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Allowance and Disallowance of Wills

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 76714 June 2, 1994 SALUD TEODORO VDA. DE PEREZ, petitioner, vs. HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent. Natividad T. Perez for petitioner. Benedicto T. Librojo for private respondents.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M. We grant the petition. II Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14. On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states: If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall

be presumed that I predeceased her, and my estate shall be administered and distributed, in all respects, in accordance with such presumption (Rollo, p. 41). Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same provisions as that of the will of her husband. Article VIII of her will states: If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my estate shall be administered and distributed in all respects, in accordance with such presumption. (Rollo, p. 31). On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his favor. On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She also asked that she be appointed the special administratrix of the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan. On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special administration. As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion. Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then filed a manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan. In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in the total amount of P12,412.52. On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983. Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had

"no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of the law of New York (Records, pp. 112-113). On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses. Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by her in trust for the estate. In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160). In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184185). Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She

also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanans executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52). On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator. Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received $215,000.00 "from the Surrogates Court as part of legacy" based on the aforesaid agreement of November 24, 1982 (Records, p. 248). On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on procedure and allowance of wills and the court had no way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of succession of the foreign country is the same as the law of the Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law. On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had sufficiently proven the applicable laws of New York governing the execution of last wills and testaments. On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day. Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court. On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and purposes, closed (Records, p. 302).

On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of April 30, 1985. On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the counsel) should be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323). Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice to their counsel. On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381). On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to that effect. However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p. 391). The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity to present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p. 393). On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding "would be a departure from the typical and established mode of probate where one petition takes care of one will." He pointed out that even in New York "where the wills in question were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395). On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She pointed out that separate proceedings for the wills of the

spouses which contain basically the same provisions as they even named each other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy determination of the proceedings" (Records, pp. 405-407). On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records, p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" (Records, p. 421). On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378). Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan spouses need not be probated in separate proceedings. II Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are sufficient to warrant the allowance of the wills: (a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General of the Philippines (Exhs. "F" and "G"); (b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which is a court of record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn and Jose (Exhs. "F-1" and "G-1"); (c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2"); (d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G6"); (e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7"); (f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh. "H" and "F"). (g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken (Exhs. "H-1" and "I-1");

(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2"); (i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and "I-10"); (j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5"); (k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5"); and (l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each others signatures in the exemplified copies of the decrees of probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I6") (Rollo, pp. 13-16). Petitioner adds that the wills had been admitted to probate in the Surrogate Courts Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984. The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines: Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]). Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special proceeding wherein courts should relax the

rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]). There is merit in petitioners insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judges view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding." A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]). What the law expressly prohibits is the making of joint wills either for the testators reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]). This petition cannot be completely resolved without touching on a very glaring fact petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]). The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required. The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . " WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner, vs. ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents. ROSARIO BASA DE LEON, ET AL., intervenors. Claro M. Recto and Benigno S. Aquino for petitioner. Esperanza de la Cruz and Heracio Abistao for respondents. Sotto and Sotto for intervenors. LAUREL, J.: On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June 27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the will and to close the proceedings. Because filed ex parte, the motion was denied. The same motion was filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the probate court on May 24, 1934. On appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.) It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando, Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and engaged the services of an attorney to undertake his defense. Preliminary investigation of the case was continued twice upon petition of the complainant. The complaint was finally dismissed, at the instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933, the same intervenor charged the petitioner for the second time with the same offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a bond in the sum of P4,000, and engaged the services of counsel to defend him. This second complaint, after investigation, was also dismissed, again at the instance of the complainant herself who alleged that the petitioner was in poor health. That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third time of the same offense. The information was filed by the provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged to have been falsified had already been probated and there was no evidence that the petitioner had forged the signature of the testatrix appearing thereon, but that, on the contrary, the evidence satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of First Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that the will alleged to have been forged had already been probated. This demurrer was overruled on December 24,

1935, whereupon an exception was taken and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner moved to dismiss the case claiming again that the will alleged to have been forged had already been probated and, further, that the order probating the will is conclusive as to the authenticity and due execution thereof. The motion was overruled and the petitioner filed with the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction. Three justices dissented in a separate opinion. The case is now before this court for review on certiorari. Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal prosecution for the alleged forgery of the said will; and, (2) that he has been denied the constitutional right to a speedy trial. 1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.

SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or special proceeding before a court or judge of the Philippine Islands or of the United States, or of any State or Territory of the United States, having jurisdiction to pronounce the judgment or order, may be as follows. 1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person Provided, That the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate.
xxx xxx xxx

(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a probate will. It says.

SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceeding. Sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs.De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.

The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will, and was not acting under duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State relative to the effect of the probate of a will are of persuasive authority in this jurisdiction. The Vermont statute as to the conclusiveness of the due execution of a probated will reads as follows.

SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed in the probate court, or by appeal in the county or supreme court; and the probate of a will of real or personal estate shall be conclusive as to its due execution. (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504): "The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)" The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication as a prerequisite to the allowance of a will is constructive notice to the whole world, and when probate is granted, the judgment of the court is binding upon everybody, even against the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires jurisdiction over all the persons interested, through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered therein is binding against all of them. Through the publication of the petition for the probate of the will, the court acquires jurisdiction over all such persons as are interested in said will; and any judgment that may be rendered after said proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.

In this State the probate of a will is a proceeding in rem being in form and substance upon the will itself to determine its validity. The judgment determines the status of the instrument, whether it is or is not the will of the testator. When the proper steps required by law have been taken the judgment is binding upon everybody, and makes the instrument as to all the world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeckvs. Little, 50 Vt., 713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate court are statutory and are not governed by common law rules as to parties or causes of action. (Holdrigevs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such proceedings, but all persons interested in determining the state or conditions of the instrument are constructively notified by the publication of notice as required by G. L. 3219. (Woodruff vs. Taylor,supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible presumption in favor of judgments declared by it to be conclusive.

SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which the law expressly directs to be made from particular facts, are deemed conclusive.
xxx xxx xxx

4. The judgment or order of a court, when declared by this code to be conclusive.


Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been probated by a competent court, the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery. The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that "the judgment admitting the will to probate is binding upon the whole world as to the due execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not for the purpose of punishment of a crime." The cases of Dominus Rex vs.Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive evidence in the defendants favor of its genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which establish a contrary rule. Citing these later cases, we find the following quotation from Black on Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attacked collaterally although the will was forged; and a payment to the executor named therein of a debt due the decedent will discharge the same, notwithstanding the spurious character of the instrument probated. It has also been held that, upon an indictment for forging a will, the probate of the paper in question is conclusive evidence in the defendants favor of its genuine character. But this particular point has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in the case of Waters vs.Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that "according to later and sounder decisions, the probate, though conclusive until set aside of the disposition of the property, does not protect the forger from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority opinion do not appear to "have been promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the validity of the will with regard to personal, and prima facie as to real estate. The cases decided by the Supreme Court of Florida cited by the majority opinion, supra, refer to wills of both personal and real estate. The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice Norton of the Supreme Court of California, makes the following review of the nature of probate proceedings in England with respect to wills personal and real property.

In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of

the party seized, passes immediately to the devisee under the will if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstance affecting its character as a valid devise of the real estate in dispute. The decision upon the validity of the will in such action becomes res adjudicata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the English law on wills is different from that stated in the case of State vs. McGlynn, supra, citing the following statutes.

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26). 2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77). 3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be testamentary and executed in accordance with the statutory requirements . . . if it disposes of property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857, and the Court of Probate in turn was, together with other courts, incorporated into the Supreme Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact, however, that the case of Rex vs.Buttery and Macnamarra, supra, upon which they rely in support of their theory that the probate of a forged will does not protect the forger from punishment, was decided long before the foregoing amendatory statutes to the English law on wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of England at the time of the promulgation of the decision in the case of Rex vs. Buttery and Macnamarra. In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside the probate of the will of one Broderick, after the lapse of one year provided by the law of California for the review of an order probating a will, in order that the estate may be escheated to the State of California for the review of an probated will was forged and that Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate. Upon these facts, the Supreme Court of California held.

The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee capable of inheriting and holding it, has been admitted to probate and established as a genuine will by the decree of a Probate Court having jurisdiction of the case, renders

it necessary to decide whether that decree, and the will established by it, or either of them, can be set aside and vacated by the judgment of any other court. If it shall be found that the decree of the Probate Court, not reversed by the appellate court, is final and conclusive, and not liable to be vacated or questioned by any other court, either incidentally or by any direct proceeding, for the purpose of impeaching it, and that so long as the probate stands the will must be recognized and admitted in all courts to be valid, then it will be immaterial and useless to inquire whether the will in question was in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the decree of probate on the ground that the will was forged, we see no difference in principle between that case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated will cannot be declared to be a forgery without disturbing in a way the decree allowing said will to probate. It is at least anomalous that a will should be regarded as genuine for one purpose and spurious for another. The American and English cases show a conflict of authorities on the question as to whether or not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have examined some important cases and have come to the conclusion that no fixed standard maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that rule most consistent with our statutory law, having in view the needed stability of property rights and the public interest in general. To be sure, we have seriously reflected upon the dangers of evasion from punishment of culprits deserving of the severity of the law in cases where, as here, forgery is discovered after the probate of the will and the prosecution is had before the prescription of the offense. By and large, however, the balance seems inclined in favor of the view that we have taken. Not only does the law surround the execution of the will with the necessary formalities and require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure provides for an adequate remedy to any party who might have been adversely affected by the probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the proper court within a reasonable time, but in no case exceeding six months after said court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first instance when that court refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated has become final and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as an expression of the legislative wisdom goes no further and the case ends there.

. . . The court of chancery has no capacity, as the authorities have settled, to judge or decide whether a will is or is not a forgery; and hence there would be an incongruity in its assuming to set aside a probate decree establishing a will, on the ground that the decree was procured by fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is not allowed to judge of the validity of a will, except as shown by the probate, for the exception of probate decrees from the jurisdiction which courts of chancery exercise in setting aside other judgments obtained by fraud. But whether the exception be founded in good reason or otherwise, it has become too firmly established to be disregarded. At the present day, it would not be a greater assumption to deny the general rule that courts of chancery may set aside judgments procured by fraud, than to deny the exception to that rule in the case of probate decrees. We must acquiesce in the principle established by the authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate for the most enlarged jurisdiction of courts of chancery, and was compelled to yield to the weight of authority. He says "No other excepted case is known to exist; and it is not easy to

discover the grounds upon which this exception stands, in point of reason or principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other legal question with reference to the denial to the accused of his right to a speedy trial having been squarely raised and submitted, we shall proceed to consider the same in the light of cases already adjudicated by this court. 2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have been taken from similar provisions in the Constitution of the United States (6th Amendment) and those of the various states of the American Union. A similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More than once this court had occasion to set aside the proceedings in criminal cases to give effect to the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalawvs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.). In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.

Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could have settled upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays.
In People vs. Castaeda and Fernandez, supra, this court found that the accused had not been given a fair and impartial trial. The case was to have been remanded to the court a quo for a new trial before an impartial judge. This step, however, was found unnecessary. A review of the evidence convinced this court that a judgment of conviction for theft, as charged, could not be sustained and, having in view the right to a speedy trial guaranteed by the Constitution to every person accused of crime, entered a judgment acquitting the accused, with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely Pedro Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to November 27, 1934, for inability to post the required bond of P3,000 which was finally reduced to P300. The

Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court, after referring to the constitutional and statutory provisions guaranteeing to persons accused of crime the right to a speedy trial, said:

Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene derecho a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque se celebra de acuerdo con la ley de procedimiento criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas (Burnett vs. State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixonvs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que al recurrente se le concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Samar, solo despues de haber transcurrido ya mas de un ao y medio desde la presentacion de la primera querella y desde la recepcion de la causa en dicho Juzgado, y despues de haberse transferido dos veces la vista delasunto sin su consentimiento. A esto debe aadirse que laprimera transferencia de vista era claramente injustificadaporque el motivo que se alego consistio unicamente en laconveniencia personal del ofendido y su abogado, no habiendose probado suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que el recurrente habia pedido que, en vez de sealarse a vista el asunto para el mayo de 1936, lo fuera para el noviembre del mismo ao; pero,aparte de que la razon que alego era bastante fuerte porquesu abogado se oponia a comparecer por compromisos urgentes contraidos con anterioridad y en tal circunstancia hubiera quedado indefenso si hubiese sido obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado amotu proprio, por haber cancelado todo el calendario judicial preparado por el Escribano para el mes de junio. Declaramos, con visto de estos hechos, que al recurrents se leprivo de su derecho fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In accepting the contention that the petitioner had been denied speedy trial, this court said:

Consta que en menos de un ao el recurrente fue procesado criminalmente por el alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia de las denuncias que contra el se presentaron fue arrestado tres veces y para gozar de libertad provisional, en espera de los juicios, se vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se ha incoado contra el recurrente la incertidumbre continuara cerniendose sobre el y las consiguientes molestias y preocupaciones continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de ser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas criminales el acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente culpable del delito que se le imputo, tenia de todos modos derechos a que fuera juzgado pronta y publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio positivo para los casos en que se viola el derecho constitucional del acusado de ser juzgado

prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a que la causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the present case may be at variance with those of the cases hereinabove referred to. Nevertheless, we are of the opinion that, under the circumstances, we should consider the substance of the right instead of indulging in more or less academic or undue factual differentiations. The petitioner herein has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services of counsel to undertake his defense an equal number of times. The first arrest was made upon a complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen months before, had been probated in court. This complaint, after investigation, was dismissed at the complainant's own request. The second arrest was made upon a complaint charging the same offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged the quite startling ground that the petitioner was in poor health. The third arrest was made following the filing of an information by the provincial fiscal of Pampanga, which information was dismissed, after due investigation, because of insufficiency of the evidence. The fourth arrest was made when the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he had additional evidence to present, although such evidence does not appear to have ever been presented. It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he presented an information charging the petitioner, for the third time, of the offense of falsification. This, however, does not matter. The prosecution of offenses is a matter of public interest and it is the duty of the government or those acting in its behalf to prosecute all cases to their termination without oppressive, capricious and vexatious delay. The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced. In any event, even the actuations of the fiscal himself in this case is not entirely free from criticism. From October 27, 1932, when the first complaint was filed in the justice of the peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three months and six days transpired; and from April 27, 1933, when the second criminal complaint was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and six days elapsed. The investigation following the fourth arrest, made after the fiscal had secured a reinvestigation of the case, appears also to have dragged on for about a year. There obviously has been a delay, and considering the antecedent facts and circumstances within the knowledge of the fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that criminal cases are heard without vexatious, capricious and oppressive delays so that the courts of justice may dispose of them on the merits and determine whether the accused is guilty or not. This is as clear an admonition as could be made. An accused person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).

It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal action against the petitioner. The petitioner claims that the intention of the intervenors was to press upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument of counsel for the petitioner in this regard is not without justification. Thus after the filing of the second complaint with the justice of the peace court of Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to renew her complaint. Counsel for the intervenors contend and the contention is sustained by the Court of Appeals that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging, among other things, "Que por estas continuas acusaciones e investigaciones, el acusado compareciente no obstante su mal estado de salud desde el ao 1932 en que tuvo que ser operado por padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha incudo en enormes gastos y molestias y ha desatendido su quebrantada salud." The foregoing allegation was inserted on page 6 of the amended petition for certioraripresented to the Court of Appeals. The constitutional issue also appears to have been actually raised and considered in the Court of Appeals. In the majority opinion of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court the following questions of law: First, that the respondent court acted arbitrarily and with abuse of its authority, with serious damage and prejudice to the rights and interests of the petitioner, in allowing that the latter be prosecuted and arrested for the fourth time, and that he be subjected, also for the fourth time, to a preliminary investigation for the same offense, hereby converting the court into an instrument of oppression and vengeance on the part of the alleged offended parties, Rosario Basa et al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecution that has dragged for about five years and caused the arrest on four different occasions of a law abiding citizen for the alleged offense of falsifying a will that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed, without pronouncement regarding costs. So ordered. Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

THIRD DIVISION

[G.R. No. 110427. February 24, 1997]

The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents. DECISION
NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment of the Regional Trial Court of Quezon City, Branch 107, in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. She was so adjudged because of her advanced age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.
[1] [2] [3]

Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. The complaint was later amended to identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo Evangelista.
[4]

The amended Complaint pertinently alleged that plaintiff Caiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Caiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that through her guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they ** (were) enriching themselves at the expense of the incompetent, because, while they ** (were) saving money by not paying any rent for the house, the incompetent ** (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of first letter of demand dated February 3, 1990."
[5]

In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house since the 1960's; that in consideration of their

faithful service they had been considered by Caiza as her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question. Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, the Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of attorney's fees.
[6]

But on appeal, the decision was reversed by the Quezon City Regional Trial Court, Branch 96. By judgment rendered on October 21, 1992, the RTC held that the "action by which the issue of defendants' possession should be resolved is accion publiciana, the obtaining factual and legal situation ** demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court."
[7] [8] [9]

Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision promulgated on June 2, 1993, the Appellate Court affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for Caiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, ** it is indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and are to continue in their occupancy and possession, so much so that Caiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out."
[10] [11] [12]

Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case."
[13]

In the responsive pleading filed by them on this Court's requirement, the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could the suit against
[14]

them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Caiza's legal guardian to oust them from the disputed premises. Carmen Caiza died on March 19, 1994, and her heirs -- the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively -- were by this Court's leave, substituted for her.
[15] [16]

Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent Caiza after the latter's death.
I

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought. An inquiry into the averments of the amended complaint in the Court of origin is thus in order.
[17] [18]

The amended Complaint alleges:

[19]

"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint; ** ** **

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free, out of her kindness; 10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same. ** 11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2)

conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990; issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof; 12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they are up to this time residing in the said place; 13. That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian -- Amparo Evangelista; 14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff, because, while they are saving money by not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by others; 15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment; 16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spend P10,000.00 as attorney's fees." Its prayer is quoted below:
[20]

"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as follows: 1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen Caiza: and 2. 3. To pay attorney's fees in the amount of P10,000.00; To pay the costs of the suit."

In essence, the amended complaint states: 1) that the Estradas were occupying Caiza's house by tolerance -- having been "allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness;" 2) that Caiza needed the house "urgently" because her "health ** (was) failing and she ** (needed) funds ** to meet her expenses for her support, maintenance and medical treatment;" 3) that through her general guardian, Caiza requested the Estradas several times, orally and in writing, to give back possession of the house; 4) that the Estradas refused and continue to refuse to give back the house to Caiza, to her continuing prejudice; and 5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law.
[21] [22]

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in question "by virtue of any contract, express or implied" -- they having been, to repeat, "allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness" - in no sense could there be an "expiration or termination of ** (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Caiza) of the possession of ** (her property) by force, intimidation, threat, strategy, or stealth." The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning

the house to Caiza upon her demand. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave. Thus, in Asset Privatization Trust vs. Court of Appeals, where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, ** (its) continuing possession ** became illegal and the complaint for unlawful detainer filed by the ** (plant's owner) was its proper remedy."
[23] [24] [25] [26]

It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand, the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. Now, the complaint filed by Caiza's guardian alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate.
[27] [28]

The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Caiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance, that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them -- an event which still has to take place; in other words; prior to the probate of the will, any assertion of possession by them would be premature and inefficacious. In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Caiza is not ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de jure.
II

The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's will. A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). An owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age.
[29] [30]

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CAIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties ** " By that appointment, it became Evangelista's duty to care for her aunt's
[31] [32]

person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. It also became her right and duty to get possession of, and exercise control over, Caiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during her incompetency. That right to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it, and bring and defend such actions as may be needful for this purpose.
[33] [34] [35] [36]

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.: "SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance." Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve. "the issue of ownership ** only to determine the issue of possession."
[37]

III

As already stated, Carmen Caiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit. While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward, the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by
[38]

Resolution of this Court of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:
[39] [40]

"SEC. 18. Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs. To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her guardian. That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.
[41]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-56340 June 24, 1983 SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.

Pelaez, Pelaez, & Pelaez Law Office for petitioners. Ceniza, Rama & Associates for private respondents.

PLANA, J.:

I. FACTS: This is a case of hereditary succession. Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship. On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in PinaBarot, Cebu. On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He assumed office as such on December 4, 1970 after filing a bond of P 5,000.00. On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX. On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing QUEMADA as special administrator. On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on January 11, 1978. For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance

suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT. On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much inheritance QUEMADA was entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that determination of how much QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows: 1. A. Pastor, Jr. ...................................40.5% 2. E. Pelaez, Sr. ...................................15.0% 3. B. Quemada .......................................4.5% On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.] The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million pesos. The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration. Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued

pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration of the questioned Order was still pending determination by the PROBATE COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order assailed is "legally valid. " On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered was just the transfer of its possession to the custody of the PROBATE COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration. Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order. In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased from P50,000.00 to P100,000.00. Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not the petition should be given due course. On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due course when this case was heard on the merits on September 7, (should be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present membership of the Division; and to reassign the case to another ponente." Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the petition in fact and in effect had been given due course. II. ISSUES: Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980

declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980. The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way: Before the provisions of the holographic win can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis. Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become final and executory, how can its implementation (payment of legacy) be restrained? Of course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order. On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien. On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution and the implementing writ. III. DISCUSSION: 1. Issue of Ownership (a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.] (b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)

The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the issues before the Probate Court, thus: Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will (2) the intestate estate aspect; and (3) the administration proceedings for the purported estate of the decedent in the Philippines. In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in the Philippines have not been established. Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been executed with all the formalities required by law; and (c) Did the late presentation of the holographic will affect the validity of the same? Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to be a special administrator of the estate; and (4) Whether or not the properties listed in the inventory (submitted by the special administrator but not approved by the Probate Court) are to be excluded. Then came what purports to be the dispositive portion: Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings, as follows: (a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording. (b) There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor and/or administrator has been appointed up to this time and - the appointment of a special administrator was, and still is, justified under the circumstances to take possession and charge of the estateof the deceased in the Philippines (particularly in Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed. (c) There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite of this Court's

declaration that the oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositor for the following reasons: 1. To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr. 2. To administer and to continue to put to prolific utilization of the properties of the decedent; 3. To keep and maintain the houses and other structures and belonging to the estate, since the forced heirs are residing in Spain, and prepare them for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of estate and inheritance taxes; (d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu, the intestate estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid, that there had been an extrajudicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of Internal Revenue. The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the decedent, which properties are not directly or indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan etc.), will be resolved in another order as separate incident, considering that this order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. (Emphasis supplied.) Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the win, and the need for and propriety of appointing a special administrator. Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed " subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration, but not so for intestatepurposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the petitioner does not exceed the free portion of the estate of the

testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing QUEMADA to remain as special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will. " (c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu. (d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probable Order were only the matters properly adjudged in the said Order. (e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his father because the latter was a Spaniard. Based on the premises laid, the conclusion is obviously far-fetched. (f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the legacy in dispute. 2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. * When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that it was ever the subject of a hearing or that it was judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in another court. (c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against the decedent to file them in the office of the Branch Clerk of this Court."

(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972. (e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained. (f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an impairment of the legitime of the compulsory heirs. (g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will. 3. Propriety of certiorari Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal, not certiorari. Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be overlooked or condoned. (a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis. (b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.) (c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to any beneficiary of his distributive share of the estate (Section 107 [c]) (d) The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which reads: Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. Where devisees, legatees, or heirs have entered into possession of portions of the estate before the debtsand expenses have been settled and paid and have become liable to contribute for the payment of such debts and expenses, the

court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require. The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued. ... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment enforceable by execution. The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the only instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.) (d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution. (e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant case which justify the remedy applied for. Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in the petition for certiorari states against requiring her to go through the cumbersome procedure of asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered owner and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over the properties subject of the execution was then still being litigated in another court in a reconveyance suit filed by the special administrator of the estate of PASTOR, SR.

Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal was not available to him since his motion for reconsideration of the execution order was still pending resolution by the Probate Court. But in the face of actual garnishment of their major source of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the injurious effects of the execution order. Under the circumstances, recourse to certiorari was the feasible remedy. WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-39247 June 27, 1975 In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents. Roberto M. Sarenas for petitioner. Jose B. Guyo for private respondents.

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows: Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's one half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix. Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will. Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special administrator of the decedent's estate. Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973. In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon. Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being contrary to law and that an intestacy be declared. The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaa's services and informed him that his withdrawal of the petition for the probate of the will was without their consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them. Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaa's arguments. The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).
1wph 1. t

But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded. The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads: ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a) The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifetime would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code). Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected. Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse. It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs. Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect." In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of

by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated. The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies, shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).
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In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. . It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428). As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565). To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code). Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762). As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546). The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341). Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not in order if only a special administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting

letters of testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the appointment of an executor or regular administrator and not that of a special administrator. It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court). We also take this occasion to point out that the probate court's appointment of its branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's estate. Should the branch clerk of court commit any abuse or devastavit in the course of his administration, the probate Judge might find it difficult to hold him to a strict accountability. A court employee should devote his official time to his official duties and should not have as a sideline the administration of a decedent's estate. WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion. Costs, against the private respondents. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 168156 December 6, 2006

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P. Llonillo, petitioners, vs. VICENTA UMENGAN, respondent.

DECISION

CALLEJO, SR., J.: Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the reversal of the Decision1 dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The assailed decision reversed and set aside the decision of the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed, for lack of merit, the complaint for unlawful detainer file by the said heirs against respondent Vicenta Umengan.

The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city, Branch III, which had rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from the lot subject of litigation. The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam. As culled from the records, the backdrop of the present case is as follows The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427 containing an area of 1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The second lot, Lot No. 990 containing an area of 118 sq m, is covered by OCT No. 1032. These lots are registered in the names of the original owners, spouses Pedro Cuntapay and Leona Bunagan. In an instrument denominated as Deed of Confirmation and acknowledged before a notary public on June 14, 1979, the heirs of the said spouses conveyed the ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another instrument entitled Partition Agreement and acknowledged before a notary public on December 28, 1979, it was agreed that the eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq m. Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo. Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second husband) filed with the MTCC a complaint for unlawful detainer against Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of Isabel Cuntapay by her first husband). In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot, having inherited it from their father. Rosendo Lasam was allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter and her husband allegedly promised that they would vacate the subject lot upon demand. However, despite written notice and demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the subject lot and continued to possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to institute the action for ejectment. In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations in the complaint. She countered that when Isabel Cuntapay passed away, the subject lot was inherited by her six children by her first and second marriages through intestate succession. Each of the six children allegedly had a pro indiviso share of 1/6 of the subject lot. It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the respective 1/6 shares in the subject lot of his siblings Maria and Sado. These conveyances were allegedly evidenced by the Deed of Sale dated March 3, 1975, appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui. Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6

share in the subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book of the same notary public. According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed that the complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay her damages. The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the newly discovered last will and testament (entitled Testamento Abierto) purportedly executed by Isabel Cuntapay where she bequeathed the subject lot to her son, Rosendo Lasam, thus:

x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by the late Don Luis Alonso; on the property which is my share stands a house of light materials where I presently reside; this 1/5th (one-fifth) share of my inheritance from the Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of light material x x x2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan hinged hers on intestate succession and legal conveyances. Citing jurisprudence3 and Article 10804 of the Civil Code, the MTCC opined that testacy was favored and that intestacy should be avoided and the wishes of the testator should prevail. It observed that the last will and testament of Isabel Cuntapay was not yet probated as required by law; nonetheless, the institution of a probate proceeding was not barred by prescription. With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan no longer had any share therein. Consequently, they could not convey to Vicenta Umengan what they did not own. On the issue then of who was entitled to possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam as it found that Vicenta Umengans possession thereof was by mere tolerance. The dispositive portion of the MTCC decision reads:

WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order the EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE HEIRS OF ROSENDO LASAM. It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of P500.00 pesos representing the monthly rental of the land from August 2000 to the time this case shall have been terminated. Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorneys fees plus cost of this litigation. So Ordered.5
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of the MTCC that the testamentary disposition of the property of Isabel Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better right to possess the subject lot. Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no jurisdiction over the case as it involved the recovery of ownership of the subject lot, not merely recovery of possession or unlawful detainer. She also assailed the RTCs and the MTCCs holding that the

purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta Umengans muniments of title and, consequently, the heirs of Rosendo Lasam have a better right to the subject lot than Vicenta Umengan. In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of the RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC over the subject matter as it found that the allegations in the complaint made out a case for unlawful detainer. The heirs of Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta Umengan to vacate and surrender possession of the subject lot. The CA also rejected the contention of the heirs of Rosendo Lasam that the issue of ownership of the subject lot had already been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao City. The CA stated that the trial courts order dismissing the said case was not a "judgment on the merits" as to constitute res judicata. However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of the purported last will and testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA explained that the said last will and testament did not comply with the formal requirements of the law on wills. 6 Specifically, the CA found that the pages of the purported last will and testament were not numbered in accordance with the law. Neither did it contain the requisite attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not affix their respective signatures on the second page thereof. The said instrument was likewise not acknowledged before a notary public by the testator and the witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the same only in 1997, a date May 19, 1956 appears on the last page of the purported will. The CA opined that if this was the date of execution, then the will was obviously spurious. On the other hand, if this was the date of its discovery, then the CA expressed bafflement as to why the heirs of Rosendo Lasam, through their mother, declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay died intestate. It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to justify her possession of the subject lot. The CA noted that she has also possessed the subject property since 1955. Such prior possession, the CA held, gave Vicente Umengan the right to remain in the subject lot until a person with a better right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better right. The CA stressed that the ruling on the issue of physical possession does not affect the title to the subject lot nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action to directly contest the ownership of or the title to the subject lot. The decretal portion of the assailed decision of the CA reads:

WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003 decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby REVERSED and SET ASIDE. Private respondents complaint for unlawful detainer against petitioner is dismissed for lack of merit. SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by the CA in its Resolution dated May 17, 2005. The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed reversible error in setting aside the decision of the RTC, which had affirmed that of the MTCC, and dismissing their complaint for unlawful detainer against respondent Vicenta Umengan.

Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction over the subject matter of the complaint as the allegations therein make out a case for unlawful detainer but, on the other hand, proceeded to discuss the validity of the last will and testament of Isabel Cuntapay. Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as the heirs of Rosendo Lasam who was the rightful owner of the subject lot, have a better right thereto. It was allegedly error for the CA to declare the last will and testament of Isabel Cuntapay as null and void for its noncompliance with the formal requisites of the law on wills. The said matter cannot be resolved in an unlawful detainer case, which only involves the issue of material or physical possession of the disputed property. In any case, they maintain that the said will complied with the formal requirements of the law. It was allegedly also erroneous for the CA to consider in respondents favor the deed of sale and deed of donation covering portions of the subject lot, when these documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it dismissed the respondents complaint for partition of the subject lot. The said order allegedly constituted res judicata and may no longer be reviewed by the CA. Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who among the parties is entitled to the physical or material possession of the property in dispute. On this point, the MTCC held (and the same was affirmed by the RTC) that petitioners have a better right since the "merely tolerated" possession of the respondent had already expired upon the petitioners formal demand on her to vacate. In support of this claim, they point to the affidavit of Heliodoro Turingan, full brother of the respondent, attesting that the latters possession of the subject lot was by mere tolerance of Rosendo Lasam who inherited the same from Isabel Cuntapay. According to petitioners, respondents predecessors-in-interest from whom she derived her claim over the subject lot by donation and sale could not have conveyed portions thereof to her, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. Their respective estates have not been settled up to now. It is also the contention of petitioners that the CA should have dismissed outright respondents petition filed therewith for failure to comply with the technical requirements of the Rules of Court. Specifically, the petition was not allegedly properly verified, lacked statement of material dates and written explanation on why personal service was not made. This last contention of petitioners deserves scant consideration. The technical requirements for filing an appeal are not sacrosanct. It has been held that while the requirements for perfecting an appeal must be strictly followed as they are considered indispensable interdictions against needless delays and for orderly discharge of judicial business, the law does admit of exceptions when warranted by circumstances.8 In the present case, the CA cannot be faulted in choosing to overlook the technical defects of respondents appeal. After all, technicality should not be allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties. 9 The Court shall now resolve the substantive issues raised by petitioners. It is well settled that in ejectment suits, the only issue for resolution is the physical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto.10 In the present case, petitioners base their claim of right to possession on the theory that their father, Rosendo Lasam, was the sole owner of the subject lot by virtue of the newly discovered last will and testament of Isabel Cuntapay bequeathing the same to him. Respondent is allegedly holding the subject

lot by mere tolerance of Rosendo Lasam and, upon the petitioners formal demand on her to vacate the same, respondents right to possess it has expired. On the other hand, respondent hinges her claim of possession on the legal conveyances made to her by the children of Isabel Cuntapay by her first husband, namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the sale and donation by the said siblings of their respective portions in the subject lot to respondent as evidenced by the pertinent deeds. The CA correctly held that, as between the respective claims of petitioners and respondent, the latter has a better right to possess the subject lot. As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had allegedly newly discovered. On the basis of this instrument, the MTCC and RTC ruled that petitioners have a better right to the possession of the subject lot because, following the law on succession, it should be respected and should prevail over intestate succession. However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of Isabel Cuntapay could not properly be relied upon to establish petitioners right to possess the subject lot because, without having been probated, the said last will and testament could not be the source of any right. Article 838 of the Civil Code is instructive:

Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testators death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.
In Caiza v. Court of Appeals,11 the Court ruled that: "[a] will is essentially ambulatory; at any time prior to the testators death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." 12 Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can have force or validity it must be probated. To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed, attested and published as required by law, and that the testator was of sound and disposing mind. It is a proceeding to establish the validity of the will."13 Moreover, the presentation of the will for probate is mandatory and is a matter of public policy.14 Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a better right to possess the subject lot on the basis of the purported last will and testament of Isabel Cuntapay, which, to date, has not been probated. Stated in another manner, Isabel Cuntapays last will

and testament, which has not been probated, has no effect whatever and petitioners cannot claim any right thereunder. Hence, the CA correctly held that, as against petitioners claim, respondent has shown a better right of possession over the subject lot as evidenced by the deeds of conveyances executed in her favor by the children of Isabel Cuntapay by her first marriage. Contrary to the claim of petitioners, the dismissal of respondents action for partition in Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not constitute res judicata on the matter of the validity of the said conveyances or even as to the issue of the ownership of the subject lot. The order dismissing respondents action for partition in Civil Case No. 4917 stated thus:

For resolution is a motion to dismiss based on defendants [referring to the petitioners herein] affirmative defenses consisting inter alia in the discovery of a last will and testament of Isabel Cuntapay, the original owner of the land in dispute. xxx It appears, however, that the last will and testament of the late Isabel Cuntapay has not yet been allowed in probate, hence, there is an imperative need to petition the court for the allowance of said will to determine once and for all the proper legitimes of legatees and devisees before any partition of the property may be judicially adjudicated. It is an elementary rule in law that testate proceedings take precedence over any other action especially where the will evinces the intent of the testator to dispose of his whole estate. With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the Court can order the filing of a petition for the probate of the same by the interested party. WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as it is hereby DISMISSED. SO ORDERED.15
For there to be res judicata, the following elements must be present: (1) finality of the former judgment; (2) the court which rendered it had jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must be, between the first and second actions, identity of parties, subject matter and causes of action.16 The third requisite, i.e., that the former judgment must be a judgment on the merits, is not present between the action for partition and the complaint a quo for unlawful detainer. As aptly observed by the CA:

Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for partition because of the discovery of the alleged last will and testament of Isabel Cuntapay. The court did not declare respondents [referring to the petitioners herein] the owners of the disputed property. It simply ordered them to petition the court for the allowance of the will to determine the proper legitimes of the heirs prior to any partition. Instead of filing the appropriate petition for the probate of Isabel Cuntapays will, the respondents filed the present complaint for unlawful detainer. Viewed from this perspective, we have no doubt that the courts Orders cited by the respondents are not "judgments on the merits" that would result in the application of the principle of res judicata. Where the trial court merely refrained

from proceeding with the case and granted the motion to dismiss with some clarification without conducting a trial on the merits, there is no res judicata.17
Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by her first marriage could not have conveyed portions of the subject lot to respondent, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said spouses in a Partition Agreement dated December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter died leaving her six children by both marriages as heirs. Considering that her purported last will and testament has, as yet, no force and effect for not having been probated, her six children are deemed to be co-owners of the subject lot having their respective pro indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first marriage of their respective pro indiviso shares in the subject lot to respondent are valid because the law recognizes the substantive right of heirs to dispose of their ideal share in the coheirship and/co-ownership among the heirs. The Court had expounded the principle in this wise:

This Court had the occasion to rule that there is no doubt that an heir can sell whatever right, interest, or participation he may have in the property under administration. This is a matter which comes under the jurisdiction of the probate court. The right of an heir to dispose of the decedents property, even if the same is under administration, is based on the Civil Code provision stating that the possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs. The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is mandated that each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person in its enjoyment, the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. In other words, the law does not prohibit a coowner from selling, alienating or mortgaging his ideal share in the property held in common. As early as 1942, this Court has recognized said right of an heir to dispose of property under administration. In the case of Teves de Jakosalem vs. Rafols, et al., it was said that the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise, stands in the way of such administration. The Court then relied on the provision of the old Civil Code, Article 440 and Article 399 which are still in force as Article 533 and Article 493, respectively, in the new Civil Code. The Court also cited the words of a noted civilist, Manresa: "Upon the death of a person, each of his heirs becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being thus formed among the co-owners of the estate which remains undivided." 18
Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel Cuntapay by her first marriage to respondent are valid insofar as their pro indiviso shares are concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the deed of donation and deed of sale presented by respondent, coupled with the fact that she has been in possession of the subject lot since 1955, establish that respondent has a better right to possess the same as against petitioners whose claim is largely based on Isabel Cuntapays last will and testament which, to date, has not been probated; hence, has no force and effect and under which no right can be claimed by petitioners. Significantly, the probative value of the other evidence relied upon by petitioners to support

their claim, which was the affidavit of Heliodoro Turingan, was not passed upon by the MTCC and the RTC. Their respective decisions did not even mention the same. In conclusion, it is well to stress the CAs admonition that

x x x our ruling on the issue of physical possession does not affect title to the property nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action directly contesting the ownership of or the title to the property.19
Likewise, it is therefore in this context that the CAs finding on the validity of Isabel Cuntapays last will and testament must be considered. Such is merely a provisional ruling thereon for the sole purpose of determining who is entitled to possession de facto. WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED. SO ORDERED.

PRETERITION
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47799 June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners, vs. IGNACIA AKUTIN AND HER CHILDREN, respondents. Ozamiz & Capistrano for petitioners. Gullas, Leuterio, Tanner & Laput for respondents. MORAN, J.: Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with Ignacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in the first marriage, died on October 2, 1923, that is, a little less than eight years before the death of said Agripino Neri y Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was admitted to probate on March 21, 1932, he willed that his children by the first marriage shall have no longer any participation in his estate, as they had already received their corresponding shares during his lifetime. At the hearing for the declaration of heirs, the trial court found, contrary to what the testator had declared in his will, that all his children by the first and second marriages intestate heirs of the deceased without prejudice to one-half of

the improvements introduced in the properties during the existence of the last conjugal partnership, which should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision with the modification that the will was "valid with respect to the two-thirds part which the testator could freely dispose of. "This judgment of the Court of Appeals is now sought to be reviewed in this petition for certiorari. The decisive question here raised is whether, upon the foregoing facts, the omission of the children of the first marriage annuls the institution of the children of the first marriage as sole heirs of the testator, or whether the will may be held valid, at least with respect to one-third of the estate which the testator may dispose of as legacy and to the other one-third which he may bequeath as betterment, to said children of the second marriage. The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as follows:

Disinheritance made without a statement of the cause, or for a cause the truth of which, if contradicted, is not proven, ... shall annul the institution of the heir in so far as it prejudices the person disinherited; but the legacies, betterments, and other testamentary dispositions, in so far as they do no encroach upon the legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression that the testator had intended to disinherit, though ineffectively, the children of the first marriage. There is nothing in the will that supports this conclusion. True, the testator expressly denied them any share in his estate; but the denial was predicated, not upon the desire to disinherit, but upon the belief, mistaken though it was, that the children by the first marriage had already received more than their corresponding shares in his lifetime in the form of advancement. Such belief conclusively negatives all inference as to any intention to disinherit, unless his statement to that effect is prove to be deliberately fictitious, a fact not found by the Court of Appeals. The situation contemplated in the above provision is one in which the purpose to disinherit is clear, but upon a cause not stated or not proved, a situation which does not obtain in the instant case. The Court of Appeals quotes Manresa thus:

En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al comentar el articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse el testamento, siendo conocida su existencia por el testador, de aquel en que, o naciese despues, o se ignorase su existencia, aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el terreno de los principios) and not on the express provisions of the law. Manresa himself admits that according to law, "no existe hoy cuestion alguna en esta materia: la pretericion produce siempre los mismos efectos, ya se refiera a personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a los descendientes legitimos, siempre que ademas tengan derecho a legitima." (6 Manresa, 381.) Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the children by the first marriage, and of involuntary preterition of the children by the deceased Getulia, also of the first marriage, and is thus governed by the provisions of article 814 of the Civil Code, which read in part as follows:

The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and betterments shall be valid, in so far as they are not inofficious.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first marriage were mentioned in the will, they were not accorded any share in the heriditary property, without expressly being disinherited. It is, therefore, a clear case of preterition as contended by appellants. The omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a preterition if the purpose to disinherit is not expressly made or is not at least manifest. Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814 of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate succession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the instant case, no such legacies or betterments have been made by the testator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828 of the Civil Code, and where no express provision therefor is made in the will, the law would presume that the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in question, no express betterment is made in favor of the children by the second marriage; neither is there any legacy expressly made in their behalf consisting of the third available for free disposal. The whole inheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs by the first marriage have already received their shares. Were it not for this mistake, the testator's intention, as may be clearly inferred from his will, would have been to divide his property equally among all his children. Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to the widow's legal usufruct, with costs against respondents. Avancea, C.J., Diaz, Laurel and Horrilleno, JJ., concur.

SECOND DIVISION

[G.R. No. 141882. March 11, 2005]

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents. DECISION
TINGA, J.:

Once again, the Court is faced with the perennial conflict of property claims between two sets of heirs, a conflict ironically made grievous by the fact that the decedent in this case had resorted to great lengths to allocate which properties should go to which set of heirs. This is a Rule 45 petition assailing the Decision dated 30 September 1999 of the Court of Appeals which reversed the Decision dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros Oriental.
[1] [2]

The factual antecedents follow. Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa Teves Escao (Josefa) and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves (Pedro).
[3]

The present controversy involves a parcel of land covering nine hundred and fifty-four (954) square meters, known as Lot No. 63 of the Bais Cadastre, which was originally registered in the name of the conjugal partnership of Don Julian and Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia died, the land was among the properties involved in an action for partition and damages docketed as Civil Case No. 3443 entitled Josefa Teves Escao v. Julian Teves, Emilio B. Teves, et al. Milagros Donio, the second wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case entered into a Compromise Agreement which embodied the partition of all the properties of Don Julian.
[4] [5]

On the basis of the compromise agreement and approving the same, the Court of First Instance (CFI) of Negros Oriental, 12 th Judicial District, rendered a Decision dated 31 January 1964. The CFI decision declared a tract of land known as Hacienda Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the first marriage. The property was to remain undivided during the lifetime of Don Julian. Josefa and Emilio likewise were given other properties at Bais, including the electric plant, the movie property, the commercial areas, and the house where Don Julian was living. The remainder of the properties was retained by Don Julian, including Lot No. 63.
[6] [7]

Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual death of Don Julianvis--vis his heirs: 13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share

in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied) On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets with Assumption of Liabilities in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of Assignment of Assets with the Assumption of Liabilities (Supplemental Deed) dated 31 July 1973. This instrument which constitutes a supplement to the earlier deed of assignment transferred ownership over Lot No. 63, among other properties, in favor of petitioner. On 14 April 1974, Don Julian died intestate.
[8] [9] [10]

On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the subject lot in its name. A court, so it appeared, issued an order cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No. T-375 was issued in the name of petitioner. Since then, petitioner has been paying taxes assessed on the subject lot.
[11] [12] [13]

Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the execution of the Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria Cadayday, respondents herein. On Lot No. 63, respondents temporarily established their home and constructed a lumber yard. Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial Partition of Real Estate dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was already registered in the name of petitioner in 1979, respondents bought Lot No. 63 from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate dated 9 November 1983.
[14] [15] [16]

At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered that the lot was already titled in the name of petitioner. Thus, they failed to register the deed.
[17]

Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-375 in the name of petitioner and the transfer of the title to Lot No. 63 in their names, plus damages.
[18]

After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision reads: WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of the defendant and against the plaintiff, and thus hereby orders: (1) That complaint be dismissed; (2) (3) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under Transfer Certificate of Title No. T-375;

That plaintiffs pay costs.

Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed.
[19]

The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the Compromise Agreement. It added that the direct adjudication of the properties listed in the Compromise Agreement was only in favor of Don Julian and his two children by the first marriage, Josefa and Emilio. Paragraph 13 served only as an amplification of the terms of the adjudication in favor of Don Julian and his two children by the first marriage.
[20] [21]

According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latters death. Thus, upon Don Julians death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to allocate the subject lot, among his other properties, to Milagros Donio and her four (4) children.
[22]

The trial court further stressed that with the use of the words shall be, the adjudication in favor of Milagros Donio and her four (4) children was not final and operative, as the lot was still subject to future disposition by Don Julian during his lifetime. It cited paragraph 14 of theCompromise Agreement in support of his conclusion. With Lot No. 63 being the conjugal property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her
[23] [24] [25]

children had no hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only upon the death of the latter.
[26]

The trial court ruled that at the time of Don Julians death on 14 April 1974, Lot No. 63 was no longer a part of his estate since he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of extrajudicial partition by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised prudence before buying the subject lot by investigating the registration of the same with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial court added.
[27]

The Court of Appeals, however, reversed the trial courts decision. The decretal part of the appellate decision reads: WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T-375 registered in the name of J.L.T. Agro, Inc. as null and void. With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves. SO ORDERED.
[28]

Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don Julians two sets of heirs their future legitimes in his estate except as regards his (Don Julians) share in Hacienda Medalla Milagrosa. The two sets of heirs acquired full ownership and possession of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res judicata. Don Julian could have disposed of only his conjugal share in the Hacienda Medalla Milagrosa.
[29] [30] [31]

The appellate court likewise emphasized that nobody in his right judgment would preterit his legal heirs by simply executing a document like the Supplemental Deed which practically covers all properties which Don Julian had reserved in favor of his heirs from the second marriage. It also found out that the blanks reserved for the Book No. and Page No. at the upper right corner of TCT No. T-375, to identify the exact location where the said

title was registered or transferred, were not filled up, thereby indicating that the TCT is spurious and of dubious origin.
[32]

Aggrieved by the appellate courts decision, petitioner elevated it to this Court via a petition for review on certiorari, raising pure questions of law. Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian; (b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage pursuant to the Compromise Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs from the second marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No. and Page No.
[33]

While most of petitioners legal arguments have merit, the application of the appropriate provisions of law to the facts borne out by the evidence on record nonetheless warrants the affirmance of the result reached by the Court of Appeals in favor of respondents. Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted again: 13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L.Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa)shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied) With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don Julian from the second marriage became automatically operative upon the approval of the Compromise Agreement, thereby vesting on them the right to validly dispose of Lot No. 63 in favor of respondents.

Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in Blas v. Santos is relevant, where we defined future inheritance as any property or right not in existence or capable of determination at the time of the contract, that a person may in the future acquire by succession. Article 1347 of the New Civil Code explicitly provides:
[34]

ART. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a contract. The exception is that no contract may be entered into with respect to future inheritance, and the exception to the exception is the partition inter vivosreferred to in Article 1080.
[35]

For the inheritance to be considered future, the succession must not have been opened at the time of the contract. A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur:
[36]

That the succession has not yet been opened; (2) That the object of the contract forms part of the inheritance; and (3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature.
[37]

(1)

The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on future things, reads: ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. ....

In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter vivos, no formalities are prescribed by the Article. The partition will of course be effective only after death. It does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the ownership here after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here is merely the physical determination of the part to be given to each heir.
[38] [39]

The historical antecedent of Article 1080 of the New Civil Code is Article 1056 of the old Civil Code. The only change in the provision is that Article 1080 now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a will with all the formalities provided by law.
[40] [41]

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and distribute them among his heirs, and this partition is neither a donation nor a testament, but an instrument of a special character, sui generis, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives its binding force on the heirs from the respect due to the will of the owner of the property, limited only by his creditors and the intangibility of the legitime of the forced heirs.
[42]

The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the properties adjudicated to him under the compromise agreement was but a mere expectancy. It was a bare hope of succession to the property of their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no attribute of property, and the interest to which it related was at the time nonexistent and might never exist.
[43]

Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained the owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated to them by virtue of the compromise agreement.

Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The appellate court disagreed, holding that the Supplemental Deedis not valid, containing as it does a prohibited preterition of Don Julians heirs from the second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The contention is well-founded. Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. It is the total omission of a compulsory heir in the direct line from inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. But there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of a forced heir.
[44] [45] [46] [47]

In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian upon his death. A couple of provisions in the Compromise Agreement are indicative of Don Julians desire along this line. Hence, the total omission from inheritance of Don Julians heirs from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded.
[48]

Despite the debunking of respondents argument on preterition, still the petition would ultimately rise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the president and director of petitioner, and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such a transfer to a family corporation. Yet close scrutiny is in order, especially considering that such transfer would remove Lot No. 63 from the estate from which Milagros and her children could inherit. Both the alleged

transfer deed and the title which necessarily must have emanated from it have to be subjected to incisive and detailed examination. Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein. A certificate of title accumulates in one document a precise and correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the real interest of its owner.
[49] [50]

To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate courts ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed would not affect the validity of petitioners title for this Court has ruled that a thumbmark is a recognized mode of signature.
[51]

The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal process established by law. And, worse still, the illegality is reflected on the face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to secure the issuance of a new title in his name such instrument has to be presented to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus: SEC. 53. Presentation of owners duplicate upon entry of new certificate. No voluntary instrument shall be registered by the Register of Deeds unless the owners duplicate certificate is presented with such instrument, except in cases expressly provided for in this Decree or upon order of the court, for cause shown. (Emphasis supplied) .... SEC. 57. Procedure in registration of conveyances. An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in law. The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owners duplicate certificate. The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a reference by number

to the last preceding certificate. The original and the owners duplicate of the grantors certificate shall be stamped cancelled. The deed of conveyance shall be filed and endorsed with the number and the place of registration of the certificate of title of the land conveyed. (Emphasis supplied) As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed. In fact, there is absolutely no mention of a reference to said document in the original and transfer certificates of title. It is in this regard that the finding of the Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No. T375 in its place are not predicated on a valid transaction. What appears instead on OCT No. 5203 is the following pertinent entry: Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC. CONDITIONS: Lost owners duplicate is hereby cancelled, and null and void and a new Certificate of Title No. 375 is issued per Order of the Court of First Instance on file in this office. Date of Instrument: November 12, 1979 Date of Inscription: Nov. 12, 1979 4:00 P.M.

(SGD) MANUEL C. MONTESA Acting Deputy Register of Deeds II (Emphasis supplied)


[52]

What the entry indicates is that the owners duplicate of OCT No. 5203 was lost, a petition for the reconstitution of the said owners duplicate was filed in court, and the court issued an order for the reconstitution of the owners duplicate and its replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the entry) issued an order for the issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of Deeds had not been lost. Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owners copy of OCT No. 5203, only that owners copy could be ordered replaced. Thus, the Register of Deeds

exceeded his authority in issuing not just a reconstituted owners copy of the original certificate of title but a new transfer certificate of title in place of the original certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of titleeven designating the very number of the new transfer certificate of title itselfthe order would be patently unlawful. A court cannot legally order the cancellation and replacement of the original of the O.C.T. which has not been lost, as the petition for reconstitution is premised on the loss merely of the owners duplicate of the OCT
[53]

Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the subject lot in its name, instead of the Supplemental Deed which should be its proper course of action. It was so constrained to do because the Supplemental Deeddoes not constitute a deed of conveyance of the registered land in fee simple in a form sufficient in law, as required by Section 57 of P.D. No. 1529. A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment is not supported by any consideration. The provision reads: .... WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escao at Dumaguete City on 16th day of November 1972 and ratified in the City of Dumaguete before Notary Public Lenin Victoriano, and entered in the latters notarial register as Doc. No. 367; Page No. 17; Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escao, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as reflected in the Balance Sheet of the former as of December 31, 1971. WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don Julian L. Teves. We quote. From the properties at Bais Adjudicated to Don Julian L.Teves ....

Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value - P2,720.00 .... WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of the transfer of the above corporation. NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a fair market value of EIGHTY-FOUR THOUSAND PESOS (P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall become absolute upon signing. (Emphasis supplied)
[54]

The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the consideration for the assignment made by Don Julian. Rather, it is a mere statement of the fair market value of all the nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is just one, that were transferred by Don Julian in favor of petitioner. Consequently, the testimony of petitioners accountant that the assignment is supported by consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed.
[55]

The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back of the TCT No. T-375 as the consideration for the assignment. However, the said annotation shows that the mortgage was actually executed in favor of Rehabilitation Finance Corporation, not of petitioner. Clearly, said mortgage, executed as it was in favor of the Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off the mortgate obligation, could not have been the consideration for the assignment to petitioner.
[56] [57] [58]

Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established. Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or inexistent pursuant to Article 1409, paragraph (2). The absence of the usual recital of consideration in a transaction which normally should be supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots he still had at
[59]

the time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of existence of consideration established by law.
[60]

Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the point, thus: Art. 749. In order that the donation of the immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. In Sumipat, et al v. Banga, et al., this Court declared that title to immovable property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void.
[61]

In the case at bar, although the Supplemental Deed appears in a public document, the absence of acceptance by the donee in the same deed or even in a separate document is a glaring violation of the requirement.
[62]

One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times. Thus, this Court has ruled that appellate courts have ample authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if these are indispensable or necessary to the just resolution of the pleaded issues. Specifically, matters not assigned as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to avoid dispensing piecemeal justice.
[63] [64] [65]

In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is unmistakably determinative of the

underlying controversy. In other words, the issue of validity or nullity of the instrument which is at the core of the controversy is interwoven with the issues adopted by the parties and the rulings of the trial court and the appellate court. Thus, this Court is also resolute in striking down the alleged deed in this case, especially as it appears on its face to be a blatant nullity.
[66]

WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc. SO ORDERED. Puno, (Chairman), Austria-Martine

SUBSTITUTION OF HEIRS
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-31703 February 13, 1930

CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee, vs. MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila, defendants-appellants. L. D. Lockwood and Jose M. Casal for appellants. Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee. ROMUALDEZ, J.: The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena. And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana. The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.

The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction. The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors:

1. The lower court erred in holding that a trust was created by the will of Doa Ana Maria Alcantara. 2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as "herederos fideicomisarios." 3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs.
The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute. The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below:

Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix and properties composing my hereditary estate, that she may enjoy them with God's blessing and my own. Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible. Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the duties of administering my estate, because I recognize that his character is not adapted to management and administration.
The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution. This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the

administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact that by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution. The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instants case is a fideicommissary substitution. In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea ofsubstitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance. The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things: 1. A first heir called primarily to the enjoyment of the estate. 2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. 3. A second heir. To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust." It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution.

Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribed that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree." Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above. Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the case where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance. The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit:

1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will. 2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she should die after the testatrix. 3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator. By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara. Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.

The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered. Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. Street, J., reserves his vote.

COMPULSORY HEIRS AND VARIOUS COMBINATION


Republic of the Philippines SUPREME COURT Baguio City FIRST DIVISION

G.R. No. 109972 April 29, 1996 ZOSIMA VERDAD, petitioner, vs. THE HON. COURT OF APPEALS, SOCORRO C. ROSALES, AURORA ROSALES, NAPOLEON ROSALES, ANTONIO ROSALES, FLORENDA ROSALES, ELENA ROSALES AND VIRGINIA ROSALES, respondents.

VITUG, J.:p

The petitioner, Zosima Verdad, is the purchaser of a 248-square meter residential lot (identified to be Lot No. 529, Ts-65 of the Butuan Cadastre, located along Magallanes Street, now Marcos M. Calo St., Butuan City). Private respondent, Socorro Cordero Vda. de Rosales, seeks to exercise a right of legal redemption over the subject property and traces her title to the late Macaria Atega, her motherin-law, who died intestate on 08 March 1956. During her lifetime, Macaria contracted two marriages: the first with Angel Burdeos and the second, following the latter's death, with Canuto Rosales. At the time of her own death, Macaria was survived by her son Ramon A. Burdeos and her grandchild (by her daughter Felicidad A. Burdeos) Estela Lozada of the first marriage and her children of the second marriage, namely, David Rosales, Justo Rosales, Romulo Rosales, and Aurora Rosales. Socorro Rosales is the widow of David Rosales who himself, some time after Macaria's death, died intestate without an issue. In an instrument, dated 14 June 1982, the heirs of Ramon Burdeos, namely, his widow Manuela Legaspi Burdeos and children Felicidad and Ramon, Jr., sold to petitioner Zosima Verdad (their interest on) the disputed lot supposedly for the price of P55,460.00. In a duly notarized deed of sale, dated 14 November 1982, it would appear, however, that the lot was sold for only P23,000.00. Petitioner explained that the second deed was intended merely to save on the tax on capital gains. Socorro discovered the sale on 30 March 1987 while she was at the City Treasurer's Office. On 31 March 1987, she sought the intervention of the Lupong Tagapayapa of Barangay 9, Princess Urduja,

for the redemption of the property. She tendered the sum of P23,000.00 to Zosima. The latter refused to accept the amount for being much less than the lot's current value of P80,000.00. No settlement having been reached before the Lupong Tagapayapa, private respondents, on 16 October 1987, initiated against petitioner an action for "Legal Redemption with Preliminary Injunction" before the Regional Trial Court of Butuan City. On 29 June 1990, following the reception of evidence, the trial court handed down its decision holding, in fine, that private respondents' right to redeem the property had already lapsed. An appeal to the Court of Appeals was interposed by private respondents. The appellate court, in its decision of 22 April 1993, reversed the court a quo; thus:
WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED, and a new one is accordingly entered declaring plaintiff-appellant, Socorro C. Rosales, entitled to redeem the inheritance rights (Art. 1088, NCC) or pro indiviso share (Art. 1620, NCC) of the Heirs of Ramon Burdeos, Sr. in Lot 529, Ts-65 of the Butuan Cadastre, within the remaining ELEVEN (11) DAYS from finality hereon, unless written notice of the sale and its terms are received in the interim, under the same terms and conditions appearing under Exhibit "J" and after returning the purchase price of P23,000.00 within the foregoing period. No cost. 1

In her recourse to this Court, petitioner assigned the following "errors:" That The Honorable Court of Appeals erred in declaring Socorro C. Rosales is entitled to redeem the inheritance rights (Article 1088, NCC) or pro-indiviso share (Article 1620, NCC) of the heirs of Ramon Burdeos, Sr. in Lot 529, Ts-65 of the Butuan Cadastre, for being contrary to law and evidence. The Honorable Court of Appeals erred in ignoring the peculiar circumstance, in that, the respondents' actual knowledge, as a factor in the delay constitutes laches. The Honorable Court of Appeals erred in concluding that Socorro C. Rosales, in effect, timely exercised the right of legal redemption when referral to Barangay by respondent signifies bona fide intention to redeem and; that, redemption is properly made even if there is no offer of redemption in legal tender.
The Honorable Court of Appeals erred in ruling that the running of the statutory redemption period is stayed upon commencement of Barangay proceedings. 2

Still, the thrust of the petition before us is the alleged incapacity of private respondent Socorro C. Rosales to redeem the property, she being merely the spouse of David Rosales, a son of Macaria, and not being a co-heir herself in the intestate estate of Macaria.
We rule that Socorro can. It is true that Socorro, a daughter-in-law (or, for that matter, a mere relative by affinity), is not an intestate heir of her parents-in-law; 3 however, Socorro's right to the property is not because she rightfully can claim heirship in Macaria's estate but that she is a legal heir of her husband, David Rosales, part of whose estate is a share in his mother's inheritance.

David Rosales, incontrovertibly, survived his mother's death. When Macaria died on 08 March 1956 her estate passed on to her surviving children, among them David Rosales, who thereupon became co-owners of the property. When David Rosales himself later died, his own estate, which included

his undivided interest over the property inherited from Macaria, passed on to his widow Socorro and her co-heirs pursuant to the law on succession. Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001. xxx xxx xxx
Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. 4

Socorro and herein private respondents, along with the co-heirs of David Rosales, thereupon became co-owners of the property that originally descended from Macaria. When their interest in the property was sold by the Burdeos heirs to petitioner, a right of redemption arose in favor of private respondents; thus: Art. 1619. Legal redemption is the right to be subrogated, upon the same terms and conditions stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment, or by any other transaction whereby ownership is transmitted by onerous title. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.
We hold that the right of redemption was timely exercised by private respondents. Concededly, no written notice of the sale was given by the Burdeos heirs (vendors) to the co-owners 5 required under Article 1623 of the Civil Code

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of safe shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners. Hence, the thirty-day period of redemption had yet to commence when private respondent Rosales sought to exercise the right of redemption on 31 March 1987, a day after she discovered the sale from the Office of the City Treasurer of Butuan City, or when the case was initiated, on 16 October 1987, before the trial court.
The written notice of sale is mandatory. This Court has long established the rule that notwithstanding actual knowledge of a co-owner, the latter is still entitled to a written notice from the selling co-owner in order to remove all uncertainties about the sale, its terms and conditions, as well as its efficacy and status. 6

Even in Alonzo vs. Intermediate Appellate Court, 7 relied upon by petitioner in contending that actual knowledge should be an equivalent to a written notice of sale, the Court made it clear that it was not reversing the prevailing jurisprudence; said the Court: We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in view of the peculiar circumstances of this case.8

In Alonzo, the right of legal redemption was invoked several years, not just days or months, after the consummation of the contracts of sale. The complaint for legal redemption itself was there filed more than thirteen years after the sales were concluded. Relative to the question posed by petitioner on private respondents' tender of payment, it is enough that we quote, with approval, the appellate court; viz.: In contrast, records dearly show that an amount was offered, as required in Sempio vs. Del Rosario, 44 Phil. 1 and Daza vs. Tomacruz, 58 Phil. 414, by the redemptioner-appellant during the barangay conciliation proceedings (Answer, par. 8) but was flatly rejected by the appellee, not on the ground that it was not the purchase price (though it appeared on the face of the deed of sale, Exh. "J-1"), nor that it was offered as partial payment thereof, but rather that it was All given, we find no error in the appellate court's finding that private respondents are entitled to the redemption of the subject property. WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED. Costs against petitioner. SO ORDERED. Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

RESERVA TRONCOL
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13386 October 27, 1920

SEGUNDA MARIA NIEVA with her husband ANGEL ALCALA, plaintiffs-appellants, vs. MANUELA ALCALA and JOSE DEOCAMPO, defendants-appellees.

Eduardo Gutierrez Repide for appellants. Felipe Agoncillo for appellees.

JOHNSON, J.: This is an appeal from a judgment of the Court of First Instance of the Province of Tayabas, absolving the defendants from all liability under the plaintiff's complaint, without any finding as to costs. Juliana Nieva, the alleged natural mother of the plaintiff Segunda Maria Nieva, married Francisco Deocampo. Of said marriage Alfeo Deocampo was born. Julian Nieva died intestate on April 19, 1889, and her said son, Alfeo Deocampo, inherited from her, ab intestate, the parcels of land described in Paragraphs V and X of the complaint. Alfeo Deocampo died intestate and without issue on July 7, 1890. Thereupon the two parcels of land above-mentioned passed to his father, Francisco Deocampo, by intestate succession. Thereafter Francisco Deocampo married the herein defendant Manuela Alcala, of which marriage was born Jose Deocampo, the other defendant herein. Francisco Deocampo died on August 15, 1914, whereupon his widow and son, the defendants herein, took possession of the parcels of land in question, under the claim that the said son, the defendant Jose Deocampoo (a minor) had inherited the same, ab intestate, from his deceased father. On September 30, 1915, the plaintiff herein, claiming to be an acknowledged natural daughter of the said Juliana Nieva, instituted the present action for the purposes of recovering from the defendants the parcels of land in question, particularly described in Paragraphs V and X of the complaint, invoking the provisions of article 811 of the Civil Code. The lower court held that, even granting, without deciding, that the plaintiff was an acknowledged natural daughter of Juliana Nieva, she was not entitled to the property here in question because, in its opinion, an illegitimate relative has no right to the reserva troncal under the provisions of article 811 of the Civil Code. The first question presented by this appeal is, whether or not the plaintiff is an acknowledged natural daughter of the deceased Juliana Nieva. It appears from the record that the said Juliana Nieva, while unmarried, gave birth to the plaintiff on March 29, 1882, and that the plaintiff was duly baptized as her natural daughter, of unknown father (Exhibit C, baptismal certificate); that the said Juliana Nieva nourished and reared her said child, the plaintiff herein; that the plaintiff lived with her said mother until the latter was married to Francisco Deocampo; that the said mother treated the plaintiff, and exhibited her publicly, as a legitimate daughter. (See testimony of Antero Gala, pp. 5-6; Prudencio de la Cuesta, pp. 16-17; and Mamerto Palabrica, pp. 26-27, sten. notes.) The foregoing facts, which are not controverted, are analogous to the facts in the case of Llorente vs. Rodriguez (3 Phil., 697, 699). Under the decision of this court in that case we are of the opinion and so decide, without rediscussing here the law and legal principles involved, that the plaintiff Segunda Maria Nieva is an acknowledged natural daughter of Juliana Nieva. (See also In re estate of Enriquez and Reyes, 29 Phil., 167.) The other and more important question presented by this appeal is, whether or not an illegitimate relative within the third degree is entitled to the reserva troncal provided for by article 811 of the Civil Code. That article reads as follows:

Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came.
The property here in question was inherited, by operation by law, by Francisco Deocampo from his son Alfeo Deocampo, who, in turn, had inherited it, in the same manner, from his mother Juliana Nieva, the natural mother of the plaintiff. The plaintiff is the natural sister of Alfeo Deocampo, and she belongs to the same line from which the property in question came. Was Francisco Deocampo obliged by law to reserve said property for the benefit of the plaintiff, an illegitimate relative within the third degree of Alfeo Deocampo? If he was, then, upon his death, the plaintiff, and not his son the defendant Jose Deocampo, was entitled to the said property; if he was not, the plaintiff's action must fail.
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There can be no question whatever but that, under said article 811 of the Civil Code, the plaintiff would be entitled to the property in question if she were a legitimate daughter of Julian Nieva. (Edroso vs. Sablan, 25 Phil., 295.) But in said article 811 the legislator uses the generic terms "ascendant," "descendant," and "relatives," without specifying whether or not they have to be legitimate. Does the legislator, then, refer to legitimate as well as to illegitimate relatives? Counsel for the appellant, in a lengthy and carefully prepared brief, attempts to maintain the affirmative. This question, so far as our investigation shows, has not been decided before by any court or tribunal. However, eminent commentators on the Spanish Civil Code, who have devoted their lives to the study and solution of the intricate and difficult problems that may arise under the provisions of that Code, have dealt with the very question now before us, and are unanimous in the opinion that the provision of article 811 of the Civil Code apply only to legitimate relative. One of such commentators, undoubtedly the best known of them all, is Manresa. We believe we can do no better than to adopt his reasons and conclusions, in deciding the question before us. In determining the persons who are obliged to reserve under article 811, he says:

Is every ascendant, whether legitimate or not, obliged to reserve? Should the natural father or grandfather reserve the properties proceeding from the mother or other natural ascendant? Article 811 does not distinguish; it speaks of the ascendant, without attaching the qualification of legitimate, and, on the other hand, the same reason that exists for applying the provision to the natural family exists for applying it to the legitimate family. Nevertheless, the article in referring to the ascendant in an indeterminate manner shows that it imposes the obligation to reserve only upon the legitimate ascendant. Let us overlook for the moment the question whether the Code recognizes or does not recognize the existence of the natural family, or whether it admits only the bond established by acknowledgement between the father or mother who acknowledges and the acknowledged children. However it may be, it may be stated as an indisputable truth, that in said Code, the legitimate relationship forms the general rule and the natural relationship the exception; which is the reason why, as may be easily seen, the law in many articles speaks only of children or parents, of ascendants or descendants, and in them reference is of course made of those who are legitimate; and when it desires to make a provision applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not say child, but natural child; it does not speak of ascendants, brothers or parents in the abstract, but of natural ascendants, natural brothers or natural parents. (See, for example, articles 294, 302, 809, 810, 846, 935, to 938, 944 and 945 and 946 to 955.) Articles 809 and 810 themselves speak only of ascendants. Can it in any way be maintained that they refer to legitimate as well as to natural ascendants? They evidently establish the legitime of the legitimate ascendants included as forced heirs in number 2 of

article 807. And article 811, and as we will see also article 812, continues to treat of this same legitime. The right of the natural parents and children in the testamentary succession in wholly included in the eighth section and is limited to the parents, other ascendants of such class being excluded in articles 807, No. 3, and 846. Therefore, the place which article 811 occupies in the Code of proof that it refers only to legitimate ascendants. And if there were any doubt, it disappears upon considering the text of article 938, which states that the provisions of article 811 applies to intestate succession, which is just established in favor of the legitimate direct ascending line, the text of articles 939 to 945, which treat of intestate succession of natural parents, as well as that of articles 840 to 847, treating of their testamentary succession, which do not allude directly or indirectly to that provision. Lastly, the principle which underlies the exception which article 811 creates in the right to succeed neither admits of any other interpretation. Whether the provision is due to the desire that the properties should not pass, by reason of new marriage, out of the family to which they belonged, or is directly derived from the system of the so-called "reserva troncal," and whether the idea of reservation or that of lineal rights (troncalidad) predominate the patrimony which is intended to be preserved is that of the legitimate family. Only to legitimate ascendants and descendants do article 968 et seq. of the Code refer, arising as they do from the danger of second or subsequent marriage; only to legitimate parents do the special laws of Navarra, Aragon, Vizcaya and Catalua concede the right to succeed with respect to lineal properties (bienes troncales); only to the legitimate ascendants does article 811 impose the duty to reserve. The convenience of amplifying the precept to natural parents and ascendants may be raised just as the question whether it would be preferable to suppress it altogether may be raised; but in the realm of the statute law there is no remedy but to admit that article 811, the interpretation of which should on the other hand be strict was drafted by the legislator with respect only to legitimate ascendants. (Manresa, Codigo Civil, vol. 6, 3d ed., pp. 249-250.)
The same jurist, in determining the persons in whose favor the reservation is established, says:

Persons in whose favor the reservation is established. This is one of the most delicate points in the interpretation of article 811. According to this article, the reservation is established in favor of the parents who are within the third degree and belong to the line from which the properties came. It treats of blood, relationship, which is applicable to questions on succession, according to articles 915 to 920. It could not be otherwise, because relationship by affinity is established between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is just what this article intends to prevent. It also treats of legitimate relationship. The person obliged to reserve it a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to legitimate parents the right to succeed the natural child and viceversa, from which it must be deduced that natural parents neither have the right to inhering from legitimate ones; the law in the article cited established a barrier between the

two families; properties of the legitimate family shall never pass by operation of law to the natural family. (Ibid. pp. 251-252.) Scvola, after a very extended discussion of this same subject, arrives at the same conclusion as Manresa. "La reserva del articulo 811 es privilegio de la familia legitima. (The reservation in article 811 is a privilege of the legitimate family.)" (See Scvola, Codigo Civil, Vol. 14, pp. 211-224, 3401-305.)
Article 943, above referred to by Manresa, provides as follows:

A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child.
To hold that the appellant is entitled to the property left by her natural brother, Alfeo Deocampo, by operation of law, would be a fragrant violate of the express provision of the foregoing article (943). For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, without any finding as to costs. So ordered. Mapa, C.J., Araullo, Malcolm, Avancea and Villamor, JJ., concur.
Republic of the Philippines SUPREME COURT Manila EN BANC DECISION November 15, 1919 G.R. No. L-14856 ENCARNACION FLORENTINO, ET AL., plaintiffs-appellants, vs. MERCEDES FLORENTINO, ET AL., defendants-appellees. Ramon Querubin, Simeon Ramos and Orense and Vera for appellants. Vicente Foz, Jose Singsong Tongson and Angel Encarnacion for appellees. Torres, J.: On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and Antonino of the surname Florentino; for Miguel Florentino, guardian ad litem of the minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad, and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of the minors Jose and Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and her husband, alleging as follows:

That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine children called, Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he had two children, Mercedes and Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890. That of the deceased Apolonio Isabelos aforementioned eleven children, Juan, Maria and Isabel died single, without leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita Florentino, now deceased, and her husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the deceased Apolonio Isabelo Florentino. That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumos Apolonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages. That, in the partition of the said testators estate, there was given to Apolonio Florentino III, his posthumos son, the property marked with the letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces of gold, of silver and of table service, livestock, palay, some personal property and other objects mentioned in the complaint. That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino; that, as such heir, said daughter took possession of all the property left at the death of her mother, Severina Faz de Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon inherited from her deceased son, the posthumos Apolonio, as reservable property; that, as a reservist, the heir of the said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits of the reservable property described therein, either by direct participation or by representation, in the manner mentioned in paragraph 9 of the complaint. That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding part of the reservable property; that without any justifiable motive the defendants have refused and do refuse to deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for the lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at four pesos per bundle; that thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twenty-eight pesos and fifty-eight centavos, in addition to three hundred

and eight pesos and fifty-eight centavos for the value of the fruits not gathered, of one thousand pesos (P1,000) for the unjustifiable retention of the aforementioned reservable property and for the expenses of this suit. Wherefore they pray it be declared that all the foregoing property is reservable property; that the plaintiffs had and do have a right to the same, in the quantity and proportion mentioned in the aforementioned paragraph 9 of the complaint; that the defendants Mercedes Florentino and her husband be ordered to deliver to the plaintiffs their share of the property in question, of the palay and of the corn above mentioned, or their value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos (P1,000) together with the costs of this instance. To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the obligation of the widow Severina Faz de Leon to reserve the property she inherited from her deceased son Apolonio Florentino y de Leon who, in turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did not remarry after the death of this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968 and the following articles, but that established in article 811 of the Civil Code; that the object of the provisions of the aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the owner thereof; that if the property inherited by the widow Severina Faz de Leon from her deceased son Apolonio Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the hands of the defendant, Mercedes Florentino y Encarnacion, a daughter of the common ancestors second marriage (said Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at the death of the posthumos son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his legitimate heirs as an ascendant, into the hands of strangers; that said property having been inherited by Mercedes Florentino y Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the present case because, when the defendant Mercedes, by operation law, entered into and succeeded to, the possession, of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the possession of her mother, lost the character of reservable property there being a legitimate daughter of Severina Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law whereby said property may not passed into the possession of strangers are void, inasmuch as the said widow had no obligation to reserve same, as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that, in the present case, there is no property reserved for the plaintiffs since there is a forced heiress, entitled to the property left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is secondary to the duty of respecting the legitime; that in the instant case, the widow Severina Faz de Leon was in duty bound to respect the legitime of her daughter Mercedes the defendant; that her obligation to reserve the property could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of these statements the decision of the supreme court of Spain of January 4, 1911; that, finally, the application of article 811 of the Civil Code in favor of the plaintiffs would presuppose the exclusion of the defendant from here right to succeed exclusively to all the property, rights and actions left by her legitimate mother, although the said defendant has a better right than the plaintiffs; and that there would be injustice if the property claimed be adjudicated to the plaintiffs, as well as violation of section 5 of the Jones Law which

invalidates any law depriving any person of an equal protection. Wherefore they prayed that the demurrer be sustained, with costs against the plaintiffs. After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and condemned the plaintiffs to pay the costs. Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was overruled; the plaintiffs expected thereto and filed the corresponding bill of exceptions which was allowed, certified and forwarded to the clerk of this court. On appeal the trial judge sustained the demurrer of the defendants to the complaint of the plaintiffs, but, instead of ordering the latter to amend their complaint within the period prescribed by the rules undoubtedly believing that the plaintiffs could not alter nor change the facts constituting the cause of action, and that, as both parties were agreed as to the facts alleged in the complaint as well as in the demurrer, every question reduced itself to one of the law, already submitted to the decision of the court the said judge, disregarding the ordinary procedure established by law, decided the case by absolving the defendants from the complaint and by condemning the plaintiffs to pay the costs of the instance. There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs, confined themselves to filing a demurrer based on the ground that the facts alleged in the complaint do not constitute a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the cause, instead of dismissing the same, because undoubtedly he believed, in view of the controversy between the parties, that the arguments adduced to support the demurrer would be the same which the defendants would allege in their answer those dealing with a mere question of law which the courts would have to decide and that, the demurrer having been sustained, if the plaintiffs should insist they could do no less upon alleging the same facts as those set out in their complaint and if another demurrer were afterwards set up, he would be obliged to dismiss said complaint with costs against the plaintiffs in spite of being undoubtedly convinced in the instant case that the plaintiffs absolutely lack the right to bring the action stated in their complaint. Being of the opinion that the emendation of the indicated defects is not necessary as in this case what has been done does not prejudice the parties the appellate court will now proceed to decide the suit according to its merits, as found in the record and to the legal provisions applicable to the question of law in controversy so that unnecessary delay and greater expense may be avoided, inasmuch as, even if all the ordinary proceedings be followed, the suit would be subsequently decided in the manner and terms that it is now decided in the opinion thoughtfully and conscientiously formed for its determination. In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and if so, whether in accordance with the provision of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had

the obligation to preserve and reserve same for the relatives, within the third degree, of her aforementioned deceased son Apolonio III. The above mentioned article reads: Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came. During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his father). At the death of Apolonio Isabelo Florentino under a will, his eleven children succeeded to the inheritance he left, one of whom, the posthumos son Apolonio III, was given, as his share, the aforementioned property enumerated in the complaint. In 1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited the property he left and who on dying, November 18, 1908, instituted by will as her sole heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left by her father, same constituting the inheritance. Included in said inheritance is the property, specified in by the posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino, and which, at the death of the said posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his legitimate mother and ascendant, Severina Faz de Leon. The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came. According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated persons who, on the death of the said ascendants reservists, (taking into consideration the nature of the line from which such property came) acquire the ownership of said property in fact and by operation of law in the same manner as forced heirs (because they are also such) said property reverts to said line as long as the aforementioned persons who, from the death of the ascendant-reservists, acquire in fact the right of reservatarios (person for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came. Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property

received. He is, however, the legitimate owner of his own property which is not reservable property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such property came. Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code. In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have the right to represent their aforementioned father, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother; and that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father Pedro Florentino one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that this decision does not deal with them. There are then seven reservatarios who are entitled to the reservable property left at the death of Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second

marriage. All of the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his half-brothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled as reservatarios to the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II. In spite of the provisions of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that said article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her brother, Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the property of the deceased Apolonio III never did come into existence because there is a forced heiress who is entitled to such property. The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would be permitting the reservable right to reduce and impair the forced legitimate which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911. The principal question submitted to the court for decision consists mainly in determining whether they property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon. The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever, from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the Code, with the object that the same should not fall into the possession of persons other than those comprehended within the order of person other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary with the

necessary obligation to preserve and to deliver or return it as such reservable property to her deceased sons relatives within the third degree, among whom is her daughter, Mercedes Florentino. Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista) in which case said reservable property losses such character. With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to the reservatarios, one of whom is her own daughter, Mercedes Florentino. It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or forms parts of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could not inherit all by operation of law and in accordance with the order of legitimate succession, because the other relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable property. For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawful or just reason which serves as real foundation to disregard the right to Apolonio IIIs other relatives, within the third degree, to participate in the reservable property in question. As these relatives are at present living, claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated property. The claim that because of Severina Faz de Leons forced heiress, her daughter Mercedes, the property received from the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother, the said Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the deceased Apolonio III, is evidently erroneous for the reason that, as has been already stated, the reservable property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her death nor of the legitimate of the heiress Mercedes. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did same lose the character of reservable property, held before the reservatarios received same.

It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in question, same did not pass into the hands of strangers. But it is likewise true that the said Mercedes is not the only reservataria. And there is no reason founded upon law and upon the principle of justice why the other reservatarios, the other brothers and nephews, relatives within the third degree in accordance with the precept of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain to them. From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968 and consequently of the Civil Code is not applicable in the instant case. Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot be reduced or impaired and said article is expressly respected in this decision. However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any legal foundation, that the reservable property belonged to, and was under the absolute dominion of, the reservista, there being relatives within the third degree of the person from whom same came; that said property, upon passing into the hands of the forced heiress of the deceased reservista, formed part of the legitime of the former; and that the said forced heiress, in addition to being a reservataria, had an exclusive right to receive all of said property and to deprive the other reservatarios, her relatives within the third degree of certain portions thereof. Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected, it is not proper to grant the first for there is no evidence of any damage which can give rise to the obligation of refunding same. As to the second, the delivery of the fruits produced by the land forming the principal part of the reservable property, the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the same, from January 17, 1918, the date the complaint was filed; and the remaining seventh part should go to the defendant Mercedes. For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the complaint is denied, without special findings as to the costs of both instances. So ordered. Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avancea, JJ., concur.

epublic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 83484 February 12, 1990 CELEDONIA SOLIVIO, petitioner, vs. THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA, respondents. Rex Suiza Castillon for petitioner. Salas & Villareal for private respondent.
MEDIALDEA, J.:

This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant: a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards, donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;' b) Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff; c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorney's fees plus costs. SO ORDERED. (pp. 42-43, Rollo) This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr.

He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born. Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr. Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to Esteban, Sr. On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr. During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26,1977 without having set up the foundation. Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated: 4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.) Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo). After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated. On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of

the deceased and proceeded to set up the"SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo). Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and damages. On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva. On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration. In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the following legal issues: 1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court; 2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud; 3. whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and 4. whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it. I. The question of jurisdiction After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record).

It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266). The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The pertinent portions of the order are quoted below: 2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977. During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime. xxxxxxxxx 2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City. The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record) In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that hasexclusive jurisdiction to make a just and legal distribution of the estate. In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother:
The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of The

probate court, in the exercise of its jurisdiction to make distribution, has power to

determine the proportion or parts to which each distributed is entitled. ... The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)

A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364) A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436) partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Emphasis supplied) In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffsappellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. (p. 378). However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice. The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition

of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say the least, for these matters he within the exclusive competence of the probate court. II. The question of extrinsic fraud Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time. Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248) A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a prevailing litigant 'outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. ... The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323) The charge of extrinsic fraud is, however, unwarranted for the following reasons: 1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged: 6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied)

Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do. 2. The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonia's original petition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of October 27, 1978: ... . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir. ... . Considering that this proceeding is one in rem and had been duly published as required by law, despite which the present movant only came to court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record) The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial. The rule is stated in 49 Corpus Juris Secundum 8030 as follows: Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20) Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would have been selfdefeating and inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud. Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149) It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own. III. On the question of reserva troncal

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows: ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. The persons involved in reserva troncal are: 1. The person obliged to reserve is the reservor (reservista)the ascendant who inherits by operation of law property from his descendants. 2. The persons for whom the property is reserved are the reservees (reservatarios) relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came. 3. The propositusthe descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.) Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891. Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide: ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Therefore, the Court of Appeals correctly held that: Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship

by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo) IV. The question of Concordia's one-half share However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540: 4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied) she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well. Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347). The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but only one-half, of her share to the foundation (p. 323, Record). The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and Exchange Commission under Reg. No. 0100027 for the following principal purposes: 1. To provide for the establishment and/or setting up of scholarships for such deserving students as the Board of Trustees of the Foundation may decide of at least one scholar each to study at West Visayas State College, and the University of the Philippines in the Visayas both located in Iloilo City. 2. To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student who has the religious vocation to become a priest. 3. To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields of educational endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after its benevolent benefactors as a token of gratitude for their contributions.

4. To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate partially or totally said needs. 5. To maintain and provide the necessary activities for the proper care of the SolivioJavellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of appreciation for the contribution of the estate of the late Esteban S. Javellana which has made this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his mother, Gregorian masses or their equivalents will be offered every February and October, and Requiem masses every February 25th and October llth, their death anniversaries, as part of this provision. 6. To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to invest and reinvest the funds, collect the income thereof and pay or apply only the income or such part thereof as shall be determined by the Trustees for such endeavors as may be necessary to carry out the objectives of the Foundation. 7. To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner permitted by law, in real and personal property of every kind and description or any interest herein. 8. To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes herein enumerated or which shall at any time appear conducive to the protection or benefit of the corporation, including the exercise of the powers, authorities and attributes concerned upon the corporation organized under the laws of the Philippines in general, and upon domestic corporation of like nature in particular. (pp. 9-10, Rollo) As alleged without contradiction in the petition' for review: The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award for teaching for being the most outstanding student teacher. The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the Foundation. The School has been selected as the Pilot Barangay High School for Region VI. The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award. Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center at the West Visayas State University for teachers' and students' use, and has

likewise contributed to religious civic and cultural fund-raising drives, amongst other's. (p. 10, Rollo) Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers. WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 68843-44 September 2, 1991 MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL COCONUT COOPERATIVE, INC., petitioners, vs. THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO, DONATO, LUIS, ERASTO, LUISA, JOSE and DOLORES, all surnamed BALANTAKBO, respondents. Ceriaco A. Sumaya for petitioners. Tomas P. Aonuevo for private respondents.

MEDIALDEA, J.:p
This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now Court of Appeals) in C.A. G.R. No. CV-01292-93, which affirmed the decision of the Court of First Instance (now Regional Trial Court) of Laguna in the consolidated cases in Civil Case No. SC-956 1 and Civil Case No. SC-957. 2

The parties entered into a stipulation of facts in the court a quo, which is summarized as follows: Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of properties subject of this case: 1) A one-third (1/3) interest, pro-indiviso in a parcel of land situated in Dita, Lilio (Liliw) Laguna and described in paragraph 7 of the complaint in Civil Case No. SC-956 from his father

Jose, Sr., who died on January 28, 1945; and 2) A one-seventh (1/7) interest pro-indiviso in ten (10) parcels of registered lands described in paragraph 6 of the complaint in Civil Case No. SC-957 from his maternal grandmother, Luisa Bautista, who died on November 3, 1950. On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother, Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real properties abovementioned. On November 3, 1952, Consuelo adjudicated unto herself the above described properties in an Affidavit entitled "Caudal Herederario del finado Raul Balantakbo" which provided, among others: I. Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he tenido varios hijos, entre ellos si difunto hijo, llamado Raul Balantakbo. II. Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de 1952, en la Ciudad de Pasay, durante su minolia de edad sin dejar testamento alguno. III. Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno. IV. Que soy la unica ascendiente superviviento de mi referido hijo Raul Balantakbo y por lo tanto su unica heredera formosa, legitima y universal. V. Que el finado Raul Balantakbo murio sin dejar deuda alguna. VI. Que el finado al morir dejo propiedades consistentes en bienes inmuebles situados en la Provincia de Laguna. VII. Que dichas propriedades fueron a su vez adquiridas por el finado Raul Balantakbo per herencia de su difunto padre, Jose Balantakbo, y de su tia abuela Luisa Bautista. xxx xxx xxx (Rollo, p. 29) On December 21, 1959, Consuelo Joaquin vda. de Balantakbo sold the property described in Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a deed attached as Annex "C" to the complaint. The same property was subsequently sold by Mariquita Sumaya to Villa Honorio Development Corporation, Inc., on December 30, 1963. On January 23, 1967, Villa Honorio Development Corporation transferred and assigned its rights over the property in favor of AgroIndustrial Coconut Cooperative, Inc. The documents evidencing these transfers were registered in the Registry of Deeds of Laguna and the corresponding certificates of titles were issued. The properties are presently in the name of Agro-Industrial Coconut Cooperative, Inc., 2/3 share and the remaining 1/3 share is in the name of Sancho Balantakbo. Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties described in the complaint in Civil Case No. SC-957 to Villa Honorio Development Corporation, Inc. The latter in turn transferred and assigned all its rights to the properties in favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are presently in its possession.

The parties admit that the certificates of titles covering the above described properties do not contain any annotation of its reservable character. On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died. On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo, brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed Balantakbo, surviving children of deceased Jose Balantakbo, Jr., another brother of the first named Balantakbos, filed the above mentioned civil cases to recover the properties described in the respective complaints which they claimed were subject to a reserva troncal in their favor. The court a quo found that the two (2) cases varied only in the identity of the subject matter of res involved, the transferees, the dates of the conveyances but involve the same legal question of reserva troncal. Hence, the consolidation of the two (2) cases. After trial, the court a quo rendered a joint decision in favor of the Balantakbos, the dispositive portion of which reads: WHEREFORE, in both Civil Cases Nos. SC-956 and SC-957, judgment is hereby rendered in favor of the plaintiffs and against the defendants, as follows: 1. Ordering the defendant Laguna Agro-Industrial Coconut Cooperative, Inc. to convey to the plaintiffs a) In Civil Case No. SC-956 the one-third (1/3) interest and ownership, pro-indiviso, in and over the parcel of land described in paragraph three (3) sub-paragraph 1, of pages one (1) and two (2) of this decision; b) In Civil Case No. SC-957 the one-seventh (1/7) interest and ownership, pro-indiviso, in and over the ten (10) parcels of land described in paragraph three (3), sub-paragraph 2, of pages two (2) and three (3) of this decision; c) The plaintiffs are to share equally in the real properties herein ordered to be conveyed to them by the defendants with plaintiffs Luisa, Jose and Dolores, all surnamed Balantakbo, receiving onethird (1/3) of the one share pertaining to the other plaintiffs who are their uncles: 2. Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to account for and pay to the plaintiffs the value of the produce from the properties herein ordered to be returned to the plaintiffs, said accounting and payment of income being for the period from January 3, 1968 until date of reconveyance of the properties herein ordered: 3. In each of Civil Cases Nos. SC-956 and SC-957, defendants are to pay plaintiffs a. One Thousand (P1,000.00) Pesos in litigation expenses. b. Two Thousand (P2,000.00) Pesos in attorney's fees.

4. Defendants are to pay the costs in each of Civil Cases Nos. SC-956 and 957. xxx xxx xxx (p. 46, Rollo) This decision was appealed to the appellate court which affirmed the decision of the court a quo in toto. The motion for reconsideration was denied (p. 65, Rollo) by the appellate court which found no cogent reason to reverse the decision. This petition before Us was filed on November 12, 1984 with the petitioners assigning the following errors allegedly committed by the appellate court: I. The trial court erred in not finding defendants an (sic) innocent purchaser for value and in good faith of the properties covered by certificates of title subject of litigation. II. The trial court erred in finding it unnecessary to annotate the reservable interest of the reservee in the properties covered by certificates of title subject of litigation. III. The trial court erred in finding that the cause of action of the plaintiffs (private respondents) has not yet prescribed. IV. The trial court erred in awarding moral and actual damages in favor of the plaintiffs by virtue of the institution of Civil Cases Nos. 956 and 957. Petitioners would want this Court to reverse the findings of the court a quo, which the appellate court affirmed, that they were not innocent purchasers for value. According to petitioners, before they agreed to buy the properties from the reservor (also called reservista), Consuelo Joaquin vda. de Balantakbo, they first sought the legal advice of their family consultant who found that there was no encumbrance nor any lien annotated on the certificate of title coveting the properties. The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo, the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of self-adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father Jose, Sr., as regards the subject matter of Civil Case No. SC-956 and from his maternal grandmother, Luisa Bautista, as regards the subject matter of Civil Case No. SC-957. The court a quofurther ruled that said affidavit was, in its form, declaration and substance, a recording with the Registry of Deeds of the reservable character of the properties. In Spanish language, the affidavit clearly stated that the affiant, Consuelo, was a lone-ascendant and heir to Raul Balantakbo, her son, who died leaving properties previously inherited from other ascendants and which properties were inventoried in the said affidavit. It was admitted that the certificates of titles covering the properties in question show that they were free from any liens and encumbrances at the time of the sale. The fact remains however, that the affidavit of self-adjudication executed by Consuelo stating the source of the properties thereby showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole world in accordance with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A. 496) which provides: Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. Every conveyance, mortgage, lease, lien attachment, order, judgment, instrument or entry affecting

registered land shall, if registered, filed or entered in the Office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering. Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713, cited in People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB v. CA, et al., G.R. Nos. L-48971 and L-40911, both dated January 22, 1980, 95 SCRA 380 and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held: When a conveyance has been properly recorded such record is constructive notice of its contents and all interests, legal and equitable, included therein . . . Under the rule of notice, it is presumed that the purchaser has examined every instrument of record affecting the title. Such presumption is irrebuttable. He is charged with notice of every fact shown by the record and is presumed to know every fact which an examination of the record would have disclosed. This presumption cannot be overcome by proof of innocence or good faith. Otherwise, the very purpose and object of the law requiring a record would be destroyed. Such presumption cannot be defeated by proof of want of knowledge of what the record contains any more than one may be permitted to show that he was ignorant of the provisions of the law. The rule that all persons must take notice of the facts which the public record contains is a rule of law. The rule must be absolute, any variation would lead to endless confusion and useless litigation. . . . In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry of a document in the day book without noting it on the certificate of title is not sufficient registration. However, that ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. CA, et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this jurisdiction. That ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420, where a distinction was made between voluntary and involuntary registration, such as the registration of an attachment, levy upon execution, notice of lis pendens, and the like. In cases of involuntary registration, an entry thereof in the day book is a sufficient notice to all persons even if the owner's duplicate certificate of title is not presented to the register of deeds. On the other hand, according to the said cases of Levin v. Bass, in case of voluntary registration of documents an innocent purchaser for value of registered land becomes the registered owner, and, in contemplation of law the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the owner's duplicate certificate of title covering the land sold and pays the registration fees, because what remains to be done lies not within his power to perform. The register of deeds is duty bound to perform it. (See Potenciano v. Dineros, 97 Phil. 196). In this case, the affidavit of self adjudication executed by Consuelo vda. de Balantakbo which contained a statement that the property was inherited from a descendant, Raul, which has likewise inherited by the latter from another ascendant, was registered with the Registry of Property. The failure of the Register of Deeds to annotate the reservable character of the property in the certificate of title cannot be attributed to Consuelo.

Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable character of the properties before they bought the same from Consuelo. This matter appeared in the deed of sale (Exhibit "C") executed by Consuelo in favor of Mariquita Sumaya, the first vendee of the property litigated in Civil Case No. SC-956, as follows: xxx xxx xxx That, I (Consuelo, vendor) am the absolute and exclusive owner of the one-third (1/3) portion of the above described parcel of land by virtue of the Deed of Extra-judicial Partition executed by the Heirs of the deceased Jose Balantakbo dated December 10, 1945 and said portion in accordance with the partition above-mentioned was adjudicated to Raul Balantakbo, single, to (sic) whom I inherited after his death and this property is entirely free from any encumbrance of any nature or kind whatsoever, . . . (p. 42, Rollo) It was admitted though that as regards the properties litigated in Civil Case SC-957, no such admission was made by Consuelo to put Villa Honorio Development on notice of the reservable character of the properties. The affidavit of self-adjudication executed by Consuelo and registered with the Registry would still be sufficient notice to bind them. Moreover, the Court a quo found that the petitioners and private respondents were long time acquaintances; that the Villa Honorio Development Corporation and its successors, the Laguna Agro-Industrial Coconut Cooperative Inc., are family corporations of the Sumayas and that the petitioners knew all along that the properties litigated in this case were inherited by Raul Balantakbo from his father and from his maternal grandmother, and that Consuelo Vda. de Balantakbo inherited these properties from his son Raul. The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo. Article 891 of the New Civil Code on reserva troncal provides: Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Emphasis supplied) We do not agree, however, with the disposition of the appellate court that there is no need to register the reservable character of the property, if only for the protection of the reservees, against innocent third persons. This was suggested as early as the case of Director of Lands v. Aguas, G.R. No. 42737, August 11, 1936, 63 Phil. 279. The main issue submitted for resolution therein was whether the reservation established by Article 811 (now Art. 891 of the New Civil Code) of the Civil Code, for the benefit of the relatives within the third degree belonging to the line of the descendant from whom the ascendant reservor received the property, should be understood as made in favor of all the relatives within said degree and belonging to the line above-mentioned, without distinction legitimate, natural and illegitimate ones not having the legal status of natural children. However, in an obiter dictum this Court stated therein: The reservable character of a property is but a resolutory condition of the ascendant reservor's right of ownership. If the condition is fulfilled, that is, if upon the ascendant reservor's death there are relatives having the status provided in Article 811 (Art. 891, New Civil Code), the property passes, in accordance with this special order of succession, to said relatives, or to the nearest of kin among them, which question not

being pertinent to this case, need not now be determined. But if this condition is not fulfilled, the property is released and will be adjudicated in accordance with the regular order of succession. The fulfillment or non-fulfillment of the resolutory condition, the efficacy or cessation of the reservation, the acquisition of rights or loss of the vested ones, are phenomena which have nothing to do with whether the reservation has been noted or not in the certificate of title to the property. The purpose of the notation is nothing more than to afford to the persons entitled to the reservation, if any, due protection against any act of the reservor, which may make it ineffective . . . (p. 292, Ibid) Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601, 603, this Court ruled that the reservable character of a property may be lost to innocent purchasers for value. Additionally, it was ruled therein that the obligation imposed on a widowed spouse to annotate the reservable character of a property subject of reserva viudal is applicable to reserva troncal. (See also Edrozo v. Sablan, G.R. No. 6878, September 13, 1913, 25 Phil. 295). Since these parcels of land have been legally transferred to third persons, Vicente Galang has lost ownership thereof and cannot now register nor record in the Registry of Deeds their reservable character; neither can he effect the fee simple, which does not belong to him, to the damage of Juan Medina and Teodoro Jurado, who acquired the said land in good faith, free of all incumbrances. An attempt was made to prove that when Juan Medina was advised not to buy the land he remarked, "Why did he (Vicente Galang) not inherit it from his son?" Aside from the fact that it is not clear whether this conservation took place in 1913 or 1914, that is, before or after the sale, it does not arise that he had any knowledge of the reservation. This did not arise from the fact alone that Vicente Galang had inherited the land from his son, but also from the fact that, by operation of law, the son had inherited it from his mother Rufina Dizon, which circumstance, so far as the record shows, Juan Medina had not been aware of. We do not decide, however, whether or not Juan Medina and Teodoro Jurado are obliged to acknowledge the reservation and to note the same in their deeds, for the reason that there was no prayer to this effect in the complaint and no question raised in regard thereto. Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also. The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real property subject ofreserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned . . ." (emphasis supplied) The properties involved in this case are already covered by a Torrens title and unless the registration of the limitation is effected (either actual or constructive), no third persons shall be prejudiced thereby.

The respondent appellate court did not err in finding that the cause of action of the private respondents did not prescribe yet. The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership or of fee simple over the reserved property during the lifetime of the reservor. Only when the reservor should die before the reservees will the latter acquire the reserved property, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree (See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89). The reserva is extinguished upon the death of the reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovery may prescribe in ten (10) years under the old Code of Civil Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under Article 1141 of the New Civil Code. The actions for recovery of the reserved property was brought by herein private respondents on March 4, 1970 or less than two (2) years from the death of the reservor. Therefore, private respondents' cause of action has not prescribed yet. Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and two thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of the New Civil Code. Private respondents were compelled to go to court to recover what rightfully belongs to them. ACCORDINGLY, the petition is DENIED. The questioned decision of the Intermediate Appellate Court is AFFIRMED, except for the modification on the necessity to annotate the reversable character of a property subject of reserva troncal. SO ORDERED.
Republic of the Philippines SUPREME COURT Manila EN BANC DECISION February 18, 1926 G.R. No. L-23770 MAGIN RIOSA, plaintiff-appellant, vs. PABLO ROCHA, MARCELINA CASAS, MARIA CORRAL and CONSOLACION R. DE CALLEJA, defendants-appellees. Domingo Imperial for appellant Mariano Locsin for appellees. Avancea, J.: Maria Corral was united in marriage with the deceased Mariano Riosa, it being her first and only marriage and during which ti me she bore him three children named Santiago, Jose and Severina. The latter died during infancy and the other two survived their father, Mariano Riosa. Santiago Riosa, no deceased, married Francisca Villanueva, who bore him two children named Magin and Consolaci on

Riosa. Jose Riosa, also deceased, married Marcelina Casas and they had one child who died before the father, the latter t herefore leaving no issue. Mariano Riosa left a will dividing his property between his two children, Santiago and Jose Riosa, giving the latter the eleven parcels of land described in the complaint. Upon the death of Jose Riosa he left a will in which he named his wife, Marcelina Casas, as his only heir. On May 16, 1917, the will of Jose Riosa was filed for probate. Notwithstanding the fact that Marcelina Casas was the only heir named in the will, on account of the preterition of Maria Corral who, being the mother of Jose Riosa, was his legitimate heir, I Marcelina Casas and Maria Corral, on the same date of the filing of the will for probate, entered into a contract by which they divided between themselves the property left by Jose Riosa, the eleven parcels of land described in the complaint being assigned to Maria Corral. On October 26, 1920, Maria Corral sold parcels Nos. 1, 2, 3, 4, 5, 6, 10 and 11 to Marcelina Casas for the sum of P20,000 in a public instrument which was recorded in the registry of deeds on November 6, 1920. On November 3, 1920, Marcelina Casas sold these eight parcels of land to Pablo Rocha for the sum of P60,000 in a public document which was recorded in the registry of deeds on November 6, 1920. On September 24, 1921, Pablo Rocha returned parcels No. 1, 2, 3, 4, and 6 to Maria Corral stating in the deed executed for the purpose that these parcels of land had been erroneously included in the sale made by Maria Corral to Marcelina Casas. The Court of first Instance denied the probate of the will of Jose Riosa, but on appeal this court reversed the decision of the lower court and allowed the will to probate. 1 The legal proceedings for the probate of the will and the settlement of the testate estate of Jose Riosa were followed; and, at the time of the partition, Maria Corral and Marcelina Casas submitted to the court the contract of extrajudicial partition which they had entered into on May 16, 1917, and which was approved by the court, by order of November 12, 1920, as though it had been made within the said testamentary proceedings. From the foregoing is appears that the eleven parcels of land described in the complaint were acquired by Jose Riosa, by lucr ative title, from his father Mariano Riosa and that after the death of Jose Riosa, by operation of law, they passed to his mother Maria Corral. By virtue of article 811 of the Civil Code these eleven parcels of land are reservable property. It results, furthermore, that p arcels 1, 2, 3, 4, 5, 6, 7, 8 and 9 still belong in fee simple to Maria Corral, and that parcels 10 and 11 were successively sold by Maria Corral to Marcelina Casas and by the latter to Pablo Rocha. Lastly, it appears that Magin and Consolacion Riosa are the nearest relatives within the third degree of the line from which this property came. This action was brought by Magin Riosa, for whom the property should have been reserved, against Maria Corral, whose duty it was to reserve it, and against Marcelina Casas and Pablo Rocha as purchasers of parcels 10 and 11. Consolacion Ri osa de Calleja who was also bound to make the reservation was included as a defendant as she refused to join as plaintiff. The complaint prays that the property therein described be declared reservable property and that the plaintiffs Jose and Cons olacion Riosa be declared reservees; that this reservation be noted in the registry of deeds; that the sale of parcels 10 and 11 to M arcelina Casas and Pablo Rocha be declared valid only in so far as it saves the right of reservation in favor of the plaintiff Magin Riosa and of the defendant Consolacion Riosa, and that this right of reservation be also noted on the deeds of sale executed in favor of Marce lina Casas and Pablo Rocha; that Maria Corral, Marcelina Casas and Pablo Rocha give a bond of P50,000, with good and sufficient sureties, in favor of the reservees as surety for the conservation and maintenance of the improvements existing on the said reservable property. The dispositive part of the courts decision reads as follows: For the foregoing reasons it is held:

1. That the eleven parcels of land described in paragraph 6 of the complaint have the character of reservable property; 2. Th at the defendant Maria Corral, being compelled to make the reservation, must reserve them in favor of the plaintiff Magin Riosa and the defendant Consolacion Riosa de Calleja in case that either of these should survive her; 3. That Magin Riosa and Consolacion R iosa de Calleja have the right, in case that Maria Corral should die before them, to receive the said parcels or their e quivalent. In virtue whereof, the defendant Maria Corral is ordered: 1. To acknowledge the right of Magin Riosa and Consolacion Riosa de Calleja to the reservation of the said parcels of lands described in the complaint, which she shall expressly record in the registration of said lands in the office of the register of deeds of this province; 2. To insure the delivery of said parcels of lands, or their equival ent, to Magin Riosa and Consolacion Riosa de Calleja, should either of them survive her, either by a mortgage thereon or by a bond in the amount of P30,000, without express pronouncement as to costs. The other defendants are absolved from the complaint. Inasmuch as the reservation from its inception imposes obligations upon the reservor (reservista) and creates rights in favor of the reservation (reservatarios) it is of the utmost importance to determine the time when the land acquired the character of reservable property. It will be remembered that on May 16, 1917, Maria Corral and Marcelina Casas entered into a contract of extrajudicial partition of the property left by Jose Riosa, in which they assigned to Maria Corral, as her legitime, the parcels of land here in question, a nd at the same time petitioned for the probate of the will of Jose Riosa and instituted the testamentary proceeding. In support of the legality of the extrajudicial partition between Maria Corral and Marcelina Casas the provision of section 596 of the Code of Civil Procedure is invoked, which authorizes the heirs of a person dying without a will to make a partition without the intervention of the courts whenever the heirs are all of age and the deceased has left no debts. But this legal provisions refers expressly to intestate estates and, of course, excludes testate estates like the one now before us. When the deceased has left a will the partition of his property must be made in accordance therewith. According to section 62 5 of the same Code no will can pass property until it is probated. And even after being probated it cannot pass any property if its provisions impair the legitime fixed by law in favor of certain heirs. Therefore, the probate of the will and the validity of the testam entary provisions must be passed upon by the court. For the reasons stated, and without making any express finding as to the efficacy of the extrajudicial partition made by Maria Corral and Marcelina Casas, we hold that for the purposes of the reservation and the rights and obligations arising thereunder in connection with the favored relatives, the property cannot be considered as having passed to Maria Corral but from the date when the said partiti on was approved by the court, that is, on November 12, 1920. In the case of Pavia vs. De la Rosa (8 Phil., 70) , this court laid down the same doctrine in the following language: The provisions of Act No. 190 (Code of Civil Procedure) have annulled the provisions of article 1003 and others of the Civil Code with regard to the pure or simple acceptance of the inheritance of a deceased person or that made with benefit of inventory and the consequences thereof. xxxxxxxxx

The heir legally succeeds the deceased from whom he derives his right and title, but only after the liquidation of the estate, the payment of the debts of same, and the adjudication of the residue of the estate of the deceased, and in the meantime the only person in charge by law to attend to all claims against the estate of the deceased debtor is the executor or administrator appointed by a competent court. As has been indicated, parcels 10 and 11 described in the complaint were first sold by Maria Corral to Marcelina Casas who la ter sold them to Pablo Rocha. In this appeal it is urged that Marcelina Casas and Pablo Rocha, who were absolved by t he court below, be ordered to acknowledge the reservation as to parcels 10 and 11, acquired by them, and to have the said reservation noted on their tit les. This argument, of course, is useless as to Marcelina Casas for the reason that she transferred all her rights to Pablo Rocha. It has been held by jurisprudence that the provisions of the law referred to in article 868 tending to assure the efficacy of the reservation by the surviving spouse are applicable to the reservation known as reserva troncal, referred to in article 811, which is the reservation now under consideration. In accordance with article 977, Maria Corral, reservor, is obliged to have the reservation noted in the registry of deeds in accordance with the provisions of the Mortgage Law which fixes the period of ninety days for accomplishing it (article 199, in relation with article 191, of the Mortgage Law). According to article 203 of the General Regulation for the application of the Mortgage Law, this time must be computed from the acceptance of the inheritance. But as this portion of the Civil Code, regarding the acceptance of the inheritance, has been repealed, the time, as has been indicated, must be computed from the adjudication of the property by the court to the he irs, in line with the decision of this court hereinabove quoted. After the expiration of this period the reservees may demand compliance with t his obligation. If Maria Corral had not transferred parcels 10 and 11 to another there would be no doubt that she could be compelled to cause the reservable character of this property to be noted in the registry of deeds. This land having been sold to Marcelina Casas who, in turn, sold it to Pablo Rocha the question arises whether the latter can be compelled to have this reservation noted on his title. This acquisition by Pablo Rocha took place when it was the duty of Maria Corral to make the notation of the reservation in the registry and at th e time when the reservees had no right to compel Maria Corral to make such notation, because this acquisition was made before the expiration of the period of ninety days from November 12, 1920, the date of the adjudication by the court, after which the right of the reserve es to commence an action for the fulfillment of the obligation arose. But the land first passed to Marcelina Casas and later to Pablo Rocha together with the obligation that the law imposes upon Maria Corral. They could not have acquired a better title than that held by Maria Corral and if the latters title was limited by the reservation and the obligation to note it in the registry of deeds, this same limitation is attached to the right acquired by Marcelina Casas and Pablo Rocha. In the transmission of reservable property the law imposes the reservation as a resolutory condition for the benefit of the reservees (article 975, Civil Code). The fact that the resolvable character of the property was not recorded in the registry of deed at the time that it was acquired by Marcelina Casas and Pablo Rocha cannot affect the right of the reservees, for the reason that the transfers were made at the time when it was the obligation of the reservor to note only such reservation and the reservees did not them have any right to compel her to fulfill such an obligation. Marcelina Casas, as well as Pablo Rocha, Knew of the reservable character of the property when they bought it. They had knowledge of the provisions of the last will and testament of Mariano Riosa by virtue of which these parcels were transferred to Jose Rios a. Pablo Rocha was one of the legatees in the will. Marcelina Casas was the one who entered into the contract of partition with Maria Corral, whereby these parcels were adjudicated to the latter, as a legitimate heir of Jose Riosa. Pablo Rocha was the very person who drafted the contracts of sale of these parcels of land by Maria Corral to Marcelina Casas and by the latter to himself. These facts, together with the relationship existing between Maria Corral and Marcelina Casas and Pablo Rocha, the former a daughter-in-law and the latter a nephew

of Maria Corral, amply support the conclusion that both of them knew that these parcels of land had been inherited by Maria C orral, as her legitime from her son Jose Riosa who had inherited them, by will, from his father Mariano Riosa, an d were reservable property. Wherefore, the duty of Maria Corral of recording the reservable character of lots 10 and 11 has been transferred to Pablo Rocha and the reservees have an action against him to compel him to comply with this obligation. The appellant also claims that the obligation imposed upon Maria Corral of insuring the return of these parcels of land, or their valu e, to the reservees by means of a mortgage or a bond in the amount of P30,000, also applies to Pablo Rocha. The law does not requir e that the reservor give this security, the recording of the reservation in the registry of deeds being sufficient (art. 977 of the Civi l Code). There is no ground for this requirement inasmuch as, the notation once is made, the property will answer for th e efficacy of the reservation. This security for the value of the property is required by law (art. 978, paragraph 4, of the Civil Code) in the case of a reserva tion by the surviving spouse when the property has been sold before acquiring the reservable character (art 968 of the Civil Code), but is not applicable to reservation known as reserva troncal (art 811 of the Civil Code). In the case of Dizon and Dizon vs. Galang (pa ge 601, ante), this court held that: * * * As already intimated, the provisions of the law tending to give efficacy to a reservation by the widowed spouse mentioned in article 968 are applicable to the reserva troncal provided for in article 811. But as these two reservations vary in some respects, t hese rules may be applied to the reserva troncal only in so far as the latter is similar to a reservation by the widowed spouse. In the reserva troncal the property goes to the reservor as reservable property and it remains so until the reservation takes place or is extinguished. In a reservation by the widowed spouse there are two distinct stages, one when the property goes to the widower without being reservable, and the other when the widower contracts a second marriage, whereupon the property, which theretofore has been in his possession fr ee of any encumbrance, becomes reservable. These two stages also affect differently the transfer that may be made of the property. If t he property is sold during the first stage, before becoming reservable, it is absolutely free and is transferred to the p urchaser unencumbered. But if the sale is made during the second stage, that is, when the duty to reserve has arisen, the property goes to the purchaser su bject to the reservation, without prejudice to the provisions of the Mortgage Law. This is the reason why the law provides that should the property be sold before it becomes reservable, or before the widower contracts another marriage, he will be compelled to secure the value of the property by a mortgage upon contracting a new marriage, so that the reservation may not lose its efficacy and that the rights of those for whom the reservation is made may be assured. This mortgage is not required by law when the sale is made after the reservation will follow the property, without prejudice to the contrary provisions of the Mortgage Law and the rights of innocent purchasers, there being no need to secure the value of the property since it is liable for the efficacy of the reservation by a widowed spouse to secure the value of the property sold by the widower, before becoming reservable are not applicable to the reserva troncal where the property goes to the ascendant already reservable in character. A sale in the case of reserva troncal might be analogous to a sale made by the wid ower after contacting a second marriage in the case of a reservation by the widowed spouse. Since Maria Corral did not appeal, we cannot modify the appealed judgment in so far as it is unfavorable to her. As she has b een ordered to record in the registry the reservable character of the other parcels of land, the subject of this action, the questions raised by the appellant as to her are decided. The judgment appealed from is modified and Pablo Rocha is ordered to record in the registry of deeds the reservable character of parcels 10 11, the subject of this complaint, without special pronouncement as to costs. So ordered. Street Malcolm, Villamor, Strand, Johns, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-28032 September 24, 1986 FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and JANUARIO PAPA, plaintiffs-appellees, vs. DALISAY TONGKO CAMACHO, PRIMO TONGKO and GODOFREDO CAMACHO, defendantsappellants.

NARVASA, J.:

This case, which involves the application of Article 891 of the Civil Code on reserva troncal, was submitted for judgment in the lower court by all the parties on the following "Stipulation of Facts and Partial Compromise": 1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the plaintiffs, Francisco Tioco de Papa, Manuel Tioco and Nicolas Tioco, are legitimate relatives, plaintiffs being said defendant's grandaunt and granduncles. 2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho have as a common ancestor the late Balbino Tioco (who had a sister by the name of Romana Tioco), father of plaintiffs and great grandfather of defendant. The family relationship of the parties is as shown in the chart attached hereto as Annex 'A' and made an integral part of this stipulation. 3. They stipulate that Romana Tioco during her lifetime gratuitously donated four (4) parcels of land to her niece Toribia Tioco (legitimate sister of plaintiffs), which parcels of land are presently covered by Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila, copies of which are attached to this stipulation as Annexes 'B', 'B-l', and 'B-2'. 4. They stipulate that Toribia Tioco died intestate in l9l5, survived by her husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D, Tongko-Camacho) and leaving the afore-mentioned four (4) parcels of land as the inheritance of her said two children in equal proindiviso shares. 5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his legitimate children by his wife Marciana Felix (among them plaintiffs) and legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition of his estate, three (3) parcels of land now covered by Transfer Certificates of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of which are attached hereto as Annexes 'C' and 'C-l', were adjudicated as the inheritance of the late Toribia Tioco, but as she had predeceased her father, Balbino Tioco, the said three (3) parcels of

land devolved upon her two legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso shares. 6. They stipulate that in 1937, Faustino Dizon died intestate, single and without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7) parcels of land above-mentioned to his father, Eustacio Dizon, as his sole intestate heir, who received the said property subject to a reserva troncal which was subsequently annotated on the Transfer Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C-l'. 7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her rights and interests in the parcels of land abovementioned were inherited by her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to the usufructuary right of her surviving husband, defendant Primo Tongko. 8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate, survived his only legitimate descendant, defendant Dalisay D. Tongko-Camacho. 9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns one-half (1/2) of all the seven (7) parcels of land abovementioned as her inheritance from her mother, Trinidad Dizon-Tongko. 10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice, the other half of the said seven (7) parcels of land abovementioned by virtue of the reserva troncal imposed thereon upon the death of Faustino Dizon and under the laws on intestate succession; but the plaintiffs, also upon legal advice, oppose her said claim because they claim three-fourths (3/4) of the one-half pro-indiviso interest in said parcel of land, which interest was inherited by Eustacio Dizon from Faustino Dizon, or three-eights (3/8) of the said parcels of land, by virtue of their being also third degree relatives of Faustino Dizon. 11. The parties hereby agree to submit for judicial determination in this case the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled to the whole of the seven (7) parcels of land in question, or whether the plaintiffs, as third degree relatives of Faustino Dizon are reservatarios (together with said defendant) of the one-half pro-indiviso share therein which was inherited by Eustacio Dizon from his son Faustino Dizon, and entitled to three-fourths (3/4) of said one-half pro-indiviso share, or three eights (3/8) of said seven (7) parcels of land, and, therefore, to threeeights (3/8) of the rentals collected and to be collected by defendant Dalisay P. Tongko Camacho from the tenants of said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals. 12. In view of the fact that the parties are close blood relatives and have acted upon legal advice in pursuing their respective claims, and in order to restore and preserve harmony in their family relations, they hereby waive all their claims against each other for damages (other than legal interest on plaintiffs' sore in the rentals which this Honorable Court may deem proper to award), attorney's fees and expenses of litigation which shall be borne by the respective parties. 1 On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco, Manuel Tioco and Nicolas Tioco, as well as the defendant Dalisay Tongko-Camacho, entitled, as reservatarios, to onehalf of the seven parcels of land in dispute, in equal proportions, rendering judgment as follows:

... . Resolving, therefore, the legal question submitted by the parties, the court holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco are entitled to threefourths (3/4) of one-half (1/2) pro-indiviso shares or three-eights (3/8) of the seven (7) parcels of land involved in this action. Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals collected and to be collected by the defendant Dalisay D. Tioco-Camacho from the tenants of the said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals. IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived all their claims against each other for damages including attorney's fees and expenses of litigation other than the legal interests on plaintiffs' share in the rentals, the court renders judgment adjudging the plaintiffs entitled to three-eights (3/8) of the seven (7) parcels of land described in Transfer Certificate of Title Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the Registry of Deeds of Manila. The defendant Dalisay D. Tioco-Camacho is hereby ordered to make an accounting of all rents received by her on the properties involved in this action for the purpose of determining the legal interests which should be paid to the plaintiffs on their shares in the rentals of the property in question. SO ORDERED. 2 Not satisfied, the defendant appealed to this Court. The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower Court, all relatives of thepraepositus within the third degree in the appropriate line succeed without distinction to the reservable property upon the death of the reservista, as seems to be implicit in Art. 891 of the Civil Code, which reads: Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (811), or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession.
That question has already been answered in Padura vs. Baldovino, where the reservatario was survived by eleven nephews and nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code. Said the Court:
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The issue in this appeal may be formulated as follows: In a case of reserva troncal, where the onlyreservatarios (reservees) surviving the reservista, and belonging to the fine of origin, are nephews of the descendant (prepositus), but some are nephews of the half blood and the others are nephews of the whole blood, should the reserved properties be apportioned among them equally, or should the nephews of the whole blood take a share twice as large as that of the nephews of the half blood? xxx xxx xxx

The case is one of first impression and has divided the Spanish commentators on the subject. After mature reflection, we have concluded that the position of the appellants is correct. The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant (reservista). xxx xxx xxx The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of the line of origin. But from this time on, there is no further occasion for its application. In the relations between one reservatario and another of the same degree there is no call for applying Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be governed by the ordinary rules of intestate succession. In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree (Florentino vs. Florentino, 40 Phil. 489490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905). And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews (Florentino vs. Florentino, supra). Following the order prescribed by law in legitimate succession when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatarios over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are within the third degree of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such. In spite of what has been said relative to the right of representation on the part of one alleging his right asreservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. ... . (Florentino vs. Florentino, 40 Phil. 480, 489-490) (Emphasis supplied) See also Nieva and Alcala vs. Alcala and de Ocampo, 41 Phil. 915) Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should be likewise operative.

In other words, the reserva troncal merely determines the group of relatives reservatarios to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise. This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its application should be limited to what is strictly needed to accomplish the purpose of the law. As expressed by Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250): ... creandose un verdadero estado excepcional del derecho, no debe ampliarse, sino mas bien restringirse, el alcance del precepto, manteniendo la excepcion mientras fuere necesaria y estuviese realmente contenida en la disposicion, y aplicando las reglas generales y fundamentales del Codigo en materia de sucesi6n, en aquehos extremes no resueltos de un modo expreso, y que quedan fuera de la propia esfera de accion de la reserva que se crea. The restrictive interpretation is the more imperative in view of the new Civil Code's hostility to successionalreservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of the Code of 1889 (Art. 812 and 968980).
Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter. To this effect is Abellana vs. 4 Ferraris where Arts. 1001, 1004, 1005 and 1009 of the Civil Code were cited and applied:

Nevertheless, the trial court was correct when it held that, in case of intestacy nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the Philippines, that provide as follows: Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitle to one-half of the inheritance and the brothers and sisters or their children to the other half. Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. Art. 1005. Should brothers and sisters survive together with nephews and nieces who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. Art. 1009. Should there be neither brothers nor sisters, nor children of brothers and sisters, the other collateral relatives shall succeed to the estate. Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows:

Art. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce shall succeed to the entire estate of the deceased. Art. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased. The latter shall succeed without distinction of lines or preference among them by reason of the whole blood. It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals. xxx xxx xxx We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. ... This conclusion is fortified by the observation, also made in Padura, supra, that as to the reservable property, thereservatarios do not inherit from the reservista, but from the descendant praepositus: ... . It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of it by will, as long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter, therefore, do not inherit from the reservista, but from the descendant prepositus, of whom the reservatariosare the heirs mortis causa, subject to the condition that they must survive the reservista. (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310) ... .
To the same effect is Cano vs, Director of Lands , where it was ruled that intestacy proceedings to determine the right of a reservatario are not necessary where the final decree of the land court ordering issuance of title in the name of the reservista over property subject to reserva troncal Identifies the reservatario and there are no other claimants to the latter's rights as such:
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The contention that an intestacy proceeding is still necessary rests upon the assumption that thereservatario win succeed in, or inherit, the reservable property from the reservista. This is not true. Thereservatario is not the reservista's successor mortis causa nor is the reservable property part of thereservista's estate; the reservatario receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the matter must be deemed to have enjoyed no more than a life interest in the reservable property. It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to theprepositus (the appellee in this case)

becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of the reservista, and does not even answer for the debts of the latter. ... .
Had the reversionary property passed directly from the praepositus, there is no doubt that the plaintiffs-appellees would have been excluded by the defendant-appellant under the rules of intestate succession. There is no reason why a different result should obtain simply because 6 "the transmission of the property was delayed by the interregnum of the reserva;" i.e., the property took a "detour" through an ascendantthereby giving rise to the reservation before its transmission to the reservatario.

Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-appellant Dalisay Tongko-Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees. WHEREFORE, the appealed judgment of the lower Court is reversed and set aside and the complaint is dismissed, with costs against the plaintiffs-appellants. SO ORDERED. Melencio-Herrera, Cruz, Paras, and Feliciano, JJ., concur.

DISINHERITANCE

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 7890 September 29, 1914

FILOMENA PECSON, as administratix of the last will and testament of Florencio Pecson, et al., plaintiffs-appellants, vs. ROSARIO MEDIAVILLO, defendant-appellee. S. E. Imperial for appellants. Tomas Lorayes for appellee. JOHNSON, J.: It appears from the record that some time prior to the 17th day of September, 1910, the last will and testament of Florencio Pecson was presented to the Court of First Instance of the Province of Albay for probate. Mr. Tomas Lorayes, an attorney at law, opposed the legislation of the will on the ground that it had not been authorized nor signed by the deceased, in accordance with the provisions of the Code of Civil Procedure. After hearing the respective parties, the Honorable Percy M. Moir, judge, found that the will had been signed and executed in accordance with the provisions of law, and denied the opposition on the 17th day of September, 1910. On the 18th day of September, 1910, the said Tomas Lorayes, representing Basiliso Mediavillo and Rosario Mediavillo, presented a motion in the words following:

1. That Rosario Mediavillo is and Joaquin Mediavillo was a legitimate child of the deceased Teresa Pecson, who also was a daughter of the testator, Florencio Pecson, and therefore the first mentioned is and the second was a grandchild of the latter. 2. That the said granddaughter, Rosario Mediavillo y Pecson, was disinherited by her grandfather, the testator Florencio Pecson, according to clause 3 of the will, because she failed to show him due respect and on a certain occasion raised her hand against him. 3. That the interested party did not commit such an act, and if perhaps she did, it was due to the derangement of her mental faculties which occurred a long time ago and from which she now suffers in periodical attacks. By reason of all the foregoing and because the disinheriting clause 3 of the will is unfounded, the undersigned prays the court to annul the said clause and to make the testator's died without succession, but is represented now by his father, Basiliso Mediavillo), participants in the estate left by their grandfather; and, finally, that the court grant such other relief as it may deem just and equitable.
After a consideration of the question presented by said motion, the lower court, on the 22d day of September, 1911, rendered the following decision:

This case has come up to-day for a hearing on the declaration of heirs of the decease Florencio Pecson, who died in Daraga, about the year 1910. From the evidence it appears that the deceased had eight children by his wife Nicolasa Manjares, likewise deceased, which children are those named Emerenciano, Teresa, Filomena, Asunsion, Rufino, Zoila, Emiliano, and Perfecto, all surnamed Pecson. It also appears that Rufino Pecson absented himself from these Islands twenty-five years ago, going to Australia, and that nothing has been heard of him for the past twenty years. The said Rufino Pecson left no children in the Philippines and was unmarried when he emigrated. As nothing has been heard of him for twenty years, it is presumed that he died and it is held that the part of this estate to which he was entitled must be divided among the other heirs. It also appears from the evidence that Teresa Pecson married Basiliso Mediavillo, by whom she had two children, Joaquin and Rosario Mediavillo. Teresa also died, leaving these two children and her husband, Basiliso Mediavillo. Her son Joaquin died, unmarried and childless, before the death of the testator, Florencio Pecson. Rosario is the only living daughter of Teresa and the latter's husband, Basiliso Mediavillo, is also living. The evidence shows that this girl Rosario became insane in 1895, when she went to Nueva Caceres to study in college, and it has been proved that it was previous to this date that she disobeyed her grandfather and raised her hand against him, and, as the testator states in the third paragraph of his will, he disinherited her. This court understands that this Rosario, who was then 14 years of age, and who shortly afterwards became insane, was not responsible for her acts and should not have been disinherited by her grandfather. The court therefore decrees that this part of the will is contrary to law and sets it aside as being of no force or value whatever. The court further holds that Rosario Mediavillo, the daughter of Teresa Pecson, is the heiress of the one-half of the share of this estate pertaining to the said Teresa, and that her father, as the heir of his son Joaquin, also Teresa's son, is the heris of the other one-half of the said share pertaining to Teresa that is, of the one-seventh of this estate that pertains to the latter. Moreover, the court decrees that, besides the two heirs just above mentioned, Emerciano, Filomena, Asuncion, Zoila,

Emiliano, and Perfecto, surnamed Pecson, and the children of Teresa, are also heirs of the estate of Florencio Pecson.
From the decision the plaintiff appealed to this court and made the following assignments of error:

FIRST ERROR The lower court erred in finding that the part of the will which disinherits Rosario Mediavillo is contrary to law, and in setting it aside as being of no force or value whatever. SECOND ERROR The lower court erred by decreeing that Basaliso Mediavillo, the father of Joaquin Mediavillo, is the heir by representation of the one-half of the one seventh of this estate pertaining to Joaquin Mediavillo.
With reference to the first assignment of error it may be said that from the record it appears that during the lifetime of Florencio Pecson he had been married to Nicolasa Manjares, with whom he had eight children, named Filomena, Asuncion, Zoila, Emerenciano, Emiliano, Perfecto, Rufino and Teresa Pecson; that before the death of Florencio Pecson he executed and delivered the will in question. The will made no provision for the said Rufino Pecson, neither was there any provision in the will for the said Teresa. All of the other children were named as heirs in said will. It appears that Teresa had been married with one Basiliso Mediavillo, and that some time before the making of the will in question she died, leaving her husband and two children, Joaquin Mediavillo and Rosario Mediavillo, as her heirs. It also appears from the record that Joaquin Mediavillo died without heirs, leaving as the only heirs of the said Teresa Pecson, her husband, Basilio Mediavillo and the said Rosario Mediavillo. The said Joaquin Mediavillo died before his grandfather, Florencio Pecson, and probably before the will in question was made. Paragraph 3 of the will disinherited Rosario Mediavillo in the following language:

I declare that one of my daughters, named Teresa, now deceased, left a legitimate daughter named Rosario Mediavillo. I also declare that I disinherit my granddaughter, the said Rosario Mediavillo, because she was grossly disrespectful to me and because on one occasion, when it was I do not remember, she raised her hand against me. Therefore, it is my will that the said Rosario Mediavillo shall have no share in my property.
The defendant, Rosario Mediavillo, in the motion which she presented and which is copied above, alleges that she was disinherited without case. Upon a consideration of that question, the lower court found that she had been disinherited without cause and annulled said paragraph 3 of the will. That order of the lower court constitutes the error complained of by the appellant in her first assignment of error. By reference to said paragraph 3 above quoted, it will be seen that Florencio Pecson disinherited the said Rosario Mediavillo "because she was grossly disrespectful to me and because on one occasion, when it was I do not remember, she raised her hand against me. Therefore it is my will that she, the said Rosario Mediavillo, shall have no share in my property." The lower court admitted proof the question of the responsibility of the said Rosario Mediavillo at the time she offered the offense to her grandfather, Florencio Pecson. After hearing the proof, the lower court reached the following conclusion:

The evidence shows that this girl Rosario became insane in 1895, when she went to Nueva Caceres to study in college, and it has been proved that it was previous to this date that she

disobeyed her grandfather and raised her hand against him, and, as the testator states in the third paragraph of his will, he disinherited her. This court understands that this Rosario, who was then 14 years of age, and who shortly afterwards became insane, was not responsible for her acts and should not have been disinherited by her grandfather.
The first assignment of error presents the question whether or not the courts, when a parent disinherits his children, may inquire into the cause of the disinheritance and decide that there was or was not ground for such disinheritance. The Civil Code (art. 848) provides that disinheritance shall only take place for one of the causes expressly fixed by law. In accordance with the provisions of that article (848) we find that articles 756 and 853 provide the cases or causes for disinheritance; or, in other words, the cases or causes in which the ancestors may by will disinherit their heirs. Article 849 of the Civil Code provides that the disinheritance can only be effected by the testament, in which shall be mentioned the legal grounds or causes for such disinheritance. If it is true that heirs can be disinherited only by will, and for causes mentioned in the Civil Code, it would seen to follow that the courts might properly inquire whether the disinheritance has been made properly and for the causes provided for by law. The right of the courts to inquire into the causes and whether there was sufficient cause for the disinheritance or not, seems to be supported by express provisions of the Civil Code. Article 850 provides that "the proof of the truthfulness of the reason for disinheritance shall be established by the heirs of the testator, should the disinherited person deny it." It would appear then that if the person disinherited should deny the truthfulness of the cause of disinheritance, he might be permitted to support his allegation by proof. The right of the court to inquire whether or not the disinheritance was made for just cause is also sustained by the provisions of article 851, which in part provides that:

Disinheritance made without statement of the reason, or for a cause the truth of which, if contradicted, should not be proven . . . shall annul the designation of heirship, in so far as it prejudices the person disinherited.
It seems clear from the above-quoted provisions, that the courts may inquire into the justice of a disinheritance such as was attempted in the present case, and if they find that the disinheritance was without cause, that part of the testament or will may be pronounced null and void. It remains, however, to be seen whether the evidence adduced during the trial of the present cause was sufficient to show that the disinheritance made in paragraph 3 of the will was made for just cause. It appears from the record that when Rosario Mediavillo was about 14 years of age, she had received some attentions from a young man that she had received a letter from him and that her grandfather, Florencio Pecson, took occasion to talk to her about the relations between her and the said young man; that it was upon that occasion when, it is alleged, the disobedience and disrespect were shown to her grandfather, and that was the cause for her disinheritance by her grandfather. The record shows that very soon after said event she lost the use of her mental powers and that she has never regained them, except for very brief periods, up to the present time. The lower court, taking into consideration her tender years, and the fact that she very soon thereafter lost the use of her mental faculties, reached the conclusion that she was probably not responsible for the disrespect and disobedience shown to her grandfather in the year 1894 or 1895. After a careful consideration of the record, we are inclined to believe that the same supports the conclusions of the lower court and that the same supports the conclusions of the lower court that he did not commit the error complained of in the first assignment of error. With reference to the second assignment of error, it will be remembered that Teresa Pecson, the mother of Rosario Mediavillo, at the time of her death left two children, Rosario and Joaquin, and her husband Basiliso Mediavillo, and that said Joaquin Mediavillo died without heirs. The lower court gave one-half of the inheritance of the said Teresa Pecson to Rosario Mediavillo and the share that would have gone to Joaquin Mediavillo, and the share that would have gone to Joaquin Mediavillo, to his father Basiliso Mediavillo. In that conclusion of the lower court we think error was committed. The appellant relies upon

the provisions of article 925 of the Civil Code, in his contention that the lower court committed an error. Article 925 provides that:

The right of representation shall always take place in the direct descending line, but never in the ascending. In collateral lines, it shall take place only in favor of the children of brothers or sisters, whether they be of the whole or half blood.
The appellee, in support of the conclusions of the lower court, cites articles 935 and 936 of the Civil Code. Article 935 provides that:

In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to the exclusion of collaterals.
Article 936 provides that:

The father and mother, if living shall inherits share and share alike. If one of them only survive, he or she shall succeed to the son's entire estate.
It will be remembered that the whole argument of the appellants with reference to the first assignment of error was that Rosario Mediavillo had been disinherited and the court evidently believed that there were no "legitimate children, descendants of the deceased, surviving," and that therefore the father or mother of said legitimate children would inherit as ascendants. Inasmuch, however, as there was a descendant in the direct line, surviving, the inheritance could not ascend, and for the reason the lower court committed an error in declaring that Basiliso Mediavillo was entitled to inherit that share of the estate that would have belonged to Joaquin Mediavillo, had he been living. Therefore, and for all the foregoing, that part of the judgment of the lower court nullifying and setting aside paragraph 3 of the will is hereby affirmed, and that art of said judgment which decrees to Basiliso Mediavillo one-half of the estate of Florencio Pecson, belonging to Teresa Pecson and which would have been given to Joaquin Mediavillo, had he been surviving, is hereby revoked. And without any findings as to costs, it is hereby ordered that the cause be remanded to the lower court, with direction that judgment be entered in accordance herewith, and that such further proceedings be had as the interested parties may deem necessary, for the purpose of disposing of that part of the inheritance of Teresa Pecson would have belonged to Joaquin Mediavillo, had he been surviving. Torres, Carson, and Moreland, JJ., concur.

SECOND DIVISION G.R. No. 149751. March 11, 2005 PURIFICACION BALILO-MONTERO and JOVENCIO * BALILO, Petitioners, vs. EUGENIA SEPTIMO, CONSUELO ROBLES and PLACIDO ROBLES, Respondents. DECISION CALLEJO, SR., J.:

Jose Balilo was the owner of a parcel of land, with an area of 7.7837 hectares, located in San Jose, Occidental Mindoro, covered by Homestead Patent No. 46784 issued on February 21, 1938. Based on the said patent, Original Certificate of Title (OCT) No. 3014 was issued to and under his name by the Register of Deeds.[1] On August 12, 1943, Jose Balilo died intestate.[2] Sometime in 1948, Niniana Balilo, the sister of Jose Balilo, filed a petition in the Court of First Instance (CFI) of Pampanga, for the guardianship of the property and the person of Jovencio Balilo whom she alleged to be the son of her brother, Jose Balilo; hence, her nephew. The case was docketed as Special Proceeding No. 262. Niniana filed a motion in the said case, for authority to execute, for and in behalf of her ward, a deed of absolute sale over the property covered by OCT No. 3014 in favor of Jose Septimo forP750.00. The CFI granted the motion. Niniana executed the deed of absolute sale over the property in favor of Jose Septimo who, thereafter, declared the property in his name for taxation purposes and paid the realty taxes thereon. However, Jose Septimo failed to register the deed in the Office of the Register of Deeds and, consequently, to secure a torrens title over the property in his name. The guardianship case was terminated on September 24, 1951 per the Order of the CFI of even date.[3] Thereafter, on October 12, 1963, Jovencio Balilo filed a complaint against Jose Septimo in the CFI of Occidental Mindoro, to compel the latter to resell the property to him. The case was docketed as Civil Case No. R-159. Jovencio alleged therein that he was the only legitimate child of the spouses Jose Balilo and Juana Villarama, and that the latter died on August 30, 1946. He prayed that, after due proceedings, judgment be rendered in his favor, thus: WHEREFORE, it is most respectfully prayed that an order be issued requiring the Defendant to resell the said Lot No. 1649, Pls-33, situated in San Jose, Occidental Mindoro, to the herein Plaintiff upon tender to the herein Defendant the sum of SEVEN HUNDRED FIFTY (P750.00) PESOS, Philippine Currency, or any such sum as this Honorable Court finds just and fair, and requiring said Defendant to deliver possession of said homestead land to the herein Plaintiff. Plaintiff further prays for other relief as may be deemed just and proper in the premises.[4] Jovencio amended the complaint and impleaded Placido Robles as party-defendant, on his claim that the latter purchased a five-hectare portion of the property before the complaint was filed. On November 8, 1966, the CFI rendered judgment dismissing the complaint. The CFI ruled that Jovencio had no right to repurchase the property, the five-year period under Section 119 of Commonwealth Act No. 141 having long expired. Jovencio failed to appeal the decision.[5] On March 3, 1987, Purificacion Balilo-Montero filed a complaint with the Regional Trial Court (RTC) of San Jose, Occidental Mindoro, Branch 46, against the respondents, Eugenia Septimo, the surviving spouse of Jose Septimo, and the spouses Placido Robles and Consuelo Robles, for recovery of possession of the said property. However, despite the allegation in his complaint in Civil Case No. R159 that he was the only legitimate child of Jose Balilo, she impleaded Jovencio Balilo as partyplaintiff. The complaint alleged, inter alia, that the parties were the children and only legal heirs of the late Jose Balilo who, before his death, was the owner of Lot No. 1649 covered by OCT No. 3014 located in San Jose, Occidental Mindoro; only a year before the complaint was filed, Purificacion learned that she was one of the co-owners of the property; that the respondents claimed ownership over the property and installed tenants thereon; and despite their demands, the respondents and their tenants refused to do so. Jovencio and Purificacion prayed that, after due proceedings, judgment be rendered in their favor: WHEREFORE, it is respectfully prayed of this Honorable Court that judgment be rendered for the plaintiffs and against the defendants:

1. Restoring possession of the landholdings in question unto the plaintiffs; 2. Ordering defendants to reimburse plaintiffs the rentals on the landholdings to be determined by this Honorable Court; 3. Ordering the defendants to pay the plaintiffs the sum of P20,000.00 as attorney's fees and litigation expenses; 4. Ordering the defendants to pay the costs of suit; and 5. Extending unto the plaintiffs such other reliefs to which they may be entitled in law and equity.[6] The summons and complaint were served on respondents Eugenia Septimo and Consuelo Robles. As per the return of the sheriff, Placido Robles was already dead. In her answer to the complaint, respondent Eugenia Septimo alleged that her late husband Jose Septimo had purchased the property from Jovencio Balilo, through his guardian, and that the sale was approved by the CFI of Pampanga in Special Proceeding No. 262. She specifically denied, for lack of information sufficient to form a belief as to the truth thereof, the allegation of Purificacion Montero that she was one of Jose Balilo's children and one of his heirs. Consuelo Robles was declared in default for her failure to file her answer to the complaint.[7] On October 15, 1991, the trial court rendered judgment in favor of Jovencio and Purificacion. The fallo of the decision reads: Premises thoroughly and fairly considered, judgment is hereby rendered: 1. Ordering defendant Eugenia Septimo as successor-in-interest of decedent Jose Septimo to recovery (sic) to plaintiff Purificacion Balilo-Montero one-half of the parcel of agricultural land covered by Original Certificate of Title No. 3014; 2. Denying claim for damages; and 3. Dismissing counterclaim. SO ORDERED.[8] Only respondent Eugenia Septimo appealed the decision to the Court of Appeals (CA), where she alleged the following: I. That the trial court erred in finding that the plaintiff Purificacion Balilo-Montero did not lost (sic) her right to recover the property from the defendants, because she was not a party to the sale and for not having actual knowledge on the guardianship proceedings. II. That the trial court erred in ruling that the sale of the land by the legal guardian of Jovencio Balilo duly authorized and approved by the Court which (sic) the guardianship proceedings was being held did not affect the share of plaintiff Purificacion Balilo-Montero because the sale was not registered. III. The trial court erred in ordering defendant Eugenia Septimo to reconvey 1/2 of the property in question covered by TCT No. T-3014 to plaintiff Purificacion Balilo-Montero.[9] In a Decision dated April 11, 2001, the CA affirmed with modification the decision of the trial court. The CA applied the Old Civil Code on testate succession, and ruled that the property was registered in the name of Jose Balilo whose civil status was stated as single. Considering that he was survived by

Purificacion Montero, his wife Juana Villarama and their son Jovencio Balilo when he died in 1943; and when Juana Villarama died intestate, was, in turn, survived by her son Jovencio Balilo and Purificacion Montero, Jovencio was entitled to two-thirds undivided portion of the property, while Purificacion Montero was entitled to one-third undivided portion of the property. Respondent Eugenia Septimo did not file any motion for the reconsideration of the decision. However, Purificacion Montero filed a motion for the partial reconsideration of the decision, alleging that, applying the provisions of the Old Civil Code on intestate succession, she was entitled to an undivided one-half portion of the property. The CA, however, denied the said motion. Purificacion Montero, now the petitioner, filed the instant petition for review, contending that: THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE PETITIONER IS ENTITLED ONLY TO ONE-THIRD (1/3) SHARE OF THE PROPERTY SOUGHT TO BE RECOVERED HEREIN, SAID ADJUDICATION FINDING NO LEGAL SUPPORT UNDER THE CIVIL CODE OF SPAIN WHICH WAS THE LAW THEN PREVAILING.[10] The petitioner maintains that the CA should have applied the provisions of the Old Civil Code on intestate succession because Jose Balilo died intestate in 1943 before the New Civil Code took effect. She posits that she and Jovencio Balilo were entitled to inherit the property from Jose Balilo in equal shares, because there is no competent evidence on record to prove that Jose Balilo and Juana Villarama, the mother of Jovencio, were married. The petition is granted. We agree with the contention of the petitioner that there is no evidence on record that Jose Balilo and Juana Villarama were married, or that they cohabited with each other as husband and wife. Even Jovencio Balilo opted not to testify. Neither was Jose Balilo survived by any ascendants. However, we agree with the ruling of the CA that Jose Balilo and Gertrudes Nicdao were not, likewise, married. The contention of the petitioner that the CA erred in applying the law on testate succession under the Old Civil Code is, likewise, correct. The appellate court should have applied the provisions of the Old Civil Code on intestate succession considering that Jose Balilo died intestate in 1943, before the effectivity of the New Civil Code. Article 931 of the Old Civil Code provides that when a person dies intestate, his legitimate children and their descendants succeed him, without distinction of sex, or age, even though they spring from different marriages. Article 932 of the same Code provides that the children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. Moreover, under Article 939 of the Old Civil Code, in the absence of legitimate descendants or ascendants, the natural children legally acknowledged and those legitimated by royal succession shall succeed to the entire estate of the deceased. When Jose Balilo died intestate on August 12, 1943, he was survived by his daughter, the petitioner herein, his son Jovencio Balilo, and Gertrudes Nicdao and Juana Villarama. Conformably to Article 939 of the Old Civil Code, only the petitioner and Jovencio Balilo inherited the property in equal shares, to the exclusion of Juana Villarama and Gertrudes Nicdao. Neither of them was the lawful wife of Jose Balilo. Besides, under Article 946 of the Old Civil Code, the surviving spouse shall inherit only in default of the persons enumerated 'in the three sections next preceding. Consequently, when Jovencio Balilo, through his guardian Niniana Balilo, executed the deed of absolute sale over the entire property on May 26, 1948 in favor of Jose Septimo, the latter did not acquire title over the entire property, but only to an undivided one-half portion thereof which Jovencio Balilo had inherited from Jose Balilo. Jose Septimo could not have purchased and acquired the other half of the property from Jovencio Balilo because the latter was not the owner thereof. Hence, the CA erred in holding that Jovencio Balilo inherited an undivided two-thirds portion of the property, and that Jose Septimo acquired title over the said two-thirds undivided portion.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals are REVERSED AND SET ASIDE. The Decision of the Regional Trial Court is REINSTATED. No pronouncement as to costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.