership when at the vendor, Flaviano Moreto, but also his heirs, the
time of the sale Flaviano Moreto pointed out the private respondents herein from asserting as
area and location of the 781 sq. meters sold by against the vendees-petitioners any right or
him to the petitioners-vendees on which the title in derogation of the deed of sale executed
latter built their house and also that whereon by said vendor Flaiano Moreto.
Rafael, the son of petitioners likewise erected
his house and an adjacent coral for piggery. Equity commands that the private respondents,
the successors of both the deceased spouses,
Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega be not
Flaviano Moreto and Monica Maniega owned allowed to impugn the sale executed by
three parcels of land denominated as Lot 1495 Flaviano Moreto who indisputably received the
having an area of 781 sq. meters, Lot 1496 with consideration of P900.00 and which he,
an area of 1,021 sq. meters, and Lot 4545 with including his children, benefitted from the
an area of 544 sq. meters. The three lots have same. Moreover, as the heirs of both Monica
a total area of 2,346 sq. meters. These three Maniega and Flaviano Moreto, private
parcels of lots are contiguous with one another respondents are duty-bound to comply with the
as each is bounded on one side by the other, provisions of Articles 1458 and 1495, Civil
thus: Lot 4545 is bounded on the northeast by Code, which is the obligation of the vendor of
Lot 1495 and on the southeast by Lot 1496. Lot the property of delivering and transfering the
1495 is bounded on the west by Lot 4545. Lot ownership of the whole property sold, which is
1496 is bounded on the west by Lot 4545. It is transmitted on his death to his heirs, the herein
therefore, clear that the three lots constitute private respondents. The articles cited provide,
one big land. They are not separate properties thus:
located in different places but they abut each
other. This is not disputed by private Art. 1458. By the contract of
respondents. Hence, at the time of the sale, the sale one of the contracting
co-ownership constituted or covered these parties obligates himself to
three lots adjacent to each other. And since transfer the ownership of and
Flaviano Moreto was entitled to one-half pro- to deliver a determinate thing,
indiviso of the entire land area or 1,173 sq. and the other part to pay
meters as his share, he had a perfect legal and therefore a price certain in
lawful right to dispose of 781 sq. meters of his money or its equivalent.
share to the Pamplona spouses. Indeed, there
was still a remainder of some 392 sq. meters A contract of sale may be
belonging to him at the time of the sale. absolute or conditionial.

We reject respondent Court's ruling that the Art. 1495. The vendor is bound
sale was valid as to one-half and invalid as to to transfer the ownership of
the other half for the very simple reason that and deliver, as well as warrant
Flaviano Moreto, the vendor, had the legal right the thing which is the object of
to more than 781 sq. meters of the communal the sale.
estate, a title which he could dispose, alienate
in favor of the vendees-petitioners. The title Under Article 776, New Civil Code, the
may be pro-indiviso or inchoate but the inheritance which private respondents received
moment the co-owner as vendor pointed out its from their deceased parents and/or
location and even indicated the boundaries predecessors-in-interest included all the
over which the fences were to be erectd without property rights and obligations which were not
objection, protest or complaint by the other co- extinguished by their parents' death. And under
owners, on the contrary they acquiesced and
Art. 1311, paragraph 1, New Civil Code, the G.R. No. 121940 December 4, 2001
contract of sale executed by the deceased
Flaviano Moreto took effect between the JESUS SAN AGUSTIN, petitioner,
parties, their assigns and heirs, who are the vs.
private respondents herein. Accordingly, to the HON. COURT OF APPEALS and MAXIMO
private respondents is transmitted the MENEZ, JR., respondents.
obligation to deliver in full ownership the whole
area of 781 sq. meters to the petitioners (which QUISUMBING, J.:
was the original obligation of their predecessor
Flaviano Moreto) and not only one-half thereof.
This petition for review on certiorari seeks the
Private respondents must comply with said
reversal of the decision 1 of the Court of
obligation.
Appeals dated May 19, 1995, affirming that of
the Regional Trial Court in LRC Case No. R-
The records reveal that the area of 781 sq. 4659.
meters sold to and occupied by petitioners for
more than 9 years already as of the filing of the
The relevant facts, as summarized by the CA,
complaint in 1961 had been re-surveyed by
are as follows:
private land surveyor Daniel Aranas.
Petitioners are entitled to a segregation of the
area from Transfer Certificate of Title No. T- On February 11, 1974, the Government
9843 covering Lot 1496 and they are also Service Insurance System (GSIS) sold to a
entitled to the issuance of a new Transfer certain Macaria Vda. de Caiquep, a parcel of
Certificate of Title in their name based on the residential land with an area of 168 square
relocation survey. meters located in Rosario, Pasig City and
denominated as Lot 13, Block 7, Pcs-5816 of
the Government Service and Insurance
WHEREFORE, IN VIEW OF THE
System Low Cost Housing Project (GSIS-
FOREGOING, the judgment appealed from is
LCHP). The sale is evidenced by a Deed of
hereby AFFIRMED with modification in the
Absolute Sale. 2 On February 19, 1974, the
sense that the sale made and executed by
Register of Deeds of Rizal issued in the name
Flaviano Moreto in favor of the petitioners-
of Macaria Vda. de Caiquep. Transfer
vendees is hereby declared legal and valid in
Certificate of Title (TCT) No. 436465 with the
its entirely.
following encumbrance annotated at the back
of the title:
Petitioners are hereby declared owners in full
ownership of the 781 sq. meters at the eastern
This Deed of Absolute Sale is subject
portion of Lot 1496 now occupied by said
to the conditions enumerated below
petitioners and whereon their houses and
which shall be permanent
piggery coral stand.
encumbrances on the property, the
violation of any of which shall entitle the
The Register of Deeds of Laguna is hereby vendor to cancel x x x. this Deed of
ordered to segregate the area of 781 sq. Absolute Sale and reenter the property;
meters from Certificate of Title No. 9843 and to
issue a new Transfer Certificate of Title to the
The purpose of the sale be to aid the
petitioners covering the segregated area of 781
vendee in acquiring a lot for
sq. meters.
himself/themselves and not to provide
him/them with a means for speculation
No costs. or profit by a future assignment of
his/their right herein acquired or the
SO ORDERED. resale of the lot through rent, lease or
subletting to others of the lot and
subject of this deed, and therefore, the
vendee shall not sell, convey, lease or
 sublease, or otherwise encumber the On July 8, 1992 private respondent filed a
property in favor of any other party petition docketed as LRC Case No. R-4659
within five (5) years from the dates final with the RTC, Branch 154, Pasig, Metro Manila
and absolute ownership thereof for the issuance of owner's duplicate copy of
becomes vested in the vendee, except TCT No. 436465 to replace the lost one. To
in cases of hereditary succession or show he was the owner of the contested lot, he
resale in favor of the vendor: showed the Deed of Absolute Sale, Exhibit "D".
The petition was set for hearing and the court's
x x x (emphasis supplied).3 order dated July 10, 1992 was published once
in Malaya, a nationally circulated newspaper in
A day after We issuance of TCT No. 436465, the Philippines.8
or on February 20, 1974, Macaria Vda. de
Caiquep sold the subject lot to private During the hearing on September 3, 1992, only
respondent, Maximo Menez, Jr., as evidenced Menez and his counsel appeared. The
by a Deed of Absolute Sale (Exhibit "D").4 This Register of Deeds who was not served notice,
deed was notarized but was not registered and the Office of the Solicitor General and the
immediately upon its execution in 1974 Provincial Prosecutor who were notified did not
because GSIS prohibited him from registering attend.
the same in view of the five-year prohibition to
sell during the period ending in 1979. On September 18, 1992, there being no
opposition, Menez presented his evidence ex-
Sometime in 1979, for being suspected as a parte. The trial court granted his petition in its
subversive, an Arrest, Search and Seizure decision9 dated September 30, 1992, the
Order (ASSO) was issued against private dispositive portion of which reads:
respondent. Military men ransacked his house
in Cainta, Rizal. Upon learning that he was WHEREFORE, the petition is hereby
wanted by the military, he voluntarily GRANTED and the Registry of Deeds
surrendered and was detained for two (2) of Pasig, Metro Manila, is hereby
years. When released, another order for his re- directed to issue a new Owner's
arrest was issued so he hid in Mindanao for Duplicate Copy of Transfer Certificate
another four (4) years or until March 1984. In of Title No. 436465 based on the
December of 1990, he discovered that the original thereon filed in his office which
subject TCT was missing. He consulted a shall contain the memorandum of
lawyer but the latter did not act immediately on encumbrance and an additional
the matter. Upon consulting a new counsel, an memorandum of the fact that it was
Affidavit of Loss5 was filed with the Register of issued in place of the lost duplicate and
Deeds of Pasig and a certified copy6 of TCT which shall, in all respect, be entitled to
No. 436465 was issued. Private respondent like faith and credit as the original
also declared the property for tax purposes and duplicate, for all legal intents and
obtained a certification thereof from the purposes.
Assessor's Office.7
Issuance of new owner's duplicate
Private respondent sent notices to the copy shall be made only after this
registered owner at her address appearing in decision shall have become final and
the title and in the Deed of Sale. And, with his executory. The said lost owner's
counsel, he searched for the ,registered owner duplicate is hereby declared null and
in Metro Manila and Rizal and as far as Samar, void.
Leyte, Calbayog City, Tacloban City, and in
Eastern and Northern Samar. However, their Petitioner shall pay all legal fees in
search proved futile. connection with the issuance of the
new owner's copy.
 Let copies of this Order be furnished PRIVATE RESPONDENT AND MACARIA
the petitioner, the registered owner of VDA. DE CAIQUEP IS NOT NULL AND VOID
his given address in the title, in the AND UNDER ARTICLE 1409 OF THE CIVIL
deed of sale, and in the tax declaration; CODE SPECIFICALLY PARAGRAPH (7)
the Registry of Deeds of Pasig, the THEREOF WHICH REFERS TO
Office of the Solicitor General; and the CONTRACTS EXPRESSLY PROHIBITED OR
Provincial Fiscal of Pasig, Metro DECLARED VOID BY LAW.15
Manila.
Considering the above assignment of errors,
SO ORDERED.10 let us resolve the corresponding issues raised
by petitioner.
On October 13, 1992, herein petitioner, Jesus
San Agustin, received a copy of the abovecited The first issue involves private respondent's
decision. He-claimed this was the first time he alleged failure to send notice to petitioner who
became aware of the case of her aunt, Macaria is the actual possessor of the disputed lot.
Vda. de Caiquep who, according to him, died Stated briefly, is petitioner entitled to notice?
sometime in 1974. Claiming that he was the Our finding is in the negative.
present occupant of the property and the heir
of Macaria, he filed his "Motion to Reopen Presidential Decree No. 1529, otherwise
Reconstitution Proceedings''11 on October 27, known as the "Property Registration Decree" is
1992. On December 3, 1992, RTC issued an decisive. It provides:
order denying said motion.12
Sec. 109. Notice and replacement of
Petitioner filed an appeal with the Court of lost duplicate certificate. — In case of
Appeals, which, as earlier stated, was denied loss or theft of an owner's duplicate
in its decision of May 19, 1995. Petitioner certificate of title, due notice under oath
moved for a reconsideration, but it was denied shall be sent by the owner or by
in a resolution dated September 11, 1995.13 someone in his behalf to the Register
of Deeds of the province or city where
Thus, the present petition, attributing the the land lies as soon as the loss or theft
following errors to the court a quo: is discovered. If a duplicate certificate
is lost or destroyed, or cannot be
A. produced by a person applying for the
entry of a new certificate to him or for
THE RESPONDENT COURT GRAVELY :the registration of any instrument, a
ERRED IN HOLDING THAT LRC CASE NO. sworn statement of the fact of such loss
R-4659 BEING ONLY A PETITION FOR THE or destruction may be filed by the
ISSUANCE OF A NEW OWNER'S registered owner or other person it
DUPLICATE OF TITLE, THERE IS NO NEED interest and registered.
OF PERSONAL NOTICE TO THE
PETITIONER, THE ACTUAL POSSESSOR Upon the petition of the registered
[WHO HAS] AND ACTUALLY BEEN PAYING owner or other person in interest, the
THE REAL ESTATE TAX, DESPITE PRIVATE court may, after notice and due
RESPONDENT'S KNOWLEDGE OF ACTUAL hearing, direct the issuance of a new
POSSESSION OF AND INTEREST OVER duplicate certificate, which shall
THE PROPERTY COVERED BY TCT NO. contain a memorandum of the fact that
436465.14 it is issued in place of the lost duplicate
certificate, but shall in all respects be
B. entitled to like faith and credit as the
original duplicate, and shall thereafter
be regarded as such for all purposes of
RESPONDENT COURT GRAVELY ERRED IN
this decree.
HOLDING THAT THE SALE BETWEEN THE
In Office of Court Administrator vs. Matas, A.M. Noteworthy is the fact that there was
No. RTJ-92-836, 247 SCRA 9, 16-17 (1995), compliance by private respondent of the RTC's
we held: order of publication of the petition in a
newspaper of general circulation. This is
In the case at bar, the respective sufficient notice of the petition to the public at
certificate of title of the properties in large.
question on file with the Register of
Deeds are existing, and it is the Petitioner contends that as possessor or actual
owner's copy of the certificate of title occupant of the lot in controversy, he is entitled
that was alleged to have been lost or under the law to be notified. He relies
destroyed. Thus, it is Section 109 of on Alabang Development Corporation vs.
P.D. 1529 which was approved on Valenzuela, G.R. No. L-54094, 116 SCRA 261,
June 11, 1978 that becomes effective 277 (1982)) which held that in reconstitution
and is applicable, a reading of which proceedings, courts must make sure that
shows that it is practically the same as indispensable parties, i.e.. the actual owners
Section 109 of Act No. 496, governing and possessors of the lands involved, are duly
reconstitution of a duplicate certificate served with actual and personal notice of the
of title lost or destroyed. Consequently, petition. As pointed out by the appellate court,
it is sufficient that the notice under his reliance on Alabang is misplaced because
Section 109 is sent to the Register of the cause of action in that case is based on
Deeds and to those persons who are Republic Act i No. 26, entitled "An Act
known to have, or appear to have, an Providing A Special Procedure for the
interest in the property as shown in the Reconstitution of Torrens Certificate of Title
Memorandum of encumbrances at the Lost or Destroyed," while the present case is
back of the original or transfer based on Section 109 of P.D. 1529 as above
certificate of title on file in the office of explained.
the Register of Deeds. From a legal
standpoint, there are no other Under Republic Act No. 26, reconstitution is
interested parties who should be validly made only in case the original copy of
notified, except those abovementioned the certificate of title with the Register of Deeds
since they are the only ones who may is lost or destroyed. And if no notice of the date
be deemed to have a claim to the of hearing of a reconstitution case is served on
property involved. A person dealing a possessor or one having interest in the
with registered is not charged with property involved, he is deprived of his day in
notice of encumbrances not annotated court and the order of reconstitution is null and
on the back of the title. (Emphasis void.16 The case at bar is not for reconstitution,
supplied.) but merely for replacement of lost duplicate
certificate.
Here, petitioner does not appear to have an
interest in the property based on the On the second assigned error, petitioner
memorandum of encumbrances annotated at contends that Exhibit "D" is null and void under
the back of the title. His claim, that he is an heir Article 1409 of the Civil Code, specifically
(nephew) of the original owner of the lot paragraph (7),17 because the deed of sale was
covered by the disputed lot and the present executed within the five-year prohibitory period
occupant thereof is not annotated in the said under Commonwealth Act No. 141, as
memorandum of encumbrances. Neither was amended, otherwise known as "The Public
his claim entered on the Certificate of Titles in Land Act."18
the name of their original/former owners on file
with the Register of Deeds at the time of the We find petitioner's contention less than
filing or pendency of LRC Case No. R-4659. meritorious. We agree with respondent court
Clearly, petitioner is not entitled to notice. that the proscription under Com. Act No. 141
on sale within the 5-year restrictive period
refers to homestead lands only. Here the lot in
dispute is not a homestead land, as found by contracts entered into by their predecessors-in-
the trial and appellate courts. Said lot is owned interest.20
by GSIS, under TCT No. 10028 in its
proprietary capacity. We are not unmindful of the social justice policy
of R.A. 8291 otherwise known as "Government
Moreover, as far as the violation of the 5-year Service Insurance Act of 1997" in granting
restrictive condition imposed by GSIS in its housing assistance to the less-privileged GSIS
contract with petitioner's predecessor-in- members and their dependents payable at an
interest is concerned, it is the GSIS and not affordable payment scheme.21 This is the same
petitioner who had a cause of action against policy which the 5-year restrictive clause in the
private respondent. Vide the instructive case contract seeks to implement by stating in the
of Sarmiento vs. Salud: encumbrance itself annotated at the back of
TCT No. 436465 that, "The purpose of the sale
The condition that the appellees is to aid the vendee in acquiring a lot for
Sarmiento spouses could not resell the himself/themselves and not to provide
property except to the People's him/them with a means for speculation or profit
Homesite and Housing Corporation by a future assignment of his/their right herein
(PHHC for short) within the next 25 acquired or the resale of the lot through rent,
years after appellees' purchasing the lease or subletting to others of the lot and
lot is manifestly a condition in favor of subject of this deed, . . . within five (5) years
the PHHC, and not one in favor of the from the date final and absolute ownership
Sarmiento spouses. The condition thereof becomes vested in the vendee, except
conferred no actionable right on in cases of hereditary succession or resale in
appellees herein, since it operated as a favor of the vendor."22 However, absent the
restriction upon their jus disponendi of proper action taken by the GSIS as the original
the property they bought, and thus vendor referred to, the contract between
limited their right of ownership. It petitioner's predecessor-in-interest and private
follows that on the assumption that the respondent deserves to be upheld. For as
mortgage to appellee Salud and the pointed out by said private respondent, it is
foreclosure sale violated the condition protected by the Constitution under Section 10,
in the Sarmiento contract, only the Article III, of the Bill of Rights stating that, "No
PHHC was entitled to invoke the law impairing the obligation of contracts shall
condition aforementioned, and not the be passed." Much as we would like to see a
Sarmientos. The validity or invalidity of salutary policy triumph, that provision of the
the sheriff's foreclosure sale to Constitution duly calls for compliance.
appellant Salud thus violative of its
right of exclusive reacquisition; but it More in point, however, is the fact that,
(PHHC) also could waive the condition following Sarmiento v. Salud,23 "Even if the
and treat the sale as good, in which transaction between the original awardee and
event, the sale can not be assailed for herein petitioner were wrongful, still, as
breach of the condition aforestated.19 between themselves, the purchaser and the
seller were both in pari delicto, being participes
In this case, the GSIS has not filed any action criminis as it were." As in Sarmiento, in this
for the annulment of Exhibit "D", nor for the case both were aware of the existence of the
forfeiture of the lot in question. In our view, the stipulated condition in favor of the original
contract of sale remains valid between the seller, GSIS, yet both entered into an
parties, unless and until annulled in the proper agreement violating said condition and
suit filed by the rightful party, the GSIS. For nullifying its effects. Similarly, as Acting Chief
now, the said contract of sale is binding upon Justice JBL Reyes concluded in Sarmiento,
the heirs of Macaria Vda. de Caiquep, including "Both parties being equally guilty, neither is
petitioner who alleges to be one of her heirs, in entitled to complain against the other. Having
line with the rule that heirs are bound by entered into the transaction with open eyes,
and having benefited from it, said parties
should be held in estoppel to assail and annul TESTATE ESTATE OF JOSEFA TANGCO,
their own deliberate acts." JOSE DE BORJA, administrator-appellee;
JOSE DE BORJA, as administrator,
WHEREFORE, the appeal is DENIED, and the CAYETANO DE BORJA, MATILDE DE
decision of the respondent court is AFFIRMED. BORJA and CRISANTO DE BORJA
(deceased) as Children of Josefa
SO ORDERED. Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special
Administratrix of the Testate Estate of
2. Article 777. The rights to the succession are Francisco de Borja, appellant. .
transmitted from the moment of the death of the
decedent. G.R. No L-28568 August 18, 1972

Related to: TESTATE ESTATE OF THE LATE

FRANCISCO DE BORJA, TASIANA O. VDA.
Art. 390. After an absence of seven years, it DE DE BORJA, special Administratrix
being unknown whether or not the absentee appellee,
still lives, he shall be presumed dead for all vs.
purposes, except for those of succession. JOSE DE BORJA, oppositor-appellant.
The absentee shall not be presumed dead for
G.R. No. L-28611 August 18, 1972
the purpose of opening his succession till after
an absence of ten years. If he disappeared
TASIANA 0. VDA. DE BORJA, as
after the age of seventy-five years, an absence
Administratrix of the Testate Estate of the
of five years shall be sufficient in order that his late Francisco de Borja, plaintiff-appellee,
succession may be opened. (n) vs.
JOSE DE BORJA, as Administrator of the
Testate Estate of the late Josefa
Art. 391. The following shall be presumed dead Tangco, defendant-appellant.
for all purposes, including the division of the
estate among the heirs: L-28040

Pelaez, Jalandoni & Jamir for administrator-

appellee.
(1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is missing,
Quiogue & Quiogue for appellee Matilde de
who has not been heard of for four years since
Borja.
the loss of the vessel or aeroplane;
Andres Matias for appellee Cayetano de Borja.

(2) A person in the armed forces who has taken Sevilla & Aquino for appellant.
part in war, and has been missing for four
years; L-28568

Sevilla & Aquino for special administratrix-

(3) A person who has been in danger of death appellee.
under other circumstances and his existence
has not been known for four years. Pelaez, Jalandoni & Jamir for oppositor-
appellant.
G.R. No. L-28040 August 18, 1972
L-28611 Francisco de Borja allegedly took unto himself
a second wife, Tasiana Ongsingco. Upon
Sevilla & Aquino for plaintiff-appellee. Francisco's death, Tasiana instituted testate
proceedings in the Court of First Instance of
Pelaez, Jalandoni & Jamir and David Gueverra Nueva Ecija, where, in 1955, she was
for defendant-appellant. appointed special administratrix. The validity of
Tasiana's marriage to Francisco was
questioned in said proceeding.

REYES, J.B.L., J.:p The relationship between the children of the

first marriage and Tasiana Ongsingco has
Of these cases, the first, numbered L-28040 is an appeal by
been plagued with several court suits and
Tasiana Ongsingco Vda. de de Borja, special administratrix of the counter-suits; including the three cases at bar,
testate estate of Francisco de Borja,1 from the approval of a some eighteen (18) cases remain pending
compromise agreement by the Court of First Instance of Rizal,
Branch I, in its Special Proceeding No. R-7866, entitled, "Testate determination in the courts. The testate estate
Estate of Josefa Tangco, Jose de Borja, Administrator". of Josefa Tangco alone has been unsettled for
more than a quarter of a century. In order to put
Case No. L-28568 is an appeal by an end to all these litigations, a compromise
administrator Jose Borja from the disapproval agreement was entered into on 12 October
of the same compromise agreement by the 1963,2 by and between "[T]he heir and son of
Court of First Instance of Nueva Ecija, Branch Francisco de Borja by his first marriage,
II, in its Special Proceeding No. 832, entitled, namely, Jose de Borja personally and as
"Testate Estate of Francisco de Borja, Tasiana administrator of the Testate Estate of Josefa
O. Vda. de de Borja, Special Administratrix". Tangco," and "[T]he heir and surviving spouse
of Francisco de Borja by his second marriage,
And Case No. L-28611 is an appeal by Tasiana Ongsingco Vda. de Borja, assisted by
administrator Jose de Borja from the decision her lawyer, Atty. Luis Panaguiton Jr." The
of the Court of First Instance of Rizal, Branch terms and conditions of the compromise
X, in its Civil Case No. 7452, declaring the agreement are as follows:
Hacienda Jalajala Poblacion, which is the main
object of the aforesaid compromise agreement, AGREEMENT
as the separate and exclusive property of the
late Francisco de Borja and not a conjugal THIS AGREEMENT made and
asset of the community with his first wife, entered into by and between
Josefa Tangco, and that said hacienda
pertains exclusively to his testate estate, which The heir and son of Francisco
is under administrator in Special Proceeding de Borja by his first marriage,
No. 832 of the Court of First Instance of Nueva namely, Jose de Borja
Ecija, Branch II. personally and as administrator
of the Testate Estate of Josefa
It is uncontested that Francisco de Borja, upon Tangco,
the death of his wife Josefa Tangco on 6
October 1940, filed a petition for the probate of AND
her will which was docketed as Special
Proceeding No. R-7866 of the Court of First
The heir and surviving spouse
Instance of Rizal, Branch I. The will was
of Francisco de Borja by his
probated on 2 April 1941. In 1946, Francisco
second marriage, Tasiana
de Borja was appointed executor and
Ongsingco Vda. de Borja,
administrator: in 1952, their son, Jose de Borja,
assisted by her lawyer, Atty.
was appointed co-administrator. When
Luis Panaguiton Jr.
Francisco died, on 14 April 1954, Jose became
the sole administrator of the testate estate of
his mother, Josefa Tangco. While a widower WITNESSETH
THAT it is the mutual desire of Familia
all the parties herein terminate Maronilla
and settle, with finality, the
various court litigations, with a segregated area of
controversies, claims, approximately 1,313 hectares
counterclaims, etc., between at the amount of P0.30 per
them in connection with the square meter.
administration, settlement,
partition, adjudication and 2. That Jose de Borja agrees
distribution of the assets as and obligates himself to pay
well as liabilities of the estates Tasiana Ongsingco Vda. de de
of Francisco de Borja and Borja the total amount of Eight
Josefa Tangco, first spouse of Hundred Thousand Pesos
Francisco de Borja. (P800,000) Philippine
Currency, in cash, which
THAT with this end in view, the represent P200,000 as his
parties herein have agreed share in the payment and
voluntarily and without any P600,000 as pro-rata shares of
reservations to enter into and the heirs Crisanto, Cayetano
execute this agreement under and Matilde, all surnamed de
the following terms and Borja and this shall be
conditions: considered as full and
complete payment and
1. That the parties agree to sell settlement of her hereditary
the Poblacion portion of the share in the estate of the late
Jalajala properties situated in Francisco de Borja as well as
Jalajala, Rizal, presently under the estate of Josefa Tangco,
administration in the Testate Sp. Proc. No. 832-Nueva Ecija
Estate of Josefa Tangco (Sp. and Sp. Proc. No. 7866-Rizal,
Proc. No. 7866, Rizal), more respectively, and to any
specifically described as properties bequeathed or
follows: devised in her favor by the late
Francisco de Borja by Last Will
Linda al Norte and Testament or by Donation
con el Rio Inter Vivos or Mortis Causa or
Puwang que la purportedly conveyed to her for
separa de la consideration or otherwise.
jurisdiccion del The funds for this payment
Municipio de shall be taken from and shall
Pililla de la depend upon the receipt of full
Provincia de payment of the proceeds of the
Rizal, y con el sale of Jalajala, "Poblacion."
pico del Monte
Zambrano; al 3. That Tasiana Ongsingco
Oeste con Vda. de de Borja hereby
Laguna de assumes payment of that
Bay; por el Sur particular obligation incurred by
con los the late Francisco de Borja in
herederos de favor of the Rehabilitation
Marcelo de Finance Corporation, now
Borja; y por el Development Bank of the
Este con los Philippines, amounting to
terrenos de la approximately P30,000.00 and
also assumes payment of her other, more specifically Sp.
1/5 share of the Estate and Proceedings Nos. 7866 and
Inheritance taxes on the Estate 1955, CFI-Rizal, and Sp. Proc.
of the late Francisco de Borja No. 832-Nueva Ecija, Civil
or the sum of P3,500.00, more Case No. 3033, CFI Nueva
or less, which shall be Ecija and Civil Case No. 7452-
deducted by the buyer of CFI, Rizal, as well as the case
Jalajala, "Poblacion" from the filed against Manuel Quijal for
payment to be made to perjury with the Provincial
Tasiana Ongsingco Vda. de Fiscal of Rizal, the intention
Borja under paragraph 2 of this being to completely, absolutely
Agreement and paid directly to and finally release each other,
the Development Bank of the their heirs, successors, and
Philippines and the heirs- assigns, from any and all
children of Francisco de Borja. liability, arising wholly or
partially, directly or indirectly,
4. Thereafter, the buyer of from the administration,
Jalajala "Poblacion" is hereby settlement, and distribution of
authorized to pay directly to the assets as well as liabilities
Tasiana Ongsingco Vda. de de of the estates of Francisco de
Borja the balance of the Borja and Josefa Tangco, first
payment due her under spouse of Francisco de Borja,
paragraph 2 of this Agreement and lastly, Tasiana Ongsingco
(approximately P766,500.00) Vda. de de Borja expressly and
and issue in the name of specifically renounce
Tasiana Ongsingco Vda. de de absolutely her rights as heir
Borja, corresponding certified over any hereditary share in
checks/treasury warrants, who, the estate of Francisco de
in turn, will issue the Borja.
corresponding receipt to Jose
de Borja. 6. That Tasiana Ongsingco
Vda. de de Borja, upon receipt
5. In consideration of above of the payment under
payment to Tasiana Ongsingco paragraph 4 hereof, shall
Vda. de de Borja, Jose de Borja deliver to the heir Jose de Borja
personally and as administrator all the papers, titles and
of the Testate Estate of Josefa documents belonging to
Tangco, and Tasiana Francisco de Borja which are in
Ongsingco Vda. de de Borja, her possession and said heir
for themselves and for their Jose de Borja shall issue in turn
heirs, successors, executors, the corresponding receive
administrators, and assigns, thereof.
hereby forever mutually
renounce, withdraw, waive, 7. That this agreement shall
remise, release and discharge take effect only upon the
any and all manner of action or fulfillment of the sale of the
actions, cause or causes of properties mentioned under
action, suits, debts, sum or paragraph 1 of this agreement
sums of money, accounts, and upon receipt of the total
damages, claims and demands and full payment of the
whatsoever, in law or in equity, proceeds of the sale of the
which they ever had, or now Jalajala property "Poblacion",
have or may have against each otherwise, the non-fulfillment of
 the said sale will render this explicitly conditions the validity of an
instrument NULL AND VOID extrajudicial settlement of a decedent's estate
AND WITHOUT EFFECT by agreement between heirs, upon the facts
THEREAFTER. that "(if) the decedent left no will and no debts,
and the heirs are all of age, or the minors are
IN WITNESS WHEREOF, the represented by their judicial and legal
parties hereto have her unto representatives ..." The will of Francisco de
set their hands in the City of Borja having been submitted to the Nueva
Manila, Philippines, the 12th of Ecija Court and still pending probate when the
October, 1963. 1963 agreement was made, those
circumstances, it is argued, bar the validity of
On 16 May 1966, Jose de Borja submitted for the agreement.
Court approval the agreement of 12 October
1963 to the Court of First Instance of Rizal, in Upon the other hand, in claiming the validity of
Special Proceeding No. R-7866; and again, on the compromise agreement, Jose de Borja
8 August 1966, to the Court of First Instance of stresses that at the time it was entered into, on
Nueva Ecija, in Special Proceeding No. 832. 12 October 1963, the governing provision was
Tasiana Ongsingco Vda. de de Borja opposed Section 1, Rule 74 of the original Rules of Court
in both instances. The Rizal court approved the of 1940, which allowed the extrajudicial
compromise agreement, but the Nueva Ecija settlement of the estate of a deceased person
court declared it void and unenforceable. regardless of whether he left a will or not. He
Special administratrix Tasiana Ongsingco Vda. also relies on the dissenting opinion of Justice
de de Borja appealed the Rizal Court's order of Moran, in Guevara vs. Guevara, 74 Phil. 479,
approval (now Supreme Court G.R. case No. wherein was expressed the view that if the
L-28040), while administrator Jose de Borja parties have already divided the estate in
appealed the order of disapproval (G.R. case accordance with a decedent's will, the probate
No. L-28568) by the Court of First Instance of of the will is a useless ceremony; and if they
Nueva Ecija. have divided the estate in a different manner,
the probate of the will is worse than useless.
The genuineness and due execution of the
compromised agreement of 12 October 1963 is The doctrine of Guevara vs. Guevara, ante, is
not disputed, but its validity is, nevertheless, not applicable to the case at bar. This is
attacked by Tasiana Ongsingco on the ground apparent from an examination of the terms of
that: (1) the heirs cannot enter into such kind of the agreement between Jose de Borja and
agreement without first probating the will of Tasiana Ongsingco. Paragraph 2 of said
Francisco de Borja; (2) that the same involves agreement specifically stipulates that the sum
a compromise on the validity of the marriage of P800,000 payable to Tasiana Ongsingco —
between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it shall be considered as full —
has ceased to have force and effect. complete payment —
settlement of her hereditary
In assailing the validity of the agreement of 12 share in the estate of the late
October 1963, Tasiana Ongsingco and the Francisco de Borja as well as
Probate Court of Nueva Ecija rely on this the estate of Josefa Tangco, ...
Court's decision in Guevara vs. Guevara. 74 and to any properties
Phil. 479, wherein the Court's majority held the bequeathed or devised in her
view that the presentation of a will for probate favor by the late Francisco de
is mandatory and that the settlement and Borja by Last Will and
distribution of an estate on the basis of Testament or by Donation Inter
intestacy when the decedent left a will, is Vivos or Mortis Causa or
against the law and public policy. It is likewise purportedly conveyed to her for
pointed out by appellant Tasiana Ongsingco consideration or otherwise.
that Section 1 of Rule 74 of the Revised Rules
This provision evidences beyond doubt that the Since the compromise contract Annex A was
ruling in the Guevara case is not applicable to entered into by and between "Jose de Borja
the cases at bar. There was here no attempt to personally and as administrator of the Testate
settle or distribute the estate of Francisco de Estate of Josefa Tangco" on the one hand, and
Borja among the heirs thereto before the on the other, "the heir and surviving spouse of
probate of his will. The clear object of the Francisco de Borja by his second marriage,
contract was merely the conveyance by Tasiana Ongsingco Vda. de de Borja", it is
Tasiana Ongsingco of any and all her individual clear that the transaction was binding on both
share and interest, actual or eventual in the in their individual capacities, upon the
estate of Francisco de Borja and Josefa perfection of the contract, even without
Tangco. There is no stipulation as to any other previous authority of the Court to enter into the
claimant, creditor or legatee. And as a same. The only difference between an
hereditary share in a decedent's estate is extrajudicial compromise and one that is
transmitted or vested immediately from the submitted and approved by the Court, is that
moment of the death of such causante or the latter can be enforced by execution
predecessor in interest (Civil Code of the proceedings. Art. 2037 of the Civil Code is
Philippines, Art. 777)3 there is no legal bar to a explicit on the point:
successor (with requisite contracting capacity)
disposing of her or his hereditary share 8. Art. 2037. A compromise has
immediately after such death, even if the actual upon the parties the effect and
extent of such share is not determined until the authority of res judicata; but
subsequent liquidation of the estate.4 Of there shall be no execution
course, the effect of such alienation is to be except in compliance with a
deemed limited to what is ultimately judicial compromise.
adjudicated to the vendor heir. However, the
aleatory character of the contract does not It is argued by Tasiana
affect the validity of the transaction; neither Ongsingco that while the
does the coetaneous agreement that the agreement Annex A expressed
numerous litigations between the parties (the no definite period for its
approving order of the Rizal Court enumerates performance, the same
fourteen of them, Rec. App. pp. 79-82) are to was intended to have a
be considered settled and should be resolutory period of 60 days for
dismissed, although such stipulation, as noted its effectiveness. In support of
by the Rizal Court, gives the contract the such contention, it is averred
character of a compromise that the law favors, that such a limit was expressly
for obvious reasons, if only because it serves stipulated in an agreement in
to avoid a multiplicity of suits. similar terms entered into by
said Ongsingco with the
It is likewise worthy of note in this connection brothers and sister of Jose de
that as the surviving spouse of Francisco de Borja, to wit, Crisanto, Matilde
Borja, Tasiana Ongsingco was his compulsory and Cayetano, all surnamed de
heir under article 995 et seq. of the present Borja, except that the
Civil Code. Wherefore, barring unworthiness or consideration was fixed at
valid disinheritance, her successional interest P600,000 (Opposition,
existed independent of Francisco de Borja's Annex/Rec. of Appeal, L-
last will and testament and would exist even if 28040, pp. 39- 46) and which
such will were not probated at all. Thus, the contained the following clause:
prerequisite of a previous probate of the will, as
established in the Guevara and analogous III. That this agreement shall
cases, can not apply to the case of Tasiana take effect only upon the
Ongsingco Vda. de de Borja. consummation of the sale of
the property mentioned herein
and upon receipt of the total
 and full payment of the de Borja and could not be sold until authorized
proceeds of the sale by the by the Probate Court. The Court of First
herein owner heirs-children of Instance of Rizal so understood it, and in
Francisco de Borja, namely, approving the compromise it fixed a term of 120
Crisanto, Cayetano and days counted from the finality of the order now
Matilde, all surnamed de Borja; under appeal, for the carrying out by the parties
Provided that if no sale of the for the terms of the contract.
said property mentioned herein
is consummated, or the non- This brings us to the plea that the Court of First
receipt of the purchase price Instance of Rizal had no jurisdiction to approve
thereof by the said owners the compromise with Jose de Borja (Annex A)
within the period of sixty (60) because Tasiana Ongsingco was not an heir in
days from the date hereof, this the estate of Josefa Tangco pending
agreement will become null settlement in the Rizal Court, but she was an
and void and of no further heir of Francisco de Borja, whose estate was
effect. the object of Special Proceeding No. 832 of the
Court of First Instance of Nueva Ecija. This
Ongsingco's argument loses validity when it is circumstance is irrelevant, since what was sold
considered that Jose de Borja was not a party by Tasiana Ongsingco was only her eventual
to this particular contract (Annex 1), and that share in the estate of her late husband, not the
the same appears not to have been finalized, estate itself; and as already shown, that
since it bears no date, the day being left blank eventual share she owned from the time of
"this — day of October 1963"; and while signed Francisco's death and the Court of Nueva Ecija
by the parties, it was not notarized, although could not bar her selling it. As owner of her
plainly intended to be so done, since it carries undivided hereditary share, Tasiana could
a proposed notarial ratification clause. dispose of it in favor of whomsoever she chose.
Furthermore, the compromise contract with Such alienation is expressly recognized and
Jose de Borja (Annex A), provides in its par. 2 provided for by article 1088 of the present Civil
heretofore transcribed that of the total Code:
consideration of P800, 000 to be paid to
Ongsingco, P600,000 represent the "prorata Art. 1088. Should any of the
share of the heirs Crisanto, Cayetano and heirs sell his hereditary rights to
Matilde all surnamed de Borja" which a stranger before the partition,
corresponds to the consideration of P600,000 any or all of the co-heirs may
recited in Annex 1, and that circumstance is be subrogated to the rights of
proof that the duly notarized contract entered the purchaser by reimbursing
into wit Jose de Borja under date 12 October him for the price of the sale,
1963 (Annex A), was designed to absorb and provided they do so within the
supersede the separate unformalize period of one month from the
agreement with the other three Borja heirs. time they were notified in
Hence, the 60 days resolutory term in the writing of the sale of the
contract with the latter (Annex 1) not being vendor.
repeated in Annex A, can not apply to the
formal compromise with Jose de Borja. It is If a sale of a hereditary right can be made to a
moreover manifest that the stipulation that the stranger, then a fortiori sale thereof to a coheir
sale of the Hacienda de Jalajala was to be could not be forbidden.
made within sixty days from the date of the
agreement with Jose de Borja's co-heirs
Tasiana Ongsingco further argues that her
(Annex 1) was plainly omitted in Annex A as
contract with Jose de Borja (Annex "A") is void
improper and ineffective, since the Hacienda
because it amounts to a compromise as to her
de Jalajala (Poblacion) that was to be sold to
status and marriage with the late Francisco de
raise the P800,000 to be paid to Ongsingco for
Borja. The point is without merit, for the very
her share formed part of the estate of Francisco
opening paragraph of the agreement with Jose
de Borja (Annex "A") describes her as "the heir Annex "A", since the latter step might ultimately
and surviving spouse of Francisco de Borja by entail a longer delay in attaining final remedy.
his second marriage, Tasiana Ongsingco Vda. That the attempt to reach another settlement
de de Borja", which is in itself definite failed is apparent from the letter of Ongsingco's
admission of her civil status. There is nothing counsel to Jose de Borja quoted in pages 35-
in the text of the agreement that would show 36 of the brief for appellant Ongsingco in G.R.
that this recognition of Ongsingco's status as No. 28040; and it is more than probable that
the surviving spouse of Francisco de Borja was the order of 21 September 1964 and the motion
only made in consideration of the cession of of 17 June 1964 referred to the failure of the
her hereditary rights. parties' quest for a more satisfactory
compromise. But the inability to reach a
It is finally charged by appellant Ongsingco, as novatory accord can not invalidate the original
well as by the Court of First Instance of Nueva compromise (Annex "A") and justifies the act of
Ecija in its order of 21 September 1964, in Jose de Borja in finally seeking a court order
Special Proceedings No. 832 (Amended for its approval and enforcement from the Court
Record on Appeal in L-28568, page 157), that of First Instance of Rizal, which, as heretofore
the compromise agreement of 13 October described, decreed that the agreement be
1963 (Annex "A") had been abandoned, as ultimately performed within 120 days from the
shown by the fact that, after its execution, the finality of the order, now under appeal.
Court of First Instance of Nueva Ecija, in its
order of 21 September 1964, had declared that We conclude that in so doing, the Rizal court
"no amicable settlement had been arrived at by acted in accordance with law, and, therefore,
the parties", and that Jose de Borja himself, in its order should be upheld, while the contrary
a motion of 17 June 1964, had stated that the resolution of the Court of First Instance of
proposed amicable settlement "had failed to Nueva Ecija should be, and is, reversed.
materialize".
In her brief, Tasiana Ongsingco also pleads
It is difficult to believe, however, that the that the time elapsed in the appeal has affected
amicable settlement referred to in the order her unfavorably, in that while the purchasing
and motion above-mentioned was the power of the agreed price of P800,000 has
compromise agreement of 13 October 1963, diminished, the value of the Jalajala property
which already had been formally signed and has increased. But the fact is that her delay in
executed by the parties and duly notarized. receiving the payment of the agreed price for
What the record discloses is that some time her hereditary interest was primarily due to her
after its formalization, Ongsingco had attempts to nullify the agreement (Annex "A")
unilaterally attempted to back out from the she had formally entered into with the advice of
compromise agreement, pleading various her counsel, Attorney Panaguiton. And as to
reasons restated in the opposition to the the devaluation de facto of our currency, what
Court's approval of Annex "A" (Record on We said in Dizon Rivera vs. Dizon, L-24561, 30
Appeal, L-20840, page 23): that the same was June 1970, 33 SCRA 554, that "estates would
invalid because of the lapse of the allegedly never be settled if there were to be a
intended resolutory period of 60 days and revaluation with every subsequent fluctuation
because the contract was not preceded by the in the values of currency and properties of the
probate of Francisco de Borja's will, as required estate", is particularly opposite in the present
by this Court's Guevarra vs. Guevara ruling; case.
that Annex "A" involved a compromise
affecting Ongsingco's status as wife and widow Coming now to Case G.R. No. L-28611, the
of Francisco de Borja, etc., all of which issue is whether the Hacienda de Jalajala
objections have been already discussed. It was (Poblacion), concededly acquired by Francisco
natural that in view of the widow's attitude, Jose de Borja during his marriage to his first wife,
de Borja should attempt to reach a new Josefa Tangco, is the husband's private
settlement or novatory agreement before property (as contended by his second spouse,
seeking judicial sanction and enforcement of Tasiana Ongsingco), or whether it forms part of
the conjugal (ganancial) partnership with On 20 November 1962, Tasiana O. Vda. de
Josefa Tangco. The Court of First Instance of Borja, as Administratrix of the Testate Estate of
Rizal (Judge Herminio Mariano, presiding) Francisco de Borja, instituted a complaint in the
declared that there was adequate evidence to Court of First Instance of Rizal (Civil Case No.
overcome the presumption in favor of its 7452) against Jose de Borja, in his capacity as
conjugal character established by Article 160 of Administrator of Josefa Tangco (Francisco de
the Civil Code. Borja's first wife), seeking to have the Hacienda
above described declared exclusive private
We are of the opinion that this question as property of Francisco, while in his answer
between Tasiana Ongsingco and Jose de defendant (now appellant) Jose de Borja
Borja has become moot and academic, in view claimed that it was conjugal property of his
of the conclusion reached by this Court in the parents (Francisco de Borja and Josefa
two preceding cases (G.R. No. L-28568), Tangco), conformably to the presumption
upholding as valid the cession of Tasiana established by Article 160 of the Philippine Civil
Ongsingco's eventual share in the estate of her Code (reproducing Article 1407 of the Civil
late husband, Francisco de Borja, for the sum Code of 1889), to the effect that:
of P800,000 with the accompanying reciprocal
quit-claims between the parties. But as the Art. 160. All property of the
question may affect the rights of possible marriage is presumed to
creditors and legatees, its resolution is still belong to the conjugal
imperative. partnership, unless it be proved
that it pertains exclusively to
It is undisputed that the Hacienda Jalajala, of the husband or to the wife.
around 4,363 hectares, had been originally
acquired jointly by Francisco de Borja, Defendant Jose de Borja further
Bernardo de Borja and Marcelo de Borja and counterclaimed for damages, compensatory,
their title thereto was duly registered in their moral and exemplary, as well as for attorney's
names as co-owners in Land Registration fees.
Case No. 528 of the province of Rizal, G.L.R.O.
Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. After trial, the Court of First Instance of Rizal,
465). Subsequently, in 1931, the Hacienda was per Judge Herminio Mariano, held that the
partitioned among the co-owners: the Punta plaintiff had adduced sufficient evidence to
section went to Marcelo de Borja; the rebut the presumption, and declared the
Bagombong section to Bernardo de Borja, and Hacienda de Jalajala (Poblacion) to be the
the part in Jalajala proper (Poblacion) exclusive private property of the late Francisco
corresponded to Francisco de Borja (V. De de Borja, and his Administratrix, Tasiana
Borja vs. De Borja 101 Phil. 911, 932). Ongsingco Vda. de Borja, to be entitled to its
possession. Defendant Jose de Borja then
The lot allotted to Francisco was described as appealed to this Court.
—
The evidence reveals, and the appealed order
Una Parcela de terreno en admits, that the character of the Hacienda in
Poblacion, Jalajala: N. Puang question as owned by the conjugal partnership
River; E. Hermogena Romero; De Borja-Tangco was solemnly admitted by the
S. Heirs of Marcelo de Borja O. late Francisco de Borja no less than two times:
Laguna de Bay; containing an first, in the Reamended Inventory that, as
area of 13,488,870 sq. m. more executor of the estate of his deceased wife
or less, assessed at P297,410. Josefa Tangco, he filed in the Special
(Record on Appeal, pages 7 Proceedings No. 7866 of the Court of First
and 105) Instance of Rizal on 23 July 1953 (Exhibit "2");
and again, in the Reamended Accounting of
the same date, also filed in the proceedings
aforesaid (Exhibit "7"). Similarly, the plaintiff
Tasiana O. Vda. de Borja, herself, as oppositor proposal, Marcelo issue a check for
in the Estate of Josefa Tangco, submitted P17,000.00 to pay the back taxes and said that
therein an inventory dated 7 September 1954 the amount would represent Francisco's
(Exhibit "3") listing the Jalajala property among contribution in the purchase of the Hacienda.
the "Conjugal Properties of the Spouses The witness further testified that —
Francisco de Borja and Josefa Tangco". And
once more, Tasiana Ongsingco, as Marcelo de Borja said that that
administratrix of the Estate of Francisco de money was entrusted to him by
Borja, in Special Proceedings No. 832 of the Francisco de Borja when he
Court of First Instance of Nueva Ecija, was still a bachelor and which
submitted therein in December, 1955, an he derived from his business
inventory wherein she listed the Jalajala transactions. (Hearing, 2
Hacienda under the heading "Conjugal February 1965, t.s.n., pages
Property of the Deceased Spouses Francisco 13-15) (Emphasis supplied)
de Borja and Josefa Tangco, which are in the
possession of the Administrator of the Testate The Court below, reasoning that not only
Estate of the Deceased Josefa Tangco in Francisco's sworn statement overweighed the
Special Proceedings No. 7866 of the Court of admissions in the inventories relied upon by
First Instance of Rizal" (Exhibit "4"). defendant-appellant Jose de Borja since
probate courts can not finally determine
Notwithstanding the four statements aforesaid, questions of ownership of inventoried property,
and the fact that they are plain admissions but that the testimony of Gregorio de Borja
against interest made by both Francisco de showed that Francisco de Borja acquired his
Borja and the Administratrix of his estate, in the share of the original Hacienda with his private
course of judicial proceedings in the Rizal and funds, for which reason that share can not be
Nueva Ecija Courts, supporting the legal regarded as conjugal partnership property, but
presumption in favor of the conjugal as exclusive property of the buyer, pursuant to
community, the Court below declared that the Article 1396(4) of Civil Code of 1889 and Article
Hacienda de Jalajala (Poblacion) was not 148(4) of the Civil Code of the Philippines.
conjugal property, but the private exclusive
property of the late Francisco de Borja. It did so The following shall be the exclusive property of
on the strength of the following evidences: (a) each spouse:
the sworn statement by Francis de Borja on 6
August 1951 (Exhibit "F") that —
xxx xxx xxx
He tomado possession del
(4) That which is purchased
pedazo de terreno ya
with exclusive money of the
delimitado (equivalente a 1/4
wife or of the husband.
parte, 337 hectareas) adjunto a
mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal). We find the conclusions of the lower court to be
untenable. In the first place, witness Gregorio
de Borja's testimony as to the source of the
and (b) the testimony of Gregorio de Borja, son
money paid by Francisco for his share was
of Bernardo de Borja, that the entire Hacienda
plain hearsay, hence inadmissible and of no
had been bought at a foreclosure sale for
probative value, since he was merely repeating
P40,100.00, of which amount P25,100 was
what Marcelo de Borja had told him (Gregorio).
contributed by Bernardo de Borja and P15,000.
There is no way of ascertaining the truth of the
by Marcelo de Borja; that upon receipt of a
statement, since both Marcelo and Francisco
subsequent demand from the provincial
de Borja were already dead when Gregorio
treasurer for realty taxes the sum of P17,000,
testified. In addition, the statement itself is
Marcelo told his brother Bernardo that
improbable, since there was no need or
Francisco (son of Marcelo) wanted also to be a
occasion for Marcelo de Borja to explain to
co-owner, and upon Bernardo's assent to the
Gregorio how and when Francisco de Borja Case No. L-28040 is hereby affirmed; while
had earned the P17,000.00 entrusted to those involved in Cases Nos. L-28568 and L-
Marcelo. A ring of artificiality is clearly 28611 are reversed and set aside. Costs
discernible in this portion of Gregorio's against the appellant Tasiana Ongsingco Vda.
testimony. de Borja in all three (3) cases.

As to Francisco de Borja's affidavit, Exhibit "F",

the quoted portion thereof (ante, page 14) does
not clearly demonstrate that the "mi terreno G.R. No. L-41715 June 18, 1976
personal y exclusivo (Poblacion de Jalajala,
Rizal) " refers precisely to the Hacienda in
ROSALIO BONILLA (a minor) SALVACION
question. The inventories (Exhibits 3 and 4)
BONILLA (a minor) and PONCIANO
disclose that there were two real properties in
BONILLA (their father) who represents the
Jalajala owned by Francisco de Borja, one of
minors, petitioners,
72.038 sq. m., assessed at P44,600, and a
vs.
much bigger one of 1,357.260.70 sq. m., which
LEON BARCENA, MAXIMA ARIAS
is evidently the Hacienda de Jalajala
BALLENA, ESPERANZA BARCENA,
(Poblacion). To which of these lands did the
MANUEL BARCENA, AGUSTINA NERI,
affidavit of Francisco de Borja (Exhibit "F") refer
widow of JULIAN TAMAYO and HON.
to? In addition, Francisco's characterization of
LEOPOLDO GIRONELLA of the Court of
the land as "mi terreno personal y exclusivo" is
First Instance of Abra, respondents.
plainly self-serving, and not admissible in the
absence of cross examination.
Federico Paredes for petitioners.
It may be true that the inventories relied upon
by defendant-appellant (Exhibits "2", "3", "4" Demetrio V. Pre for private respondents.
and "7") are not conclusive on the conjugal
character of the property in question; but as
already noted, they are clear admissions
against the pecuniary interest of the MARTIN, J:
declarants, Francisco de Borja and his
executor-widow, Tasiana Ongsingco, and as This is a petition for review 1 of the Order of the
such of much greater probative weight than the Court of First Instance of Abra in Civil Case No.
self-serving statement of Francisco (Exhibit 856, entitled Fortunata Barcena vs. Leon
"F"). Plainly, the legal presumption in favor of Barcena, et al., denying the motions for
the conjugal character of the Hacienda de reconsideration of its order dismissing the
Jalajala (Poblacion) now in dispute has not complaint in the aforementioned case.
been rebutted but actually confirmed by proof.
Hence, the appealed order should be reversed On March 31, 1975 Fortunata Barcena, mother
and the Hacienda de Jalajala (Poblacion) of minors Rosalio Bonilla and Salvacion Bonilla
declared property of the conjugal partnership of and wife of Ponciano Bonilla, instituted a civil
Francisco de Borja and Josefa Tangco. action in the Court of First Instance of Abra, to
quiet title over certain parcels of land located in
No error having been assigned against the Abra.
ruling of the lower court that claims for
damages should be ventilated in the On May 9, 1975, defendants filed a written
corresponding special proceedings for the motion to dismiss the complaint, but before the
settlement of the estates of the deceased, the hearing of the motion to dismiss, the counsel
same requires no pro announcement from this for the plaintiff moved to amend the complaint
Court. in order to include certain allegations therein.
The motion to amend the complaint was
IN VIEW OF THE FOREGOING, the appealed
order of the Court of First Instance of Rizal in
granted and on July 17, 1975, plaintiffs filed complaint was filed on March 31, 1975,
their amended complaint. Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction
On August 4, 1975, the defendants filed over her person. If thereafter she died, the
another motion to dismiss the complaint on the Rules of Court prescribes the procedure
ground that Fortunata Barcena is dead and, whereby a party who died during the pendency
therefore, has no legal capacity to sue. Said of the proceeding can be substituted. Under
motion to dismiss was heard on August 14, Section 16, Rule 3 of the Rules of Court
1975. In said hearing, counsel for the plaintiff "whenever a party to a pending case dies ... it
confirmed the death of Fortunata Barcena, and shall be the duty of his attorney to inform the
asked for substitution by her minor children and court promptly of such death ... and to give the
her husband, the petitioners herein; but the name and residence of his executor,
court after the hearing immediately dismissed administrator, guardian or other legal
the case on the ground that a dead person representatives." This duty was complied with
cannot be a real party in interest and has no by the counsel for the deceased plaintiff when
legal personality to sue. he manifested before the respondent Court
that Fortunata Barcena died on July 9, 1975
On August 19, 1975, counsel for the plaintiff and asked for the proper substitution of parties
received a copy of the order dismissing the in the case. The respondent Court, however,
complaint and on August 23, 1975, he moved instead of allowing the substitution, dismissed
to set aside the order of the dismissal pursuant the complaint on the ground that a dead person
to Sections 16 and 17 of Rule 3 of the Rules of has no legal personality to sue. This is a grave
Court. 2 error. Article 777 of the Civil Code provides
"that the rights to the succession are
transmitted from the moment of the death of the
On August 28, 1975, the court denied the
decedent." From the moment of the death of
motion for reconsideration filed by counsel for
the decedent, the heirs become the absolute
the plaintiff for lack of merit. On September 1,
owners of his property, subject to the rights and
1975, counsel for deceased plaintiff filed a
obligations of the decedent, and they cannot be
written manifestation praying that the minors
deprived of their rights thereto except by the
Rosalio Bonilla and Salvacion Bonilla be
methods provided for by law. 3 The moment of
allowed to substitute their deceased mother,
death is the determining factor when the heirs
but the court denied the counsel's prayer for
acquire a definite right to the inheritance
lack of merit. From the order, counsel for the
whether such right be pure or contingent. 4 The
deceased plaintiff filed a second motion for
right of the heirs to the property of the
reconsideration of the order dismissing the
deceased vests in them even before judicial
complaint claiming that the same is in violation
declaration of their being heirs in the testate or
of Sections 16 and 17 of Rule 3 of the Rules of
intestate proceedings. 5 When Fortunata
Court but the same was denied.
Barcena, therefore, died her claim or right to
the parcels of land in litigation in Civil Case No.
Hence, this petition for review. 856, was not extinguished by her death but was
transmitted to her heirs upon her death. Her
The Court reverses the respondent Court and heirs have thus acquired interest in the
sets aside its order dismissing the complaint in properties in litigation and became parties in
Civil Case No. 856 and its orders denying the interest in the case. There is, therefore, no
motion for reconsideration of said order of reason for the respondent Court not to allow
dismissal. While it is true that a person who is their substitution as parties in interest for the
dead cannot sue in court, yet he can be deceased plaintiff.
substituted by his heirs in pursuing the case up
to its completion. The records of this case show Under Section 17, Rule 3 of the Rules of Court
that the death of Fortunata Barcena took place "after a party dies and the claim is not thereby
on July 9, 1975 while the complaint was filed extinguished, the court shall order, upon proper
on March 31, 1975. This means that when the notice, the legal representative of the
deceased to appear and be substituted for the provision of the Rules of Court in dismissing the
deceased, within such time as may be granted complaint of the plaintiff in Civil Case No. 856
... ." The question as to whether an action and refusing the substitution of parties in the
survives or not depends on the nature of the case.
action and the damage sued for. 6 In the
causes of action which survive the wrong IN VIEW OF THE FOREGOING, the order of
complained affects primarily and principally the respondent Court dismissing the complaint
property and property rights, the injuries to the in Civil Case No. 856 of the Court of First
person being merely incidental, while in the Instance of Abra and the motions for
causes of action which do not survive the injury reconsideration of the order of dismissal of said
complained of is to the person, the property complaint are set aside and the respondent
and rights of property affected being Court is hereby directed to allow the
incidental. 7 Following the foregoing criterion substitution of the minor children, who are the
the claim of the deceased plaintiff which is an petitioners therein for the deceased plaintiff
action to quiet title over the parcels of land in and to appoint a qualified person as
litigation affects primarily and principally guardian ad litem for them. Without
property and property rights and therefore is pronouncement as to costs.
one that survives even after her death. It is,
therefore, the duty of the respondent Court to SO ORDERED.
order the legal representative of the deceased
plaintiff to appear and to be substituted for her.
But what the respondent Court did, upon being
informed by the counsel for the deceased
plaintiff that the latter was dead, was to dismiss G.R. No. 75884 September 24, 1987
the complaint. This should not have been done
for under the same Section 17, Rule 3 of the JULITA GO ONG, FOR HERSELF AND AS
Rules of Court, it is even the duty of the court, JUDICIAL GUARDIAN OF STEVEN GO
if the legal representative fails to appear, to ONG, petitioners,
order the opposing party to procure the vs.
appointment of a legal representative of the THE HON. COURT OF APPEALS, ALLIED
deceased. In the instant case the respondent BANKING CORPORATION and the CITY
Court did not have to bother ordering the SHERIFF OF QUEZON CITY, respondents.
opposing party to procure the appointment of a
legal representative of the deceased because
her counsel has not only asked that the minor
children be substituted for her but also PARAS, J.:
suggested that their uncle be appointed as
guardian ad litem for them because their father
This is a petition for review on certiorari of the
is busy in Manila earning a living for the family.
March 21, 1986 Decision * of the Court of Appeals in
But the respondent Court refused the request AC-G.R. CV No. 02635, "Julita Ong etc. vs. Allied Banking Corp.
for substitution on the ground that the children et al." affirming, with modification, the January 5, 1984 Decision
of the Regional Trial Court of Quezon City in Civil Case No. Q-
were still minors and cannot sue in court. This 35230.
is another grave error because the respondent
Court ought to have known that under the same
The uncontroverted facts of this case, as found
Section 17, Rule 3 of the Rules of Court, the
by the Court of Appeals, are as follows:
court is directed to appoint a guardian ad
litem for the minor heirs. Precisely in the instant
case, the counsel for the deceased plaintiff has ...: Two (2) parcels of land in
suggested to the respondent Court that the Quezon City Identified as Lot
uncle of the minors be appointed to act as No. 12, Block 407, Psd 37326
guardian ad litem for them. Unquestionably, with an area of 1960.6 sq. m.
the respondent Court has gravely abused its and Lot No. 1, Psd 15021, with
discretion in not complying with the clear an area of 3,660.8 sq. m. are
covered by Transfer Certificate
of Title No. 188705 in the name Exports, Inc. which will also
of "Alfredo Ong Bio Hong take charge of the interest of
married to Julita Go Ong "(Exh. the loan.
D). Alfredo Ong Bio Hong died
on January 18, 1975 and Julita Concluding, the trial court
Go Ong was appointed ruled:
administratrix of her husband's
estate in Civil Case No. Absent (of) any
107089. The letters of evidence that
administration was registered the property in
on TCT No. 188705 on October question is the
23, 1979. Thereafter, Julita Go capital of the
Ong sold Lot No. 12 to Lim Che deceased
Boon, and TCT No. 188705 husband
was partially cancelled and brought into the
TCT No. 262852 was issued in marriage, said
favor of Lim Che Boon covering property should
Lot No. 12 (Exh. D-4). On June be presumed
8, 1981 Julita Go Ong through as acquired
her attorney-in-fact Jovita K. during the
Yeo (Exh. 1) mortgaged Lot marriage and,
No. 1 to the Allied Banking therefore,
Corporation to secure a loan of conjugal
P900,000.00 obtained by JK property,
Exports, Inc. The mortgage
was registered on TCT No.
After the
188705 on the same date with
dissolution of
the following notation: "...
the marriage
mortgagee's consent
with the death
necessary in case of
of plaintiff's
subsequent alienation or
husband, the
encumbrance of the property
plaintiff
other conditions set forth in
acquired, by
Doc. No. 340, Page No. 69,
law, her
Book No. XIX, of the Not.
conjugal share,
Public of Felixberto Abad". On
together with
the loan there was due the sum
the hereditary
of P828,000.00 and Allied
rights thereon.
Banking Corporation tried to
(Margate vs.
collect it from Julita Go Ong,
Rabacal, L-
(Exh. E). Hence, the complaint
14302, April
alleging nullity of the contract
30, 1963).
for lack of judicial approval
Consequently,
which the bank had allegedly
the mortgage
promised to secure from the
constituted on
court. In response thereto, the
said property,
bank averred that it was
upon express
plaintiff Julita Go Ong who
authority of
promised to secure the court's
plaintiff,
approval, adding that Julita Go
notwithstandin
Ong informed the defendant
g the lack of
that she was processed the
judicial
sum of P300,000.00 by the JK
approval, is
 valid, with 30), without giving due course to the petition,
respect to her resolved to require private respondent to
conjugal share comment thereon and it did on February 19,
thereon, 1987 (Ibid., pp. 37-42). Thereafter, in a
together with Resolution dated April 6, 1987, the petition was
her hereditary given due course and the parties were required
rights. to file their respective memoranda (Ibid., p. 43).

On appeal by petitioner, respondent Court of Petitioner filed her Memorandum on May 13,
Appeals affirmed, with modification, the 1987 (Ibid., pp. 45-56), while private
appealed decision (Record, pp. 19-22). The respondent filed its Memorandum on May 20,
dispositive portion of the appellate court's 1987 (Ibid., pp. 62-68).
decision reads:
The sole issue in this case is —
WHEREFORE, with the
modification that the WHETHER OR NOT THE MORTGAGE
extrajudicial foreclosure CONSTITUTED OVER THE PARCEL OF
proceedings instituted by LAND UNDER PETITIONER'S
defendant against plaintiff shall ADMINISTRATION IS NULL AND VOID FOR
be held in abeyance to await WANT OF JUDICIAL APPROVAL.
the final result of Civil Case No.
107089 of the Court of First The instant petition is devoid of merit.
Instance of Manila, 6th Judicial
District Branch XXXII, entitled
The well-settled rule that the findings of fact of
"IN THE MATTER OF THE
the trial court are entitled to great respect,
INTESTATE ESTATE OF THE
carries even more weight when affirmed by the
LATE ALFREDO ONG BIO:
Court of Appeals as in the case at bar.
JULITA GO ONG,
ADMINISTRATRIX". In
pursuance with which the In brief, the lower court found: (1) that the
restraining order of the lower property under the administration of petitioner
court in this case restraining — the wife of the deceased, is a community
the sale of the properties levied property and not the separate property of the
upon is hereby ordered to latter; (2) that the mortgage was constituted in
continue in full force and effect the wife's personal capacity and not in her
coterminous with the final capacity as administratrix; and (3) that the
result of Civil Case No. mortgage affects the wife's share in the
107089, the decision appealed community property and her inheritance in the
from is hereby affirmed. Costs estate of her husband.
against plaintiff-appellant.
Petitioner, asserting that the mortgage is void
SO ORDERED. for want of judicial approval, quoted Section 7
of Rule 89 of the Rules of Court and cited
several cases wherein this Court ruled that the
On April 8, 1986, petitioner moved for the
regulations provided in the said section are
reconsideration of the said decision (Ibid., pp.
mandatory.
24-29), but in a Resolution dated September
11, 1986, respondent court denied the motion
for lack of merit (Ibid., p. 23). Hence, the instant While petitioner's assertion may have merit
petition (Ibid., pp. 6-17). insofar as the rest of the estate of her husband
is concerned the same is not true as regards
her conjugal share and her hereditary rights in
The Second Division of this Court, in a
the estate. The records show that petitioner
Resolution dated November 19, 1986 (Rollo, p.
willingly and voluntarily mortgaged the property
in question because she was processed by JK any claim that the rights of the government
Exports, Inc. the sum of P300,000.00 from the (with reference to taxes) nor the rights of any
proceeds of the loan; and that at the time she heir or anybody else have been prejudiced for
executed the real estate mortgage, there was impaired. As stated by Associate Justice (later
no court order authorizing the mortgage, so Chief Justice) Manuel Moran in Jakosalem vs.
she took it upon herself, to secure an order. Rafols, et al., 73 Phil. 618 —

Thus, in confirming the findings of the lower The land in question, described
court, as supported by law and the evidence, in the appealed decision,
the Court of Appeals aptly ruled that Section 7 originally belonged to Juan
of Rule 89 of the Rules of Court is not Melgar. The latter died and the
applicable, since the mortgage was constituted judicial administration of his
in her personal capacity and not in her capacity estate was commenced in
as administratrix of the estate of her husband. 1915 and came to a close on
December 2, 1924, only.
Nevertheless, petitioner, citing the cases During the pendency of the
of Picardal, et al. vs. Lladas (21 SCRA 1483) said administration, that is, on
and Fernandez, et al. vs. Maravilla (10 SCRA July 5, 1917, Susana Melgar,
589), further argues that in the settlement daughter of the deceased Juan
proceedings of the estate of the deceased Melgar, sold the land with the
spouse, the entire conjugal partnership right of repurchase to Pedro
property of the marriage is under Cui, subject to the stipulation
administration. While such may be in a sense that during the period for the
true, that fact alone is not sufficient to invalidate repurchase she would continue
the whole mortgage, willingly and voluntarily in possession of the land as
entered into by the petitioner. An opposite view lessee of the purchase. On
would result in an injustice. Under similar December 12, 1920, the
circumstances, this Court applied the partition of the estate left by the
provisions of Article 493 of the Civil Code, deceased Juan Melgar was
where the heirs as co-owners shall each have made, and the land in question
the full ownership of his part and the fruits and was adjudicated to Susana
benefits pertaining thereto, and he may Melgar. In 1921, she conveyed,
therefore alienate, assign or mortgage it, and in payment of professional
even effect of the alienation or mortgage, with fees, one-half of the land in
respect to the co-owners, shall be limited to the favor of the defendant-appellee
portion which may be allotted to him in the Nicolas Rafols, who entered
division upon the termination of the co- upon the portion thus conveyed
ownership (Philippine National Bank vs. Court and has been in possession
of Appeals, 98 SCRA 207 [1980]). thereof up to the present. On
July 23, 1921, Pedro Cui
Consequently, in the case at bar, the trial court brought an action to recover
and the Court of Appeals cannot be faulted in said half of the land from
ruling that the questioned mortgage constituted Nicolas Rafols and the other
on the property under administration, by half from the other defendants,
authority of the petitioner, is valid, and while that case was
notwithstanding the lack of judicial approval, pending, or about August 4,
with respect to her conjugal share and to her 1925, Pedro Cui donated the
hereditary rights. The fact that what had been whole land in question to
mortgaged was in custodia legis is immaterial, Generosa Teves, the herein
insofar as her conjugal share and hereditary plaintiff-appellant, after trial,
share in the property is concerned for after all, the lower court rendered a
she was the ABSOLUTE OWNER thereof. This decision absolving Nicolas
ownership by hers is not disputed, nor is there Rafols as to the one-half of the
 land conveyed to him by excluded from the requisite judicial approval for
Susana Melgar, and declaring the reason already adverted to hereinabove,
the plaintiff owner of the other provided of course no prejudice is caused
half by express others, including the government.
acknowledgment of the other
defendants. The plaintiff Moreover, petitioner is already estopped from
appealed from that part of the questioning the mortgage. An estoppel may
judgment which is favorable to arise from the making of a promise even
Nicolas Rafols. though without consideration, if it was intended
that the promise should be relied upon and in
The lower court absolved fact it was relied upon, and if a refusal to
Nicolas Rafols upon the theory enforce it would be virtually to sanction the
that Susana Melgar could not perpetration of fraud or would result in other
have sold anything to Pedro injustice (Gonzalo Sy Trading vs. Central Bank,
Cui because the land was then 70 SCRA 570).
in custodia legis, that is, under
judicial administration. This is PREMISES CONSIDERED, the instant petition
error. That the land could not is hereby DENIED and the assailed decision of
ordinary be levied upon while the Court of Appeals is hereby AFFIRMED.
in custodia legis, does not
mean that one of the heirs may SO ORDERED.
not sell the right, interest or
participation which he has or
might have in the lands under
administration. The ordinary
execution of property in G.R. No. L-15499 February 28, 1962
custodia legis is prohibited in
order to avoid interference with ANGELA M. BUTTE, plaintiff-appellant,
the possession by the court. vs.
But the sale made by an heir of MANUEL UY and SONS, INC., defendant-
his share in an inheritance, appellee.
subject to the result of the
pending administration, in no Delgado, Flores and Macapagal for plaintiff-
wise stands in the way of such appellant.
administration. Pelaez and Jalandoni for defendant-appellee.

The reference to judicial approval in Sec. 7, REYES, J.B.L., J.:

Rule 89 of the Rules of Court cannot adversely
affect the substantiverights of private Appeal from a decision of the Court of First
respondent to dispose of her Ideal [not instance of Manila dismissing the action for
inchoate, for the conjugal partnership ended legal redemption filed by plaintiff-appellant.
with her husband's death, and her hereditary
rights accrued from the moment of the death of
It appears that Jose V. Ramirez, during his
the decedent (Art. 777, Civil Code) share in the
lifetime, was a co-owner of a house and lot
co-heirship and/or co-ownership formed
located at Sta. Cruz, Manila, as shown by
between her and the other heirs/co-owners
Transfer Certificate of Title No. 52789, issued
(See Art. 493, Civil Code, supra.). Sec. 7, Art.
in the name of the following co-owners: Marie
89 of the Civil Code applies in a case where
Garnier Vda. de Ramirez, 1/6; Jose V.
judicial approval has to be sought in connection
Ramirez, 1/6; Jose E. Ramirez, 1/6; Rita de
with, for instance, the sale or mortgage of
Ramirez, 1/6; and Jose Ma. Ramirez, 1/6.
property under administration for the payment,
say of a conjugal debt, and even here, the
conjugal and hereditary shares of the wife are
On October 20, 1951, Jose V. Ramirez died. December 16, 1958. Appellant received the
Subsequently, Special Proceeding No. 15026 letter on December 19, 1958.
was instituted to settle his estate, that included
the one-sixth (1/6) undivided share in the On January 15, 1959, Mrs. Angela M. Butte,
aforementioned property. And although his last thru Atty. Resplandor Sobretodo, sent a letter
will and testament, wherein he bequeathed his and a Philippine National Bank cashier's check
estate to his children and grandchildren and in the amount of P500,000.00 to Manuel Uy &
one-third (1/3) of the free portion to Mrs. Angela Sons, Inc. offering to redeem the 1/6 share sold
M. Butte, hereinafter referred to as plaintiff- by Mrs. Marie Garnier Vda. de Ramirez. This
appellant, has been admitted to probate, the tender having been refused, plaintiff on the
estate proceedings are still pending up to the same day consigned the amount in court and
present on account of the claims of creditors filed the corresponding action for legal
which exceed the assets of the deceased. The redemption. Without prejudice to the
Bank of the Philippine Islands was appointed determination by the court of the reasonable
judicial administrator. and fair market value of the property sold which
she alleged to be grossly excessive, plaintiff
Meanwhile, on December 9, 1958, Mrs. Marie prayed for conveyance of the property, and for
Garnier Vda. de Ramirez, one of the co-owners actual, moral and exemplary damages.
of the late Jose V. Ramirez in the Sta. Cruz
property, sold her undivided 1/6 share to After the filing by defendant of its answer
Manuel Uy & Sons, Inc. defendant-appellant containing a counterclaim, and plaintiff's reply
herein, for the sum of P500,000.00. After the thereto, trial was held, after which the court
execution by her attorney-in-fact, Mrs. Elsa R. rendered decision on May 13, 1959, dismissing
Chambers, of an affidavit to the effect that plaintiff's complaint on the grounds that she
formal notices of the sale had been sent to all has no right to redeem the property and that, if
possible redemptioners, the deed of sale was ever she had any, she exercised the same
duly registered and Transfer Certificate of Title beyond the statutory 30-day period for legal
No. 52789 was cancelled in lieu of which a new redemptions provided by the Civil Code. The
one was issued in the name of the vendee and counterclaim of defendant for damages was
the other-co-owners. likewise dismissed for not being sufficiently
established. Both parties appealed directly to
On the same day (December 9, 1958), Manuel this Court.
Uy & Sons, Inc. sent a letter to the Bank of the
Philippine Islands as judicial administrator of Based on the foregoing facts, the main issues
the estate of the late Jose V. Ramirez informing posed in this appeal are: (1) whether or not
it of the above-mentioned sale. This letter, plaintiff-appellant, having been bequeathed 1/3
together with that of the bank, was forwarded of the free portion of the estate of Jose V.
by the latter to Mrs. Butte c/o her counsel Ramirez, can exercise the right of legal
Delgado, Flores & Macapagal, Escolta, Manila, redemption over the 1/6 share sold by Mrs.
and having received the same on December Marie Garnier Vda. de Ramirez despite the
10, 1958, said law office delivered them to presence of the judicial administrator and
plaintiff-appellant's son, Mr. Miguel Papa, who pending the final distribution of her share in the
in turn personally handed the letters to his testate proceedings; and (2) whether or not she
mother, Mrs. Butte, on December 11 and 12, exercised the right of legal redemption within
1958. Aside from this letter of defendant- the period prescribed by law.
appellant, the vendor, thru her attorney-in-fact
Mrs. Chambers, wrote said bank on December The applicable law involved in the present case
11, 1958 confirming vendee's letter regarding is contained in Articles 1620, p. 1, and 1623 of
the sale of her 1/6 share in the Sta. Cruz the Civil Code of the Philippines, which read as
property for the sum of P500,000.00. Said follows:
letter was received by the bank on December
15, 1958 and having endorsed it to Mrs. Butte's
counsel, the latter received the same on
 ART. 1620. A co-owner of a thing may ART. 947. The legatee or devisee
exercise the right of redemption in case acquires a right to the pure and simple
the shares of all the other-co-owners or legacies or devisees from the death of
of any of them, are sold to a third the testator, and transmits it to his
person. If the price of the alienation is heirs. (881a)
grossly excessive, the redemptioner
shall pay only a reasonable one. The principle of transmission as of the time of
the predecessor's death is basic in our Civil
Should two or more co-owners desire Code, and is supported by other related
to exercise the right of redemption, articles. Thus, the capacity of the heir is
they may only do so in proportion to the determined as of the time the decedent died
share they may respectively have in (Art. 1034); the legitime is to be computed as
the thing owned in common. (1522a) of the same moment(Art. 908), and so is the in
officiousness of the donation inter vivos (Art.
ART. 1623. The right of legal 771). Similarly, the legacies of credit and
predemption or redemption shall not be remission are valid only in the amount due and
exercised except within thirty days from outstanding at the death of the testator (Art.
the notice in writing by the respective 935),and the fruits accruing after that instant
vendor, or by the vendor, as the case are deemed to pertain to the legatee (Art. 948).
may be. The deed of sale shall not be
accorded in the Registry of Property, As a consequence of this fundamental rule of
unless accompanied by an affidavit of succession, the heirs of Jose V. Ramirez
the vendor that he has given written acquired his undivided share in the Sta. Cruz
notice thereof at all possible property from the moment of his death, and
redemptioners. from that instant, they became co-owners in
the aforesaid property, together with the
The right of redemption of co-owners original surviving co-owners of their decedent
excludes that of adjoining owners. (causante). A co-owner of an undivided share
(1524a) is necessarily a co-owner of the whole.
Wherefore, any one of the Ramirez heirs, as
That the appellant Angela M. Butte is entitled such co-owner, became entitled to exercise the
to exercise the right of legal redemption is right of legal redemption (retracto de
clear. As testamentary heir of the estate of J.V. comuneros) as soon as another co-owner
Ramirez, she and her co-heirs acquired an (Maria Garnier Vda. de Ramirez) had sold her
interest in the undivided one-sixth (1/6) share undivided share to a stranger, Manuel Uy &
owned by her predecessor (causante) in the Sons, Inc. This right of redemption vested
Santa Cruz property, from the moment of the exclusively in consideration of the
death of the aforesaid co-owner, J.V. Ramirez. redemptioner's share which the law nowhere
By law, the rights to the succession of a takes into account.
deceased persons are transmitted to his heirs
from the moment of his death, and the right of The situation is in no wise altered by the
succession includes all property rights and existence of a judicial administrator of the
obligations that survive the decedent. estate of Jose V. Ramirez while under the
Rules of Court the administrator has the right
ART. 776. The inheritance includes all to the possession of the real and personal
the property, rights and obligations of a estate of the deceased, so far as needed for
person which are not extinguished by the payment of the decedent's debts and the
his death. (659) expenses of administration (sec. 3, Rule 85),
and the administrator may bring or defend
actions for the recovery or protection of the
ART. 777. The rights to the succession
property or rights of the deceased (sec. 2, Rule
are transmitted from the moment of the
88), such rights of possession and
death of the decedent. (657a)
administration do not include the right of legal
redemption of the undivided share sold to Uy & requires is that the legal redemptioner should
Company by Mrs. Garnier Ramirez. The be a co-owner at the time the undivided share
reason is obvious: this right of legal redemption of another co-owner is sold to a stranger.
only came into existence when the sale to Uy Whether or not the redemptioner will continue
& Sons, Inc. was perfected, eight (8) years after being a co-owner after exercising the legal
the death of Jose V. Ramirez, and formed no redemptioner is irrelevant for the purposes of
part of his estate. The redemption right vested law.
in the heirs originally, in their individual
capacity, they did not derivatively acquire it Nor it can be argued that if the original share of
from their decedent, for when Jose V. Ramirez Ramirez is sold by the administrator, his heirs
died, none of the other co-owners of the Sta. would stand in law as never having acquired
Cruz property had as yet sold his undivided that share. This would only be true if the
share to a stranger. Hence, there was nothing inheritance is repudiated or the heir's quality as
to redeem and no right of redemption; and if the such is voided. But where the heirship is
late Ramirez had no such right at his death, he undisputed, the purchaser of hereditary
could not transmit it to his own heirs. Much less property is not deemed to have acquired the
could Ramirez acquire such right of redemption title directly from the deceased Ramirez,
eight years after his death, when the sale to Uy because a dead man can not convey title, nor
& Sons, Inc. was made; because death from the administrator who owns no part of the
extinguishes civil personality, and, therefore, estate; the purchaser can only derive his title
all further juridical capacity to acquire or from the Ramirez heirs, represented by the
transmit rights and obligations of any kind (Civil administrator, as their trustee or legal
Code of the Phil., Art. 42). representative.

It is argued that the actual share of appellant The right of appellant Angela M. Butte to make
Mrs. Butte in the estate of Jose V. Ramirez has the redemption being established, the next
not been specifically determined as yet, that it point of inquiry is whether she had made or
is still contingent; and that the liquidation of tendered the redemption price within the 30
estate of Jose V. Ramirez may require the days from notices as prescribed by law. This
alienation of the decedent's undivided portion period, be it noted, is peremptory, because the
in the Sta. Cruz property, in which event Mrs. policy of the law is not to leave the purchaser's
Butte would have no interest in said undivided title in uncertainty beyond the established 30-
portion. Even if it were true, the fact would day period. In considering whether or not the
remain that so long as that undivided share offer to redeem was timely, we think that the
remains in the estate, the heirs of Jose V. notice given by the vendee (buyer) should not
Ramirez own it, as the deceased did own it be taken into account. The text of Article 1623
before his demise, so that his heirs are now as clearly and expressly prescribes that the thirty
much co-owners of the Sta. Cruz property as days for making the redemption are to be
Jose V. Ramirez was himself a co-owner counted from notice in writing by the vendor.
thereof during his lifetime. As co-owners of the Under the old law (Civ. Code of 1889, Art.
property, the heirs of Jose V. Ramirez, or any 1524), it was immaterial who gave the notice;
one of them, became personally vested with so long as the redeeming co-owner learned of
right of legal redemption as soon as Mrs. the alienation in favor of the stranger, the
Garnier sold her own pro-indiviso interest to Uy redemption period began to run. It is thus
& Sons. Even if subsequently, the undivided apparent that the Philippine legislature in
share of Ramirez (and of his heirs) should Article 1623 deliberately selected a particular
eventually be sold to satisfy the creditors of the method of giving notice, and that method must
estate, it would not destroy their ownership of it be deemed exclusive (39 Am. Jur., 237; Payne
before the sale, but would only convey or vs. State, 12 S.W. [2d] 528). As ruled in
transfer it as in turn sold (of it actually is sold) Wampler vs. Lecompte, 150 Atl. 458 (affd. in
to pay his creditors. Hence, the right of any of 75 Law Ed. [U.S.] 275) —
the Ramirez heirs to redeem the Garnier share
will not be retroactively affected. All that the law
 Why these provisions were inserted in We find no jurisdiction for appellant's claim that
the statute we are not informed, but we the P500,000,00. paid by Uy & Sons, Inc. for
may assume until the contrary is the Garnier share is grossly excessive. Gross
shown, that a state of facts in respect excess cannot be predicated on mere
thereto existed, which warranted the individual estimates of market price by a single
legislature in so legislating. realtor.

The reasons for requiring that the notice should The redemption and consignation having been
be given by the seller, and not by the buyer, are properly made, the Uy counterclaim for
easily divined. The seller of an undivided damages and attorney's fees predicated on the
interest is in the best position to know who are assumption that plaintiff's action was clearly
his co-owners that under the law must be unfounded, becomes untenable.
notified of the sale. Also, the notice by the seller
removes all doubts as to the fact of the sale, its PREMISES CONSIDERED, the judgment
perfection; and its validity, the notice being a appealed from is hereby reversed and set
reaffirmation thereof, so that the party need not aside, and another one entered:
entertain doubt that the seller may still contest
the alienation. This assurance would not exist (a) Declaring the consignation of
if the notice should be given by the buyer. P500,000,00 made by appellant
Angela M. Butte duly and properly
The notice which became operative is that made;
given by Mrs. Chambers, in her capacity as
attorney-in-fact of the vendor Marie Garnier (b) Declaring that said appellant
Vda. de Ramirez. Under date of December 11, properly exercised in due time the legal
1958, she wrote the Administrator Bank of the redemption of the one-sixth (1/6)
Philippine Islands that her principal's one-sixth undivided portion of the land covered
(1/6) share in the Sta. Cruz property had been by Certificate of Title No. 59363 of the
sold to Manuel Uy & Sons, Inc. for Office of the Register of Deeds of the
P500,000.00. The Bank received this notice on City of Manila, sold on December 9,
December 15, 1958, and on the same day 1958 by Marie Garnier Vda. de
endorsed it to Mrs. Butte, care of Delgado, Ramirez to appellant Manuel Uy &
Flores and Macapagal (her attorneys), who Sons, Inc.
received the same on December 16, 1958.
Mrs. Butte tendered redemption and upon the
(c) Ordering appellant Manuel Uy &
vendee's refusal, judicially consigned the price
Sons, Inc. to accept the consigned
of P500,000.00 on January 15, 1959. The latter
price and to convey to Angela M. Butte
date was the last one of the thirty days allowed
the undivided portion above referred to,
by the Code for the redemption, counted by
within 30 days from the time our
excluding December 16, 1958 and including
decision becomes final, and
January 15, 1959, pursuant to Article 13 of the
subsequently to account for the rentals
Civil Code. Therefore, the redemption was
and fruits of the redeemed share from
made in due time.
and after January 15, 1958, until its
conveyance; and.
The date of receipt of the vendor's notice by the
Administrator Bank (December 15) can not be
(d) Ordering the return of the records to
counted as determining the start of thirty days;
the court of origin for further
for the Administrator of the estate was not a
proceedings conformable to this
proper redemptioner, since, as previously
opinion.
shown, the right to redeem the share of Marie
Garnier did not form part of the estate of Jose
V. Ramirez. Without finding as to costs.
G.R. No. L-24434 January 17, 1968 was granted by the trial court in its order of
December 9, 1963.
HEIRS OF PEDRO REGANON, JOVENCIA
REGANON, MENCIA REGANON, JOSEFA The Deputy Provincial Sheriff submitted on
REGANON, VIOLETA REGANON, and February 8, 1964 a sheriff's return of
FLORA REGANON, plaintiffs-appellees, proceedings reporting the garnishment and
vs. sale of a carabao and goat belonging to
RUFINO IMPERIAL, defendant-appellant. defendant for P153.00, and the attachment and
sale of defendant's parcel of land covered by
Torcuato L. Galon for plaintiffs-appellees. Tax Declaration No. 4694, situated in Sicet,
V. Lacaya for defendant-appellant. Polanco, Zamboanga del Norte, for P500.00 —
both sales having been made to the only
BENGZON, J.P., J.: bidder, plaintiffs' counsel Atty. Vic T. Lacaya.

This is an appeal from the orders dated June 9, On March 13, 1964, the Philippine National
1964, July 14, 1964 and August 11, 1964, Bank deposited in the Philippine National
respectively, of the Court of First Instance of Bank-Dipolog Branch the residuary estate of its
Zamboanga del Norte (Dipolog, Branch II). former ward, Eulogio Imperial, in the sum of
P10,303.80, pursuant to an order of Branch I of
the Court of First Instance of Zamboanga del
The facts of the case are admitted by both
Norte in Sp. Proc. No. R-145.
parties.
On May 25, 1964, the heirs of said Eulogio
On February 22, 1963, the heirs of Pedro
Imperial, one of whom is defendant, executed
Reganon filed a complaint for recovery of
a Deed of Extrajudicial Partition of the
ownership and possession of about one-
residuary estate, wherein was apportioned
hectare portion of a parcel of land (Lot No. 1 or
P1,471.97 as defendant Rufino Imperial's
Lot No. 4952, situated at Miasi, Polanco,
share.
Zamboanga del Norte, covered by O.T.C. No.
1447, with an area of 7.9954 hectares), with
damages, against Rufino Imperial. Informed of this development, the plaintiffs filed
on June 5, 1964 an ex parte motion for
issuance of an alias writ of execution and of an
Defendant not having filed an answer within the
order directing the manager, or the
reglementary period, the plaintiffs on April 8,
representative, of the Philippine National Bank-
1963 filed a motion to declare the former in
Dipolog Branch, to hold the share of defendant
default. The trial court granted the motion in its
and deliver the same to the provincial sheriff of
order dated April 10, 1963.
the province to be applied to the satisfaction of
the balance of the money judgment. This was
On April 23, 1963, the plaintiffs presented their granted by the trial court (Branch II) in its order
evidence ex parte before the Clerk of Court dated June 9, 1964.
acting as Commissioner. The court a quo on
May 6, 1963, rendered a decision declaring the
On June 17, 1964, the Deputy Provincial
plaintiffs lawful owners of the land in question
Sheriff issued a sheriffs notification for levy
and entitled to its peaceful possession and
addressed to defendant, giving notice of the
enjoyment; ordering defendant immediately to
garnishment of the rights, interests, shares and
vacate the portion occupied by him and to
participation that defendant may have over the
restore the peaceful possession thereof to
residuary estate of the late Eulogio Imperial,
plaintiffs; and sentencing defendant to pay
consisting of the money deposited in the
plaintiffs the amount of P1,929.20 and the
Philippine National Bank-Dipolog Branch.
costs.
Defendant, through counsel, appearing for the
On November 29, 1963, the plaintiffs filed a
first time before the trial court, on June 24,
motion for issuance of a writ of execution. This
1964 filed a motion for reconsideration of the As a matter of fact, the guardianship
order dated June 9, 1964, and to quash the proceedings was ordered conditionally closed
alias writ of execution issued pursuant to it, to by Branch I of the Court of First Instance of
which plaintiffs filed their opposition on July 6, Zamboanga del Norte in which it was pending,
1964. On July 14, 1964, the trial court denied in its order of February 8, 1964, where it stated
defendant's aforesaid motion. —

Defendant's second motion for reconsideration In the meantime, the guardian

likewise having denied by the trial court in its Philippine National Bank is hereby
order of August 11, 1964, defendant appealed directed to deposit the residuary estate
to Us, raising the following issues: of said ward with its bank agency in
Dipolog, this province, in the name of
(1) Upon the death of a ward, is the the estate of the deceased ward
money accumulated in his Eulogio Imperial, preparatory to the
guardianship proceedings and eventual distribution of the same to the
deposited in a bank, still considered heirs when the latter shall be known,
in custodia legis and therefore cannot and upon proof of deposit of said
be attached? residuary estate, the guardian
Philippine National Bank shall forthwith
(2) Is the residuary estate of a U.S. be relieved from any responsibility as
veteran, which consists in the such, and this proceeding shall be
aggregate accumulated sum from the considered closed and terminated. 5
monthly allowances given him by the
United States Veterans Administration And the condition has long been fulfilled,
(USVA) during his lifetime, exempt because on March 13, 1964 the Philippine
from execution? National Bank-Manila deposited the residuary
estate of the ward with the Philippine National
Defendant-appellant argues that the property Bank-Dipolog Branch, evidenced by a receipt
of an incompetent under guardianship is attached to the records in Sp. Proc. No. R-
in custodia legis and therefore can not be 145. 6
attached.
When Eulogio Imperial died on September 13,
It is true that in a former case it was held that
1 1962, the rights to his succession — from the
property under custodia legis can not be moment of his death — were transmitted to his
attached. But this was under the old Rules of heirs, one of whom is his son and heir,
Court. The new Rules of Court 2 now defendant-appellant herein. 7 This automatic
specifically provides for the procedure to be transmission can not but proceed with greater
followed in case what is attached is in custodia ease and certainty than in this case where the
legis. 3 The clear import of this new provision is parties agree that the residuary estate is not
that property under custodia legis is now burdened with any debt. For,
attachable, subject to the mode set forth in said
rule. The rights to the succession of a
person are transmitted from the
Besides, the ward having died, the moment of death, and where, as in this
guardianship proceedings no longer subsist: case, the heir is of legal age and the
estate is not burdened with any debts,
said heir immediately succeeds, by
The death of the ward necessarily
force of law, to the dominion,
terminates the guardianship, and
ownership, and possession of the
thereupon all powers and duties of the
properties of his predecessor and
guardian cease, except the duty, which
consequently stands legally in the
remains, to make a proper accounting
shoes of the latter. 8
and settlement in the probate court. 4
That the interest of an heir in the estate of a already executed a Deed of Extrajudicial
deceased person may be attached for Partition — the end result of which is that the
purposes of execution, even if the estate is in property is no longer the property of the estate
the process of settlement before the courts, is but of the individual heirs. And it is settled that:
already a settled matter in this jurisdiction. 9
When the heirs by mutual agreement
It is admitted that the heirs of Eulogio Imperial, have divided the estate among
including herein defendant-appellant, have on themselves, one of the heirs can not
May 25, 1964 executed a Deed of Extrajudicial therefore secure the appointment of an
Partition. This instrument suffices to settle the administrator to take charge of and
entire estate of the decedent — provided all the administer the estate or a part
requisites for its validity are fulfilled 10 — even thereof. The property is no longer the
without the approval of the court. Therefore, property of the estate, but of the
the estate for all practical purposes have been individual heirs, whether it remains
settled. The heirs are at full liberty to withdraw undivided or not. 12
the residuary estate from the Philippine
National Bank-Dipolog Branch and divide it WHEREFORE, the orders appealed from are
among themselves. The only reason they have hereby affirmed, with costs against defendant-
not done so is because of the alleged illegal appellant. So ordered.
withdrawal from said estate of the amount of
P1,080.00 by one Gloria Gomez by authority of
Branch I of the Court of First Instance of
Zamboanga del Norte, which incident is now on
appeal before the Court of Appeals. This G.R. No. L-25049 August 30, 1968
appeal, however, does not detract any from the
fact that the guardianship proceedings is FILEMON RAMIREZ, MONICA RAMIREZ,
closed and terminated and the residuary estate and JOSE EGUARAS, plaintiffs-appellants,
no longer under custodia legis. vs.
ARTEMIO BALTAZAR, ET AL., defendants-
Finally, it is defendant-appellant's position that appellees.
the residuary estate of Eulogio Imperial, a
former U.S. veteran, having been set aside Eduardo M. Peralta for plaintiffs-appellants.
from the monthly allowances given him by the Tomas P. Anonuevo for defendants-appellees
United States Veterans Administration (USVA) Artemio Baltazar and Susana Flores.
during his lifetime, is exempt from execution. Tirso Caballero for defendant-appellee Artemio
Diawan.
Any pension, annuity, or gratuity granted by a
Government to its officers or employees in ANGELES, J.:
recognition of past services rendered, is
primordially aimed at tiding them over during On appeal from an order dismissing the
their old age and/or disability. This is therefore complaint, on motion to dismiss, in Civil Case
a right personalissima, purely personal No. SC-319 of the Court of First Instance of
because founded on necessity. It requires no Laguna.
argument to show that where the recipient dies,
the necessity motivating or underlying its grant It appears that on 6 January 1959, Victoriana
necessarily ceases to be. Even more so in this Eguaras single, made and executed a real
case where the law 11 providing for the estate mortgage over a parcel of land, owned
exemption is calculated to benefit U.S. by her in fee simple, as security for a loan of
veterans residing here, and is therefore merely P2,170.00 in favor of the spouses Artemio
a manifestation of comity. Baltazar and Susana Flores.

Besides, as earlier stated, the heirs of Eulogio

Imperial, one of whom is appellant, have
Upon the demise of the mortgagor, the Case No. SC-292 for the Foreclosure of the
mortgagees, as creditors of the deceased, on Mortgage", against the spouses Artemio
16 September 1960 filed a petition for the Baltazar and Susana Flores, and Artemio
intestate proceedings of her estate, in the Diawan, in his capacity as administrator of the
Court of First Instance of Laguna, docketed as estate of Victoriana Eguaras, deceased, and
Civil Case No. SC-99 wherein said mortgages, Silverio Talabis, in his capacity as deputy
as petitioners, alleged that Filemon Ramirez provincial sheriff of Laguna, docketed as Civil
and Monica Ramirez are the heirs of the Case No. SC-319 of the Court of First Instance
deceased. Filemon Ramirez was appointed of Laguna.
administrator of the estate; however, having
failed to qualify, on 16 January 1961, the court The facts hereinabove narrated are, succinctly,
appointed Artemio Diawan, then a deputy clerk contained in the complaint in said Civil Case
of court, administrator of the estate who, in due No. SC-319, with the additional averments that
time, qualified for the office. the defendant Diawan, the deputy clerk of court
appointed as administrator of the intestate
On 19 April 1961, the mortgagees, Artemio estate of the deceased, acted in collusion with
Baltazar and Susana Flores, filed a complaint the other defendants Artemio Baltazar and
for foreclosure of the aforesaid mortgage, Susana Flores, deliberately and in fraud of the
against Artemio Diawan, in his capacity as plaintiffs: (a) in allowing the reglementary
administrator of the estate, docketed as Civil period within which to file an answer to lapse
Case No. SC-292 of the Court of First Instance without notifying and/or informing the said
of Laguna. The defendant-administrator was plaintiffs of the complaint for foreclosure, as a
duly served with summons but he failed to result of which he was declared in default to the
answer, whereupon, on petition of the plaintiffs prejudice of the estate which he represents; (b)
said defendant was declared in default. The that had the plaintiffs (Monica and Filemon)
case was referred to a commissioner to receive been notified of the pendency of the case, the
the evidence for the plaintiffs, and defendant- defendant administrator could have interposed
administrator, as deputy clerk of court, acted as a counterclaim because payment in the sum of
such hearing commissioner. 1äwphï1.ñët P1,548.52 had been made and received by the
mortgagees on account of the debt; (c) in
On 16 August 1961, decision was rendered presiding as hearing officer in the ex
decreeing the foreclosure of the mortgaged parte hearing in Civil Case No. 292, to receive
property and the sale thereof, if, within ninety evidence for plaintiffs therein, notwithstanding
days from finality of the decision, the obligation the fact that there was another deputy clerk of
was not fully paid. The judgment not having court available who could have acted in his
been satisfied, a writ of execution was issued stead, as a result of which an anomalous
for the sale of the mortgaged property, and situation was created whereby he was a
after compliance with the requirements of the defendant and at the same time a
law regarding the sending, posting and commissioner receiving evidence against
publication of the notice of sale, the Sheriff sold himself as administrator; (d) in allowing
the property at public auction to the highest judgment to become final without notifying the
bidder, who happened to be the plaintiffs plaintiffs; (e) in deliberately, allowing the 90-
themselves, for the sum of P2,888.50 covering day period within which to make payment to
the amount of the judgment, plus the expenses expire without notifying the heirs, as a result of
of the sale and the Sheriff's fees. On petition of which the said heirs were not afforded an
the plaintiffs, the sale was confirmed by the opportunity to make payments ordered by the
court on 26 January 1962. Court in its decision; and (f) in refusing to help
the heirs seek postponement of the auction
On 6 February 1962, Filemon Ramirez, Monica sale. It is also alleged that it was only when the
Ramirez and Jose Eguaras, the first two being property foreclosed was published for sale at
the heirs named in the petition for intestate public auction that the heirs came to know
proceedings, filed a complaint designated "For about the foreclosure proceedings.
the Annulment of all Proceedings in said Civil
The defendants spouses, Artemio Baltazar and At the outset, let it be remembered that the
Susana Flores, filed a motion to dismiss the defendants-appellees, in availing themselves
complaint on the ground that the plaintiffs have of the defense that the plaintiffs-appellants had
no legal capacity to sue; defendant Diawan not been declared to be the heirs of the
likewise moved to dismiss on two grounds: that deceased Victoriana Eguaras, have
plaintiffs have no legal capacity to sue and that overlooked the fact that the (defendants-
the complaint states no cause of action. 1äw phï1.ñët appellees) themselves in their petition for
intestate proceedings (Case SC-99) have
Despite vigorous opposition interposed by the alleged that Filemon Ramirez and Monica
plaintiffs against the aforesaid motions to Ramirez, two of herein plaintiffs-appellants, are
dismiss, the court, on 13 March 1962, the heirs of the deceased. Insofar as
dismissed the complaint with costs against the defendants-appellees are concerned, it is our
plaintiffs, reasoning thus: that "upon opinion that they are estopped from
consideration of the evidence, said defendant questioning the heirship of these two named
could not have offered any evidence to avoid persons to the estate of the deceased.
the foreclosure of the mortgage which the
Court found to be in order. Under the There is no question that the rights to
circumstances and with the apparent succession are automatically transmitted to the
disinterestedness of Filemon and Rolando to heirs from the moment of the death of the
qualify as administrator when appointed, there decedent.1 While, as a rule, the formal
could not have been any connivance and/or declaration or recognition to such successional
collusion between plaintiffs in this case and rights needs judicial confirmation, this Court
Artemio Diawan as administrator"; and that has, under special circumstances, protected
plaintiffs have no legal capacity to sue since these rights from encroachments made or
their status as legal heirs of the deceased has attempted before the judicial
yet to be determined precisely in Special declaration.2 In Pascual vs. Pascual,3 it was
Proceeding No. SC-99, and until such status is ruled that although heirs have no legal standing
so fixed by the Court, they have no cause of in court upon the commencement of testate or
action against defendants. intestate proceedings, this rule admits of an
exception as "when the administrator fails or
In that order of 13 March 1962, the court also refuses to act in which event the heirs may act
denied plaintiffs' petition for the issuance of a in his place."
writ of preliminary injunction to enjoin
defendants from entering and taking physical A similar situation obtains in the case at bar.
possession of the land in question on the The administrator is being charged to have
ground "that possession thereof was effected been in collusion and connivance with the
and delivered by the Provincial Sheriff to mortgagees of a property of the deceased,
Artemio Baltazar and Susana Flores on allowing its foreclosure without notifying the
February, 1962." heirs, to the prejudice of the latter. Since the
ground for the present action to annul the
Reconsideration of the aforesaid order having aforesaid foreclosure proceedings is the fraud
been denied, the plaintiffs took the present resulting from such insidious machinations and
appeal where they assigned the following collusion in which the administrator has
errors: (1) in holding that plaintiffs-appellants allegedly participated, it would be farfetched to
have no legal capacity to sue until their status expect the said administrator himself to file the
as legal heirs of the deceased is determined in action in behalf of the estate. And who else but
Special Proceeding No. SC-99; (2) in ruling the heirs, who have an interest to assert and to
that there was no collusion or connivance protect, would bring the action? Inevitably, this
among the defendants-appellees, despite the case should fall under the exception, rather
fact that the issue in the motion to dismiss is than the general rule that pending proceedings
purely legal, not factual; and (3) in denying the for the settlement of the estate, the heirs have
petition for a writ of preliminary injunction. no right to commence an action arising out of
the rights belonging to the deceased.
On the second point raised, We fully agree with Arturo Joaquin for petitioners.
the plaintiffs-appellants that the lower court had Pelaez, Jalandoni and Jamir and S. V.
gone too far in practically adjudicating the case Enriquez, for respondent Simeon Enriquez.
on the merits when it made the observation that C. E. Medina and J. M. Locsin for respondent
"there could not have been any connivance Philippine National Bank.
and/or collusion between plaintiffs in this case Bala and Enriquez for the other respondents.
and Artemio Diawan as administrator." A
thorough scrutiny of the allegations in the BENGZON, J.P., J.:
motions to dismiss filed by defendants-
appellees does not indicate that that question Seven parcels of titled land and two parcels of
was ever put at issue therein. On the other untitled land, situated in Bigaa, Bulacan, were
hand, the controversy — on the existence or owned by Celestino Salvador. In 1941, he
inexistence of collusion between the parties as executed a deed of sale over them in favor of
a result of which judgment was rendered the spouses Alfonso Salvador and Anatolia
against the estate — is the very core of the Halili. Alleging that the sale was void for lack of
complaint that was dismissed. Undoubtedly, consideration, he filed on May 12,1955, against
the cause of action is based on Section 30, said vendees, a suit for reconveyance of said
Rule 132 of the Rules of Court. parcels of land (CFI of Bulacan, Br. I, Civil Case
No. 1082).
We are not, however, in accord with the third
assigned error — the denial of the motion for On April 27, 1956, Celestino Salvador died,
the issuance of preliminary injunction — for it testate. As his alleged heirs, twenty-one
puts at issue the factual finding made by the persons1 were on May 18, 1956 substituted as
lower court that the defendants had already plaintiffs in the action for reconveyance. And
been placed in possession of the property. At meanwhile, special proceedings for the
this stage of the proceeding, and considering probate of his will and for letters testamentary
the nature of the case before Us, such a was instituted (CFI of Bulacan, Br. II, Sp.
question is, at this time, beyond the Proceedings No. 940). In said proceedings,
competence of the Court. Dominador Cardenas was appointed on June
11, 1956 special administrator of Celestino
PREMISES CONSIDERED, the order Salvador's testate estate. 1äwphï1.ñët

appealed from is hereby set aside insofar as it

dismissed the complaint in Civil Case No. SC- On September 4, 1956 the administrator filed
319, and the records be remanded to the lower in Sp. Proceedings No. 940 an inventory of
court for further proceedings. Costs against properties of the estate, covering the same
defendants-appellees. The Clerk of Court is parcels of land subject matter of the
directed to furnish a copy of this decision to the reconveyance action. On September 7, 1956,
Department of Justice for its information. Celestino Salvador's will was admitted to
probate and Dominador Cardenas was
appointed executor of said will. Actual issuance
of letters testamentary to him was made on
G.R. No. L-25952 June 30, 1967 October 27, 1956.

MARGARITA SALVADOR, in her own behalf Twenty-three (23) persons were instituted heirs
and as Attorney-in-fact of CANDIDA in the will. Of these, nine (9) were not among
SALVADOR, ET AL.,petitioners, the twenty-one (21) alleged relatives
vs. substituted in the reconveyance case; and of
THE HON. JUDGE ANDRES STA. MARIA, the twenty-one (21) substituted alleged heirs
DOMINADOR CARDENAS, REMEDIOS seven (7) were not instituted in the will. 2
CABRERA, ALBERTO M. K. JAMIR and
SIMEON ENRIQUEZ, respondents. In the suit for reconveyance, on November 26,
1956, the Court (CFI of Bulacan, Br. I) rendered
judgment, ordering the defendants therein (the made, as the Philippine National Bank awaited
spouses Alfonso and Anatolia), to reconvey the Br. II's order.
parcels of land to the estate of Celestino
Salvador. Appeal therefrom to the Court of Br. II, on March 1, 1966, approved the following
Appeals was interposed by said defendants. 1äwphï1.ñët

claims against the estate:

On August 12, 1961, the Court of Appeals

affirmed the reconveyance judgment, with the — Nat'l.
Taxes P5,328.23
correction that reconveyance be in favor of the gov't
twenty-one (21) heirs substituted as plaintiffs Atty's — Atty.
therein. 8,000.00
fees Enriquez

About three years later, pursuant to an order of Atty's — Atty.

12,000.00
the CFI of Bulacan, Br. II, in the testacy fees Jamir
proceedings, dated April 21, 1964, one of the
parcels of land involved, Lot 6, was sold so that — R.
Loan 13,544.35
with its proceeds debtors who filed claims may Cabrera
be paid. The Philippine National Bank bought it
at P41,184.00. Said amount was then TOTAL........ 38,872.58
deposited in the same bank by the =========
administrator, subject to Court order.

On December 18, 1964, defendants in the suit On March 30, 1966, said Br. II (probate court),
for reconveyance executed a deed of ordered return of the passbook to the
reconveyance over the subject parcels of administrator; and release to the administrator
land, in favor of Celestino Salvador's estate. by the PNB of the P41,184.00, or so much
Revoking the same as lot in accordance with thereof is needed to pay the afore-stated debts
the final judgment therein, the CFI of Bulacan, of the estate.
Br. I, on September 24, 1965, ordered a new
deed of reconveyance to be executed, in favor After failing to get reconsideration of said order,
of the twenty-one persons substituted as the twenty-one (21) substituted heirs, on April
plaintiffs in that action. Accordingly, on 25, 1966, filed with Us the present special civil
September 30, 1965, a new deed of action for certiorari with preliminary injunction
reconveyance was made, in favor of said to assail the order to pay the debts of the estate
twenty-one (21) persons as heirs of Celestino. with the P41,184.00 proceeds of the sale of Lot
6; and to question Br. II's (probate court) power
Following this, on November 22, 1965, said Br. to dispose of the parcels of land involved in the
I, ordered the corresponding title certificate reconveyance suit in Br. I.
(TCT No. 54639) in the administrator's name,
cancelled; new title certificate to be issued in Raised are these issues: (1) Are the parcels of
the names of the same twenty-one (21) land and the proceeds of the sale of one of
persons. Said order was carried out, and TCT them, properties of the estate or not? (2) Does
No. 63734 was issued in the names of the final judgment in the reconveyance suit in favor
twenty-one persons. 3 of the twenty-one so-called heirs who
substituted Celestino Salvador, bar the
On December 7, 1965, Br. I (reconveyance disposition of the reconveyed properties by the
court) ordered the Philippine National Bank to settlement court?
release the P41,184.00 proceeds of the sale of
Lot 6, to the twenty-one (21) plaintiffs in the It is a settled point of law that the right of heirs
reconveyance case. Apparently, although the to specific, distributive shares of inheritance
passbook was given by the administrator to does not become finally determinable until all
said twenty-one persons, no release was the debts of the estate are paid. Until then, in
the face of said claims, their rights cannot be SPOUSES RODOLFO A. NOCEDA and
enforced, are inchoate, and subject to the ERNA T. NOCEDA, Petitioners,
existence of a residue after payment of the vs.
debts (Castellvi de Raquiza v. Castellvi, L- AURORA ARBIZO-DIRECTO, Respondent.
17630, October 31, 1963; Jimoga-on v.
Belmonte, 84 Phil. 545; Sec. 1, Rule 90, Rules DECISION
of Court).
NACHURA, J.:
Petitioners do not question the existence of the
debts abovementioned. They only contend that Assailed in the instant petition is the
the properties involved having been ordered by Decision1 of the Court of Appeals (CA),
final judgment reconveyed to them, not to the dismissing the appeal on the ground of res
estate the same are not properties of the estate judicata.
but their own, and thus, not liable for debts of
the estate.
On September 16, 1986, respondent Aurora
Arbizo-Directo filed a complaint against her
Said contention is self-refuting. Petitioners rely nephew, herein petitioner Rodolfo Noceda, for
for their rights on their alleged character as "Recovery of Possession and Ownership and
heirs of Celestino; as such, they were Rescission/Annulment of Donation" with the
substituted in the reconveyance case; the Regional Trial Court (RTC) of Iba, Zambales,
reconveyance to them was reconveyance to Branch 71, docketed as Civil Case No. RTC-
them as heirs of Celestino Salvador. It follows 354-I. Respondent alleged that she and her co-
that the properties they claim are, even by their heirs have extra-judicially settled the property
own reasoning, part of Celestino's estate. The they inherited from their late father on August
right thereto as allegedly his heirs would arise 19, 1981, consisting of a parcel of land,
only if said parcels of land are part of the estate described as Lot No. 1121, situated in Bitoong,
of Celestino, not otherwise. Their having San Isidro, Cabangan, Zambales. She donated
received the same, therefore, in the a portion of her hereditary share to her nephew,
reconveyance action, was perforce in trust for but the latter occupied a bigger area, claiming
the estate, subject to its obligations. They ownership thereof since September 1985.
cannot distribute said properties among
themselves as substituted heirs without the
Judgment was rendered in favor of respondent
debts of the estate being first satisfied.
on November 6, 1991, where the RTC (a)
declared the Extra-Judicial Settlement-
At any rate, the proceeds of Lot 6 alone Partition dated August 19, 1981 valid; (b)
(P41,184.00) appears more than sufficient to declared the Deed of Donation dated June 1,
pay the debt (P38,872.58); and there will 1981 revoked; (c) ordered defendant to vacate
remain the other parcels of land not sold. As to and reconvey that donated portion of Lot 2, Lot
the question of who will receive how much as 1121 subject of the Deed of Donation dated
heirs, the same is properly determinable by the June 1, 1981 to the plaintiff or her heirs or
settlement court, after payment of the debts assigns; (d) ordered the defendant to remove
(Pimentel v. Palanca, 5 Phil. 436; Maningat v. the house built inside the donated portion at the
Castillo, 75 Phil. 532; Jimoga-on v. defendant’s expense or pay a monthly rental of
Belmonte, supra). ₱300.00 Philippine Currency; and (e) ordered
the defendant to pay attorney’s fees in the
Wherefore, the petition for certiorari is denied, amount of ₱5,000.00.2 The decision was
without costs. So ordered. appealed to the CA, docketed as CA-G.R. CV
No. 38126.

On January 5, 1995, spouses Rodolfo Dahipon

G.R. No. 178495 July 26, 2010 and Cecilia Obispo- Dahipon filed a complaint
for recovery of ownership and possession, and
annulment of sale and damages against On December 4, 2003, petitioners instituted an
spouses Antonio and Dominga Arbizo, action for quieting of title against respondent,
spouses Rodolfo and Erna Noceda, and docketed as Civil Case No. 2108-I. In the
Aurora Arbizo-Directo with the RTC, Iba, complaint, petitioners admitted that Civil Case
Zambales, Branch 70. This was docketed as No. RTC-354-I was decided in favor of
Civil Case No. RTC-1106-I. In the complaint, respondent and a writ of execution had been
spouses Dahipon alleged that they were the issued, ordering them to vacate the property.
registered owners of a parcel of land, However, petitioners claimed that the land,
consisting of 127,298 square meters, situated which was the subject matter of Civil Case No.
in Barangay San Isidro, Cabangan, Zambales, RTC-354-I, was the same parcel of land owned
designated as Lot 1121-A. The Original by spouses Dahipon from whom they
Certificate of Title No. P-9036 over the land purchased a portion; and that a title (TCT No.
was issued in the name of Cecilia Obispo- T-37468) was, in fact, issued in their name.
Dahipon, pursuant to Free Patent No. 548781. Petitioners prayed for the issuance of a writ of
Spouses Dahipon claimed that the defendants preliminary injunction to enjoin the
therein purchased portions of the land from implementation of the Writ of Execution dated
them without paying the full amount. Except for March 6, 2001 in Civil Case No. RTC-354-I,
Aurora, a compromise agreement was entered and that "a declaration be made that the
into by the parties, as a result of which, a deed property bought, occupied and now titled in the
of absolute sale was executed, and TCT No. T- name of [petitioners] was formerly part and
50730 was issued in the name of spouses subdivision of Lot No. 1121 Pls-468-D, covered
Noceda for their portion of the land. For her by OCT No. P-9036 in the name of Cecilia
part, Aurora questioned Dahipon’s alleged Obispo-Dahipon."5
ownership over the same parcel of land by filing
an adverse claim. Respondent filed a Motion to Dismiss on the
ground of res judicata. Respondent averred
In the meantime, a decision was rendered in that petitioners, aware of their defeat in Civil
CA-G.R. CV No. 38126 on March 31, 1995 with Case No. RTC-354-I, surreptitiously negotiated
the following fallo: with Cecilia Obispo-Dahipon for the sale of the
land and filed the present suit in order to
WHEREFORE, judgment is hereby rendered, subvert the execution thereof.
ORDERING defendant Rodolfo Noceda to
VACATE the portion known as Lot "C" of Lot The trial court denied the motion, holding that
1121 per Exhibit E, which was allotted to there was no identity of causes of action.
plaintiff Aurora Arbizo-Directo. Except for this
modification, the Decision dated November 6, Trial thereafter ensued. On January 25, 2006,
1991 of the RTC, Iba, Zambales, Branch 71, in after petitioners presented their evidence,
Civil Case No. RTC-354-I, is hereby respondent filed a Demurrer to Evidence,
AFFIRMED in all other respects. Costs against stating that the claim of ownership and
defendant Rodolfo Noceda.3 possession of petitioners on the basis of the
title emanating from that of Cecilia Obispo-
Undaunted, petitioners filed a petition for Dahipon was already raised in the previous
review with this Court, which was docketed as case (Civil Case No. RTC-354-I).
G.R. No. 119730. The Court found no
reversible error, much less grave abuse of On February 22, 2006, the trial court issued a
discretion, with the factual findings of the two resolution granting the demurrer to evidence.
courts below, and thus denied the petition on
September 2, 1999.4 The decision became The CA affirmed. Hence, petitioners now come
final and executory, and a writ of execution was to this Court, raising the following issues:
duly issued by the RTC on March 6, 2001 in
Civil Case No. RTC-354-I.
WHETHER OR NOT THE PRINCIPLE OF
RES JUDICATA OR DOCTRINE OF
CONCLUSIVENESS OF JUDGMENT IS The principle of res judicata lays down two
APPLICABLE UNDER THE FACTS main rules, namely: (1) the judgment or decree
OBTAINING IN THE PRESENT CASE[;] of a court of competent jurisdiction on the
merits concludes the litigation between the
WHETHER OR NOT THE RESPONDENT parties and their privies and constitutes a bar
HAS A BETTER TITLE THAN THE to a new action or suit involving the same
PETITIONERS[; and] cause of action either before the same or any
other tribunal; and (2) any right, fact, or matter
WHETHER OR NOT THE RULING ON in issue directly adjudicated or necessarily
PURCHASERS IN BAD FAITH IS involved in the determination of an action
APPLICABLE IN THE PRESENT CASE[.]6 before a competent court in which a judgment
or decree is rendered on the merits is
conclusively settled by the judgment therein
Petitioners assert that res judicata7 does not
and cannot again be litigated between the
apply, considering that the essential requisites
parties and their privies whether or not the
as to the identity of parties, subject matter, and
claims or demands, purposes, or subject
causes of action are not present.
matters of the two suits are the same. These
two main rules mark the distinction between
The petition is bereft of merit. the principles governing the two typical cases
in which a judgment may operate as
The doctrine of res judicata is set forth in evidence.8] The first general rule above stated,
Section 47 of Rule 39 of the Rules of Court, as and which corresponds to the afore-quoted
follows: paragraph (b) of Section 47, Rule 39 of the
Rules of Court, is referred to as "bar by former
Sec. 47. Effect of judgments or final orders. - judgment"; while the second general rule,
The effect of a judgment or final order rendered which is embodied in paragraph (c) of the same
by a court of the Philippines, having jurisdiction section and rule, is known as "conclusiveness
to pronounce the judgment or final order, may of judgment."9
be as follows:
The Court in Calalang v. Register of Deeds of
xxxx Quezon City10 explained the second concept
which we reiterate herein, to wit:
(b) In other cases, the judgment or final
order is, with respect to the matter The second concept — conclusiveness of
directly adjudged or as to any other judgment — states that a fact or question which
matter that could have been raised in was in issue in a former suit and was there
relation thereto, conclusive between judicially passed upon and determined by a
the parties and their successors in court of competent jurisdiction, is conclusively
interest by title subsequent to the settled by the judgment therein as far as the
commencement of the action or special parties to that action and persons in privity with
proceeding, litigating for the same thing them are concerned and cannot be again
and under the same title and in the litigated in any future action between such
same capacity; and parties or their privies, in the same court or any
other court of concurrent jurisdiction on either
(c) In any other litigation between the the same or different cause of action, while the
same parties or their successors in judgment remains unreversed by proper
interest, that only is deemed to have authority. It has been held that in order that a
been adjudged in a former judgment or judgment in one action can be conclusive as to
final order which appears upon its face a particular matter in another action between
to have been so adjudged, or which the same parties or their privies, it is essential
actually and necessarily included that the issue be identical. If a particular point
therein or necessary thereto. or question is in issue in the second action, and
the judgment will depend on the determination
of that particular point or question, a former final with the denial of the petition for review by
judgment between the same parties or their this Court in G.R. No. 119730. In that case, the
privies will be final and conclusive in the Court noted the established fact "that petitioner
second if that same point or question was in Noceda occupied not only the portion donated
issue and adjudicated in the first suit (Nabus v. to him by respondent Aurora Arbizo-Directo,
Court of Appeals, 193 SCRA 732 [1991]). but he also fenced the whole area of Lot C
Identity of cause of action is not required but which belongs to private respondent Directo,
merely identity of issue. thus, petitioner’s act of occupying the portion
pertaining to private respondent Directo
Justice Feliciano, in Smith Bell & Company without the latter’s knowledge and consent is
(Phils.), Inc. v. Court of Appeals (197 SCRA an act of usurpation which is an offense against
201, 210 [1991]), reiterated Lopez v. the property of the donor and considered as an
Reyes (76 SCRA 179 [1977]) in regard to the act of ingratitude of a donee against the
distinction between bar by former judgment donor."12 Clearly, therefore, petitioners have no
which bars the prosecution of a second action right of ownership or possession over the land
upon the same claim, demand, or cause of in question.1avv ph!1

action, and conclusiveness of judgment which

bars the relitigation of particular facts or issues Under the principle of conclusiveness of
in another litigation between the same parties judgment, such material fact becomes binding
on a different claim or cause of action. and conclusive on the parties. When a right or
fact has been judicially tried and determined by
The general rule precluding the relitigation of a court of competent jurisdiction, or when an
material facts or questions which were in issue opportunity for such trial has been given, the
and adjudicated in former action are commonly judgment of the court, as long as it remains
applied to all matters essentially connected unreversed, should be conclusive upon the
with the subject matter of the litigation. Thus, it parties and those in privity with them.13 Thus,
extends to questions necessarily implied in the petitioners can no longer question
final judgment, although no specific finding respondent’s ownership over Lot No. 1121 in
may have been made in reference thereto and the instant suit for quieting of title. Simply put,
although such matters were directly referred to conclusiveness of judgment bars the
in the pleadings and were not actually or relitigation of particular facts or issues in
formally presented. Under this rule, if the another litigation between the same parties on
record of the former trial shows that the a different claim or cause of action.14
judgment could not have been rendered
without deciding the particular matter, it will be Furthermore, we agree that petitioners
considered as having settled that matter as to instituted the instant action with unclean hands.
all future actions between the parties and if a Aware of their defeat in the previous case, they
judgment necessarily presupposes certain attempted to thwart execution and assert their
premises, they are as conclusive as the alleged ownership over the land through their
judgment itself.11 purported purchase of a lot from Cecilia
Obispo-Dahipon. This later transaction
The foregoing disquisition finds application in appears to be suspect. A perusal of G.R. No.
the case at bar. Undeniably, the present case 119730 reveals that the Court was not unaware
is closely related to the previous case (Civil of Dahipon’s alleged claim over the same
Case No. RTC-354-I), where petitioners raised parcel of land. It noted that Dahipon did not
the issue of ownership and possession of Lot even bother to appear in court to present her
No. 1121 and the annulment of the donation of free patent upon respondent’s request, or to
said lot to them. The RTC found for intervene in the case, if she really had any
respondent, declaring the deed of donation she legitimate interest over the land in
executed in favor of petitioners revoked; and question.15 In any event, petitioners’ assertion
ordered petitioners to vacate and reconvey the of alleged good title over the land cannot stand
donated portion to respondent. The decision of considering that they purchased the piece of
the RTC was affirmed by the CA, and became land from Dahipon knowing fully well that the
same was in the adverse possession of Court of Appeals for allegedly being contrary to
another. law.

Thus, we find no reversible error in the The following facts as found by the Court of
appellate court’s ruling that petitioners are in Appeals are undisputed:
fact buyers in bad faith. We quote:
Edras Nufable owned at
With appellants’ actual knowledge of facts that Poblacion, Manjuyod, Negros
would impel a reasonable man to inquire Oriental, consisting of 948
further on [a] possible defect in the title of square meters, more or less.
Obispo, considering that she was found not to He died on August 9, 1965 and
have been in actual occupation of the land in was survived by his children,
CA-G.R. CV No. 38126, they cannot simply namely: Angel Custodio,
invoke protection of the law as purchasers in Generosa, Vilfor and Marcelo,
good faith and for value. In a suit to quiet title, all surnamed Nufable. Upon
defendant may set up equitable as well as legal petition for probate filed by said
defenses, including acquisition of title by heirs and after due publication
adverse possession and a prior adjudication on and hearing, the then Court of
the question under the rule on res judicata. First Instance of Negros
Appellants’ status as holders in bad faith of a Oriental (Branch II) issued an
certificate of title, taken together with the Order dated March 30, 1966
preclusive effect of the right of possession and admitting to probate the last will
ownership over the disputed portion, which and testament executed by the
was adjudged in favor of appellee in Civil Case deceased Edras Nufable
No. RTC-354-I, thus provide ample justification (Exhs. B, C and C-1).
for the court a quo to grant the demurrer to
evidence and dismiss their suit for quieting of On June 6, 1966 the same
title filed against the said appellee.16 court issued an Order
approving the Settlement of
WHEREFORE, the Decision of the Court of Estate submitted by the heirs of
Appeals in CA-G.R. CV No. 87026 is the late ESdras Nufable,
AFFIRMED in toto. portions of which read:

KNOW ALL
MEN BY
G.R. No. 126950 July 2, 1999 THESE
PRESENTS:
NELSON NUFABLE, SILMOR NUFABLE and
AQUILINA NUFABLE, petitioners, We, ANGEL
vs. CUSTODIO
GENEROSA NUFABLE, VILFOR NUFABLE, NUFABLE,
MARCELO NUFABLE, and the COURT OF GENEROSA
APPEALS,respondents. NUFABLE,
VILFOR
NUFABLE and
MARCELO
NUFABLE, all
GONZAGA-REYES, J.: of legal ages
(sic), Filipinos,
This petition for review on certiorari seeks to and with
reverse and set aside the Decision dated residence and
November 25, 1995 of the Fifth Division1 of the postal address
at Manjuyod, necessary
Negros bond of
Oriental, P1,000.00;
Philippines,
3. That herein
— HEREBY legitimate
DECLARE children prefer
AND MAKE not to appoint
MANIFEST — an
Administratrix,
1. That on as agreed upon
August 9, (by) all the
1965, Rev. Fr. heirs, because
Esdras Nufable they have no
died leaving (a) objection as to
Last Will and the manner of
Testament disposition of
(marked Exh. their share
G) disposing made by the
(of) his testator, the
properties or expenses of
estate in favor the
of his four proceedings
legitimate and that they
children, have already
namely: Angel taken
Custodio possession of
Nufable, their respective
Generosa shares in
Nufable, Vilfor accordance
Nufable and with the will;
Marcelo
Nufable; 4. That the
herein heirs
2. That on agreed, as they
March 30, 1966 hereby agree
the said Last to settle the
Will and estate in
Testament was accordance
probated by the with the terms
Honorable and condition
Court, Court of of the will in the
First Instance following
of Negros manner, to wit:
Oriental, and is
embodied in a) That the
the same order parcel of land
appointing an situated in
Administratrix, Poblacion
Generosa Manjuyod,
Nufable, but to Negros
qualify only if Oriental
she put up a remains
 undivided for Court that after
community trial judgment
ownership but be rendered
respecting ordering:
conditions
imposed (a) That the
therein (sic) in said Deed of
the will; Sale (Annex
"C") executed
xxx xxx xxx by the
Development
(Exhs. "E" and "E-1") Bank of the
Philippines in
Two months earlier, or on favor of the
March 15, 1966, spouses defendants be
Angel Custodio and Aquilina declared null
Nufable mortgaged the entire and void as far
property located at Manjuyod as the three
to the Development Bank of the fourths (3/4)
Philippines [DBP] (Pre-trial rights which
Order, dated January 7, 1992, belongs (sic) to
p. 103, Original Records). Said the plaintiffs
mortgagors became delinquent are concerned;
for which reason the
mortgaged property was (b) That the
foreclosed by DBP on February said three
26, 1973 (id.). fourths (3/4)
rights over the
On January 11, 1980, Nelson above parcel in
Nufable, the son of Angel question be
Custodio Nufable (who died on declared as
August 29, 1978 [TSN, belonging to
Testimony of Nelson Nufable, the plaintiffs at
Hearing of August 18, 1992, p. one fourth right
17]), purchased said property to each of
from DBP (Exh. "1"). them;

Generosa, Vilfor and Marcelo, (c) To order the

all surnamed Nufable filed with defendants to
the lower court a complaint pay jointly and
dated July 25, 1985 "To Annul severally to the
Fraudulent Transactions, to plaintiffs by
Quiet Title and To Recover way of actual
Damages' against Nelson and moral
Nufable, and wife, Silmor damages the
Nufable and his mother amount of
Aquilina Nufable. Plaintiffs P10,000.00
pray: and another
P5,000.00 as
Attorney's fees,
WHEREFORE,
and to pay the
plaintiffs pray
costs.
this Honorable
 (d) Plus any filed any third
other amount party claim nor
which this attempted to
Court may redeem said
deem just and property as
equitable. (p. 6, redemptioners,
Original and that said
Records) Deed of Sale,
Annex "B" to
In their Answer, defendants the complaint,
contend: is fictitious, not
being
4. Paragraph 4 supported by
is denied, the any
truth being that consideration;
the late Angel (pp. 20-21, id.)
Nufable was
the exclusive The Deed of Sale (Annex "B"),
owner of said referred to by the parties is a
property, that notarized Deed of Sale, dated
as such owner July 12, 1966 (marked as
he mortgaged Exhibit "H") by virtue of which,
the same to the spouses Angel and Aquilina
Development Nufable, as vendors, sold 3/4
Bank of the portion of the subject property
Philippines on to herein plaintiffs for and in
March 15, consideration of P1,000.00
1966, that said (Exh. "5").2
mortgage was
foreclosed and On November 29, 1995, the Court of Appeals
the DBP rendered judgment, the dispositive portion3 of
became the which reads:
successful
bidder at the WHEREFORE, the appealed
auction sale, decision of the lower court is
that ownership REVERSED and SET ASIDE.
was A new judgment is hereby
consolidated in entered declaring plaintiffs-
the name of the appellants as the rightful co-
DBP, and that owners of the subject property
defendant and entitled to possession of
Nelson Nufable 3/4 southern portion thereof;
bought said and defendant-appellee
property from Nelson Nufable to 1/4 portion.
the DBP
thereafter. No award on damages.
During this
period, the
No costs.
plaintiffs never
questioned the
transactions Defendants-appellees' Motion for
which were Reconsideration was denied for lack of merit in
public, never
the Resolution of the Court of Appeals4 dated probated, the due execution thereof, the
October 2, 1996. testator's testamentary capacity and the
compliance with the requisites or solemnities
Hence, the present petition. Petitioners raise prescribes by law. Said court at this stage of
the following grounds for the petition: the proceedings is not called to rule on the rule
on the intrinsic validity or efficacy of the
1. Honorable Court of Appeals will.6 The question of the intrinsic validity of a
erred in considering as will normally comes only after the court has
controlling the probate of the declared that the will has been duly
Last Will and Testament of authenticated.
Esdras Nufable, the probate
thereof not being an issue in The records show that upon petition for probate
this case; filed by the heirs of the late Esdras Nufable, an
Order dated March 30, 1966 was issued by
2. The Honorable Court of then Court of First Instance of Negros Oriental,
Appeals erred in not Branch II, admitting to probate the last will and
considering the fact that the testament executed by the
Development Bank of the decedent.7 Thereafter, on June 6, 1966, the
Philippines became absolute, same court approved the Settlement of Estate
exclusive, legal and rightful submitted by the heirs of the late Esdras
owner of the land in question, Nufable wherein they agreed "(T)hat the parcel
from whom petitioner Nelson land situated in Poblacion Manjuyod, Negros
Nufable acquired the same by Oriental remains undivided for community
purchase and that, therefore, ownership but respecting conditions imposed
no award can be made in favor therein (sic) in the will."8 In paragraph 3 thereof,
of private respondent unless they stated that "they have no objection as to
and until the Development the manner of disposition of their share made
Bank of the Philippines' title by the testator, the expenses of the proceeding
thereto is first declared null and and that they have already taken possession of
void by the court. their respective shares in accordance with the
will." Verily, it was the heirs of the late Esdras
Nufable who agreed among themselves on the
The Court of Appeals, in its decision, stated
disposition of their shares. The probate court
that the trial court failed to take into
simply approved the agreement among the
consideration the probated will of the late
heirs which approval was necessary for the
Esdras Nufable bequeathing the subject
validity of any disposition of the decedent's
property to all his four children.5 In the present
estate.9
petition, petitioner present the issue of whether
or not the Last Will and Testament of Esdras
Nufable and its subsequent probate are It should likewise be noted that the late Esdras
pertinent and material to the question of the Nufable died on August 9, 1965. When the
right of ownership of petitioner Nelson Nufable entire property located at Manjuyod was
who purchased the land in question from, and mortgaged on March 15, 1966 by his son Angel
as acquired property of, the Development Bank Custodio with DBP, the other heirs of Esdras
of the Philippines (DBP, for short). They — namely: Generosa, Vilfor and Marcelo —
contend that the probate of the Last Will had already acquired successional rights over
Testament and of Esdras Nufable did not the said property. This is so because of the
determine the ownership of the land in question principle contained in Article 777 of the Civil
as against third parties.1âw phi 1.nêt
Code to the effect that the rights to the
succession are transmitted from the moment of
death of the decedent. Accordingly, for the
As a general rule, courts in probate
purpose of transmission of rights, it does not
proceedings are limited only to passing upon
matter whether the Last Will and Testament of
the extrinsic validity of the will sought to be
the late Esdras Nufable was admitted on March
30, 1966 or thereafter or that the Settlement of case at bar. It has likewise been ruled that the
Estate was approved on June 6, 1966 or mortgage of the inherited property is not
months later. It is to be noted that the probated binding against co-heirs who never
will of the late Esdras Nufable specifically benefitted. 17
referred to the subject property in stating that
"the land situated in the Poblacion, Manjuyod, Furthermore, the Deed of Sale dated June 17,
Negros Oriental, should not be divided 1966 marked as Exhibit "H" executed by
because this must remain in common for them, spouses Angel and Aquilina Nufable in favor of
but it is necessary to allow anyone of them respondents Generosa, Vilfor and Marcelo
brothers and sisters to construct a house wherein the former sold, ceded and transferred
therein."10 It was therefor the will of the back to the latter the 3/4 portion of the subject
decedent that the subject property should property bolsters respondents' claim that there
undivided, although the restriction should not was co-ownership. Petitioner Nelson himself
exceed twenty (20) years pursuant to Article claimed that he was aware of the aforesaid
870 11 of the Civil Code. Deed of Sale. 18

Thus, when Angel Nufable and his spouses Anent the second ground of the petition,
mortgaged the subject property to DBP on petitioners allege that the Development Bank
March 15, 1966, they had no right to mortgage of the Philippines acquired ownership of the
the entire property. Angel's right over the land in question through foreclosure, purchase
subject property was limited only to 1/4 pro and consolidation of ownership. Petitioners
indivisoshare. As co-owner of the subject argue that if petitioner Nelson Nufable had not
property, Angel's right to sell, assign or bought said land from the DBP, private
mortgage is limited to that portion that may be respondents, in order to acquire said property,
allotted to him upon termination of the co- must sue said bank for the recovery thereof,
ownership. Well-entrenched is the rule that a and in so doing, must allege grounds for the
co-owner can only alienate his pro annulment of documents evidencing the bank's
indiviso share in the co-owned property. 12 ownership thereof. Petitioners contend that
since petitioner Nelson Nufable simply bought
The Court of Appeals did not err in ruling that the whole land from the bank, they cannot be
Angel Custodio Nufable "had no right to deprived of the ownership of 3/4 without
mortgage the subject property in its entirety. making any pronouncement as to the legality
His right to encumber said property was limited or illegality of the bank's ownership of said
only to 1/4 pro indiviso share of the property in land. It is argued that there was no evidence to
question." 13 Article 493 of the Civil Code spells warrant declaration of nullity of the bank's
out the rights or co-owners over a co-owned acquisition of said land; and that neither was
property. Pursuant to said Article, a co-owner there a finding by the court that the bank
shall have full ownership of his part and of the illegally acquired the said property.
fruits and benefits pertaining thereto. He has
the right to alienate, assign or mortgage it, and As adverted to above, when the subject
even substitute another person in its property was mortgaged by Angel Custodio, he
enjoyment. As a mere part owner, he cannot had no right to mortgage the entire property but
alienate the shares of the other co-owners. The only with respect to his 1/4 pro indiviso share
prohibition is premised on the elementary rule as the property was subject to the successional
that "no one can give what he does not have." 14 rights of the other heirs of the late Esdras.
Moreover, in case of foreclosure; a sale would
Moreover, respondents stipulated that they result in the transmission of title to the buyer
were not aware of the mortgage by petitioners which is feasible only if the seller can be in a
of the subject property. 15This being the case, a position to convey ownership of the things
co-owner does not lose his part ownership of a sold. 19And in one case, 20 it was held that a
co-owned property when his share is foreclosure would be ineffective unless the
mortgaged by another co-owner without the mortgagor has title to the property to be
former's knowledge and consent 16 as in the foreclosed. Therefore, as regards the
remaining 3/4 pro indiviso share, the same was a "necessary party" was not questioned by
held in trust for the party rightfully entitled petitioners from the time the Complaint was
thereto, 21 who are the private respondents filed until the case was "finished." It was only
herein. after the adverse decision by the respondent
Court of Appeals that petitioners raised the
Pursuant to Article 1451 of the Civil Code, issue.
when land passes by succession to any person
and he causes the legal title to be put in the At the outset, it should be stated petitioners
name of another, a trust is established by never raised this issue in their Answers and
implication of law for the benefit of the true pursuant to Section 2, Rule 9 of the Rules of
owner. Likewise, under Article 1456 of the Court, defenses and objections not pleaded
same Code, if property is acquired through either in a motion to dismiss or in the answer
mistake or fraud, the person obtaining it is, by are deemed waived.
force of law, considered a trustee of an implied
trust for the benefit of the person from whom Nonetheless, the rule is that indispensable
the property comes. In the case of Noel parties, i.e., parties in interest without whom no
vs. Court of Appeals, 22 this Court held that "a final determination can be had of an action,
buyer of a parcel of land at a public auction to shall be joined either as plaintiffs or
satisfy a judgment against a widow acquired defendants; the inclusion as a party, i.e.,
only one-half interest on the land persons who are not indispensable but ought
corresponding to the share of the widow and to be parties if complete relief is to be accorded
the other half belonging to the heirs of her as between those already parties, the court
husband became impressed with a may, in its discretion, proceed in the action
constructive trust in behalf of said heirs." without making such persons parties, and the
judgment rendered therein shall be without
Neither does the fact that DBP succeeded in prejudice to the rights of such
consolidating ownership over the subject persons. 25 Proper parties, therefore, have
property in its name terminate the existing co- been described as parties whose presence in
ownership. Registration of property is not a necessary in order to adjudicate the whole
means of acquiring ownership. 23 When the controversy, but whose interests are so far
subject property was sold to and consolidated separable that a final decree can be made in
in the name of DBP, it being the winning bidder their absence without affecting them. 26 Any
in the public auction, DBP merely held the 3/4 claim against a party may be severed and
portion in trust for the private respondents. proceeded with separately. 27
When petitioner Nelson purchased the said
property, he merely stepped into the shoes of The pivotal issue to be determined is whether
DBP and acquired whatever rights and DBP is an indispensable party in this case.
obligations appertain thereto.
Private respondents do not question the
This brings us to the issue of whether or not the legality of the foreclosure of the mortgaged
DBP should have been impleaded as party- property and the subsequent sale of the same
defendant in the case at bar. Petitioners to DBP. The subject property was already
contend that DBP was never impleaded and purchased by petitioner Nelson from DBP and
that due process requires that DBP be latter, by such sale, transferred its rights and
impleaded so that it can defend its sale to obligations to the former. Clearly, petitioners'
petitioner Nelson Nufable; and that it was the interest in the controversy is distinct and
duty of private respondents, and not of separable from the interest of DBP and a final
petitioner Nelson, to implead the bank and ask determination can be had of the action despite
for the annulment of documents evidencing the the non-inclusion of DBP as party-defendant.
bank's ownership of the disputed land. Hence, DBP, not being an indispensable party,
did not have to be impleaded in this case.
In the Rejoinder to the Reply, private
respondents that the non-inclusion of DBP as
WHEREFORE, there being no reversible error Alfredo F. Tadiar for plaintiffs-appellants.
in the decision appealed from, the petition for Camilo Z. Nisce for defendants-appellees.
review on certiorari is hereby DENIED. 1âwphi1.nêt

BENGZON, J.:
SO ORDERED.
In 1901, Flaviano Pacio married Severa
Jucutan. Herein defendants were their
children. Severa died in 1930; and thereafter
Flavio married the plaintiff Toribia Fontanilla,
who bore him the other four plaintiffs.

The dispute between the parties in the La

Union court of first instance, concerned two
parcels of land which defendants allegedly
retained without any right thereto. The litigants
later agreed to a partition of the first parcel, and
the court so decreed.
3. Article 778. Succession may be:
As to the second parcel, a hearing was held,
and it was awarded to the defendants, on the
(1) Testamentary;
ground that it had been donated propter
nuptias to Severa, in 1901, by Flaviano Pacio,
(2) Legal or intestate; or who was then admittedly the owner.

(3) Mixed. (n) According to the stipulation of facts:

Article 779. Testamentary succession is that . . . a donation propter nuptias was

which results from the designation of an heir, made in a private instrument by
made in a will executed in the form prescribed Flaviano Pacio in favor of his first wife
by law. (n) Severa Jucutan, before their marriage
on June 4, 1901 . .;
Article 780. Mixed succession is that effected
partly by will and partly by operation of law. (n) 3. That the land continued to be
declared in the name of Flaviano Pacio
Art. 84. No marriage license shall be issued to a notwithstanding this donation propter
widow till after three hundred days following the nuptias until 1956 when the same was
death of her husband, unless in the meantime changed in the name of the defendants
Brigida, Manuela and Dominga, all
she has given birth to a child. (n)
surnamed Pacio;

4. That land taxes were paid in the

name of Flaviano Pacio as shown by
G.R. No. L-15088 January 31, 1961
tax receipts for the years 1931, 1933,
1934, 1935, 1940, 1942, 1943, 1944,
TORIBIA FONTANILLA PACIO, SANTIAGO 1945, 1946, 1947, 1948, 1949, 1955,
PACIO, ESPERANZA PACIO, and ROSARIO and 1956;
PACIO, plaintiffs-appellants,
vs.
5. That Flaviano Pacio died on
MANUELA PACIO BILLON, BRIGIDA
November 2, 1951;
PACIO, and DOMINGA PACIO, defendants-
appellees.
xxx xxx xxx
 8. That defendants lived with their Realizing the force of plaintiffs' point,
father and the second wife, Toribia defendants emphasize that the deed of
Fontanilla, from the date of their donation constituted a title on which to base
marriage in 1933, except Manuela who acquisitive prescription, inasmuch as Severa
left on the date of her marriage in 1941, possessed the land from 1901 to March 1930
and returned in 1946, and Dominga when she died. The stipulation of facts says
who left in 1943 and Brigida is nothing about such possession. True, there
presently living with the other was a witness, Monica Pacio, who testified; but
defendants; she stated that both husband and wife held
possession of the land, and the stipulation says
9. That while the plaintiffs and the that from 1933 the parties shared the harvests
defendants lived together during the equally. At any rate, it is obvious that normally,
said period, they equally shared all the prescription by adverse possession can not
harvests reaped from the land in the exist between husband and wife. See Article
litigation; 1109 Civil Code of the Philippines.

10. That the land taxes were paid on Espique v. Espique3 on which the appellees
both parcels (a) and (b) in the names of rely is not controlling because the prescription
the defendants starting with the year there mentioned did not refer to possession by
1957 when the tax declarations were the wife as against her husband.
changed into their names on
December 20, 1956; . . .," It follows that Flaviano Pacio continued to be
the owner of the land as the donation had no
The plaintiffs-appellants contend that the effect and there was no prescription. Upon his
donation was void, because it was not made in death, the land became the joint property of his
a public instrument. They are right. Art. 633 of children by the first and second marriage.
the Spanish Civil Code states that "In order that Subject of course to the rights of his surviving
a donation of real property be valid it must be spouse, the plaintiff Toribia Fontanilla.
made by public instrument in which the
property donated must be specifically Reversing the decision in so far as this parcel
described and the amount of the is concerned, we hereby order the return of the
encumbrances to be assumed by the donee expediente to the court below for further
expressed . . .." . proceedings on partition in accordance with
these views.
And this Court has held that a donation propter
nuptias of real property written on a private
instrument is not valid even between the
parties.1 G.R. No. L-14070 March 29, 1961

The trial judge said "a donation propter MARIA GERVACIO BLAS, MANUEL
nuptias in order to be valid between the donor GERVACIO BLAS, LEONCIO GERVACIO
and the donee, need not be embodied in a BLAS and LODA GERVACIO
public instrument as such formality is only BLAS, plaintiffs-appellants,
necessary for registration purposes in the vs.
Office of the Register of Deeds" so as to bind ROSALINA SANTOS, in her capacity as
third persons. He was obviously applying the Special Administratrix of the Estate of the
new principles in the Philippine Civil Code deceased MAXIMA SANTOS VDA. DE
effective in the year 1950.2 But in 1901 when BLAS, in Sp. Proc. No. 2524, Court of First
the gift was made, the law was contained in the Instance of Rizal, defendants-appellants.
Spanish Civil Code, according to which, even MARTA GERVACIO BLAS and DR. JOSE
between the parties, the donation must be in a CHIVI, defendants-appellants.
public instrument.
Teofilo Sison and Nicanor Sison for plaintiffs- averment that Simeon Blas and Marta Cruz
appellants. acquired properties situated in Obando,
De los Santos, Caluag, Pascal and Felizardo Bulacan, that said properties were utilized as
for defendants-appellees. capital, etc. As special defenses, she alleges
that the properties of the spouses Blas and
LABRADOR, J.: Santos had been settled and liquidated in the
project of partition of the estate of said Simeon
This action was instituted by plaintiffs against Blas; that pursuant to the project of partition,
the administration of the estate of Maxima plaintiffs and some defendants had already
Santos, to secure a judicial declaration that received the respective properties adjudicated
one-half of the properties left by Maxima to them; that the plaintiffs and the defendants
Santos Vda. de Blas, the greater bulk of which Marta Geracio and Jose Chivi are estopped
are set forth and described in the project of from impugning the validity of the project of
partition presented in the proceedings for the partition of the estate of the deceased Simeon
administration of the estate of the deceased Blas and from questioning the ownership in the
Simeon Blas, had been promised by the properties conveyed in the project of partition
deceased Maxima Santos to be delivered upon to Maxima Santos as her own exclusive
her death and in her will to the plaintiffs, and property; that the testament executed by
requesting that the said properties so promised Maxima Santos is valid, the plain plaintiffs
be adjudicated to the plaintiffs. The complaint having no right to recover any portion of
also prays for actual damages in the amount of Maxima Santos' estate now under
P50,000. (Record on Appeal, pp. 1-65.) The administration by the court. A counterclaim for
alleged promise of the deceased Maxima the amount of P50,000 as damages is also
Santos is contained in a document executed by included in the complaint, as also a cross-claim
Maxima Santos on December 26, 1936 against Marta Gervacio Blas and Jose Chivi.
attached to the complaint as Annex "H" and
introduced at the trial as Exhibit "A". (Ibid., pp. Trial of the case was Conducted and,
258-259.) The complaint also alleges that the thereafter, the court, Hon. Gustave Victoriano,
plaintiffs are entitled to inherit certain presiding, rendered judgment dismissing the
properties enumerated in paragraph 3 thereof, complaint, with costs against plaintiff, and
situated in Malabon, Rizal and Obando, dismissing also the counterclaim and cross-
Bulacan, but which properties have already claim decision ,the plaintiffs filed by the
been in included in the inventory of the estate defendants. From this district have appealed to
of the deceased Simeon Blas and evidently this Court.
partitioned and conveyed to his heirs in the
proceedings for the administration of his The facts essential to an understanding of the
(Simeon Blas) estate. issues involved in the case may be briefly
summarized as follows: Simeon Blas
Defendant, who is the administratrix of the contracted a first marriage with Marta Cruz
estate of the deceased Maxima Santos Vda. de sometime before 1898. They had three
Blas, filed an answer with a counterclaim, and children, only one of whom, Eulalio, left
later, an amended answer and a counterclaim. children, namely, Maria Gervacio Blas, one of
The said amended answer admits the the plaintiffs, Marta Gervacio Blas, one of the
allegations of the complaint as to her capacity defendants, and Lazaro Gervacio Blas. Lazaro
as administratrix the death of Simeon Blas on died in 1950, and is survived by three legitimate
January 3, 1937; the fact that Simeon Blas and children who are plaintiffs herein, namely,
Marta Cruz begot three children only one of Manuel Gervacio Blas, Leoncio Gervacio Blas
whom, namely, Eulalio Blas, left legitimate and Loida Gervacio Blas. Marta Cruz died in
descendants; that Simeon Blas contracted a 1898, and the following year, Simeon Blas
second marriage with Maxima Santos on June contracted a second marriage with Maxima
28, 1898. She denies for lack of sufficient Santos. At the time of this second marriage, no
information and belief, knowledge edge of the liquidation of the properties required by Simeon
first marriage of Simeon Blas to Marta Cruz, the Blas and Marta Cruz was made. Three of the
properties left are fishponds located in II
Obando, Bulacan. Maxima Santos does not
appear to have apported properties to her 1. One-half of our properties, after the
marriage with Simeon Blas. payment of my and our indebtedness,
all these properties having been
On December 26, 1936, only over a week acquired during marriage (conjugal
before over a week before his death on properties), constitutes the share of my
January 9, 1937, Simeon Blas executed a last wife Maxima Santos de Blas, according
will and testament. In the said testament to the law.
Simeon Blas makes the following declarations:
At the time of the execution of said will, Andres
I Pascual a son-in-law of the testator, and
Avelina Pascual and others, were present.
2. Sa panahon ng aking pangalawang Andres Pascual had married a descendant by
asawa, MAXIMA SANTOS DE BLAS, the first marriage. The will was prepared by
ay nagkaroon ako at nakatipon ng mga Andres Pascual, with the help of his nephew
kayamanan (bienes) at pag-aari Avelino Pascual. The testator asked Andres
(propriedades) na ang lahat ng lupa, Pascual to prepare a document which was
palaisdaan at iba pang pag-aari ay presented in court as Exhibit "A", thus:
umaabot sa halagang ANIM NA RAAN
PITONG PU'T WALONG DAAN LIBO Q — Was there anybody who asked
WALONG DAAN WALONG PUNG you to prepare this document?
PISO (678,880-00) sang-ayon sa mga
halaga sa amillarimento (valor A — Don Simeon Blas asked me to
Amillarado.) prepare this document (referring to
Exhibit "A"), (t.s.n., Sarmiento to, P.
II 24).

1. Ang kalahati ng lahat ng aming pag- The reason why the testator ordered the
aari, matapos mabayaran ang lahat ng preparation of Exhibit "A" was because the
aking o aming pag-kakautang na mag- properties that the testator had acquired during
asawa, kung mayroon man, yayamang his first marriage with Marta Cruz had not been
ang lahat ng ito ay kita sa loob ng liquidated and were not separated from those
matrimonio (bienes ganaciales) ay acquired during the second marriage.
bahagi ng para sa aking asawa, Pascual's testimony is as follows:
MAXIMA SANTOS DE BLAS, sang-
ayon sa batas. (Record on Appeal, pp. Q — To whom do you refer with the
250-251.) word "they"?

The above testamentary provisions may be A — Simeon Blas and his first wife,
translated as follows: Marta Cruz. When Marta Cruz died
they had not made a liquidation of their
I conjugal properties and so all those
properties were included all in the
2. During my second marriage with assets of the second marriage, and
Maxima Santos de Blas, I possessed that is the reason why this document
and acquired wealth and properties, was prepared. (t.s.n., Sarmiento, p.
consisting of lands, fishponds and 36.)
other kinds of properties, the total
assessed value of which reached the The above testimony is fully corroborated by
amount P678,880.00. that of Leoncio Gervacio, son-in-law of Simeon
Blas.
 Q — Please state to the Court? mga herederos at legatarios o
pinamamanahan ng aking nabanggit
A — My children were claiming from na asawa, SIMEON BLAS, sa
their grandfather Simeon Blas the kaniyang testamento, na ako'y
properties left by their grandmother makapipili o makahihirang na kahit
Marta Cruz in the year 1936. kangino sa kanila ng aking pagbibigyan
at pamamanahan sang-ayon sa
Q — And what happened with that paggalang, paglilingkod, at pakikisama
claim of your children against Simeon ng gagawin sa akin.
Blas regarding the assets or properties
of the first marriage that were left after SA KATUNAYAN NG LAHAT NG ITO
the death of Marta Cruz in 1936? ay nilagdaan ko ang kasulatang ito
ngayon ika 26 ng Diciembre ng taong
A — The claim was not pushed through 1936, dito sa San Francisco del Monte,
because they reached into an San Juan, Rizal, Philippines. (Exh. "A",
agreement whereby the parties pp. 29-30 — Appellant's brief).
Simeon Blas Maxima Santos, Maria
Gervacio Bias, Marta Gervacio Blas (Fdo.) MAXIMA SANTOS DE BLAS
and Lazaro Gervacio Blas agreed that
Simeon Blas and Maxima Blas will give
one-half of the estate of Simeon Blas. and which, translated into English, reads as
(t.s.n., Sarmiento, pp. 143-144). follows:

The document which was thus prepared and KNOW ALL MEN BY THESE
which is marked as Exhibit "A" reads in PRESENTS:
Tagalog, thus:
That I MAXIMA SANTOS DE BLAS, of
MAUNAWA NG SINO MANG legal age, married to SIMEON BLAS,
MAKABABASA: resident of Malabon, Rizal, Philippines,
voluntarily state:
Na akong si MAXIMA SANTOS DE
BLAS, nasa hustong gulang, kasal kay That I have read and knew the contents
SIMEON BLAS, taga bayan ng of the will signed by my husband,
Malabon, Rizal, Philippines, sa SIMEON BLAS, (2) and I promise on
pamamagitan ng kasulatang ito ay my word of honor in the presence of my
malaya kong ipinahahayag: husband that I will respect and obey all
and every disposition of said will (3)
Na aking nabasa at naunawa ang and furthermore, I promise in this
testamento at huling kalooban na document that all the properties my
nilagdaan ng aking asawa, SIMEON husband and I will leave, the portion
BLAS, at ipinahahayag ko sa ilalim ng and share corresponding to me when I
aking karangalan at sa harap ng aking make my will, I will give one-half (½) to
asawa na igagalang at pagpipitaganan the heirs and legatees or the
ang lahat at bawa't isang bahagi ng beneficiaries named in the will of my
nabanggit na testamento at husband, (4) and that I can select or
ipinangangako ko pa sa pamamagitan choose any of them, to whom I will give
ng kasulatang ito na ang lahat ng depending upon the respect, service
maiiwang pag-aari at kayamanan and treatment accorded to me.
naming mag-asawa, na nauukol at
bahaging para sa akin sa paggawa ko IN WITNESS WHEREOF, I signed this
naman ng aking testamento ay document this 26th day of December,
ipagkakaloob ko ang kalahati (½) sa 1936 at San Francisco del Monte, San
 Juan, Rizal, Philippines. (Exh. "A", pp. as Exhibit "A", was kept by plaintiffs' witness
30-31, Appellant's brief). Andres Pascual.

Plaintiffs-appellants argue before us that

(Sgd.) MAXIMA SANTOS DE BLAS
Exhibit "A" is both a trust agreement and a
contract in the nature of a compromise to avoid
The court below held that said Exhibit "A" has litigation. Defendants-appellees, in answer,
not created any right in favor of plaintiffs which claim that it is neither a trust agreement nor a
can serve as basis for the complaint; that compromise a agreement. Considering that the
neither can it be considered as a valid and properties of the first marriage of Simeon Blas
enforceable contract for lack of consideration had not been liquidated when Simeon Blas
and because it deals with future inheritance. executed his will on December 26, 1936', and
The court also declared that Exhibit "A" is not a the further fact such properties where actually
will because it does not comply with the , and the further fact that included as conjugal
requisites for the execution of a will; nor could properties acquired during the second
it be considered as a donation, etc. marriage, we find, as contended by plaintiffs-
appellants that the preparation and execution
of Exhibit "A" was ordered by Simeon Blas
Both the court below in its decision and the
evidently to prevent his heirs by his first
appellees in their brief before us, argue
marriage from contesting his will and
vehemently that the heirs of Simeon Blas and
demanding liquidation of the conjugal
his wife Marta Cruz can no longer make any
properties acquired during the first marriage,
claim for the unliquidated conjugal properties
and an accounting of the fruits and proceeds
acquired during said first marriage, because
thereof from the time of the death of his first
the same were already included in the mass of
wife.
properties constituting the estate of the
deceased Simeon Blas and in the
adjudications made by virtue of his will, and Exhibit "A", therefore, appears to be the
that the action to recover the same has compromise defined in Article 1809 of the Civil
prescribed. This contention is correct. The Code of Spain, in force at the time of the
descendants of Marta Cruz can no longer claim execution of Exhibit "A", which provides as
the conjugal properties that she and her follows:
husband may have required during their
marriage although no liquidation of such Compromise is a contract by which
properties and delivery thereof to the heirs of each of the parties in interest, by
Marta Cruz have been made, no action to giving, promising, or retaining
recover said propertied having been presented something avoids the provocation of a
in the proceedings for the settlement of the suitor terminates one which has
estate of Simeon Blas. already the provocation been
instituted. (Emphasis supplied.)
But the principal basis for the plaintiffs' action
in the case at bar is the document Exhibit "A". Exhibit "A" states that the maker (Maxima
It is not disputed that this document was Santos) had read and knew the contents of the
prepared at the instance of Simeon Blas for the will of her husband read and knew the contents
reason that the conjugal properties of me on of the will Simeon Blas — she was evidently
Blas for the reason his first marriage had not referring to the declaration in the will(of Simeon
been liquidated; that it was prepared at the Blas) that his properties are conjugal properties
same time as the will of Simeon Blas on and one-half thereof belongs to her (Maxima
December 26, 1936, at the instance of the latter Santos) as her share of the conjugal assets
himself. It is also not disputed that the under the law. The agreement or promise that
document was signed by Maxima Santos and Maxima Santos makes in Exhibit "A" is to hold
one copy thereof, which was presented in court one-half of her said share in the conjugal
assets in trust for the heirs and legatees of her
husband in his will, with the obligation of
conveying the same to such of his heirs or Que si bien el art. 1271 del Codigo civil
legatees as she may choose in her last will and dispone que sobre la herenciafutura no
testament. It is to be noted that the conjugal se podra celebrar otros contratos que
properties referred to are those that were aquellos cuyo objecto seapracticar
actually existing at that time, December 26, entre vivos la division de un caudal,
1936. Simeon Blas died on January 9, 1937. conforme al articulo 1056, esta
On June 2, 1937, an inventory of the properties prohibicion noes aplicable al caso,
left by him, all considered conjugal, was porque la obligacion que contrajoel
submitted by Maxima Santos herself as recurr en contrato privado de otorgar
administratrix of his estate. A list of said testamento e instituir heredera a su
properties is found in Annex "E", the complete subrina de los bienes que adquirio en
inventory submitted by Maxima Santos Vda. de virtud de herencia, procedentes desu
Blas, is administratrix of the estate of her finada consorte que le quedasen
husband, dated March 10, 1939. The sobrantes despues de pagar las
properties which were given to Maxima Santos deudas, y del ganacial que se expresa,
as her share in the conjugal properties are also asi como de reconocer, ademas, con
specified in the project of partition submitted by alguna cosaa otros sobrinos, se refiere
said Maxima Santos herself on March 14, a bienes conocidos y determinados
1939. (Record on Appeal, pp. 195-241.) Under existentes cuando tal compromisi se
Exhibit "A", therefore, Maxima Santos otorgo, y no a la universalidad de una
contracted the obligation and promised to give herencia que, sequn el art. 659 del
one-half of the above indicated properties to citado Codigo civil, as determina a
the heirs and legatees of Simeon Blas. muerte, constituyendola todos los
bienes, derechos y obligaciones que
Counsel for the defendant-appellee claims por ella no sehayan extinguido: ..."
Exhibit "A" is a worthless piece of paper (Emphasis supplied.)
because it is not a will nor a donation mortis
causa nor a contract. As we have in indicated It will be noted that what is prohibited to be the
above, it is a compromise and at the same time subject matter of a contract under Article 1271
a contract with a sufficient cause or of the Civil Code is "future inheritance." To
consideration. It is also contended that it deals us future inheritance is any property or right not
with future inheritance. We do not think that in existence or capable of determination at the
Exhibit "A" is a contract on future inheritance. it time of the contract, that a person may in the
is an obligation or promise made by the maker future acquire by succession. The properties
to transmit one-half of her share in the conjugal subject of the contract Exhibit "A" are well
properties acquired with her husband, which defined properties, existing at the time of the
properties are stated or declared to be conjugal agreement, which Simeon Blas declares in his
properties in the will of the husband. The statement as belonging to his wife as her share
conjugal properties were in existence at the in the conjugal partnership. Certainly his wife's
time of the execution of Exhibit "A" on actual share in the conjugal properties may not
December 26, 1936. As a matter of fact, be considered as future inheritance because
Maxima Santos included these properties in they were actually in existence at the time
her inventory of her husband's estate of June Exhibit "A" was executed.
2, 1937. The promise does not refer to any
properties that the maker would inherit upon The trial court held that the plaintiffs-appellants
the death of her husband, because it is her in the case at bar are concluded by the
share in the conjugal assets. That the kind of judgement rendered in the proceedings for the
agreement or promise contained in Exhibit "A" settlement of the estate of Simeon Blas for the
is not void under Article 1271 of the old Civil reason that the properties left by him belonged
Code, has been decided by the Supreme Court to himself and his wife Maxima Santos; that the
of Spain in its decision of October 8, 19154, project of partition in the said case,
thus: adjudicating to Maxima Santos one-half as her
share in the conjugal properties, is a bar to
another action on the same subject matter, It is next contended by the defendant-appellee
Maxima Santos having become absolute that Maxima Santos complied with her above-
owner of the said properties adjudicated in her mentioned promise, — that Andres Pascual,
favor. As already adverted to above, these Tomasa Avelino, Justo Garcia, Ludovico
contentions would be correct if applied to the Pimpin and Marta Gervacio Blas were given
claim of the plaintiffs-appellants that said substancial legacies in the will and testament
properties were acquired with the first wife of of Maxima Santos. To determine whether she
Simeon Blas, Marta Cruz. But the main ground had actually complied with the promise made
upon which plaintiffs base their present action in Exhibit "A", there is herein set forth a list only
is the document Exhibit "A", already fully of the fishponds and their respective areas as
considered above. As this private document contained in the list of properties she acquired
contains the express promise made by Maxima as her share in the conjugal partnership, which
Santos to convey in her testament, upon her list includes, besides many ricelands as well as
death, one-half of the conjugal properties she residential lots, thus:
would receive as her share in the conjugal
properties, the action to enforce the said 31. Paco, Obando, Bulacan 5.8396
promise did not arise until and after her death
when it was found that she did not comply with 32. Pangjolo, Obando 3.5857
her above-mentioned promise. (Art. 1969, old 34. Batang Pirasuan, Lubao, Pampanga 11.951
Civil Code.) The argument that the failure of the
35. Calangian, Lubao, Pampanga 30.205
plaintiffs-appellants herein to oppose the
project of partition in the settlement of the 38. Bakuling, Lubao, Pampanga 215.43
estate of Simeon Blas, especially that portion 39. Bakuling, Lubao, Pampanga 8.3763
of the project which assigned to Maxima
Santos one-half of all the conjugal properties 40. Bangkal, Sinubli 23.073
bars their present action, is, therefore, devoid 41. Tagulod, 6.8692
of merit. It may be added that plaintiffs- 44. Bangkal Pugad (a) 34.277
appellants did not question the validity of the
project of partition precisely because of the (b) 51.791
promise made by Maxima Santos in the (c) 2.5202
compromise Exhibit "A"; they acquised in the
45. Magtapat Bangkal, Lubao, Pampanga (a) 18.002
approval of said project of partition because
they were relying on the promise made by (b) 7.3265
Maxima Santos in Exhibit "A", that she would (c) 53.518
transmit one-half of the conjugal properties that
she was going to receive as her share in the 46. Pinanganakan, Lubao, Pampanga 159.00
conjugal partnership upon her death and in her 47. Emigdio Lingid, Lubao, Pampanga 34.522
will, to the heirs and legatees of her husband 48. Propios, Lubao, Pampanga 80.538
Simeon Blas.
49. Batang Mabuanbuan, Sexmoan,
Pampanga 43.335
Neither can the claim of prescription be
considered in favor of the defendants. The right 50. Binatang Mabuanbuan, Sexmoan,
of action arose at the time of the death of Pampanga 3.5069
Maxima Santos on October 5,1956, when she 51. Sapang Magtua, Sexmoan, Pampanga 56,824
failed to comply with the promise made by her
in Exhibit "A". The plaintiffs-appellants 52. Kay Limpin, Sexmoan, Pampanga 5.0130
immediately presented this action on 53. Calise Mabalumbum, Sexmoan,
December 27, 1956, upon learning of such Pampanga 23.893
failure on the part of Maxima Santos to comply 54. Messapinit Kineke, Sexmoan,
with said promise. This defense is, therefore, Pampanga (a) 5.2972
also without merit.
(b) 5.9230
(c) 1.4638
 (d)of1.4638
properties
" which she had undertaken to
convey upon her death.
(e) 2.8316 "
(f) All10.4412
the issues" in the pleadings of the parties and
(g) 3.9033respective
in their " briefs, have now been fully
discussed and considered. Reiterating what we
(h) 11.9263 "
have stated above, we declare that by Exhibit
(i) "A",
6.0574 "
a compromise to avoid litigation, Maxima
55. Dalang, Banga, Sexmoan, Pampanga Santos
23.3989 promised
" to devise to the heirs and
legatees of her husband Simeon Blas, one-half
62. Alaminos, Pangasinan of147.1242
the properties" she received as her share in
80. Mangasu Sexmoan, Pampanga the conjugal
10.000 " partnership of herself and her
81. Don Tomas, Sexmoan, Pampanga husband,
21.6435 " share is specified in the project
which
of partition submitted by herself on March 14,
82. Matikling, Lubao, Pampanga 1939 16.0000 "
in the settlement of the estate of her
Total area ............................... husband,
1045.7863 and which
" is found on pages 195 to
240 of the record on appeal and on pages 27
(See Record on Record, pp.
to 46 of the project of partition, submitted by
195-241.)
Maxima Santos herself before the Court of First
Instance of Rizal in Civil Case No. 6707,
In her will, Maxima Santos devised to Marta entitled "Testamentaria del Finado Don
Gervacio Blas the 80-hectare fishpond situated Simeon Blas, Maxima Santos Vda. de Bias,
in Lubao, Pampanga. The fishpond devised is Administradora"; and that she failed to comply
evidently that designated as "Propios" in with her aforementioned obligation. (Exhibit
Lubao, Pampanga, item No. 8 in the list of "A")
properties adjudicated to her in the project of
partition. (Record on Appeal, p. 215.) WHEREFORE, the judgment appealed from is
Considering that the total area of the fishponds hereby reversed and the defendant-appellee,
amount to 1045.7863 hectares, the 80 administratrix of the estate of Maxima Santos,
hectares devised to Marta Gervacio Blas is not is ordered to convey and deliver one-half of the
even one-tenth of the total area of the properties adjudicated o Maxima Santos as her
fishponds. Add to this the fact that in the will share in the conjugal properties in said Civil
she imposed upon Marta Gervacio Blas de Case No. 6707, entitled "Testamentaria del
Chivi an existing obligation on said fishponds, Finado Don Simeon Blas, Maxima Santos Vda.
namely, its lease in 1957 and the duty to pay de Blas, Administradora", to the heirs and the
out of the rentals thereof an obligation to the legatees of her husband Simeon Blas.
Rehabilitation Finance Corporation RFC (Ibid., Considering that all said heirs and legatees,
pp. 262-263.) Angelina Blas was given only a designated in the will of Simeon Blas as the
lot of 150 square meters in Hulong Duhat, persons for whose benefit Exhibit "A" had been
Malabon, Rizal, and Leony Blas, the sum of executed, have not appeared in these
P300.00 (Ibid., p. 264.) proceedings, the record is hereby remanded to
the court below, with instructions that, after the
It is evident from a consideration of the above conveyance of the properties hereinabove
figures and facts that Maxima Santos did not ordered had been effected, the said heirs and
comply with her obligation to devise one-half of legatees (of Simeon Blas) file adversary
her conjugal properties to the heirs and pleadings to determine the participation of
legatees of her husband. She does not state each and every one of them in said properties.
that she had complied with such obligation in Costs against the defendant- appellee
her will. If she intended to comply therewith by Rosalina Santos.
giving some of the heirs of Simeon Blas the
properties mentioned above, the most that can
be considered in her favor is to deduct the
value of said properties from the total amount
G.R. No. L-39247 June 27, 1975 Then, in paragraph V of the will she stated that
after her husband's death (he was eighty-two
In the Matter of the Petition to Approve the years old in 1973) her paraphernal lands and
Will of Leodegaria Julian. FELIX BALANAY, all the conjugal lands (which she described as
JR., petitioner, "my properties") should be divided and
vs. distributed in the manner set forth in that part
HON. ANTONIO M. MARTINEZ, Judge of the of her will. She devised and partitioned the
Court of First Instance of Davao, Branch VI; conjugal lands as if they were all owned by her.
AVELINA B. ANTONIO and DELIA B. She disposed of in the will her husband's one
LANABAN, respondents. half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of

Roberto M. Sarenas for petitioner. 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
Jose B. Guyo for private respondents. Balanay, Jr. should collate certain properties which he had
received from the testatrix.

Felix Balanay, Jr., in his reply to the opposition,

AQUINO, J.: attached thereto an affidavit of Felix Balanay,
Sr. dated April 18, 1973 wherein he withdrew
Felix Balanay, Jr. appealed by certiorari from his opposition to the probate of the will and
the order of the Court of First Instance of Davao affirmed that he was interested in its probate.
dated February 28, 1974, declaring illegal and On the same date Felix Balanay, Sr. signed an
void the will of his mother, Leodegaria Julian, instrument captioned "Conformation (sic) of
converting the testate proceeding into an Division and Renunciation of Hereditary
intestate proceeding and ordering the issuance Rights" wherein he manifested that out of
of the corresponding notice to creditors respect for his wife's will he "waived and
(Special Case No. 1808). The antecedents of renounced' his hereditary rights in her estate in
the appeal are as follows: favor of their six children. In that same
instrument he confirmed the agreement, which
he and his wife had perfected before her death,
Leodegaria Julian, a native of Sta. Maria,
that their conjugal properties would be
Ilocos Sur, died on February 12, 1973 in Davao
partitioned in the manner indicated in her will.
City at the age of sixty-seven. She was
survived by her husband, Felix Balanay, Sr.,
and by their six legitimate children named Felix Avelina B. Antonio, an oppositor, in her
Balanay, Jr., Avelina B. Antonio, Beatriz B. rejoinder contended that the affidavit and
Solamo, Carolina B. Manguiob, Delia B. "conformation" of Felix Balanay, Sr. were void.
Lanaban and Emilia B. Pabaonon. 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
Felix J. Balanay, Jr. filed in the lower court a
affidavit and conformity of Felix Balanay, Sr. In
petition dated February 27, 1973 for the
an order dated August 28, 1973 it appointed its
probate of his mother's notarial will dated
branch clerk of court as special administrator of
September 5, 1970 which is written in English.
the decedent's estate.
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 Mrs. Antonio moved for the reconsideration of
absolute owner of two parcels of land which the lower court's order of June 18, 1973 on the
she inherited from her father (par. III), and (c) grounds (a) that the testatrix illegally claimed
that it was her desire that her properties should that she was the owner of the southern half of
not be divided among her heirs during her the conjugal lots and (b) that she could not
husband's lifetime and that their legitimes partition the conjugal estate by allocating
should be satisfied out of the fruits of her portions of the nine lots to her children. Felix
properties (Par. IV). Balanay, Jr., through his counsel,
Hermenegildo Cabreros, opposed that motion. Felix Balanay, Jr., through a new counsel,
The lower court denied it in its order of October Roberto M. Sarenas, in a verified motion dated
15, 1973. April 15, 1974, asked for the reconsideration of
the lower court's order of February 28, 1974 on
In the meanwhile, another lawyer appeared in the ground that Atty. Montaña had no authority
the case. David O. Montaña, Sr., claiming to be to withdraw the petition for the allowance of the
the lawyer of petitioner Felix Balanay, Jr. (his will. Attached to the motion was a copy of a
counsel of record was Atty. Cabreros), filed a letter dated March 27, 1974 addressed to Atty.
motion dated September 25, 1973 for "leave of Montaña and signed by Felix Balanay, Jr.,
court to withdraw probate of alleged will of Beatriz V. Solamo, Carolina B. Manguiob and
Leodegaria Julian and requesting authority to Emilia B. Pabaonon, wherein they terminated
proceed by intestate estate proceeding." In that Montaña's services and informed him that his
motion Montaña claimed to be the lawyer not withdrawal of the petition for the probate of the
only of the petitioner but also of Felix Balanay, will was without their consent and was contrary
Sr., Beatriz B. Solamo, Carolina B. Manguiob to their repeated reminder to him that their
and Emilia B. Pabaonon. mother's will was "very sacred" to them.

Montaña in his motion assailed the provision of Avelina B. Antonio and Delia B. Lanaban
the will which partitioned the conjugal assets or opposed the motion for reconsideration. The
allegedly effected a compromise of future lower court denied the motion in its order of
legitimes. He prayed that the probate of the will June 29, 1974. It clarified that it declared the
be withdrawn and that the proceeding be will void on the basis of its own independent
converted into an intestate proceeding. In assessment of its provisions and not because
another motion of the same date he asked that of Atty. Montaña's arguments.
the corresponding notice to creditors be
issued. The basic issue is whether the probate court
erred in passing upon the intrinsic validity of the
Avelina B. Antonio and Delia B. Lanaban, will, before ruling on its allowance or formal
through Atty. Jose B. Guyo, in their comments validity, and in declaring it void.
dated October 15, 1973 manifested their
conformity with the motion for the issuance of We are of the opinion that in view of certain
a notice to creditors. They prayed that the will unusual provisions of the will, which are of
be declared void for being contrary to law and dubious legality, and because of the motion to
that an intestacy be declared. withdraw the petition for probate (which the
lower court assumed to have been filed with the
The lower court, acting on the motions of Atty. petitioner's authorization), the trial court acted
Montaña, assumed that the issuance of a correctly in passing upon the will's intrinsic
notice to creditors was in order since the validity even before its formal validity had been
parties had agreed on that point. It adopted the established. The probate of a will might
view of Attys. Montaña and Guyo that the will become an idle ceremony if on its face it
was void. So, in its order of February 28, 1974 appears to be intrinsically void. Where practical
it dismissed the petition for the probate, considerations demand that the intrinsic
converted the testate proceeding into an validity of the will be passed upon, even before
intestate proceeding, ordered the issuance of a it is probated, the court should meet the issue
notice to creditors and set the intestate (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
proceeding for hearing on April 1 and 2, 1974. 449. Compare with Sumilang vs. Ramagosa, L-
The lower court did not abrogate its prior orders 23135, December 26, 1967, 21 SCRA 1369;
of June 18 and October 15, 1973. The notice to Cacho vs. Udan, L-19996, April 30, 1965, 13
creditors was issued on April 1, 1974 and SCRA 693). 1äw phï1.ñët

published on May 2, 9 and 16 in the Davao Star

in spite of petitioner's motion of April 17, 1974 But the probate court erred in declaring, in its
that its publication be held in abeyance. order of February 28, 1974 that the will was
void and in converting the testate proceeding
into an intestate proceeding notwithstanding by ordering that the legitime of
the fact that in its order of June 18, 1973 , it the other children to whom the
gave effect to the surviving husband's property is not assigned be
conformity to the will and to his renunciation of paid in cash. (1056a)
his hereditary rights which presumably
included his one-half share of the conjugal The testatrix in her will made a partition of the
estate. entire conjugal estate among her six children
(her husband had renounced his hereditary
The rule is that "the invalidity of one of several rights and his one-half conjugal share). She did
dispositions contained in a will does not result not assign the whole estate to one or more
in the invalidity of the other dispositions, unless children as envisaged in article 1080. Hence,
it is to be presumed that the testator would not she had no right to require that the legitimes be
have made such other dispositions if the first paid in cash. On the other hand, her estate may
invalid disposition had not been made" (Art. remain undivided only for a period of twenty
792, Civil Code). "Where some of the years. So, the provision that the estate should
provisions of a will are valid and others invalid, not be divided during her husband's lifetime
the valid parts will be upheld if they can be would at most be effective only for twenty years
separated from the invalid without defeating from the date of her death unless there are
the intention of the testator or interfering with compelling reasons for terminating the
the general testamentary scheme, or doing coownership (Art. 1083, Civil Code).
injustice to the beneficiaries" (95 C.J.S. 873).
Felix Balanay, Sr. could validly renounce his
The statement of the testatrix that she owned hereditary rights and his one-half share of the
the "southern half of the conjugal lands is conjugal partnership (Arts. 179[1] and 1041,
contrary to law because, although she was a Civil Code) but insofar as said renunciation
coowner thereof, her share was inchoate partakes of a donation of his hereditary rights
and proindiviso (Art. 143, Civil Code; Madrigal and his one-half share in the conjugal estate
and Paterno vs. Rafferty and Concepcion, 38 (Art. 1060[1] Civil Code), it should be subject to
Phil. 414). But That illegal declaration does not the limitations prescribed in articles 750 and
nullify the entire will. It may be disregarded. 752 of the Civil Code. A portion of the estate
should be adjudicated to the widower for his
The provision of the will that the properties of support and maintenance. Or at least his
the testatrix should not be divided among her legitime should be respected.
heirs during her husband's lifetime but should
be kept intact and that the legitimes should be Subject to the foregoing observations and the
paid in cash is contrary to article 1080 of the rules on collation, the will is intrinsically valid
Civil Code which reads: and the partition therein may be given effect if
it does not prejudice the creditors and impair
ART. 1080. Should a person the legitimes. The distribution and partition
make a partition of his estate by would become effective upon the death of Felix
an act inter vivos, or by will, Balanay, Sr. In the meantime, the net income
such partition shall be should be equitably divided among the children
respected, insofar as it does and the surviving spouse.
not prejudice the legitime of the
compulsory heirs. It should be stressed that by reason of the
surviving husband's conformity to his wife's will
A parent who, in the interest of and his renunciation of his hereditary rights, his
his or her family, to keep any one-half conjugal share became a part of his
agricultural, industrial, or deceased wife's estate. His conformity had the
manufacturing enterprise effect of validating the partition made in
intact, may avail himself of the paragraph V of the will without prejudice, of
right granted him in this article, course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that 18, 1973. Save in an extreme case where the
"property acquired after the making of a will will on its face is intrinsically void, it is the
shall only pass thereby, as if the testator had it probate court's duty to pass first upon the
at the time of making the will, should it formal validity of the will. Generally, the probate
expressly appear by the will that such was his of the will is mandatory (Art. 838, Civil Code;
intention". Under article 930 of the Civil Code Guevara vs. Guevara, 74 Phil. 479 and 98 Phil.
"the legacy or devise of a thing belonging to 249; Fernandez vs. Dimagiba, L-23638,
another person is void, if the testator October 12, 1967, 21 SCRA 428).
erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not As aptly stated by Mr. Justice Barredo, "the
belonging to the testator when he made the very existence of a purported testament is in
will, afterwards becomes his, by whatever title, itself prima facie proof that the supposed
the disposition shall take effect." testator has willed that his estate should be
distributed in the manner therein provided, and
In the instant case there is no doubt that the it is incumbent upon the state that, if legally
testatrix and her husband intended to partition tenable, such desire be given effect
the conjugal estate in the manner set forth in independent of the attitude of the parties
paragraph V of her will. It is true that she could affected thereby" (Resolution, Vda. de Precilla
dispose of by will only her half of the conjugal vs. Narciso, L-27200, August 18, 1972, 46
estate (Art. 170, Civil Code) but since the SCRA 538, 565).
husband, after the dissolution of the conjugal
partnership, had assented to her testamentary To give effect to the intention and wishes of the
partition of the conjugal estate, such partition testatrix is the first and principal law in the
has become valid, assuming that the will may matter of testaments (Dizon-Rivera vs. Dizon,
be probated. L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An
The instant case is different from interpretation that will render a testamentary
the Nuguid case, supra, where the testatrix disposition operative takes precedence over a
instituted as heir her sister and preterited her construction that will nullify a provision of the
parents. Her will was intrinsically void because will (Arts. 788 and 791, Civil Code).
it preterited her compulsory heirs in the direct
line. Article 854 of the Civil Code provides that Testacy is favored. Doubts are resolved in
"the preterition or omission of one, some, or all favor of testacy especially where the will
of the compulsory heirs in the direct line, evinces an intention on the part of the testator
whether living at the time of the execution of to dispose of practically his whole estate. So
the will or born after the death of the testator, compelling is the principle that intestacy should
shall annul the institution of heir; but the be avoided and that the wishes of the testator
devises and legacies, shall be valid insofar as should prevail that sometimes the language of
they are not inofficious." Since the preterition of the will can be varied for the purpose of giving
the parents annulled the institution of the sister it effect (Austria vs. Reyes, L-23079, February
of the testatrix and there were no legacies and 27, 1970, 31 SCRA 754, 762).
devises, total intestacy resulted (.Art. 960[2],
Civil Code).1äwphï1.ñët

As far as is legally possible, the expressed

desire of the testator must be followed and the
In the instant case, the preterited heir was the dispositions of the properties in his will should
surviving spouse. His preterition did not be upheld (Estorque vs. Estorque, L-19573,
produce intestacy. Moreover, he signified his June 30, 1970, 33 SCRA 540, 546).
conformity to his wife's will and renounced his
hereditary rights. . The law has a tender regard for the wishes of
the testator as expressed in his will because
It results that the lower court erred in not any disposition therein is better than that which
proceeding with the probate of the will as
contemplated in its uncancelled order of June
the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).
4. Art. 781. The inheritance of a person
Two other errors of the lower court may be includes not only the property and the
noticed. It erred in issuing a notice to creditors transmissible rights and obligations existing at
although no executor or regular administrator the time of his death, but also those which have
has been appointed. The record reveals that it accrued thereto since the opening of the
appointed a special administrator. A notice to succession. (n)
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 Art. 782. An heir is a person called to the
testamentary or of administration, the court succession either by the provision of a will or
shall issue a notice requiring all persons having by operation of law.
money claims against the decedent to file them
in the office of the clerk of said court" clearly Devisees and legatees are persons to whom
contemplates the appointment of an executor gifts of real and personal property are
or regular administrator and not that of a respectively given by virtue of a will.
special administrator.
Art. 783. A will is an act whereby a person is
It is the executor or regular administrator who permitted, with the formalities prescribed by
is supposed to oppose the claims against the law, to control to a certain degree the disposition
estate and to pay such claims when duly of this estate, to take effect after his death.
allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).

We also take this occasion to point out that the G.R. No. L-24561 June 30, 1970
probate court's appointment of its branch clerk
of court as special administrator (p. 30, Rollo) MARINA DIZON-RIVERA, executrix-
is not a salutary practice because it might appellee,
engender the suspicion that the probate Judge vs.
and his clerk of court are in cahoots in milking ESTELA DIZON, TOMAS V. DIZON,
the decedent's estate. Should the branch clerk BERNARDITA DIZON, JOSEFINA DIZON,
of court commit any abuse or devastavit in the ANGELINA DIZON and LILIA
course of his administration, the probate Judge DIZON, oppositors-appellants.
might find it difficult to hold him to a strict
accountability. A court employee should devote
Punzalan, Yabut & Eusebio for executrix-
his official time to his official duties and should
appellee.
not have as a sideline the administration of a
decedent's estate.
Leonardo Abola for oppositors-appellants.
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 TEEHANKEE, J.:
proceedings in Special Case No. 1808 in
consonance with this opinion. Costs, against Appeal from orders of the Court of First
the private respondents. Instance of Pampanga approving the
Executrix-appellee's project of partition instead
SO ORDERED. of Oppositors-Appellants' proposed counter-
project of partition.1
On January 28, 1961, the testatrix, Agripina J. The real and personal properties of the testatrix
Valdez, a widow, died in Angeles, Pampanga, at the time of her death thus had a total
and was survived by seven compulsory heirs, appraised value of P1,811,695.60, and the
to wit, six legitimate children named Estela legitime of each of the seven compulsory heirs
Dizon, Tomas V. Dizon, Bernardita Dizon, amounted to P129,362.11.3 (¹/7 of the half of the
Marina Dizon (herein executrix-appellee), estate reserved for the legitime of legitimate children and
descendants).4 In her will, the testatrix "commanded that her
Angelina Dizon and Josefina Dizon, and a property be divided" in accordance with her testamentary
legitimate granddaughter named Lilia Dizon, disposition, whereby she devised and bequeathed specific real
properties comprising practically the entire bulk of her estate
who is the only legitimate child and heir of among her six children and eight grandchildren. The appraised
Ramon Dizon, a pre-deceased legitimate son values of the real properties thus respectively devised by the
of the said decedent. Six of these seven testatrix to the beneficiaries named in her will, are as follows:
compulsory heirs (except Marina Dizon, the
executrix-appellee) are the oppositors- 1. Estela Dizon
appellants. ....................................... P
98,474.80
The deceased testatrix left a last will executed 2. Angelina Dizon
on February 2, 1960 and written in the ..................................
Pampango dialect. Named beneficiaries in her 106,307.06
will were the above-named compulsory heirs, 3. Bernardita Dizon
together with seven other legitimate ..................................
grandchildren, namely Pablo Rivera, Jr., 51,968.17
Gilbert D. Garcia, Cayetano Dizon, Francisco 4. Josefina Dizon
Rivera, Agripina Ayson, Jolly Jimenez and ......................................
Laureano Tiambon. 52,056.39
5. Tomas Dizon
.......................................
In her will, the testatrix divided, distributed and
131,987.41
disposed of all her properties appraised at
6. Lilia Dizon
P1,801,960.00 (except two small parcels of
land appraised at P5,849.60, household ..............................................
72,182.47
furniture valued at P2,500.00, a bank deposit in
7. Marina Dizon
the sum of P409.95 and ten shares of
.....................................
Pampanga Sugar Development Company
1,148,063.71
valued at P350.00) among her above-named
8. Pablo Rivera, Jr.
heirs.
......................................
69,280.00
Testate proceedings were in due course 9. Lilia Dizon, Gilbert Garcia,
commenced2 and by order dated March 13, Cayetano Dizon, Francisco
1961, the last will and testament of the Rivera,
decedent was duly allowed and admitted to Agripina Ayson, Dioli or Jolly
probate, and the appellee Marina Dizon-Rivera Jimenez, Laureano Tiamzon
was appointed executrix of the testatrix' estate, ................. 72,540.00
and upon her filing her bond and oath of office, Total Value ......................
letters testamentary were duly issued to her. P1,801,960.01

After the executrix filed her inventory of the The executrix filed her project of partition dated
estate, Dr. Adelaido Bernardo of Angeles, February 5, 1964, in substance adjudicating
Pampanga was appointed commissioner to the estate as follows:
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 (1) with the figure of
P129,254.96 as legitime for a
on December 12, 1963 upon joint petition of the
basis Marina (exacultrix-
parties.
appellee) and Tomas
(appellant) are admittedly are adjudicated to them; and
considered to have received in (d) to the grandchildren who
the will more than their are not compulsory heirs are
respective legitime, while the adjudicated the properties
rest of the appellants, namely, respectively devised to them
Estela, Bernardita, Angelina, subject to reimbursement by
Josefina and Lilia received less Gilbert D. Garcia, et al., of the
than their respective legitime; sums by which the devise in
their favor should be
(2) thus, to each of the latter proportionally reduced.
are adjudicated the properties
respectively given them in the Under the oppositors' counter-project of
will, plus cash and/or partition, the testamentary disposition made by
properties, to complete their the testatrix of practically her whole estate of
respective legitimes to P1,801,960.01, as above stated, were
P129,254.96; (3) on the other proposed to be reduced to the amounts set
hand, Marina and Tomas are forth after the names of the respective heirs
adjudicated the properties that and devisees totalling one-half thereof as
they received in the will less the follows:
cash and/or properties
necessary to complete the 1. Estela Dizon
prejudiced legitime mentioned ........................................... P
in number 2 above; 49,485.56
2. Angelina Dizon
(4) the adjudications made in .........................................
the will in favor of the 53,421.42
grandchildren remain 3. Bernardita Dizon
untouched. <äre||anº•1àw> .......................................
26,115.04
On the other hand oppositors 4. Josefina Dizon
submitted their own counter- ..........................................
project of partition dated 26,159.38
February 14, 1964, wherein 5. Tomas V. Dizon
they proposed the distribution .........................................
of the estate on the following 65,874.04
basis: 6. Lilia Dizon
.................................................
(a) all the testamentary . 36,273.13
dispositions were 7. Marina Dizon
proportionally reduced to the ...........................................
value of one-half (½) of the 576,938.82
entire estate, the value of the 8. Pablo Rivera, Jr.
said one-half (½) amounting to .........................................
P905,534.78; (b) the shares of 34,814.50
the Oppositors-Appellants 9. Grandchildren Gilbert Garcia
should consist of their legitime, et al .......... 36,452.80
plus the devises in their favor
proportionally reduced; (c) in T o t a l
payment of the total shares of .................................................
the appellants in the entire .. P905,534.78
estate, the properties devised
to them plus other properties while the other half of the estate (P905,534.78)
left by the Testatrix and/or cash would be deemed as constituting the legitime
of the executrix-appellee and oppositors- 3. Whether the appellants may be compelled to
appellants, to be divided among them in seven accept payment in cash on account of their
equal parts of P129,362.11 as their respective legitime, instead of some of the real properties
legitimes. left by the Testatrix;

The lower court, after hearing, sustained and which were adversely decided against them in
approved the executrix' project of partition, the proceedings below.
ruling that "(A)rticles 906 and 907 of the New
Civil Code specifically provide that when the The issues raised present a matter of
legitime is impaired or prejudiced, the same determining the avowed intention of the
shall be completed and satisfied. While it is true testatrix which is "the life and soul of a will."5 In
that this process has been followed and consonance therewith, our Civil Code included
adhered to in the two projects of partition, it is the new provisions found in Articles 788 and
observed that the executrix and the oppositors 791 thereof that "(I)f a testamentary disposition
differ in respect to the source from which the admits of different interpretations, in case of
portion or portions shall be taken in order to doubt, that interpretation by which the
fully restore the impaired legitime. The disposition is to be operative shall be preferred"
proposition of the oppositors, if upheld, will and "(T)he words of a will are to receive an
substantially result in a distribution of intestacy, interpretation which will give to every
which is in controversion of Article 791 of the expression some effect, rather than one which
New Civil Code" adding that "the testatrix has will render any of the expressions inoperative;
chosen to favor certain heirs in her will for and of two modes of interpreting a will, that is
reasons of her own, cannot be doubted. This is to be preferred which will prevent intestacy."
legally permissible within the limitation of the In Villanueva vs. Juico6 for violation of these
law, as aforecited." With reference to the rules of interpretation as well as of Rule 123,
payment in cash of some P230,552.38, section 59 of the old Rules of Court, 7 the Court,
principally by the executrix as the largest speaking through Mr. Justice J.B.L. Reyes, overturned the lower
court's decision and stressed that "the intention and wishes of the
beneficiary of the will to be paid to her five co- testator, when clearly expressed in his will, constitute the fixed law
heirs, the oppositors (excluding Tomas Dizon), of interpretation, and all questions raised at the trial, relative to its
to complete their impaired legitimes, the lower execution and fulfillment, must be settled in accordance therewith,
following the plain and literal meaning of the testator's words,
court ruled that "(T)he payment in cash so as unless it clearly appears that his intention was otherwise." 8
to make the proper adjustment to meet with the
requirements of the law in respect to legitimes The testator's wishes and intention constitute
which have been impaired is, in our opinion, a the first and principal law in the matter of
practical and valid solution in order to give testaments, and to paraphrase an early
effect to the last wishes of the testatrix." 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
From the lower court's orders of approval, complied with by his executors, heirs and devisees and legatees,
oppositors-appellants have filed this appeal, and neither these interested parties nor the courts may substitute
and raise anew the following issues: . their own criterion for the testator's will. Guided and restricted by
these fundamental premises, the Court finds for the appellee.

1. Whether or not the testamentary dispositions

1. Decisive of the issues at bar is the fact that
made in the testatrix' will are in the nature of
the testatrix' testamentary disposition was in
devises imputable to the free portion of her the nature of a partition of her estate by will.
estate, and therefore subject to reduction;
Thus, in the third paragraph of her will, after
commanding that upon her death all her
2. Whether the appellants are entitled to the obligations as well as the expenses of her last
devise plus their legitime under Article 1063, or illness and funeral and the expenses for
merely to demand completion of their legitime probate of her last will and for the
under Article 906 of the Civil Code; and 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 partition by will more than their
immediately thereafter following, whereby she respective legitimes.
specified each real property in her estate and
designated the particular heir among her seven 2. This right of a testator to partition his estate
compulsory heirs and seven other by will was recognized even in Article 1056 of
grandchildren to whom she bequeathed the the old Civil Code which has been reproduced
same. This was a valid partition 10 of her estate, now as Article 1080 of the present Civil Code.
as contemplated and authorized in the first The only amendment in the provision was that
paragraph of Article 1080 of the Civil Code, Article 1080 "now permits any person (not a
providing that "(S)hould a person make a testator, as under the old law) to partition his
partition of his estate by an act inter vivos or by estate by act inter vivos." 11 This was intended
will, such partition shall be respected, insofar to repeal the then prevailing doctrine 12 that for
as it does not prejudice the legitime of the a testator to partition his estate by an act inter
compulsory heirs." This right of a testator to vivos, he must first make a will with all the
partition his estate is subject only to the right of formalities provided by law. Authoritative
compulsory heirs to their legitime. The Civil commentators doubt the efficacy of the
Code thus provides the safeguard for the right amendment 13 but the question does not here
of such compulsory heirs: concern us, for this is a clear case of
partition by will, duly admitted to probate, which
ART. 906. Any compulsory heir perforce must be given full validity and effect.
to whom the testator has left by Aside from the provisions of Articles 906 and
any title less than the legitime 907 above quoted, other codal provisions
belonging to him may demand support the executrix-appellee's project of
that the same be fully satisfied. partition as approved by the lower court rather
than the counter-project of partition proposed
ART. 907. Testamentary by oppositors-appellants whereby they would
dispositions that impair or reduce the testamentary disposition or partition
diminish the legitime of the made by the testatrix to one-half and limit the
compulsory heirs shall be same, which they would consider as mere
reduced on petition of the devises or legacies, to one-half of the estate as
same, insofar as they may be the disposable free portion, and apply the other
inofficious or excessive. half of the estate to payment of the legitimes of
the seven compulsory heirs. Oppositors'
This was properly complied proposal would amount substantially to a
with in the executrix-appellee's distribution by intestacy and pro tanto nullify
project of partition, wherein the the testatrix' will, contrary to Article 791 of the
five oppositors-appellants Civil Code. It would further run counter to the
namely Estela, Bernardita, provisions of Article 1091 of the Civil Code that
Angelina, Josefina and Lilia, "(A) partition legally made confers upon each
were adjudicated the heir the exclusive ownership of the property
properties respectively adjudicated to him."
distributed and assigned to
them by the testatrix in her will, 3. In Habana vs. Imbo, 14 the Court upheld the
and the differential to complete distribution made in the will of the deceased
their respective legitimes of testator Pedro Teves of two large coconut
P129,362.11 each were taken plantations in favor of his daughter,
from the cash and/or properties Concepcion, as against adverse claims of
of the executrix-appellee, other compulsory heirs, as being a partition by
Marina, and their co-oppositor- will, which should be respected insofar as it
appellant, Tomas, who does not prejudice the legitime of the
admittedly were favored by the compulsory heirs, in accordance with Article
testatrix and received in the 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 Furthermore, the testatrix' intent that her
deceased's will which was being questioned by testamentary dispositions were by way of
the other compulsory heirs, the Court ruled that adjudications to the beneficiaries as heirs and
"Concepcion Teves by operation of law, not as mere devisees, and that said
became the absolute owner of said lots dispositions were therefore on account of the
because 'A partition legally made confers upon respective legitimes of the compulsory heirs is
each heir the exclusive ownership of the expressly borne out in the fourth paragraph of
property adjudicated to him' (Article 1091, New her will, immediately following her
Civil Code), from the death of her ancestors, testamentary adjudications in the third
subject to rights and obligations of the latter, paragraph in this wise: "FOURTH: I likewise
and, she can not be deprived of her rights command that in case any of those I named as
thereto except by the methods provided for by my heirs in this testament any of them shall die
law (Arts. 657, 659, and 661, Civil before I do, his forced heirs under the law
Code). 15 Concepcion Teves could, as she did, enforced at the time of my death shall inherit
sell the lots in question as part of her share of the properties I bequeath to said deceased." 17
the proposed partition of the properties,
especially when, as in the present case, the Oppositors' conclusions necessarily are in
sale has been expressly recognized by herself error. The testamentary dispositions of the
and her co-heirs ..." testatrix, being dispositions in favor of
compulsory heirs, do not have to be taken only
4. The burden of oppositors' contention is that from the free portion of the estate, as
the testamentary dispositions in their favor are contended, for the second paragraph of Article
in the nature of devises of real property, citing 842 of the Civil Code precisely provides that
the testatrix' repeated use of the words "I "(O)ne who has compulsory heirs may dispose
bequeath" in her assignment or distribution of of his estate provided he does not contravene
her real properties to the respective heirs. the provisions of this Code with regard to the
From this erroneous premise, they proceed to legitime of said heirs." And even going by
the equally erroneous conclusion that "the oppositors' own theory of bequests, the second
legitime of the compulsory heirs passes to paragraph of Article 912 Civil Code covers
them by operation of law and that the testator precisely the case of the executrix-appellee,
can only dispose of the free portion, that is, the who admittedly was favored by the testatrix
remainder of the estate after deducting the with the large bulk of her estate in providing
legitime of the compulsory heirs ... and all that "(T)he devisee who is entitled to a legitime
testamentary dispositions, either in the nature may retain the entire property, provided its
of institution of heirs or of devises or legacies, value does not exceed that of the disposable
have to be taken from the remainder of the portion and of the share pertaining to him as
testator's estate constituting the free portion." 16 legitime." For "diversity of apportionment is the
usual reason for making a testament;
Oppositors err in their premises, for the otherwise, the decedent might as well die
adjudications and assignments in the testatrix' intestate." 18 Fundamentally, of course, the
will of specific properties to specific heirs dispositions by the testatrix constituted a
cannot be considered all devises, for it clearly partition by will, which by mandate of Article
appear from the whole context of the will and 1080 of the Civil Code and of the other cited
the disposition by the testatrix of her whole codal provisions upholding the primacy of the
estate (save for some small properties of little testator's last will and testament, have to be
value already noted at the beginning of this respected insofar as they do not prejudice the
opinion) that her clear intention was to partition legitime of the other compulsory heirs.
her whole estate through her will. The repeated
use of the words "I bequeath" in her Oppositors' invoking of Article 1063 of the Civil
testamentary dispositions acquire no legal Code that "(P)roperty left by will is not deemed
significance, such as to convert the same into subject to collation, if the testator has not
devises to be taken solely from the free one- otherwise provided, but the legitime shall in any
half disposable portion of the estate. case remain unimpaired" and invoking of the
construction thereof given by some authorities justification for overturning the wishes and
that "'not deemed subject to collation' in this intent of the testatrix. The transmission of rights
article really means not imputable to or to the succession are transmitted from the
chargeable against the legitime", while it may moment of death of the decedent (Article 777,
have some plausibility 19 in an appropriate Civil Code) and accordingly, the value thereof
case, has no application in the present case. must be reckoned as of then, as otherwise,
Here, we have a case of a distribution and estates would never be settled if there were to
partition of the entire estate by the testatrix, be a revaluation with every subsequent
without her having made any previous fluctuation in the values of the currency and
donations during her lifetime which would properties of the estate. There is evidence in
require collation to determine the legitime of the record that prior to November 25, 1964, one
each heir nor having left merely some of the oppositors, Bernardita, accepted the
properties by will which would call for the sum of P50,000.00 on account of her
application of Articles 1061 to 1063 of the Civil inheritance, which, per the parties'
Code on collation. The amount of the legitime manifestation, 20 "does not in any way affect the
of the heirs is here determined and undisputed. adjudication made to her in the projects of
partition of either party as the same is a mere
5. With this resolution of the decisive issue advance of the cash that she should receive in
raised by oppositors-appellants, the secondary both projects of partition." The payment in cash
issues are likewise necessarily resolved. Their by way of making the proper adjustments in
right was merely to demand completion of their order to meet the requirements of the law on
legitime under Article 906 of the Civil Code and non-impairment of legitimes as well as to give
this has been complied with in the approved effect to the last will of the testatrix has
project of partition, and they can no longer invariably been availed of and
demand a further share from the remaining sanctioned. 21That her co-oppositors would
portion of the estate, as bequeathed and receive their cash differentials only now when
partitioned by the testatrix principally to the the value of the currency has declined further,
executrix-appellee. whereas they could have received them earlier,
like Bernardita, at the time of approval of the
Neither may the appellants legally insist on project of partition and when the peso's
their legitime being completed with real purchasing value was higher, is due to their
properties of the estate instead of being paid in own decision of pursuing the present appeal.
cash, per the approved project of partition. The
properties are not available for the purpose, as ACCORDINGLY, the orders appealed from are
the testatrix had specifically partitioned and hereby affirmed. Without cost.
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 G.R. No. 118248 April 5, 2000
manifest wish of transmitting the real properties
intact to her named beneficiaries, principally DKC HOLDINGS CORPORATION,petitioner,
the executrix-appellee. The appraisal report of vs.
the properties of the estate as filed by the COURT OF APPEALS, VICTOR U.
commissioner appointed by the lower court BARTOLOME and REGISTER OF DEEDS
was approved in toto upon joint petition of the FOR METRO MANILA, DISTRICT
parties, and hence, there cannot be said to be III, respondents.
any question — and none is presented — as to
fairness of the valuation thereof or that the YNARES-SANTIAGO, J.:
legitime of the heirs in terms of cash has been
understated. The plaint of oppositors that the This is a petition for review
purchasing value of the Philippine peso has on certiorari seeking the reversal of the
greatly declined since the testatrix' death in December 5, 1994 Decision of the Court of
January, 1961 provides no legal basis or Appeals in CA-G.R. CV No. 40849 entitled
"DKC Holdings Corporation vs. Victor U. Deeds cancelled Transfer Certificate of Title
Bartolome, et al.",1 affirming in toto the January No. B-37615 and issued Transfer Certificate of
4, 1993 Decision of the Regional Trial Court of Title No. V-14249 in the name of Victor
Valenzuela, Branch 172,2 which dismissed Civil Bartolome.
Case No. 3337-V-90 and ordered petitioner to
pay P30,000.00 as attorney's fees. On March 14, 1990, petitioner served upon
Victor, via registered mail, notice that it was
The subject of the controversy is a 14,021 exercising its option to lease the property,
square meter parcel of land located in Malinta, tendering the amount of P15,000.00 as rent for
Valenzuela, Metro Manila which was originally the month of March. Again, Victor refused to
owned by private respondent Victor U. accept the tendered rental fee and to surrender
Bartolome's deceased mother, Encarnacion possession of the property to petitioner.
Bartolome, under Transfer Certificate of Title
No. B-37615 of the Register of Deeds of Metro Petitioner thus opened Savings Account No. 1-
Manila, District III. This lot was in front of one 04-02558-I-1 with the China Banking
of the textile plants of petitioner and, as such, Corporation, Cubao Branch, in the name of
was seen by the latter as a potential warehouse Victor Bartolome and deposited therein the
site. P15,000.00 rental fee for March as well as
P6,000.00 reservation fees for the months of
On March 16, 1988, petitioner entered into a February and March.
Contract of Lease with Option to Buy with
Encarnacion Bartolome, whereby petitioner Petitioner also tried to register and annotate
was given the option to lease or lease with the Contract on the title of Victor to the
purchase the subject land, which option must property. Although respondent Register of
be exercised within a period of two years Deeds accepted the required fees, he
counted from the signing of the Contract. In nevertheless refused to register or annotate
turn, petitioner undertook to pay P3,000.00 a the same or even enter it in the day book or
month as consideration for the reservation of primary register.
1âwphi1.nêt

its option. Within the two-year period, petitioner

shall serve formal written notice upon the Thus, on April 23, 1990, petitioner filed a
lessor Encarnacion Bartolome of its desire to complaint for specific performance and
exercise its option. The contract also provided damages against Victor and the Register of
that in case petitioner chose to lease the Deeds,3 docketed as Civil Case No. 3337-V-90
property, it may take actual possession of the which was raffled off to Branch 171 of the
premises. In such an event, the lease shall be Regional Trial Court of Valenzuela. Petitioner
for a period of six years, renewable for another prayed for the surrender and delivery of
six years, and the monthly rental fee shall be possession of the subject land in accordance
P15,000.00 for the first six years and with the Contract terms; the surrender of title
P18,000.00 for the next six years, in case of for registration and annotation thereon of the
renewal. Contract; and the payment of P500,000.00 as
actual damages, P500,000.00 as moral
Petitioner regularly paid the monthly P3,000.00 damages, P500,000.00 as exemplary
provided for by the Contract to Encarnacion damages and P300,000.00 as attorney's fees.
until her death in January 1990. Thereafter,
petitioner coursed its payment to private Meanwhile, on May 8, 1990, a Motion for
respondent Victor Bartolome, being the sole Intervention with Motion to Dismiss4 was filed
heir of Encarnacion. Victor, however, refused by one Andres Lanozo, who claimed that he
to accept these payments. was and has been a tenant-tiller of the subject
property, which was agricultural riceland, for
Meanwhile, on January 10, 1990, Victor forty-five years. He questioned the jurisdiction
executed an Affidavit of Self-Adjudication over of the lower court over the property and
all the properties of Encarnacion, including the invoked the Comprehensive Agrarian Reform
subject lot. Accordingly, respondent Register of
Law to protect his rights that would be affected ENCARNACION BARTOLOME
by the dispute between the original parties to PERSONALLY.
the case.
(C)
On May 18, 1990, the lower court issued an
Order5 referring the case to the Department of THIRD ASSIGNMENT OF ERROR
Agrarian Reform for preliminary determination
and certification as to whether it was proper for THE HONORABLE COURT OF
trial by said court. APPEALS ERRED IN RULING THAT
THE CONTRACT WAS ONE-SIDED
On July 4, 1990, the lower court issued another AND ONEROUS IN FAVOR OF DKC.
Order6 referring the case to Branch 172 of the
RTC of Valenzuela which was designated to (D)
hear cases involving agrarian land, after the
Department of Agrarian Reform issued a letter-
FOURTH ASSIGNMENT OF ERROR
certification stating that referral to it for
preliminary determination is no longer required.
THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT
On July 16, 1990, the lower court issued an
THE EXISTENCE OF A REGISTERED
Order denying the Motion to Intervene,7 holding
TENANCY WAS FATAL TO THE
that Lanozo's rights may well be ventilated in
VALIDITY OF THE CONTRACT.
another proceeding in due time.
(E)
After trial on the merits, the RTC of Valenzuela,
Branch 172 rendered its Decision on January
4, 1993, dismissing the Complaint and ordering FIFTH ASSIGNMENT OF ERROR
petitioner to pay Victor P30,000.00 as
attorney's fees. On appeal to the CA, the THE HONORABLE COURT OF
Decision was affirmed in toto. APPEALS ERRED IN RULING THAT
PLAINTIFF-APPELLANT WAS
Hence, the instant Petition assigning the LIABLE TO DEFENDANT-APPELLEE
following errors: FOR ATTORNEY'S FEES.8

(A) The issue to be resolved in this case is whether

or not the Contract of Lease with Option to Buy
entered into by the late Encarnacion Bartolome
FIRST ASSIGNMENT OF ERROR
with petitioner was terminated upon her death
or whether it binds her sole heir, Victor, even
THE HONORABLE COURT OF after her demise.
APPEALS ERRED IN RULING THAT
THE PROVISION ON THE NOTICE
Both the lower court and the Court of Appeals
TO EXERCISE OPTION WAS NOT
held that the said contract was terminated upon
TRANSMISSIBLE.
the death of Encarnacion Bartolome and did
not bind Victor because he was not a party
(B) thereto.

SECOND ASSIGNMENT OF ERROR Art. 1311 of the Civil Code provides, as follows
—
THE HONORABLE COURT OF
APPEALS ERRED IN RULING THAT Art. 1311. Contracts take effect only
THE NOTICE OF OPTION MUST BE between the parties, their assigns and
SERVED BY DKC UPON heirs, except in case where the rights
 and obligations arising from the In American jurisprudence, "(W)here acts
contract are not transmissible by their stipulated in a contract require the exercise of
nature, or by stipulation or by provision special knowledge, genius, skill, taste, ability,
of law. The heir is not liable beyond the experience, judgment, discretion, integrity, or
value of the property he received from other personal qualification of one or both
the decedent. parties, the agreement is of a personal nature,
and terminates on the death of the party who is
xxx xxx xxx required to render such service." 10

The general rule, therefore, is that heirs are It has also been held that a good measure for
bound by contracts entered into by their determining whether a contract terminates
predecessors-in-interest except when the upon the death of one of the parties is whether
rights and obligations arising therefrom are not it is of such a character that it may be
transmissible by (1) their nature, (2) stipulation performed by the promissor's personal
or (3) provision of law. representative. Contracts to perform personal
acts which cannot be as well performed by
In the case at bar, there is neither contractual others are discharged by the death of the
stipulation nor legal provision making the rights promissor. Conversely, where the service or
and obligations under the contract act is of such a character that it may as well be
intransmissible. More importantly, the nature of performed by another, or where the contract,
the rights and obligations therein are, by their by its terms, shows that performance by others
nature, transmissible. was contemplated, death does not terminate
the contract or excuse nonperformance. 11
The nature of intransmissible rights as
explained by Arturo Tolentino, an eminent In the case at bar, there is no personal act
civilist, is as follows: required from the late Encarnacion Bartolome.
Rather, the obligation of Encarnacion in the
contract to deliver possession of the subject
Among contracts which are
property to petitioner upon the exercise by the
intransmissible are those which are
latter of its option to lease the same may very
purely personal, either by provision of
well be performed by her heir Victor.
law, such as in cases of partnerships
and agency, or by the very nature of the
obligations arising therefrom, such as As early as 1903, it was held that "(H)e who
those requiring special personal contracts does so for himself and his heirs." 12 In
qualifications of the obligor. It may also 1952, it was ruled that if the predecessor was
be stated that contracts for the duty-bound to reconvey land to another, and at
payment of money debts are not his death the reconveyance had not been
transmitted to the heirs of a party, but made, the heirs can be compelled to execute
constitute a charge against his estate. the proper deed for reconveyance. This was
Thus, where the client in a contract for grounded upon the principle that heirs cannot
professional services of a lawyer died, escape the legal consequence of a transaction
leaving minor heirs, and the lawyer, entered into by their predecessor-in-interest
instead of presenting his claim for because they have inherited the property
professional services under the subject to the liability affecting their common
contract to the probate court, ancestor. 13
substituted the minors as parties for his
client, it was held that the contract It is futile for Victor to insist that he is not a party
could not be enforced against the to the contract because of the clear provision
minors; the lawyer was limited to a of Article 1311 of the Civil Code. Indeed, being
recovery on the basis of quantum an heir of Encarnacion, there is privity of
meruit.9 interest between him and his deceased
mother. He only succeeds to what rights his
mother had and what is valid and binding
against her is also valid and binding as against That being resolved, we now rule on the issue
him. 14 This is clear from Parañaque Kings of whether petitioner had complied with its
Enterprises vs. Court of Appeals, 15 where this obligations under the contract and with the
Court rejected a similar defense — requisites to exercise its option. The payment
by petitioner of the reservation fees during the
With respect to the contention of two-year period within which it had the option
respondent Raymundo that he is not to lease or purchase the property is not
privy to the lease contract, not being disputed. In fact, the payment of such
the lessor nor the lessee referred to reservation fees, except those for February
therein, he could thus not have violated and March, 1990 were admitted by
its provisions, but he is nevertheless a Victor. 17 This is clear from the transcripts, to wit
proper party. Clearly, he stepped into —
the shoes of the owner-lessor of the
land as, by virtue of his purchase, he ATTY. MOJADO:
assumed all the obligations of the
lessor under the lease contract. One request, Your Honor. The last
Moreover, he received benefits in the payment which was allegedly made in
form of rental payments. Furthermore, January 1990 just indicate in that
the complaint, as well as the petition, stipulation that it was issued November
prayed for the annulment of the sale of of 1989 and postdated January 1990
the properties to him. Both pleadings and then we will admit all.
also alleged collusion between him and
respondent Santos which defeated the COURT:
exercise by petitioner of its right of first
refusal.
All reservation fee?
In order then to accord complete relief
ATTY. MOJADO:
to petitioner, respondent Raymundo
was a necessary, if not indispensable,
party to the case. A favorable judgment Yes, Your Honor.
for the petitioner will necessarily affect
the rights of respondent Raymundo as COURT:
the buyer of the property over which
petitioner would like to assert its right of All as part of the lease?
first option to buy.
ATTY. MOJADO:
In the case at bar, the subject matter of the
contract is likewise a lease, which is a property Reservation fee, Your Honor. There
right. The death of a party does not excuse was no payment with respect to
nonperformance of a contract which involves a payment of rentals. 18
property right, and the rights and obligations
thereunder pass to the personal Petitioner also paid the P15,000.00 monthly
representatives of the deceased. Similarly, rental fee on the subject property by depositing
nonperformance is not excused by the death of the same in China Bank Savings Account No.
the party when the other party has a property 1-04-02558-I-1, in the name of Victor as the
interest in the subject matter of the contract. 16 sole heir of Encarnacion Bartolome, 19 for the
months of March to July 30, 1990, or a total of
Under both Article 1311 of the Civil Code and five (5) months, despite the refusal of Victor to
jurisprudence, therefore, Victor is bound by the turn over the subject property. 20
subject Contract of Lease with Option to Buy.
Likewise, petitioner complied with its duty to
inform the other party of its intention to exercise
its option to lease through its letter dated Match (c) pay costs of suit.
12, 1990, 21 well within the two-year period for it
to exercise its option. Considering that at that Respondent Register of Deeds is, accordingly,
time Encarnacion Bartolome had already ordered to register and annotate the subject
passed away, it was legitimate for petitioner to Contract of Lease with Option to Buy at the
have addressed its letter to her heir. 1âwphi1
back of Transfer Certificate of Title No. V-
14249 upon submission by petitioner of a copy
It appears, therefore, that the exercise by thereof to his office.
petitioner of its option to lease the subject
property was made in accordance with the SO ORDERED.
contractual provisions. Concomitantly, private
respondent Victor Bartolome has the obligation
to surrender possession of and lease the
premises to petitioner for a period of six (6)
years, pursuant to the Contract of Lease with G.R. No. L-47799 June 13, 1941
Option to Buy.
Administration of the estate of Agripino
Coming now to the issue of tenancy, we find Neri y Chavez. ELEUTERIO NERI, ET
that this is not for this Court to pass upon in the AL., petitioners,
present petition. We note that the Motion to vs.
Intervene and to Dismiss of the alleged tenant, IGNACIA AKUTIN AND HER
Andres Lanozo, was denied by the lower court CHILDREN, respondents.
and that such denial was never made the
subject of an appeal. As the lower court stated Ozamiz & Capistrano for petitioners.
in its Order, the alleged right of the tenant may Gullas, Leuterio, Tanner & Laput for
well be ventilated in another proceeding in due respondents.
time.
MORAN, J.:
WHEREFORE, in view of the foregoing, the
instant Petition for Review is GRANTED. The Agripino Neri y Chavez, who died on
Decision of the Court of Appeals in CA-G.R. CV December 12, 1931, had by his first marriage
No. 40849 and that of the Regional Trial Court six children named Eleuterio, Agripino,
of Valenzuela in Civil Case No. 3337-V-90 are Agapito, Getulia, Rosario and Celerina; and by
both SET ASIDE and a new one rendered his second marriage with Ignacia Akutin, five
ordering private respondent Victor Bartolome children named Gracia, Godofredo, Violeta,
to: Estela Maria, and Emma. Getulia, daughter in
the first marriage, died on October 2, 1923, that
(a) surrender and deliver possession of is, a little less than eight years before the death
that parcel of land covered by Transfer of said Agripino Neri y Chavez, and was
Certificate of Title No. V-14249 by way survived by seven children named Remedios,
of lease to petitioner and to perform all Encarnacion, Carmen, Trinidad, Luz, Alberto
obligations of his predecessor-in- and Minda. In Agripino Neri's testament, which
interest, Encarnacion Bartolome, under was admitted to probate on March 21, 1932, he
the subject Contract of Lease with willed that his children by the first marriage
Option to Buy; shall have no longer any participation in his
estate, as they had already received their
(b) surrender and deliver his copy of corresponding shares during his lifetime. At the
Transfer Certificate of Title No. V- hearing for the declaration of heirs, the trial
14249 to respondent Register of Deeds court found, contrary to what the testator had
for registration and annotation thereon declared in his will, that all his children by the
of the subject Contract of Lease with first and second marriages intestate heirs of
Option to Buy; the deceased without prejudice to one-half of
the improvements introduced in the properties
during the existence of the last conjugal contemplated in the above provision is one in
partnership, which should belong to Ignacia which the purpose to disinherit is clear, but
Akutin. The Court of Appeals affirmed the trial upon a cause not stated or not proved, a
court's decision with the modification that the situation which does not obtain in the instant
will was "valid with respect to the two-thirds case.
part which the testator could freely dispose of.
"This judgment of the Court of Appeals is now The Court of Appeals quotes Manresa thus:
sought to be reviewed in this petition
for certiorari. En el terreno de los principios, la
solucion mas justa del problema que
The decisive question here raised is whether, hemos hecho notar al comentar el
upon the foregoing facts, the omission of the articulo, seria distinguir el caso en que
children of the first marriage annuls the el heredero omitido viviese al otorgarse
institution of the children of the first marriage as el testamento, siendo conocida su
sole heirs of the testator, or whether the will existencia por el testador, de aquel en
may be held valid, at least with respect to one- que, o naciese despues, o se ignorase
third of the estate which the testator may su existencia, aplicando en el primer
dispose of as legacy and to the other one-third caso la doctrina del articulo 851, y en
which he may bequeath as betterment, to said el segundo la del 814. (6 Manresa,
children of the second marriage. 354-355.)

The Court of Appeals invoked the provisions of But it must be observed that this opinion is
article 851 of the Civil Code, which read in part founded on mere principles (en el terreno de
as follows: los principios) and not on the express
provisions of the law. Manresa himself admits
Disinheritance made without a that according to law, "no existe hoy cuestion
statement of the cause, or for a cause alguna en esta materia: la pretericion produce
the truth of which, if contradicted, is not siempre los mismos efectos, ya se refiera a
proven, ... shall annul the institution of personas vivas al hacer el testamento o
the heir in so far as it prejudices the nacidas despues. Este ultimo grupo solo
person disinherited; but the legacies, puede hacer relacion a los descendientes
betterments, and other testamentary legitimos, siempre que ademas tengan
dispositions, in so far as they do no derecho a legitima." (6 Manresa, 381.)
encroach upon the legitime, shall be
valid. Appellants, on the other hand, maintain that the
case is one of voluntary preterition of four of the
The appellate court thus seemed to have children by the first marriage, and of
rested its judgment upon the impression that involuntary preterition of the children by the
the testator had intended to disinherit, though deceased Getulia, also of the first marriage,
ineffectively, the children of the first marriage. and is thus governed by the provisions of article
There is nothing in the will that supports this 814 of the Civil Code, which read in part as
conclusion. True, the testator expressly denied follows:
them any share in his estate; but the denial was
predicated, not upon the desire to disinherit, The preterition of one or all of the
but upon the belief, mistaken though it was, forced heirs in the direct line, whether
that the children by the first marriage had living at the time of the execution of the
already received more than their will or born after the death of the
corresponding shares in his lifetime in the form testator, shall void the institution of
of advancement. Such belief conclusively heir; but the legacies and betterments
negatives all inference as to any intention to shall be valid, in so far as they are not
disinherit, unless his statement to that effect is inofficious.
prove to be deliberately fictitious, a fact not
found by the Court of Appeals. The situation
Preterition consists in the omission in the G.R. Nos. 140371-72 November 27,
testator's will of the forced heirs or anyone of 2006
them, either because they are not mentioned
therein, or, though mentioned, they are neither DY YIENG SEANGIO, BARBARA D.
instituted as heirs nor are expressly SEANGIO and VIRGINIA D.
disinherited.(Cf. 6 Manresa, 346.) In the instant SEANGIO, Petitioners,
case, while the children of the first marriage vs.
were mentioned in the will, they were not HON. AMOR A. REYES, in her capacity as
accorded any share in the heriditary property, Presiding Judge, Regional Trial Court,
without expressly being disinherited. It is, National Capital Judicial Region, Branch 21,
therefore, a clear case of preterition as Manila, ALFREDO D. SEANGIO, ALBERTO
contended by appellants. The omission of the D. SEANGIO, ELISA D. SEANGIO-SANTOS,
forced heirs or anyone of them, whether VICTOR D. SEANGIO, ALFONSO D.
voluntary or involuntary, is a preterition if the SEANGIO, SHIRLEY D. SEANGIO-LIM,
purpose to disinherit is not expressly made or BETTY D. SEANGIO-OBAS and JAMES D.
is not at least manifest. SEANGIO, Respondents.

Except as to "legacies and betterments" which DECISION

"shall be valid in so far as they are not
inofficious" (art. 814 of the Civil Code), AZCUNA, J.:
preterition avoids the institution of heirs and
gives rise to intestate succession. (Art. 814,
This is a petition for certiorari1 with application
Civil Code; Decisions of the Supreme Court of
for the issuance of a writ of preliminary
Spain of June 17, 1908 and February 27,
injunction and/or temporary restraining order
1909.) In the instant case, no such legacies or
seeking the nullification of the orders, dated
betterments have been made by the testator.
August 10, 1999 and October 14, 1999, of the
"Mejoras" or betterments must be expressly
Regional Trial Court of Manila, Branch 21 (the
provided, according to articles 825 and 828 of
RTC), dismissing the petition for probate on the
the Civil Code, and where no express provision
ground of preterition, in the consolidated
therefor is made in the will, the law would
cases, docketed as SP. Proc. No. 98-90870
presume that the testator had no intention to
and SP. Proc. No. 99-93396, and entitled, "In
that effect. (Cf. 6 Manresa, 479.) In the will here
the Matter of the Intestate Estate of Segundo
in question, no express betterment is made in
C. Seangio v. Alfredo D. Seangio, et al." and
favor of the children by the second marriage;
"In the Matter of the Probate of the Will of
neither is there any legacy expressly made in
Segundo C. Seangio v. Dy Yieng Seangio,
their behalf consisting of the third available for
Barbara D. Seangio and Virginia Seangio."
free disposal. The whole inheritance is
accorded the heirs by the second marriage
upon the mistaken belief that the heirs by the The facts of the cases are as follows:
first marriage have already received their
shares. Were it not for this mistake, the On September 21, 1988, private respondents
testator's intention, as may be clearly inferred filed a petition for the settlement of the intestate
from his will, would have been to divide his estate of the late Segundo Seangio, docketed
property equally among all his children. as Sp. Proc. No. 98–90870 of the RTC, and
praying for the appointment of private
Judgment of the Court of Appeals is reversed respondent Elisa D. Seangio–Santos as
and that of the trial court affirmed, without special administrator and guardian ad litem of
prejudice to the widow's legal usufruct, with petitioner Dy Yieng Seangio.
costs against respondents.
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 los Reyes sa China Bangking Corporation na
of attorney in favor of Virginia giving her the millon pesos at hindi ng babayad at hindi ng
power to manage and exercise control and babayad ito ay nagdulot sa aking ng malaking
supervision over his business in the kahihiya sa mga may-ari at stockholders ng
Philippines; 3) Virginia is the most competent China Banking.
and qualified to serve as the administrator of
the estate of Segundo because she is a At ikinagalit ko pa rin ang pagkuha ni Alfredo at
certified public accountant; and, 4) Segundo ng kanyang asawa na mga custome[r] ng
left a holographic will, dated September 20, Travel Center of the Philippines na
1995, disinheriting one of the private pinagasiwaan ko at ng anak ko si Virginia.
respondents, Alfredo Seangio, for cause. In
view of the purported holographic will, Dito ako nagalit din kaya gayon ayoko na
petitioners averred that in the event the bilanin si Alfredo ng anak ko at hayanan kong
decedent is found to have left a will, the inaalisan ng lahat at anoman mana na si
intestate proceedings are to be automatically Alfredo at si Alfredo Seangio ay hindi ko siya
suspended and replaced by the proceedings anak at hindi siya makoha mana.
for the probate of the will.
Nila[g]daan ko ngayon ika 20 ng Setyembre
On April 7, 1999, a petition for the probate of 1995 sa longsod ng Manila sa harap ng tatlong
the holographic will of Segundo, docketed as saksi. 3
SP. Proc. No. 99–93396, was filed by
petitioners before the RTC. They likewise
(signed)
reiterated that the probate proceedings should
take precedence over SP. Proc. No. 98–90870
because testate proceedings take precedence Segundo Seangio
and enjoy priority over intestate proceedings.2
Nilagdaan sa harap namin
The document that petitioners refer to as
Segundo’s holographic will is quoted, as (signed)
follows:
Dy Yieng Seangio (signed)
Kasulatan sa pag-aalis ng mana
Unang Saksi ikalawang saksi
Tantunin ng sinuman
(signed)
Ako si Segundo Seangio Filipino may asawa
naninirahan sa 465-A Flores St., Ermita, ikatlong saksi
Manila at nagtatalay ng maiwanag na pag-iisip
at disposisyon ay tahasan at hayagang On May 29, 1999, upon petitioners’ motion, SP.
inaalisan ko ng lahat at anumang mana ang Proc. No. 98–90870 and SP. Proc. No. 99–
paganay kong anak na si Alfredo Seangio dahil 93396 were consolidated.4
siya ay naging lapastangan sa akin at isan
beses siya ng sasalita ng masama harapan ko On July 1, 1999, private respondents moved
at mga kapatid niya na si Virginia Seangio labis for the dismissal of the probate
kong kinasama ng loob ko at sasabe rin ni proceedings5 primarily on the ground that the
Alfredo sa akin na ako nasa ibabaw gayon document purporting to be the holographic will
gunit daratin ang araw na ako nasa ilalim siya of Segundo does not contain any disposition of
at siya nasa ibabaw. the estate of the deceased and thus does not
meet the definition of a will under Article 783 of
Labis kong ikinasama ng loob ko ang gamit ni the Civil Code. According to private
Alfredo ng akin pagalan para makapagutang respondents, the will only shows an alleged act
na kuarta siya at kanya asawa na si Merna de of disinheritance by the decedent of his eldest
son, Alfredo, and nothing else; that all other trial court could have denied its probate
compulsory heirs were not named nor outright or could have passed upon the intrinsic
instituted as heir, devisee or legatee, hence, validity of the testamentary provisions before
there is preterition which would result to the extrinsic validity of the will was
intestacy. Such being the case, private resolved(underscoring supplied).
respondents maintained that while
procedurally the court is called upon to rule WHEREFORE, premises considered, the
only on the extrinsic validity of the will, it is not Motion to Suspend Proceedings is hereby
barred from delving into the intrinsic validity of DENIED for lack of merit. Special Proceedings
the same, and ordering the dismissal of the No. 99–93396 is hereby DISMISSED without
petition for probate when on the face of the will pronouncement as to costs.
it is clear that it contains no testamentary
disposition of the property of the decedent. SO ORDERED.7

Petitioners filed their opposition to the motion Petitioners’ motion for reconsideration was
to dismiss contending that: 1) generally, the denied by the RTC in its order dated October
authority of the probate court is limited only to 14, 1999.
a determination of the extrinsic validity of the
will; 2) private respondents question the
Petitioners contend that:
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 THE RESPONDENT JUDGE ACTED IN
preterition does not apply because Segundo’s EXCESS OF HER JURISDICTION OR WITH
will does not constitute a universal heir or heirs GRAVE ABUSE OF DISCRETION
to the exclusion of one or more compulsory AMOUNTING TO LACK OR EXCESS OF
heirs.6 JURISDICTION AND DECIDED A QUESTION
OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE
On August 10, 1999, the RTC issued its
QUESTIONED ORDERS, DATED 10
assailed order, dismissing the petition for
AUGUST 1999 AND 14 OCTOBER 1999
probate proceedings:
(ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al.,
I
clearly shows that there is preterition, as the
only heirs mentioned thereat are Alfredo and
Virginia. [T]he other heirs being omitted, Article THE RESPONDENT JUDGE, WITHOUT
854 of the New Civil Code thus applies. EVEN COMPLYING WITH SECTIONS 3 AND
However, insofar as the widow Dy Yieng 4 OF RULE 76 OF THE RULES OF COURT
Seangio is concerned, Article 854 does not ON THE PROPER PROCEDURE FOR
apply, she not being a compulsory heir in the SETTING THE CASE FOR INITIAL HEARING
direct line. FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE
TESTATE CASE ON THE ALLEGED
As such, this Court is bound to dismiss this
GROUND THAT THE TESTATOR’S WILL IS
petition, for to do otherwise would amount to an
VOID ALLEGEDLY BECAUSE OF THE
abuse of discretion. The Supreme Court in the
EXISTENCE OF PRETERITION, WHICH
case of Acain v. Intermediate Appellate Court
GOES INTO THE INTRINSIC VALIDITY OF
[155 SCRA 100 (1987)] has made its position
THE WILL, DESPITE THE FACT THAT IT IS A
clear: "for … respondents to have tolerated the
SETTLED RULE THAT THE AUTHORITY OF
probate of the will and allowed the case to
PROBATE COURTS IS LIMITED ONLY TO A
progress when, on its face, the will appears to
DETERMINATION OF THE EXTRINSIC
be intrinsically void … would have been an
VALIDITY OF THE WILL, I.E., THE DUE
exercise in futility. It would have meant a waste
EXECUTION THEREOF, THE TESTATOR’S
of time, effort, expense, plus added futility. The
TESTAMENTARY CAPACITY AND THE the holographic will since there was no
COMPLIANCE WITH THE REQUISITES OR institution of an heir;
SOLEMNITIES PRESCRIBED BY LAW;
Fourth, inasmuch as it clearly appears from the
II face of the holographic will that it is both
intrinsically and extrinsically valid, respondent
EVEN ASSUMING ARGUENDO THAT THE judge was mandated to proceed with the
RESPONDENT JUDGE HAS THE hearing of the testate case; and,
AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE Lastly, the continuation of the proceedings in
TESTATOR, IT IS INDUBITABLE FROM THE the intestate case will work injustice to
FACE OF THE TESTATOR’S WILL THAT NO petitioners, and will render nugatory the
PRETERITON EXISTS AND THAT THE WILL disinheritance of Alfredo.
IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND, The purported holographic will of Segundo that
was presented by petitioners was dated,
III signed and written by him in his own
handwriting. Except on the ground of
RESPONDENT JUDGE WAS DUTY BOUND preterition, private respondents did not raise
TO SUSPEND THE PROCEEDINGS IN THE any issue as regards the authenticity of the
INTESTATE CASE CONSIDERING THAT IT document.
IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER The document, entitled Kasulatan ng Pag-Aalis
INTESTATE PROCEEDINGS. ng Mana, unmistakably showed Segundo’s
intention of excluding his eldest son, Alfredo,
Petitioners argue, as follows: as an heir to his estate for the reasons that he
cited therein. In effect, Alfredo was disinherited
First, respondent judge did not comply with by Segundo.
Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: For disinheritance to be valid, Article 916 of the
a) fix the time and place for proving the will Civil Code requires that the same must be
when all concerned may appear to contest the effected through a will wherein the legal cause
allowance thereof, and cause notice of such therefor shall be specified. With regard to the
time and place to be published three weeks reasons for the disinheritance that were stated
successively previous to the appointed time in by Segundo in his document, the Court
a newspaper of general circulation; and, b) believes that the incidents, taken as a whole,
cause the mailing of said notice to the heirs, can be considered a form of maltreatment of
legatees and devisees of the testator Segundo; Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the
Second, the holographic will does not contain disinheritance of a child or descendant under
any institution of an heir, but rather, as its title Article 919 of the Civil Code:
clearly states, Kasulatan ng Pag-Aalis ng
Mana, simply contains a disinheritance of a Article 919. The following shall be sufficient
compulsory heir. Thus, there is no preterition in causes for the disinheritance of children and
the decedent’s will and the holographic will on descendants, legitimate as well as illegitimate:
its face is not intrinsically void;
(1) When a child or descendant has
Third, the testator intended all his compulsory been found guilty of an attempt against
heirs, petitioners and private respondents the life of the testator, his or her
alike, with the sole exception of Alfredo, to spouse, descendants, or ascendants;
inherit his estate. None of the compulsory heirs
in the direct line of Segundo were preterited in
 (2) When a child or descendant has disposition of the property of the testator
accused the testator of a crime for Segundo in favor of those who would succeed
which the law prescribes imprisonment in the absence of Alfredo.10
for six years or more, if the accusation
has been found groundless; Moreover, it is a fundamental principle that the
intent or the will of the testator, expressed in
(3) When a child or descendant has the form and within the limits prescribed by law,
been convicted of adultery or must be recognized as the supreme law in
concubinage with the spouse of the succession. All rules of construction are
testator; designed to ascertain and give effect to that
intention. It is only when the intention of the
(4) When a child or descendant by testator is contrary to law, morals, or public
fraud, violence, intimidation, or undue policy that it cannot be given effect.11
influence causes the testator to make a
will or to change one already made; Holographic wills, therefore, being usually
prepared by one who is not learned in the law,
(5) A refusal without justifiable cause to as illustrated in the present case, should be
support the parents or ascendant who construed more liberally than the ones drawn
disinherit such child or descendant; by an expert, taking into account the
circumstances surrounding the execution of
(6) Maltreatment of the testator by word the instrument and the intention of the
or deed, by the child or descendant;8 testator.12 In this regard, the Court is convinced
that the document, even if captioned
as Kasulatan ng Pag-Aalis ng Mana, was
(7) When a child or descendant leads a
intended by Segundo to be his last
dishonorable or disgraceful life;
testamentary act and was executed by him in
accordance with law in the form of a
(8) Conviction of a crime which carries holographic will. Unless the will is
with it the penalty of civil interdiction. probated,13 the disinheritance cannot be given
effect.14
Now, the critical issue to be determined is
whether the document executed by Segundo With regard to the issue on preterition,15 the
can be considered as a holographic will. Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was,
A holographic will, as provided under Article in the Court’s opinion, Segundo’s last
810 of the Civil Code, must be entirely written, expression to bequeath his estate to all his
dated, and signed by the hand of the testator compulsory heirs, with the sole exception of
himself. It is subject to no other form, and may Alfredo. Also, Segundo did not institute an
be made in or out of the Philippines, and need heir16 to the exclusion of his other compulsory
not be witnessed. heirs. The mere mention of the name of one of
the petitioners, Virginia, in the document did
Segundo’s document, although it may initially not operate to institute her as the universal heir.
come across as a mere disinheritance Her name was included plainly as a witness to
instrument, conforms to the formalities of a the altercation between Segundo and his son,
holographic will prescribed by law. It is written, Alfredo.1âwphi 1

dated and signed by the hand of Segundo

himself. An intent to dispose mortis Considering that the questioned document is
causa[9] can be clearly deduced from the Segundo’s holographic will, and that the law
terms of the instrument, and while it does not favors testacy over intestacy, the probate of the
make an affirmative disposition of the latter’s will cannot be dispensed with. Article 838 of the
property, the disinheritance of Alfredo, Civil Code provides that no will shall pass either
nonetheless, is an act of disposition in itself. In real or personal property unless it is proved and
other words, the disinheritance results in the allowed in accordance with the Rules of Court.
Thus, unless the will is probated, the right of a dismissing plaintiff-appellant's complaint for
person to dispose of his property may be the recovery of certain properties that were
rendered nugatory.17 originally owned by the plaintiff's granduncle,
Nicolas Villaflor, and which he granted to his
In view of the foregoing, the trial court, widow, Doña Fausta Nepomuceno,
therefore, should have allowed the holographic bequeathing to her "su uso y posesion
will to be probated. It is settled that testate mientras viva y no se case en segundas
proceedings for the settlement of the estate of nupcias".
the decedent take precedence over intestate
proceedings for the same purpose.18 The following facts appear of record: On
October 9, 1908, Don Nicolas Villaflor, a
WHEREFORE, the petition is GRANTED. The wealthy man of Castillejos, Zambales,
Orders of the Regional Trial Court of Manila, executed a will in Spanish in his own
Branch 21, dated August 10, 1999 and October handwriting, devising and bequeathing in favor
14, 1999, are set aside. Respondent judge is of his wife, Dona Fausta Nepomuceno, one-
directed to reinstate and hear SP Proc. No. 99- half of all his real and personal properties,
93396 for the allowance of the holographic will giving the other half to his brother Don Fausto
of Segundo Seangio. The intestate case or SP. Villaflor.
Proc. No. 98-90870 is hereby suspended until
the termination of the aforesaid testate Clause 6th, containing the institution of heirs,
proceedings. reads as follows: .

No costs. 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
5. Art. 791. The words of a will are to receive hermano D. Fausto Villaflor y a mi
an interpretation which will give to every esposa Da. Fausta Nepomuceno para
expression some effect, rather than one which que partan todos mis bienes que me
will render any of the expressions inoperative; pertenescan, en iguales partes, para
and of two modes of interpreting a will, that is despues de mi muerte, exceptuando
to be preferred which will prevent intestacy. las donaciones y legados que, abajo mi
mas expontanea voluntad, lo hago en
la forma siguiente: .
G.R. No. L-15737 February 28, 1962
SEPTIMO: — Lego para dispues de mi
LEONOR VILLAFLOR VDA. DE
muerte a mi esposa Da. Fausta
VILLANUEVA, plaintiff-appellant,
Nepomuceno, en prueba de mi amor y
vs.
carino, los bienes, alhajas y muebles
DELFIN N. JUICO, in his capacity as
que a continuacion se expresan; .
Judicial Administrator of the testate estate
of FAUSTA NEPOMUCENO,defendant-
appellee. OCTAVO: — Que estos legades
disfrutaria mi referida esposa Da.
Fausta Nepomuceno su uso y
Amado G. Salazar for plaintiff-appellant.
posesion mientras viva y no se case en
Sycip, Salazar, Luna and Associates for
segundas nupcias, de la contrario,
defendant-appellee.
pasara a ser propiedad estos dichos
legados de mi sobrina nieta Leonor
REYES, J.B.L., J.: Villaflor.

Subject to this direct appeal to us on points of The 12th clause of the will provided, however,
law is the decision of the Court of First Instance that Clauses 6th and 7th thereof would be
of Rizal, in its Civil Case No. Q-2809,
deemed annulled from the moment he bore mentioned by Don Nicolas Villaflor in his will as
any child with Doña Fausta Nepomuceno. Said his "sobrina nieta Leonor Villaflor".
Clause 12th reads as follows: .
Plaintiff Leonor Villaflor instituted the present
DUODECIMO: — Quedan anulados action against the administrator of the estate of
las parrafos 6.0 y 7.0 de este the widow Fausta Nepomuceno, on February
testamento que tratan de institucion de 8, 1958, contending that upon the widow's
herederos y los legados que se haran death, said plaintiff became vested with the
despues de mi muerte a favor de mi ownership of the real and personal properties
esposa, en el momento que podre bequeathed by the late Nicolas Villaflor to
tener la dicha de contrar con hijo y hijos clause 7 of his will, pursuant to its eight (8th)
legitimos o legitimados, pues estos, clause. Defendant's position, adopted by the
conforme a ley seran mis herederos. trial court, is that the title to the properties
aforesaid became absolutely vested in the
Don Nicolas Villaflor died on March 3, 1922, widow upon her death, on account of the fact
without begetting any child with his wife Doña that she never remarried.
Fausta Nepomuceno. The latter, already a
widow, thereupon instituted Special We agree with appellant that the plain desire
Proceeding No. 203 of the Court of First and intent of the testator, as manifested in
Instance of Zambales, for the settlement of her clause 8 of his testament, was to invest his
husband's estate and in that proceeding, she widow with only a usufruct or life tenure in the
was appointed judicial administratrix. In due properties described in the seventh clause,
course of administration, she submitted a subject to the further condition (admitted by the
project of partition, now Exhibit "E". In the order appellee) that if the widow remarried, her rights
of November 24, 1924, now exhibit "C", the would thereupon cease, even during her own
probate court approved the project of partition lifetime. That the widow was meant to have no
and declared the proceeding closed. As the more than a life interest in those properties,
project of partition, Exhibit "E", now shows even if she did not remarry at all, is evident
Doña Fausta Nepomuceno received by virtue from the expressions used by the deceased
thereof the ownership and possession of a "uso y posesion mientras viva" (use and
considerable amount of real and personal possession while alive) in which the first half of
estate. By virtue also of the said project of the phrase "uso y posesion" instead of
partition, she received the use and possession "dominio" or "propiedad") reinforces the
of all the real and personal properties second ("mientras viva"). The testator plainly
mentioned and referred to in Clause 7th of the did not give his widow the full ownership of
will. The order approving the project of partition these particular properties, but only the right to
(Exh. "C"), however, expressly provided that their possession and use (or enjoyment) during
approval thereof was "sin perjuicio de lo her lifetime. This is in contrast with the
dispuesto en la clausula 8.o del testamento de remainder of the estate in which she was
Nicolas Villaflor." . instituted universal heir together with the
testator's brother (clause 6).1äwphï1.ñët

On May 1, 1956, Doña Fausta Nepomuceno

died without having contracted a second SEXTO: — En virtud de las facultades
marriage, and without having begotten any que me conceden las leyes, instituyo
child with the deceased Nicolas Villaflor. Her por mis unicos y universales herederos
estate is now being settled in Special de todos mis derechos y acciones a mi
Proceeding No. Q-1563 in the lower court, with hermano D. Fausto Villaflor y a mi
the defendant Delfin N. Juico as the duly esposa Da. Fausta Nepomuceno para
appointed and qualified judicial administrator. que parten todos mis bienes que me
pertenescan, en iguales partes, para
The plaintiff Leonor Villaflor Vda. de Villanueva despues de mi muerte, exceptuando
is admitted to be the same Leonor Villaflor las donaciones y legados que, abajo mi
 mas expontanea voluntad, lo hago en them in another sense can be
la forma siguiente. gathered, and that other can be
ascertained." .
The court below, in holding that the appellant
Leonor Villaflor, as reversionary legatee, could Technical words in a will are to be
succeed to the properties bequeathed by taken in their technical sense, unless
clause 7 of the testament only in the event that the context clearly indicates a contrary
the widow remarried, has unwarrantedly intention, or unless it satisfactorily
discarded the expression "mientras viva," and appears that the will was drawn solely
considered the words "uso y posesion" as by the testator, and that he was
equivalent to "dominio" (ownership). In so unacquainted with such technical
doing, the trial court violated Article 791 of the sense. (675a)
Civil Code of the Philippines, as well as section
59 of Rule 123 of the Rules of Court. In consonance with this rule, this Supreme
Court has laid the doctrine in In re Estate of
ART. 791. The words of a will are to Calderon, 26 Phil., 233, that the intention and
receive an interpretation which will give wishes of the testator, when clearly expressed
to every expression some effect, rather in his will, constitute the fixed law of
than one which will render any of the interpretation, and all questions raised at the
expressions inoperative; and of two trial, relative to its execution and fulfillment,
modes of interpreting a will, that one is must be settled in accordance therewith,
to be preferred which will prevent following the plain and literal meaning of the
intestacy." . testator's words, unless it clearly appears that
his intention was otherwise. The same rule is
SEC. 59. Instrument construed so as to adopted by the Supreme Court of Spain (TS.
give effect to all provisions. — In the Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril
construction of an instrument where 1913; 16 Enero 1915; 23 Oct. 1925).
there are several provisions or
particulars, such a construction is, if La voluntad del testador, clara, precisa
possible, to be adopted as will give y constantemente expresada al
effect to all." . ordenar su ultimo voluntad, es ley
unica, imperativa y obligatoria que han
Speculation as to the motives of the testator in de obedecer y cumplir fieldmente
imposing the conditions contained in clause 7 albaceas, legatarios y heredera, hoy
of his testament should not be allowed to sus sucesores, sin que esa voluntad
obscure the clear and unambiguous meaning patente, que no ha menester de
of his plain words, which are over the primary interpretaciones, pues no ofrece la
source in ascertaining his intent. It is well to menor duda, pueda sustituirse, pues
note that if the testator had intended to impose no ofrece la menor duda, pueda
as sole condition the non-remarriage of his sustituirse por ningun otro criterio de
widow, the words "uso y posesion mientras alguna de los interesados, ni tampoco
viva" would have been unnecessary, since the por el judicial. (Tribunal Supremo of
widow could only remarry during her own Spain, Sent. 20 March 1918) .
lifetime.
The American decisions invoked by appellee in
The Civil Code, in Article 790, p. 1 (Article 675 his brief inapplicable, because they involve
of the Code of 1889), expressly enjoins the cases where the only condition imposed on the
following: . legatee was that she should remain a widow.
As already shown, the testament of Don
ART. 790. The words of a will are to be Nicolas Villaflor clearly and unmistakably
taken in their ordinary and grammatical provided that his widow should have the
sense, unless a clear intention to use 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 Rigor, a native of Victoria Tarlac, in favor of his
his will, the legacies should pass to the nearest male relative who would study for the
testator's "sobrinanieta", appellant herein, priesthood.
upon the widow's death, even if the widow
never remarried in her lifetime. Consequently, The parish priest of Victoria, who claimed to be
the widow had no right to retain or dispose of a trustee of the said lands, appealed to this
the aforesaid properties, and her estate is Court from the decision of the Court of Appeals
accountable to the reversionary legatee for affirming the order of the probate court
their return, unless they had been lost due to declaring that the said devise was inoperative
fortuitous event, or for their value should rights (Rigor vs. Parish Priest of the Roman Catholic
of innocent third parties have intervened. Church of Victoria, Tarlac, CA-G.R. No. 24319-
R, August 1, 1963).
PREMISES CONSIDERED, the decision
appealed from is reversed, and the appellant The record discloses that Father Rigor, the
Leonor Villaflor Vda. de VILLANUEVA is parish priest of Pulilan, Bulacan, died on
declared entitled to the ownership and fruits of August 9, 1935, leaving a will executed on
the properties described in clause 7 of the will October 29, 1933 which was probated by the
or testament, from the date of the death of Court of First Instance of Tarlac in its order of
Doña Fausta Nepomuceno. The records are December 5, 1935. Named as devisees in the
ordered remanded to the court of origin for will were the testators nearest relatives,
liquidation, accounting and further proceedings namely, his three sisters: Florencia Rigor-
conformably to this decision. Costs against the Escobar, Belina Rigor-Manaloto and Nestora
Administrator-appellee. Rigor-Quiambao. The testator gave a devise to
his cousin, Fortunato Gamalinda.

In addition, the will contained the following

G.R. No. L-22036 April 30, 1979 controversial bequest (paragraphing supplied
to facilitate comprehension of the testamentary
TESTATE ESTATE OF THE LATE provisions):
REVEREND FATHER PASCUAL RIGOR.
THE PARISH PRIEST OF THE ROMAN Doy y dejo como legado
CATHOLIC CHURCH OF VICTORIA, CUATRO (4) PARCELAS de
TARLAC, petitioner-appellant, terreno palayeros situados en
vs. el municipiooo de Guimba de la
BELINA RIGOR, NESTORA RIGOR, provinciaaa de NUEVA ECIJA,
FRANCISCA ESCOBAR DE RIGOR and cuyo num. de CERTIFICADO
JOVITA ESCOBAR DE DE TRANSFERENCIA DE
FAUSTO, respondents-appellees. TITULO SON; — Titulo Num.
6530, mide 16,249 m.
D. Tañedo, Jr. for appellants. cuadrados de superficie Titulo
Num. 6548, mide 242,998 m.
J. Palanca, Sr. for appellee. cuadrados de superficie y
annual 6525, mide 62,665 m.
cuadrados de superficie; y
Titulo Num. 6521, mide
119,251 m. cuadrados de
AQUINO, J.: superficie; a cualquier pariente
mio varon mas cercano que
This case is about the efficaciousness or estudie la carrera eclesiatica
enforceability of a devise of ricelands located hasta ordenarse de
at Guimba, Nueva Ecija, with a total area of Presbiterado o sea
around forty- four hectares That devise was Sacerdote; las condiciones de
made in the will of the late Father Pascual estate legado son;
(1.a) Prohibe en absoluto la que debiera el Parroco
venta de estos terrenos arriba celebrar cada año,
situados objectos de este depositando todo lo restante
legado; de los productos de estate
legado, en un banco, a nombre
(2.a) Que el legatario pariente de estate legado.
mio mas cercano tendra
derecho de empezar a gozar y To implement the foregoing bequest, the
administrar de este legado al administratix in 1940 submitted a project
principiar a curzar la Sagrada containing the following item:
Teologio, y ordenado de
Sacerdote, hasta su muerte; 5. LEGACY OF THE CHURCH
pero que pierde el legatario
este derecho de administrar y That it be adjudicated in favor
gozar de este legado al dejar of the legacy purported to be
de continuar sus estudios para given to the nearest male
ordenarse de Presbiterado relative who shall take the
(Sacerdote). priesthood, and in the interim to
be administered by the actual
Que el legatario una vez Catholic Priest of the Roman
Sacerdote ya estara obligado a Catholic Church of Victoria,
celebrar cada año VEINTE (20) Tarlac, Philippines, or his
Misas rezadas en sufragio de successors, the real properties
mi alma y de mis padres hereinbelow indicated, to wit:
difuntos, y si el actual legatario,
quedase excomulgado, IPSO
Title Lot Area in Tax
FACTO se le despoja No. este
legado, y la administracion de No. Has. Dec.
esto pasara a cargo del actual
T-
Parroco y sus sucesores de la 3663 1.6249 18740
Iglecia Catolica 6530 de Victoria,
Tarlac.
T- 3445- 24.2998 18730
6548 C
Y en intervalo de tiempo que no
haya legatario acondicionado
T- 3670 6.2665 18736
segun lo arriba
6525 queda
expresado, pasara la
administracion deT-este legado 3666 11.9251 18733
a cargo del actual 6521 Parroco
Catolico y sus sucesores, de
Victoria, Tarlac.
Total amount and value — 44.1163
P13,090.00
El Parroco administrador de
estate legado, acumulara,
anualmente todos los Judge Roman A. Cruz in his order of August
productos que puede tener 15, 1940, approving the project of partition,
estate legado, ganando o directed that after payment of the obligations of
sacando de los productos the estate (including the sum of P3,132.26 due
anuales el CINCO (5) por to the church of the Victoria parish) the
ciento para su administracion, administratrix should deliver to the devisees
y los derechos their respective shares.
correspondientes de las
VEINTE (20) Misas rezadas
It may be noted that the administratrix and ricelands to the parish priest of Victoria as
Judge Cruz did not bother to analyze the trustee.
meaning and implications of Father Rigor's
bequest to his nearest male relative who would The legal heirs appealed to the Court of
study for the priesthood. Inasmuch as no Appeals. It reversed that order. It held that
nephew of the testator claimed the devise and Father Rigor had created a testamentary trust
as the administratrix and the legal heirs for his nearest male relative who would take the
believed that the parish priest of Victoria had holy orders but that such trust could exist only
no right to administer the ricelands, the same for twenty years because to enforce it beyond
were not delivered to that ecclesiastic. The that period would violate "the rule against
testate proceeding remained pending. perpetuities. It ruled that since no legatee
claimed the ricelands within twenty years after
About thirteen years after the approval of the the testator's death, the same should pass to
project of partition, or on February 19, 1954, his legal heirs, citing articles 888 and 912(2) of
the parish priest of Victoria filed in the pending the old Civil Code and article 870 of the new
testate proceeding a petition praying for the Civil Code.
appointment of a new administrator
(succeeding the deceased administration The parish priest in this appeal contends that
Florencia Rigor), who should deliver to the the Court of Appeals erred in not finding that
church the said ricelands, and further praying the testator created a public charitable trust
that the possessors thereof be ordered to and in not liberally construing the testamentary
render an accounting of the fruits. The probate provisions so as to render the trust operative
court granted the petition. A new administrator and to prevent intestacy.
was appointed. On January 31, 1957 the parish
priest filed another petition for the delivery of As refutation, the legal heirs argue that the
the ricelands to the church as trustee. Court of Appeals d the bequest inoperative
because no one among the testator's nearest
The intestate heirs of Father Rigor countered male relatives had studied for the priesthood
with a petition dated March 25, 1957 praying and not because the trust was a private
that the bequest be d inoperative and that they charitable trust. According to the legal heirs,
be adjudged as the persons entitled to the said that factual finding is binding on this Court.
ricelands since, as admitted by the parish They point out that appellant priest's change of
priest of Victoria, "no nearest male relative of" theory cannot be countenanced in this appeal .
the testator "has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal). In this case, as in cases involving the law of
That petition was opposed by the parish priest contracts and statutory construction, where the
of Victoria. intention of the contracting parties or of the
lawmaking body is to be ascertained, the
Finding that petition to be meritorious, the primary issue is the determination of the
lower court, through Judge Bernabe de Aquino, testator's intention which is the law of the case
declared the bequest inoperative and (dicat testor et erit lex. Santos vs. Manarang,
adjudicated the ricelands to the testator's legal 27 Phil. 209, 215; Rodriguez vs. Court of
heirs in his order of June 28, 1957. The parish Appeals, L-28734, March 28, 1969, 27 SCRA
priest filed two motions for reconsideration. 546).

Judge De Aquino granted the respond motion The will of the testator is the first and principal
for reconsideration in his order of December law in the matter of testaments. When his
10, 1957 on the ground that the testator had a intention is clearly and precisely expressed,
grandnephew named Edgardo G. Cunanan any interpretation must be in accord with the
(the grandson of his first cousin) who was a plain and literal meaning of his words, except
seminarian in the San Jose Seminary of the when it may certainly appear that his intention
Jesuit Fathers in Quezon City. The
administrator was directed to deliver the
was different from that literally expressed (In 6. That during the interval of time that there is
re Estate of Calderon, 26 Phil. 333). no qualified devisee as contemplated above,
the administration of the ricelands would be
The intent of the testator is the cardinal rule in under the responsibility of the incumbent parish
the construction of wills." It is "the life and soul priest of Victoria and his successors, and
of a will It is "the first greatest rule, the
sovereign guide, the polestar, in giving effect to 7. That the parish priest-administrator of the
a will". (See Dissent of Justice Moreland in ricelands would accumulate annually the
Santos vs. Manarang, 27 Phil. 209, 223, 237- products thereof, obtaining or getting from the
8.) annual produce five percent thereof for his
administration and the fees corresponding to
One canon in the interpretation of the the twenty masses with prayers that the parish
testamentary provisions is that "the testator's priest would celebrate for each year, depositing
intention is to be ascertained from the words of the balance of the income of the devise in the
the wilt taking into consideration the bank in the name of his bequest.
circumstances under which it was made", but
excluding the testator's oral declarations as to From the foregoing testamentary provisions, it
his intention (Art. 789, Civil Code of the may be deduced that the testator intended to
Philippines). devise the ricelands to his nearest male
relative who would become a priest, who was
To ascertain Father Rigor's intention, it may be forbidden to sell the ricelands, who would lose
useful to make the following re-statement of the the devise if he discontinued his studies for the
provisions of his will. priesthood, or having been ordained a priest,
he was excommunicated, and who would be
1. that he bequeathed the ricelands to anyone obligated to say annually twenty masses with
of his nearest male relatives who would pursue prayers for the repose of the souls of the
an ecclesiastical career until his ordination as testator and his parents.
a priest.
On the other hand, it is clear that the parish
2. That the devisee could not sell the ricelands. priest of Victoria would administer the ricelands
only in two situations: one, during the interval
of time that no nearest male relative of the
3. That the devisee at the inception of his
testator was studying for the priesthood and
studies in sacred theology could enjoy and
two, in case the testator's nephew became a
administer the ricelands, and once ordained as
priest and he was excommunicated.
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 What is not clear is the duration of "el intervalo
administer the ricelands if he discontinued his de tiempo que no haya legatario
studies for the priesthood. acondicionado", or how long after the testator's
death would it be determined that he had a
nephew who would pursue an ecclesiastical
4. That if the devisee became a priest, he
vocation. It is that patent ambiguity that has
would be obligated to celebrate every year
brought about the controversy between the
twenty masses with prayers for the repose of
parish priest of Victoria and the testator's legal
the souls of Father Rigor and his parents.
heirs.
5. That if the devisee is excommunicated, he
Interwoven with that equivocal provision is the
would be divested of the legacy and the
time when the nearest male relative who would
administration of the riceland would pass to the
study for the priesthood should be
incumbent parish priest of Victoria and his
determined. Did the testator contemplate only
successors.
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 Mrs. Gamalinda further deposed that her own
death? grandchild, Edgardo G. Cunanan, was not the
one contemplated in Father Rigor's will and
We hold that the said bequest refers to the that Edgardo's father told her that he was not
testator's nearest male relative living at the consulted by the parish priest of Victoria before
time of his death and not to any indefinite time the latter filed his second motion for
thereafter. "In order to be capacitated to inherit, reconsideration which was based on the
the heir, devisee or legatee must be living at ground that the testator's grandnephew,
the moment the succession opens, except in Edgardo, was studying for the priesthood at the
case of representation, when it is proper" (Art. San Jose Seminary.
1025, Civil Code).
Parenthetically, it should be stated at this
The said testamentary provisions should be juncture that Edgardo ceased to be a
sensibly or reasonably construed. To construe seminarian in 1961. For that reason, the legal
them as referring to the testator's nearest male heirs apprised the Court of Appeals that the
relative at anytime after his death would render probate court's order adjudicating the ricelands
the provisions difficult to apply and create to the parish priest of Victoria had no more leg
uncertainty as to the disposition of his estate. to stand on (p. 84, Appellant's brief).
That could not have been his intention.
Of course, Mrs. Gamalinda's affidavit, which is
In 1935, when the testator died, his nearest tantamount to evidence aliunde as to the
leagal heirs were his three sisters or second- testator's intention and which is hearsay, has
degree relatives, Mrs. Escobar, Mrs. Manaloto no probative value. Our opinion that the said
and Mrs. Quiambao. Obviously, when the bequest refers to the testator's nephew who
testator specified his nearest male relative, he was living at the time of his death, when his
must have had in mind his nephew or a son of succession was opened and the successional
his sister, who would be his third-degree rights to his estate became vested, rests on a
relative, or possibly a grandnephew. But since judicious and unbiased reading of the terms of
he could not prognosticate the exact date of his the will.
death or state with certitude what category of
nearest male relative would be living at the time Had the testator intended that the "cualquier
of his death, he could not specify that his pariente mio varon mas cercano que estudie la
nearest male relative would be his nephew or camera eclesiatica" would include indefinitely
grandnephews (the son of his nephew or anyone of his nearest male relatives born after
niece) and so he had to use the term "nearest his death, he could have so specified in his will
male relative". He must have known that such a broad
provision would suspend for an unlimited
It is contended by the legal heirs that the said period of time the efficaciousness of his
devise was in reality intended for Ramon bequest.
Quiambao, the testator's nephew and godchild,
who was the son of his sister, Mrs. Quiambao. What then did the testator mean by "el intervalo
To prove that contention, the legal heirs de tiempo que no haya legatario
presented in the lower court the affidavit of acondicionado"? The reasonable view is that
Beatriz Gamalinda, the maternal grandmother he was referring to a situation whereby his
of Edgardo Cunanan, who deposed that after nephew living at the time of his death, who
Father Rigor's death her own son, Valentin would like to become a priest, was still in grade
Gamalinda, Jr., did not claim the devise, school or in high school or was not yet in the
although he was studying for the priesthood at seminary. In that case, the parish priest of
the San Carlos Seminary, because she Victoria would administer the ricelands before
(Beatriz) knew that Father Rigor had intended the nephew entered the seminary. But the
that devise for his nearest male moment the testator's nephew entered the
relative beloning to the Rigor family (pp. 105- seminary, then he would be entitled to enjoy
114, Record on Appeal). and administer the ricelands and receive the
fruits thereof. In that event, the trusteeship except in cases of substitution and those in
would be terminated. which the right of accretion exists" ("el legado
... por qualquier causa, no tenga efecto se
Following that interpretation of the will the refundira en la masa de la herencia, fuera de
inquiry would be whether at the time Father los casos de sustitucion y derecho de
Rigor died in 1935 he had a nephew who was acrecer").
studying for the priesthood or who had
manifested his desire to follow the This case is also covered by article 912(2) of
ecclesiastical career. That query is the old Civil Code, now article 960 (2), which
categorically answered in paragraph 4 of provides that legal succession takes place
appellant priest's petitions of February 19, when the will "does not dispose of all that
1954 and January 31, 1957. He unequivocally belongs to the testator." There being no
alleged therein that "not male relative of the substitution nor accretion as to the said
late (Father) Pascual Rigor has ever studied for ricelands the same should be distributed
the priesthood" (pp. 25 and 35, Record on among the testator's legal heirs. The effect is
Appeal). as if the testator had made no disposition as to
the said ricelands.
Inasmuch as the testator was not survived by
any nephew who became a priest, the The Civil Code recognizes that a person may
unavoidable conclusion is that the bequest in die partly testate and partly intestate, or that
question was ineffectual or inoperative. there may be mixed succession. The old rule
Therefore, the administration of the ricelands as to the indivisibility of the testator's win is no
by the parish priest of Victoria, as envisaged in longer valid. Thus, if a conditional legacy does
the wilt was likewise inoperative. not take effect, there will be intestate
succession as to the property recovered by the
The appellant in contending that a public said legacy (Macrohon Ong Ham vs.
charitable trust was constituted by the testator Saavedra, 51 Phil. 267).
in is favor assumes that he was a trustee or a
substitute devisee That contention is We find no merit in the appeal The Appellate
untenable. A reading of the testamentary Court's decision is affirmed. Costs against the
provisions regarding the disputed bequest not petitioner.
support the view that the parish priest of
Victoria was a trustee or a substitute devisee in SO ORDERED
the event that the testator was not survived by
a nephew who became a priest.

It should be understood that the parish priest of 6. Art. 795. The validity of a will as to its form
Victoria could become a trustee only when the depends upon the observance of the law in
testator's nephew living at the time of his death, force at the time it is made.
who desired to become a priest, had not yet
entered the seminary or, having been ordained
G.R. No. L-23678 June 6, 1967
a priest, he was excommunicated. Those two
contingencies did not arise, and could not have
arisen in this case because no nephew of the TESTATE ESTATE OF AMOS G. BELLIS,
testator manifested any intention to enter the deceased.
seminary or ever became a priest. PEOPLE'S BANK and TRUST
COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM
The Court of Appeals correctly ruled that this
PALMA BELLIS, oppositors-appellants,
case is covered by article 888 of the old Civil
vs.
Code, now article 956, which provides that if
EDWARD A. BELLIS, ET AL., heirs-
"the bequest for any reason should be
appellees.
inoperative, it shall be merged into the estate,
Vicente R. Macasaet and Jose D. Villena for Subsequently, or on July 8, 1958, Amos G.
oppositors appellants. Bellis died a resident of San Antonio, Texas,
Paredes, Poblador, Cruz and Nazareno for U.S.A. His will was admitted to probate in the
heirs-appellees E. A. Bellis, et al. Court of First Instance of Manila on September
Quijano and Arroyo for heirs-appellees W. S. 15, 1958.
Bellis, et al.
J. R. Balonkita for appellee People's Bank & The People's Bank and Trust Company, as
Trust Company. executor of the will, paid all the bequests
Ozaeta, Gibbs and Ozaeta for appellee A. B. therein including the amount of $240,000.00 in
Allsman. the form of shares of stock to Mary E. Mallen
and to the three (3) illegitimate children, Amos
BENGZON, J.P., J.: Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis, various amounts totalling
This is a direct appeal to Us, upon a question P40,000.00 each in satisfaction of their
purely of law, from an order of the Court of First respective legacies, or a total of P120,000.00,
Instance of Manila dated April 30, 1964, which it released from time to time according
approving the project of partition filed by the as the lower court approved and allowed the
executor in Civil Case No. 37089 therein. 1äwphï1.ñët
various motions or petitions filed by the latter
three requesting partial advances on account
The facts of the case are as follows: of their respective legacies.

Amos G. Bellis, born in Texas, was "a citizen of On January 8, 1964, preparatory to closing its
the State of Texas and of the United States." administration, the executor submitted and
By his first wife, Mary E. Mallen, whom he filed its "Executor's Final Account, Report of
divorced, he had five legitimate children: Administration and Project of Partition" wherein
Edward A. Bellis, George Bellis (who pre- it reported, inter alia, the satisfaction of the
deceased him in infancy), Henry A. Bellis, legacy of Mary E. Mallen by the delivery to her
Alexander Bellis and Anna Bellis Allsman; by of shares of stock amounting to $240,000.00,
his second wife, Violet Kennedy, who survived and the legacies of Amos Bellis, Jr., Maria
him, he had three legitimate children: Edwin G. Cristina Bellis and Miriam Palma Bellis in the
Bellis, Walter S. Bellis and Dorothy Bellis; and amount of P40,000.00 each or a total of
finally, he had three illegitimate children: Amos P120,000.00. In the project of partition, the
Bellis, Jr., Maria Cristina Bellis and Miriam executor — pursuant to the "Twelfth" clause of
Palma Bellis. the testator's Last Will and Testament —
divided the residuary estate into seven equal
portions for the benefit of the testator's seven
On August 5, 1952, Amos G. Bellis executed a
legitimate children by his first and second
will in the Philippines, in which he directed that
marriages.
after all taxes, obligations, and expenses of
administration are paid for, his distributable
estate should be divided, in trust, in the On January 17, 1964, Maria Cristina Bellis and
following order and manner: (a) $240,000.00 to Miriam Palma Bellis filed their respective
his first wife, Mary E. Mallen; (b) P120,000.00 oppositions to the project of partition on the
to his three illegitimate children, Amos Bellis, ground that they were deprived of their
Jr., Maria Cristina Bellis, Miriam Palma Bellis, legitimes as illegitimate children and, therefore,
or P40,000.00 each and (c) after the foregoing compulsory heirs of the deceased.
two items have been satisfied, the remainder
shall go to his seven surviving children by his Amos Bellis, Jr. interposed no opposition
first and second wives, namely: Edward A. despite notice to him, proof of service of which
Bellis, Henry A. Bellis, Alexander Bellis and is evidenced by the registry receipt submitted
Anna Bellis Allsman, Edwin G. Bellis, Walter S. on April 27, 1964 by the executor.1
Bellis, and Dorothy E. Bellis, in equal shares. 1äw phï1.ñët
After the parties filed their respective successional rights; (e) the intrinsic validity of
memoranda and other pertinent pleadings, the the provisions of the will; and (d) the capacity
lower court, on April 30, 1964, issued an order to succeed. They provide that —
overruling the oppositions and approving the
executor's final account, report and ART. 16. Real property as well as
administration and project of partition. Relying personal property is subject to the law
upon Art. 16 of the Civil Code, it applied the of the country where it is situated.
national law of the decedent, which in this case
is Texas law, which did not provide for However, intestate and testamentary
legitimes. successions, both with respect to the
order of succession and to the amount
Their respective motions for reconsideration of successional rights and to the
having been denied by the lower court on June intrinsic validity of testamentary
11, 1964, oppositors-appellants appealed to provisions, shall be regulated by the
this Court to raise the issue of which law must national law of the person whose
apply — Texas law or Philippine law. succession is under consideration,
whatever may he the nature of the
In this regard, the parties do not submit the property and regardless of the country
case on, nor even discuss, the doctrine of wherein said property may be found.
renvoi, applied by this Court in Aznar v.
Christensen Garcia, L-16749, January 31, ART. 1039. Capacity to succeed is
1963. Said doctrine is usually pertinent where governed by the law of the nation of the
the decedent is a national of one country, and decedent.
a domicile of another. In the present case, it is
not disputed that the decedent was both a Appellants would however counter that Art. 17,
national of Texas and a domicile thereof at the paragraph three, of the Civil Code, stating that
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)
Prohibitive laws concerning persons,
should govern, the same would not result in a
their acts or property, and those which
reference back (renvoi) to Philippine law, but
have for their object public order, public
would still refer to Texas law. Nonetheless, if
policy and good customs shall not be
Texas has a conflicts rule adopting the situs
rendered ineffective by laws or
theory (lex rei sitae) calling for the application
judgments promulgated, or by
of the law of the place where the properties are
determinations or conventions agreed
situated, renvoi would arise, since the
upon in a foreign country.
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 prevails as the exception to Art. 16, par. 2 of
not be presumed different from the Civil Code afore-quoted. This is not correct.
ours.3 Appellants' position is therefore not Precisely, Congress deleted the phrase,
rested on the doctrine of renvoi. As stated, they "notwithstanding the provisions of this and the
never invoked nor even mentioned it in their next preceding article" when they incorporated
arguments. Rather, they argue that their case Art. 11 of the old Civil Code as Art. 17 of the
falls under the circumstances mentioned in the new Civil Code, while reproducing without
third paragraph of Article 17 in relation to Article substantial change the second paragraph of
16 of the Civil Code. 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
Article 16, par. 2, and Art. 1039 of the Civil
provision in itself which must be applied in
Code, render applicable the national law of the
testate and intestate succession. As further
decedent, in intestate or testamentary
indication of this legislative intent, Congress
successions, with regard to four items: (a) the
added a new provision, under Art. 1039, which
order of succession; (b) the amount of
decrees that capacity to succeed is to be
governed by the national law of the decedent.
G.R. No. L-10806 July 6, 1918
It is therefore evident that whatever public
policy or good customs may be involved in our MONICA BONA, petitioner-appellant,
System of legitimes, Congress has not vs.
intended to extend the same to the succession HOSPICIO BRIONES, ET AL., objectors-
of foreign nationals. For it has specifically appellees.
chosen to leave, inter alia, the amount of
successional rights, to the decedent's national Ramon Pimentel for appellant.
law. Specific provisions must prevail over Ocampo and De la Rosa for appellees.
general ones.
TORRES, J.:
Appellants would also point out that the
decedent executed two wills — one to govern
Counsel for Monica Bona, the widow by the
his Texas estate and the other his Philippine
second marriage of the deceased Francisco
estate — arguing from this that he intended
Briones who died on August 14, 1913, applied
Philippine law to govern his Philippine estate.
for the probate of the will which the said
Assuming that such was the decedent's
deceased husband on September 16, 1911,
intention in executing a separate Philippine will,
executed during his lifetime; for the fixing of a
it would not alter the law, for as this Court ruled
day for the hearing and presentation of
in Miciano v. Brimo, 50 Phil. 867, 870, a
evidence after all the interested parties had
provision in a foreigner's will to the effect that
been cited; and then for the approval of the
his properties shall be distributed in
partition had been cited; and then for the
accordance with Philippine law and not with his
approval of the partition property made by the
national law, is illegal and void, for his national
testator in the said will. By an order dated
law cannot be ignored in regard to those
January 20, 1915, Monica Bona's petition was
matters that Article 10 — now Article 16 — of
granted and a date set for the trial and other
the Civil Code states said national law should
necessary proceedings for the probate of said
govern.
will.
The parties admit that the decedent, Amos G.
Counsel for Hospicio, Gregoria, and Carmen,
Bellis, was a citizen of the State of Texas,
all surnamed Briones, the legitimate children
U.S.A., and that under the laws of Texas, there
by the first marriage of the testator, by a
are no forced heirs or legitimes. Accordingly,
pleading dated March 5, 1915, opposed the
since the intrinsic validity of the provision of the
probate of the will presented by the widow of
will and the amount of successional rights are
the deceased Briones, alleging that the said
to be determined under Texas law, the
will was executed before two witnesses only
Philippine law on legitimes cannot be applied
and under unlawful and undue pressure or
to the testacy of Amos G. Bellis.
influence exercised upon the person of the
testator who thus signed through fraud and
Wherefore, the order of the probate court is deceit; and he prayed that for that reason the
hereby affirmed in toto, with costs against said will be declared null and of no value, with
appellants. So ordered. costs against the petitioners.

The trial of the case opened and in the

presence of counsel for both parties, Gregorio
Bustilla, one of the witnesses of the said will,
was examined and he stated under oath: That
7. Art. 795. The validity of a will as to its form he as well as Sixto Barrameda and Domingo
depends upon the observance of the law in de la Fuente, was actually present as attesting
force at the time it is made. witness when Francisco Briones executed his
will in the month of September in his (Bustilla's) But before proceeding further it is
house situated in the municipality of Bao, indispensable to note that the will in question
Ambos Camarines; that Francisco Briones was executed by Francisco Briones on
knowing of the presence of notary Domingo de September 16, 1911, as already stated and the
la Fuente in the house, he went upstairs and order denying probate was rendered on March
announced himself; that on being asked what 27, 1915, both dated being prior to that of Act
he wanted, Briones stated that he wanted to No. 2645 amending said section 618 and
execute his will; that after Briones and the promulgated on February 24, 1916, which took
notary had talked with each other, the former effect only from July first of the last named
left and after a while returned bringing with him year: so that, in order to explain whether or not
some paper; that then Domingo de la Fuente, the above-mentioned will was executed in
under the direction of Francisco Briones, accordance with the law then in force, the last
began to draft the will, which when finished was named law cannot be applied and the will in
signed by the latter in the presence of the question should be examined in accordance
notary, of the declarant, and of another with, and under the rules of, the law in force at
witness, Sixto Barrameda; that then the three the time of its execution.
witnesses — the declarant, de la Fuente, and
Barrameda — signed in the presence of each The oft-repeated section 618 of Act No. 190
other. The declarant identified the signature says:
placed on the will by the testator Briones and
those of the other witnesses Sixto Barrameda No will, except as provided in the
and Domingo dela Fuente, who all signed in the preceding section, shall be valid to
presence of the testator himself. He stated pass any estate, real or personal, nor
further that the testator at that moment was in charge or affect the same, unless it be
his sound judgment and not forced to execute in writing and signed by the testator, or
the will. He identified the document Exhibit A by some other person in his presence,
as the will executed by Francisco Briones and and by his express direction, and
the signature of the latter as the one placed by attested and subscribed by three or
the testator. By agreement of both parties it more credible witnesses in the
was made to appear in the record that, if the presence of the testator and of each
witnesses Sixto Barrameda and Domingo de la other. But the absence of such form of
Fuente were called, they would have testified attestation shall not render the will
in the same terms as witness Gregorio Bustilla. invalid if it is proven that the will was in
fact signed and attested as in this
In view of the above, the judge rendered section provided.
judgment, dated March 27, 1915, denying
probate to the will Exhibit A as executed by A mere reading of the last four paragraphs or
Francisco Briones. From the judgment, parts of the will Exhibit A shows in a clear
counsel for Monica Bona appealed and prayed manner that the said will in its form and
to be allowed to sue further as a pauper; contents expresses without shadow of doubt
whereupon, by order of March 31, 1915, the the will of the testator; and that in its execution
judge admitted the appeal, ordered the original the solemnities prescribed by the above-
records to be brought up, and reiterated his mentioned section 618 of Act No. 190 have
order of December 28, 1913, declaring Bona been observed.
as a pauper, for the purposes of the appeal
interposed.
Even though Domingo de la Fuente drafted the
will and intervened in its preparation as a
The whole issue discussed by the parties and notary, by the order and under the express
submitted for the decision of this court resolves direction of the testator, it is nevertheless true
itself as to whether or not in the execution of that he did it as a witness to the execution of
the will in question the solemnities prescribed the said will with positive and concrete acts,
by section 618 of Act No. 190 have been while the two other witnesses Gregorio Bustilla
observed. and Sixto Barrameda merely attested all that
appeared in the second of the four paragraphs the testator but also by the attesting witnesses,
mentioned; for in its they certify that the it cannot but be admitted that Domingo de la
foregoing testament contains the last will of the Fuente intervened, attested, and signed the
testator Francisco Briones; that the latter told testament as a witness.
them that before and at the time that he
dictated his will, there was no inducement nor This is a case in which the judicial criterion
threat by anybody; and that as he did not know should be inspired in the sense that it is not
how to write the Spanish language, said defeated, and if the wish of the testator is so
testator requested Domingo de la Fuente to manifest and express as in the instant case, it
write the will, and he did it as it is now drafted, is not proper nor just to invalidate the will of
certifying also, that the testator Briones signed Francisco Briones merely because of some
his will voluntarily with his own hand, in the small defect in form which is not essential nor
presence of the declarants who, as witnesses, of great importance, such as the failure to state
signed the instrument on the date expressed. therein that Domingo de la Fuente was also a
Domingo de la Fuente on his part declared that witness to the said will when he signed it twice.
the two said witnesses formally swore before As a matter of act, he understood the contents
him on the certification which precedes the said of the will better than the two other attesting
will and, according to this testimony as shown witnesses, for he really was a witness and he
in the records and the testimony of the above- attested the execution of the will during its
mentioned witnesses, the said Domingo de la making until it was terminated and signed by
Fuente wrote and drafted the said will Exhibit A the testator, by the witnesses, and by himself,
by the order and under the direction of the even though he did it in the capacity of a notary.
testator Francisco Briones, who signed in the
presence of the witnesses, Bustilla and The last paragraph of section 618 of Act No.
Barrameda and of Notary Domingo de la 190 supplies a legal basis to support the
Fuente, all of whom immediately signed also in validity of the will in question with the conditions
the presence of the testator, each doing it in the for its probate because, notwithstanding the
presence of each other. So that, although it is existence of such defect merely in the form and
not shown expressly that Domingo de la not in the substance, the certification of
Fuente was an attesting witness to the will, yet authenticity and the very text of the will show in
it cannot be denied that it was he who wrote it a clear and indubitable manner that the will
by the order and under the direction of the Exhibit A contains the last will of the testator,
testator; that he was a witness to its execution and that it was signed by the latter and attested
from the first to its last line; and that he was as being true and legitimate not only the two
perfectly aware of the fact that all that he had witnesses Bustilla and Barrameda but also by
written in the document Exhibit A expresses the one who wrote it, Domingo de la Fuente,
the genuine and true will of the testator. He saw who was also a truthful and reliable witness,
and was present when the latter signed his will, even though he be called a notary public.
as also when the two witnesses Bustilla and
Barrameda affixed their signatures; said
The requisites established by Act No. 2645,
witnesses also saw and were present when
which amended the oft-repeated section 618
Domingo de la Fuente signed at the end of the
cannot be required in the probate of the will
said document.
here, inasmuch as this document was
executed in September, 1911, five years
The name of Domingo de la Fuente appears as before said amendatory law began to take
that of a notary who certifies as to the certainty effect (July 1, 1916), while the testator died on
of the will made by Francisco Briones and of August 14, 1913, two years and some months
the signatures of the testator as well as of the before the enforcement of the said law; and so,
witnesses at its end; and as the law does not the only law applicable to the present case is
require that one of the witnesses must the provision contained in section 618 of Act
necessarily be a notary, and it cannot be No. 190, and in accordance with the provisions
denied that Domingo de la Fuente attested the of this section, the said will should be probated;
execution and the signing of the will not only by for it has been presented to the court many
months before the amendatory act went into This is an appeal from an order of the Court of
effect. First Instance of the Province of Bataan,
admitting to probate a document which was
It is well-known that the principle that a new law offered as the last will and testament of
shall not have retroactive effect only governs Pioquinto Paguio y Pizarro. The will purports to
the rights arising from acts done under the rule have been executed in the pueblo of Pilar,
of the former law; but if the right be declared for Province of Bataan, on the 19th day of April,
the first time by a subsequent law it shall take 1908. The testator died on the 28th of
effect from that time even though it has arisen September, 1909, a year and five months
from acts subject to the former laws, provided following the date of the execution of the will.
that it does not prejudice another acquired right The will was propounded by the executrix,
of the same origin. Juliana Bagtas, widow of the decedent, and the
opponents are a son and several grandchildren
It is well-known that hereditary rights are not by a former marriage, the latter being the
born nor does the will produce any effect until children of a deceased daughter.
the moment of the death of the person whose
inheritance is concerned. (Decision rendered in The basis of the opposition to the probation of
cassation by the supreme court of Spain on the will is that the same was not executed
June 24, 1897.) according to the formalities and requirements
of the law touching wills, and further that the
In view of these facts, it follows that the testator was not in the full of enjoyment and use
judgment appealed from should be reversed of his mental faculties and was without the
and it should be declared as we hereby declare mental capacity necessary to execute a valid
that the will Exhibit A has been executed in due will.
form by Francisco Briones on September 16,
1911, and that the said will contains and The record shows that the testator, Pioquinto
expresses the last will and testamentary Paguio, for some fourteen of fifteen years prior
wishes of the deceased testator. to the time of his death suffered from a
Consequently, let the records be returned to paralysis of the left side of his body; that a few
the court wherefrom they came with a certified years prior to his death his hearing became
copy of this resolution in order that the judge, impaired and that he lost the power of speech.
upon petition by the proper party, may provide Owing to the paralysis of certain muscles his
for the necessary proceedings with respect to head fell to one side, and saliva ran from his
the inheritance, and the clerk of the court may mouth. He retained the use of his right hand,
issue certified copies of the said testament; however, and was able to write fairly well.
without any special ruling as to costs. so Through the medium of signs he was able to
ordered. indicate his wishes to his wife and to other
members of his family.

At the time of the execution of the will there

G.R. No. L-6801 March 14, 1912 were present the four testamentary witnesses,
Agustin Paguio, Anacleto Paguio, and Pedro
Paguio, and attorney, Señor Marco, and one
JULIANA BAGTAS, plaintiffs-appellee,
Florentino Ramos. Anacleto Paguio and the
vs.
attorney have since died, and consequently
ISIDRO PAGUIO, ET AL., defendants-
their testimony was not available upon the trial
appellants.
of the case in the lower court. The other three
testamentary witnesses and the witness
Salas and Kalaw for appellants. Florentino Ramos testified as to the manner in
Jose Santiago for appellee. which the will was executed. According to the
uncontroverted testimony of these witnesses
TRENT, J.: the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on Florentino Ramos, although not an attesting
pieces of paper notes and items relating to the witness, stated that he was present when the
disposition of his property, and these notes will was executed and his testimony was
were in turn delivered to Señor Marco, who cumulative in corroboration of the manner in
transcribed them and put them in form. The which the will was executed and as to the fact
witnesses testify that the pieces of paper upon that the testator signed the will. This witness
which the notes were written are delivered to also stated that he had frequently transacted
attorney by the testator; that the attorney read matters of business for the decedent and had
them to the testator asking if they were his written letters and made inventories of his
testamentary dispositions; that the testator property at his request, and that immediately
assented each time with an affirmative before and after the execution of the will he had
movement of his head; that after the will as a performed offices of his character. He stated
whole had been thus written by the attorney, it that the decedent was able to communicate his
was read in a loud voice in the presence of the thoughts by writing. The testimony of this
testator and the witnesses; that Señor Marco witness clearly indicates the presence of
gave the document to the testator; that the mental capacity on the part of the testator.
latter, after looking over it, signed it in the Among other witnesses for the opponents were
presence of the four subscribing witnesses; two physician, Doctor Basa and Doctor Viado.
and that they in turn signed it in the presence Doctor Basa testified that he had attended the
of the testator and each other. testator some four or five years prior to his
death and that the latter had suffered from a
These are the facts of record with reference to cerebral congestion from which the paralysis
the execution of the will and we are in perfect resulted. The following question was
accord with the judgment of the lower court that propounded to Doctor Basa:
the formalities of the Code of Civil Procedure
have been fully complied with. Q. Referring to mental condition in
which you found him the last time you
This brings us now to a consideration of attended him, do you think he was in
appellants' second assignment of error, viz, the his right mind?
testator's alleged mental incapacity at the time
of the execution of the will. Upon this point A. I can not say exactly whether he
considerable evidence was adduced at the was in his right mind, but I noted some
trial. One of the attesting witnesses testified mental disorder, because when I spoke
that at the time of the execution of the will the to him he did not answer me.
testator was in his right mind, and that although
he was seriously ill, he indicated by Doctor Basa testified at more length, but the
movements of his head what his wishes were. substance of his testimony is that the testator
Another of the attesting witnesses stated that had suffered a paralysis and that he had
he was not able to say whether decedent had noticed some mental disorder. He does not say
the full use of his mental faculties or not, that the testator was not in his right mind at the
because he had been ill for some years, and time of the execution of the will, nor does he
that he (the witnesses) was not a physician. give it at his opinion that he was without the
The other subscribing witness, Pedro Paguio, necessary mental capacity to make a valid will.
testified in the lower court as a witness for the He did not state in what way this mental
opponents. He was unable to state whether or disorder had manifested itself other than that
not the will was the wish of the testator. The he had noticed that the testator did not reply to
only reasons he gave for his statement were him on one occasion when he visited him.
the infirmity and advanced age of the testator
and the fact that he was unable to speak. The Doctor Viado, the other physician, have never
witness stated that the testator signed the will, seen the testator, but his answer was in reply
and he verified his own signature as a to a hypothetical question as to what be the
subscribing witness. mental condition of a person who was 79 years
old and who had suffered from a malady such
as the testator was supposed to have had The rule of law relating to the presumption of
according to the testimony of Doctor Basa, mental soundness is well established, and the
whose testimony Doctor Viado had heard. He testator in the case at bar never having been
replied and discussed at some length the adjudged insane by a court of competent
symptoms and consequences of the decease jurisdiction, this presumption continues, and it
from which the testator had suffered; he read is therefore incumbent upon the opponents to
in support of his statements from a work by a overcome this legal presumption by proper
German Physician, Dr. Herman Eichost. In evidence. This we think they have failed to do.
answer, however, to a direct question, he There are many cases and authorities which
stated that he would be unable to certify to the we might cite to show that the courts have
mental condition of a person who was suffering repeatedly held that mere weakness of mind
from such a disease. and body, induced by age and disease do not
render a person incapable of making a will. The
We do not think that the testimony of these two law does not require that a person shall
physicians in any way strengthens the continue in the full enjoyment and use of his
contention of the appellants. Their testimony pristine physical and mental powers in order to
only confirms the fact that the testator had been execute a valid will. If such were the legal
for a number of years prior to his death afflicted standard, few indeed would be the number of
with paralysis, in consequence of which his wills that could meet such exacting
physician and mental strength was greatly requirements. The authorities, both medical
impaired. Neither of them attempted to state and legal, are universal in statement that the
what was the mental condition of the testator at question of mental capacity is one of degree,
the time he executed the will in question. There and that there are many gradations from the
can be no doubt that the testator's infirmities highest degree of mental soundness to the
were of a very serious character, and it is quite lowest conditions of diseased mentality which
evident that his mind was not as active as it had are denominated as insanity and idiocy.
been in the earlier years of his life. However,
we can not include from this that he wanting in The right to dispose of property by
the necessary mental capacity to dispose of his testamentary disposition is as sacred as any
property by will. other right which a person may exercise and
this right should not be nullified unless mental
The courts have been called upon frequently to incapacity is established in a positive and
nullify wills executed under such conclusive manner. In discussing the question
circumstances, but the weight of the authority of testamentary capacity, it is stated in volume
is in support if the principle that it is only when 28, 70, of the American and English
those seeking to overthrow the will have clearly Encyclopedia of Law, that —
established the charge of mental incapacity
that the courts will intervene to set aside a Contrary to the very prevalent lay
testamentary document of this character. In the impression, perfect soundness of mind
case of Bugnao vs. Ubag (14 Phil. Rep., 163), is not essential to testamentary
the question of testamentary capacity was capacity. A testator may be afflicted
discussed by this court. The numerous with a variety of mental weaknesses,
citations there given from the decisions of the disorders, or peculiarities and still be
United States courts are especially applicable capable in law of executing a valid will.
to the case at bar and have our approval. In this (See the numerous cases there cited in
jurisdiction the presumption of law is in favor of support of this statement.)
the mental capacity of the testator and the
burden is upon the contestants of the will to The rule relating to testamentary capacity is
prove the lack of testamentary capacity. (In the stated in Buswell on Insanity, section 365, and
matter of the will of Cabigting, 14 Phil. Rep., quoted with approval in Campbell vs.
463; in the matter of the will of Butalid, 10 Phil. Campbell (130 Ill., 466), as follows:
Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep.,
689.)
 To constitute a sound and disposing will, and his physical and mental
mind, it is not necessary that the mind weakness and defective memory were
shall be wholly unbroken, unimpaired, in striking contrast with their strength in
or unshattered by disease or the meridian of his life. He was blind;
otherwise, or that the testator should not deaf, but hearing impaired; his
be in the full possession of his mind acted slowly, he was forgetful or
reasoning faculties. recent events, especially of names,
and repeated questions in
In note, 1 Jarman on Wills, 38, the rule is thus conversation; and sometimes, when
stated: aroused for sleep or slumber, would
seem bewildered. It is not singular that
The question is not so much, that was some of those who had known him
the degree of memory possessed by when he was remarkable for vigor and
the testator, as, had he a disposing intelligence, are of the opinion that his
memory? Was he able to remember reason was so far gone that he was
the property he was about to bequeath, incapable of making a will, although
the manner of disturbing it, and the they never heard him utter an irrational
objects of his bounty? In a word, were expression.
his mind and memory sufficiently
sound to enable him to know and In the above case the will was sustained. In the
understand the business in which he case at bar we might draw the same contrast
was engaged at the time when he as was pictured by the court in the case just
executed his will. (See authorities there quoted. The striking change in the physical and
cited.) mental vigor of the testator during the last years
of his life may have led some of those who
In Wilson vs. Mitchell (101 Penn., 495), the knew him in his earlier days to entertain doubts
following facts appeared upon the trial of the as to his mental capacity to make a will, yet we
case: The testator died at the age of nearly 102 think that the statements of the witnesses to the
years. In his early years he was an intelligent execution of the will and statements of the
and well informed man. About seven years conduct of the testator at that time all indicate
prior to his death he suffered a paralytic stroke that he unquestionably had mental capacity
and from that time his mind and memory were and that he exercised it on this occasion. At the
mush enfeebled. He became very dull of time of the execution of the will it does not
hearing and in consequence of the shrinking of appear that his conduct was irrational in any
his brain he was affected with senile cataract particular. He seems to have comprehended
causing total blindness. He became filthy and clearly what the nature of the business was in
obscene in his habits, although formerly he which he was engaged. The evidence show
was observant of the properties of life. The that the writing and execution of the will
court, in commenting upon the case, said: occupied a period several hours and that the
testator was present during all this time, taking
an active part in all the proceedings. Again, the
Neither age, nor sickness, nor extreme
will in the case at bar is perfectly reasonable
distress, nor debility of body will affect
and its dispositions are those of a rational
the capacity to make a will, if sufficient
person.
intelligence remains. The failure of
memory is not sufficient to create the
incapacity, unless it be total, or extend For the reasons above stated, the order
to his immediate family or property. . . . probating the will should be and the same is
hereby affirmed, with costs of this instance
against the appellants.
xxx xxx xxx

Dougal (the testator) had lived over

one hundred years before he made the
8. Art. 802. A married woman may make a will Exhibit "A" was executed in all particulars as
without the consent of her husband, and required by law." To this objection is added the
without the authority of the court. alleged error of the court "in allowing the
petitioner to introduce evidence that Exhibit "A"
Art. 804. Every will must be in writing and was written in a language known to the
executed in a language or dialect known to the decedent after petitioner rested his case and
testator. over the vigorous objection of the oppositor.

The will in question comprises two pages, each

of which is written on one side of a separate
G.R. No. L-1787 August 27, 1948 sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.
Testacy of Sixto Lopez. JOSE S.
LOPEZ, petitioner-appellee,
vs. The purpose of the law in prescribing the
AGUSTIN LIBORO, oppositor-appellant. paging of wills is guard against fraud, and to
afford means of preventing the substitution or
of defecting the loss of any of its pages.
Tirona, Gutierrez and Adorable for appellant.
(Abangan vs. Abangan, 40 Phil., 476.) In the
Ramon Diokno for appellee.
present case, the omission to put a page
number on the first sheet, if that be necessary,
TUASON, J.: is supplied by other forms of identification more
trustworthy than the conventional numerical
In the Court of First Instance of Batangas the words or characters. The unnumbered page is
appellant opposed unsuccessfully the probate clearly identified as the first page by the internal
of what purports to be the last will and sense of its contents considered in relation to
testament (Exhibit A) of Don Sixto Lopez, who the contents of the second page. By their
died at the age of 83 in Balayan, Batangas, on meaning and coherence, the first and second
March 3, 1947, almost six months after the lines on the second page are undeniably a
document in question was executed. In the continuation of the last sentence of the
court below, the present appellant specified testament, before the attestation clause, which
five grounds for his opposition, to wit: (1) that starts at the bottom of the preceding page.
the deceased never executed the alleged will; Furthermore, the unnumbered page contains
(2) that his signature appearing in said will was the caption "TESTAMENTO," the invocation of
a forgery; (3) that at the time of the execution the Almighty, and a recital that the testator was
of the will, he was wanting in testamentary as in full use of his testamentary faculty, — all of
well as mental capacity due to advanced age; which, in the logical order of sequence,
(4) that, if he did ever execute said will, it was precede the direction for the disposition of the
not executed and attested as required by law, marker's property. Again, as page two contains
and one of the alleged instrumental witnesses only the two lines above mentioned, the
was incapacitated to act as such; and it was attestation clause, the mark of the testator and
procured by duress, influence of fear and the signatures of the witnesses, the other sheet
threats and undue and improper pressure and can not by any possibility be taken for other
influence on the part of the beneficiaries than page one. Abangan vs. Abangan, supra,
instituted therein, principally the testator's and Fernandez vs. Vergel de Dios, 46 Phil.,
sister, Clemencia Lopez, and the herein 922 are decisive of this issue.
proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud Although not falling within the purview and
or trick. scope of the first assignment of error, the
matter of the credibility of the witnesses is
In this instance only one of these objections is assailed under this heading. On the merits we
reiterated, formulated in these words: "That the do not believe that the appellant's contention
court a quo erred in holding that the document deserves serious consideration. Such
contradictions in the testimony of the 160.) More, it is within the sound discretion of
instrumental witnesses as are set out in the the court whether or not it will allow the case
appellant's brief are incidents not all of which to be reopened for the further introduction of
every one of the witnesses can be supposed to evidence after a motion or request for a
have perceived, or to recall in the same order nonsuit, or a demurrer to the evidence, and the
in which they occurred. case may be reopened after the court has
announced its intention as to its ruling on the
Everyday life and the result of request, motion, or demurrer, or has granted it
investigations made in the field of or has denied the same, or after the motion has
experimental psychology show that the been granted, if the order has not been written,
contradictions of witnesses generally or entered upon the minutes or signed. (64 C.
occur in the details of a certain incident, J., 164.)
after a long series of questioning, and
far from being an evidence of In this jurisdiction this rule has been followed.
falsehood constitute a demonstration After the parties have produced their
of good faith. Inasmuch as not all those respective direct proofs, they are allowed to
who witness an incident are impressed offer rebutting evidence only, but, it has been
in like manner, it is but natural that in held, the court, for good reasons, in the
relating their impressions they should furtherance of justice, may permit them to offer
not agree in the minor details; hence, evidence upon their original case, and its ruling
the contradictions in their testimony. will not be disturbed in the appellate court
(People vs. Limbo, 49 Phil., 99.) where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
The testator affixed his thumbmark to the S. vs. Alviar, 36 Phil., 804.) So, generally,
instrument instead of signing his name. The additional evidence is allowed when it is newly
reason for this was that the testator was discovered, or where it has been omitted
suffering from "partial paralysis." While another through inadvertence or mistake, or where the
in testator's place might have directed purpose of the evidence is to the evidence is to
someone else to sign for him, as appellant correct evidence previously offered. (I Moran's
contends should have been done, there is Comments on the Rules of Court, 2d ed., 545;
nothing curious or suspicious in the fact that the 64 C. J., 160-163.) The omission to present
testator chose the use of mark as the means of evidence on the testator's knowledge of
authenticating his will. It was a matter of taste Spanish had not been deliberate. It was due to
or preference. Both ways are good. A statute a misapprehension or oversight.
requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark. (De Although alien to the second assignment of
Gala vs. Gonzales and Ona, 53 Phil., 108; 28 error, the appellant impugns the will for its
R. C. L., 117.) silence on the testator's understanding of the
language used in the testament. There is no
With reference to the second assignment of statutory requirement that such knowledge be
error, we do not share the opinion that the trial expressly stated in the will itself. It is a matter
court communicated an abuse of discretion in that may be established by proof aliunde. This
allowing the appellant to offer evidence to Court so impliedly ruled in Gonzales vs. Laurel,
prove knowledge of Spanish by the testator, 46 Phil., 781, in which the probate of a will
the language in which the will is drawn, after written in Tagalog was ordered although it did
the petitioner had rested his case and after the not say that the testator knew that idiom. In
opponent had moved for dismissal of the fact, there was not even extraneous proof on
petition on the ground of insufficiency of the subject other than the fact that the testator
evidence. It is within the discretion of the court resided in a Tagalog region, from which the
whether or not to admit further evidence after court said "a presumption arises that said
the party offering the evidence has rested, and Maria Tapia knew the Tagalog dialect.
this discretion will not be reviewed except
where it has clearly been abused. (64 C. J.,
The order of the lower court ordering the Agapito and Nenita begot a child named Lilia
probate of the last will and testament of Don who became a medical technologist and went
Sixto Lopez is affirmed, with costs. abroad. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as
his guardian in 1953 when he was declared an
incompetent in Special Proceeding No. 1807 of
A.M. No. 2026-CFI December 19, 1981 the Court of First Instance of Rizal, Pasig
Branch I (p. 16, Rollo of CA-G.R. No. 08654-
R).
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the In that connection, it should be noted that a
Court of First Instance of Rizal, Pasig woman named Arsenia de la Cruz wanted also
Branch 25 and EVANGELINE S. YUIPCO, to be his guardian in another proceeding.
Deputy Clerk of Court, respondents. Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful to
Agapito (pp. 61-63, Record of testate case).
AQUINO, J.:
Judge Bienvenido A. Tan dismissed the
second guardianship proceeding and
Should disciplinary action be taken against confirmed Nenita's appointment as guardian of
respondent judge for having admitted to Agapito (p. 16, Rollo of CA case). Agapito has
probate a will, which on its face is void because been staying in a veteran's hospital in San
it is written in English, a language not known to Francisco or Palo Alto, California (p. 87,
the illiterate testatrix, and which is probably Record).
a forged will because she and the attesting
witnesses did not appear before the notary as
On a date not indicated in the record, the
admitted by the notary himself?
spouses Antonio Sy and Hermogena Talan
begot a child named Marilyn Sy, who, when a
That question arises under the pleadings filed few days old, was entrusted to Arsenia de la
in the testate case and in the certiorari case in Cruz (apparently a girl friend of Agapito) and
the Court of Appeals which reveal the following who was later delivered to Marcelina Salvador
tangled strands of human relationship: Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter
Mauro Suroza, a corporal in the 45th Infantry of (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R).
the U.S. Army (Philippine Scouts), Fort Marilyn used the surname Suroza. She stayed
McKinley, married Marcelina Salvador in 1923 with Marcelina but was not legally adopted by
(p. 150, Spec. Proc. No. 7816). They were Agapito. She married Oscar Medrano and is
childless. They reared a boy named Agapito residing at 7666 J.B. Roxas Street, Makati,
who used the surname Suroza and who apparently a neighbor of Marina Paje, a
considered them as his parents as shown in his resident of 7668 J.B. Roxas Street.
1945 marriage contract with Nenita de Vera (p.
15, Rollo of CA-G.R. No. 08654-R; p. 148, Marcelina supposedly executed a notarial will
Rollo of Testate Case showing that Agapito in Manila on July 23, 1973, when she was 73
was 5 years old when Mauro married Marcelina years old. That will which is in English was
in 1923). thumbmarked by her. She was illiterate. Her
letters in English to the Veterans
Mauro died in 1942. Marcelina, as a veteran's Administration were also thumbmarked by her
widow, became a pensioner of the Federal (pp. 38-39, CA Rollo). In that wig, Marcelina
Government. That explains why on her death bequeathed all her estate to her supposed
she had accumulated some cash in two banks. granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Agapito's guardian and that Marilyn was not
Veterans Hospital in Quezon City. At the time Agapito's daughter nor the decedent's
of her death, she was a resident of 7374 San granddaughter (pp. 52-68, Record of testate
Maximo Street, Olimpia, Makati, Rizal. She case). Later, they questioned the probate
owned a 150-square meter lot and house in court's jurisdiction to issue the ejectment order.
that place. She acquired the lot in 1966 (p. 134,
Record of testate case). In spite of the fact that Judge Honrado was
already apprised that persons, other than
On January 13, 1975, Marina Paje, alleged to Marilyn, were claiming Marcelina's estate, he
be a laundrywoman of Marcelina (P. 97, CA issued on April 23 an order probating her
Rollo) and the executrix in her will (the alternate supposed will wherein Marilyn was the
executrix was Juanita Macaraeg, mother of instituted heiress (pp. 74-77, Record).
Oscar, Marilyn's husband), filed with the Court
of First Instance of Rizal, Pasig Branch 25, a On April 24, Nenita filed in the testate case an
petition for the probate of Marcelina's alleged omnibus petition "to set aside proceedings,
will. The case was assigned to Judge Reynaldo admit opposition with counter-petition for
P. Honrado. administration and preliminary injunction".
Nenita in that motion reiterated her allegation
As there was no opposition, Judge Honrado that Marilyn was a stranger to Marcelina, that
commissioned his deputy clerk of court, the will was not duly executed and attested,
Evangeline S. Yuipco, to hear the evidence. that it was procured by means of undue
The transcripts of the stenographic notes taken influence employed by Marina and Marilyn and
at the hearing before the deputy clerk of court that the thumbmarks of the testatrix were
are not in the record. procured by fraud or trick.

In an order dated March 31, 1975, Judge Nenita further alleged that the institution of
Honrado appointed Marina as administratrix. Marilyn as heir is void because of the
On the following day, April 1, Judge Honrado preterition of Agapito and that Marina was not
issued two orders directing the Merchants qualified to act as executrix (pp. 83-91,
Banking Corporation and the Bank of Record).
America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of To that motion was attached an affidavit of
Marcelina S. Suroza and Marilyn Suroza and Zenaida A. Penaojas the housemaid of
requiring Corazon Castro, the custodian of the Marcelina, who swore that the alleged will was
passbooks, to deliver them to Marina. falsified (p. 109, Record).

Upon motion of Marina, Judge Honrado issued Not content with her motion to set aside the
another order dated April 11, 1975, instructing ejectment order (filed on April 18) and her
a deputy sheriff to eject the occupants of the omnibus motion to set aside the proceedings
testatrix's house, among whom was Nenita V. (filed on April 24), Nenita filed the next day,
Suroza, and to place Marina in possession April 25, an opposition to the probate of the will
thereof. and a counter-petition for letters of
administration. In that opposition, Nenita
That order alerted Nenita to the existence of assailed the due execution of the will and
the testamentary proceeding for the settlement stated the names and addresses of Marcelina's
of Marcelina's estate. She and the other intestate heirs, her nieces and nephews (pp.
occupants of the decedent's house filed on 113-121, Record). Nenita was not aware of the
April 18 in the said proceeding a motion to set decree of probate dated April 23, 1975.
aside the order of April 11 ejecting them. They
alleged that the decedent's son Agapito was To that opposition was attached an affidavit of
the sole heir of the deceased, that he has a Dominga Salvador Teodocio, Marcelina's
daughter named Lilia, that Nenita was
niece, who swore that Marcelina never she did not know English, the language in
executed a win (pp. 124-125, Record). which the win was written. (In the decree of
probate Judge Honrado did not make any
Marina in her answer to Nenita's motion to set finding that the will was written in a language
aside the proceedings admitted that Marilyn known to the testatrix.)
was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and Nenita further alleged that Judge Honrado, in
that Agapito was not Marcelina's sonbut merely spite of his knowledge that the testatrix had a
an anak-anakan who was not legally adopted son named Agapito (the testatrix's supposed
(p. 143, Record). sole compulsory and legal heir), who was
preterited in the will, did not take into account
Judge Honrado in his order of July 17, 1975 the consequences of such a preterition.
dismissed Nenita's counter-petition for the
issuance of letters of administration because of Nenita disclosed that she talked several times
the non-appearance of her counsel at the with Judge Honrado and informed him that the
hearing. She moved for the reconsideration of testatrix did not know the executrix Marina
that order. Paje, that the beneficiary's real name is Marilyn
Sy and that she was not the next of kin of the
In a motion dated December 5, 1975, for the testatrix.
consolidation of all pending incidents, Nenita V.
Suroza reiterated her contention that the Nenita denounced Judge Honrado for having
alleged will is void because Marcelina did not acted corruptly in allowing Marina and her
appear before the notary and because it is cohorts to withdraw from various banks the
written in English which is not known to her (pp. deposits Marcelina.
208-209, Record).
She also denounced Evangeline S. Yuipco, the
Judge Honrado in his order of June 8, 1976 deputy clerk of court, for not giving her access
"denied" the various incidents "raised" by to the record of the probate case by alleging
Nenita (p. 284, Record). that it was useless for Nenita to oppose the
probate since Judge Honrado would not
Instead of appealing from that order and the change his decision. Nenita also said that
order probating the wig, Nenita "filed a case to Evangeline insinuated that if she (Nenita) had
annul" the probate proceedings (p. 332, ten thousand pesos, the case might be decided
Record). That case, Civil Case No. 24276, in her favor. Evangeline allegedly advised
Suroza vs. Paje and Honrado (p. 398, Record), Nenita to desist from claiming the properties of
was also assigned to Judge Honrado. He the testatrix because she (Nenita) had no rights
dismissed it in his order of February 16, 1977 thereto and, should she persist, she might lose
(pp. 398-402, Record). her pension from the Federal Government.

Judge Honrado in his order dated December Judge Honrado in his brief comment did not
22, 1977, after noting that the executrix had deal specifically with the allegations of the
delivered the estate to Marilyn, and that the complaint. He merely pointed to the fact that
estate tax had been paid, closed the Nenita did not appeal from the decree of
testamentary proceeding. probate and that in a motion dated July 6, 1976
she asked for a thirty day period within which
About ten months later, in a verified complaint to vacate the house of the testatrix.
dated October 12, 1978, filed in this Court,
Nenita charged Judge Honrado with having Evangeline S. Yuipco in her affidavit said that
probated the fraudulent will of Marcelina. The she never talked with Nenita and that the latter
complainant reiterated her contention that the did not mention Evangeline in her letter dated
testatrix was illiterate as shown by the fact that September 11, 1978 to President Marcos.
she affixed her thumbmark to the will and that
Evangeline branded as a lie Nenita's improper disposition of the testate case which
imputation that she (Evangeline) prevented might have resulted in a miscarriage of justice
Nenita from having access to the record of the because the decedent's legal heirs and not the
testamentary proceeding. Evangeline was not instituted heiress in the void win should have
the custodian of the record. Evangeline " inherited the decedent's estate.
strongly, vehemently and flatly denied"
Nenita's charge that she (Evangeline) said that A judge may be criminally liable or knowingly
the sum of ten thousand pesos was needed in rendering an unjust judgment or interlocutory
order that Nenita could get a favorable order or rendering a manifestly unjust judgment
decision. Evangeline also denied that she has or interlocutory order by reason of inexcusable
any knowledge of Nenita's pension from the negligence or ignorance (Arts. 204 to 206,
Federal Government. Revised Penal Code).

The 1978 complaint against Judge Honorado Administrative action may be taken against a
was brought to attention of this Court in the judge of the court of first instance for serious
Court Administrator's memorandum of misconduct or inefficiency ( Sec. 67, Judiciary
September 25, 1980. The case was referred to Law). Misconduct implies malice or a wrongful
Justice Juan A. Sison of the Court of Appeals intent, not a mere error of judgment. "For
for investigation, report and recommendation. serious misconduct to exist, there must be
He submitted a report dated October 7, 1981. reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an
On December 14, 1978, Nenita filed in the intention to violate the law, or were in persistent
Court of Appeals against Judge Honrado a disregard of well-known legal rules" (In
petition for certiorari and prohibition wherein relmpeachment of Horrilleno, 43 Phil. 212, 214-
she prayed that the will, the decree of probate 215).
and all the proceedings in the probate case be
declared void. Inefficiency implies negligence, incompetence,
ignorance and carelessness. A judge would be
Attached to the petition was the affidavit of inexcusably negligent if he failed to observe in
Domingo P. Aquino, who notarized the will. He the performance of his duties that diligence,
swore that the testatrix and the three attesting prudence and circumspection which the law
witnesses did not appear before him and that requires in the rendition of any public service
he notarized the will "just to accommodate a (In re Climaco, Adm. Case No. 134-J, Jan. 21,
brother lawyer on the condition" that said 1974, 55 SCRA 107, 119).
lawyer would bring to the notary the testatrix
and the witnesses but the lawyer never In this case, respondent judge, on perusing the
complied with his commitment. will and noting that it was written in English and
was thumbmarked by an obviously illiterate
The Court of Appeals dismissed the petition testatrix, could have readily perceived that the
because Nenita's remedy was an appeal and will is void.
her failure to do so did not entitle her to resort
to the special civil action of certiorari (Suroza In the opening paragraph of the will, it was
vs. Honrado, CA-G.R. No. SP-08654, May 24, stated that English was a language
1981). "understood and known" to the testatrix. But in
its concluding paragraph, it was stated that the
Relying on that decision, Judge Honrado filed will was read to the testatrix "and translated
on November 17, 1981 a motion to dismiss the into Filipino language". (p. 16, Record of
administrative case for having allegedly testate case). That could only mean that the will
become moot and academic. was written in a language not known to the
illiterate testatrix and, therefore, it is void
We hold that disciplinary action should be because of the mandatory provision of article
taken against respondent judge for his 804 of the Civil Code that every will must be
executed in a language or dialect known to the
testator. Thus, a will written in English, which
was not known to the Igorot testator, is void and
was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the

attestation clause and notarial
acknowledgment where Marcelina Salvador
Suroza is repeatedly referred to as the
"testator" instead of "testatrix".

Had respondent judge been careful and

observant, he could have noted not only the
anomaly as to the language of the will but also
that there was something wrong in instituting
the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father
who was still alive.

Furthermore, after the hearing conducted by

respondent deputy clerk of court, respondent
judge could have noticed that the notary was
not presented as a witness.

In spite of the absence of an opposition,

respondent judge should have personally
conducted the hearing on the probate of the will
so that he could have ascertained whether the
will was validly executed.

Under the circumstances, we find his

negligence and dereliction of duty to be
inexcusable.

WHEREFORE, for inefficiency in handling the

testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is
imposed on respondent judge (his compulsory
retirement falls on December 25, 1981).

The case against respondent Yuipco has

become moot and academic because she is no
longer employed in the judiciary. Since
September 1, 1980 she has been assistant city
fiscal of Surigao City. She is beyond this
Court's disciplinary jurisdiction (Peralta vs.
Firm Adm. Matter No. 2044-CFI November 21,
1980, 101 SCRA 225).

SO ORDERED.