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HEIRS OF TEOFILO GABATAN, namely: LOLITA GABATAN, POMPEYO GABATAN, PEREGRINO GABATAN, REYNALDO GABATAN, NILA GABATAN and

JESUS JABINIS, RIORITA GABATAN TUMALA and FREIRA GABATAN, -versusHON. COURT OF APPEALS and LOURDES EVERO PACANA, G.R. No. 150206 March 13, 2009 Assailed and sought to be set aside in the instant petition for review on certiorari are the Decision[1] dated April 28, 2000, and Resolution[2] dated September 12, 2001 of the Court of Appeals (CA), in CA G.R. CV No. 52273. The challenged Decision affirmed the decision[3] of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 19, dated October 20, 1995 in Civil Case No. 89-092, an action for Recovery of Property and Ownership and Possession, thereat commenced by respondent Lourdes Evero Pacana against petitioners, heirs of Teofilo Gabatan, Jesus Jabinis and Catalino Acantilado. Subject of the present controversy is a 1.1062 hectare parcel of land, identified as Lot 3095 C-5 and situated at Calinugan, Balulang, Cagayan de Oro City. This lot was declared for taxation in the name of Juan Gabatan. In the complaint before the RTC, respondent alleged that she is the sole owner of Lot 3095 C-5, having inherited the same from her deceased mother, Hermogena Gabatan Evero (Hermogena). Respondent further claimed that her mother, Hermogena, is the only child of Juan Gabatan and his wife, Laureana Clarito. Respondent alleged that upon the death of Juan Gabatan, Lot 3095 C-5 was entrusted to his brother, Teofilo Gabatan (Teofilo), and Teofilos wife, Rita Gabatan, for administration. It was also claimed that prior to her death Hermogena demanded for the return of the land but to no avail. After Hermogenas death, respondent also did the same but petitioners refused to heed the numerous demands to surrender the subject property. According to respondent, when Teofilo and his wife died, petitioners Jesus Jabinis and Catalino Acantilado took possession of the disputed land despite respondents demands for them to vacate the same. In their answer, petitioners denied that respondents mother Hermogena was the daughter of Juan Gabatan with Laureana Clarito and that Hermogena or respondent is the rightful heir of Juan Gabatan. Petitioners maintained that Juan Gabatan died single in 1934 and without any issue and that Juan was survived by one brother and two sisters, namely: Teofilo (petitioners predecessor-in-interest), Macaria and Justa. These siblings and/or their heirs, inherited the subject land from Juan Gabatan and have been in actual, physical, open, public, adverse, continuous and uninterrupted possession thereof in the concept of owners for more than fifty (50) years and enjoyed the fruits of the improvements thereon, to the exclusion of the whole world including respondent. Petitioners clarified that Jesus Jabinis and

Catalino Acantilado have no interest in the subject land; the former is merely the husband of Teofilos daughter while the latter is just a caretaker. Petitioners added that a similar case was previously filed by respondent against Teofilos wife, Rita Vda. de Gabatan, on February 21, 1978, docketed as Civil Case No. 5840 but the case was dismissed on May 3, 1983 for lack of interest. Finally, petitioners contended that the complaint lacks or states no cause of action or, if there was any, the same has long prescribed and/or has been barred by laches. On June 20, 1989, the complaint was amended wherein the heirs of Teofilo were individually named, to wit: Lolita Gabatan, Pompeyo Gabatan, Peregrino Gabatan, Reynaldo Gabatan, Nila Gabatan and Jesus Jabinis, Riorita Gabatan Tumal and Freira Gabatan. On July 30, 1990, petitioners filed an amended answer, additionally alleging that the disputed land was already covered by OCT No. P-3316 in the name of the heirs of Juan Gabatan represented by petitioner Riorita Gabatan (Teofilos daughter). On October 20, 1995, the RTC rendered a decision in favor of respondent, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, declaring the plaintiff the owner of Lot No. 3095 C-5 situated at Calinugan, Balulang, Cagayan de Oro City; and ordering the defendants represented by Riorita Gabatan Tumala to RECONVEY Original Certificate of Title No. P-3316 in favor of plaintiff Lourdes Evero Pacana, free of any encumbrance; ordering the defendants to pay P10,000.00 by way of moral damages; P10,000.00 as Attorneys fees; and P2,000.00 for litigation expenses. SO ORDERED.[4] Aggrieved, petitioners appealed to the CA whereat their recourse was docketed as CA-G.R. CV No. 52273. On April 28, 2000, the CA rendered the herein challenged Decision affirming that of the RTC. Dispositively, the Decision reads: WHEREFORE, premises considered, the questioned decision of the lower court dated October 20, 1995 is hereby AFFIRMED. With costs against appellants.SO ORDERED. Discounting petitioners argument that respondent is not related to Juan Gabatan, the CA declared that respondents claim of filiation with Juan Gabatan was sufficiently established during trial. Thus, the CA echoed a long line of jurisprudence that findings of fact of the trial court are entitled to great weight and are not disturbed except for cogent reasons, such as when the findings of fact are not supported by evidence. The CA likewise gave weight to the Deed of Absolute Sale[5] executed by Macaria Gabatan de Abrogar, Teofilo, Hermogena and heirs of Justa Gabatan, wherein Hermogena was identified as an heir of Juan Gabatan:

x x x HERMOGENA GABATAN, of legal age, married, Filipino citizen and presently residing at Kolambugan, Lanao del Norte, Philippines, as Heir of the deceased, JUAN GABATAN; x x x. To the CA, the Deed of Absolute Sale on July 30, 1966 containing such declaration which was signed by Teofilo and the latters nearest relatives by consanguinity, is a tangible proof that they acknowledged Hermogenas status as the daughter of Juan Gabatan. Applying Section 38, Rule 130[6] of the Rules of Court on the declaration against interest, the CA ruled that petitioners could not deny that even their very own father, Teofilo formally recognized Hermogenas right to heirship from Juan Gabatan which ultimately passed on to respondent. As to the issue of prescription, the CA ruled that petitioners possession of the disputed property could not ripen into acquisitive prescription because their predecessor-in-interest, Teofilo, never held the property in the concept of an owner. Aggrieved, petitioners are now with this Court via the present recourse principally contending that the CA committed the following reversible errors: FIRST ERROR: The lower court erred in not declaring that Juan Gabatan died single and without issue; SECOND ERROR: The lower court erred in declaring the plaintiff-appellee (respondent) as the sole and surviving heir of Juan Gabatan, the only child of a certain Hermogena Clareto GABATAN; THIRD ERROR: The lower court erred in declaring that a certain Hermogena Clareto GABATAN is the child and sole heir of Juan Gabatan; FOURTH ERROR: The lower court erred in failing to appreciate by preponderance of evidence in favor of the defendants-appellants (petitioners) claim that they and the heirs of Justa and Macaria both surnamed Gabatan are the sole and surviving heirs of Juan Gabatan and, therefore, entitled to inherit the land subject matter hereof; FIFTH ERROR: The lower court erred in not declaring that the cause of action of plaintiff-appellee (respondent) if any, has been barred by laches and/or prescription.[7] Before proceeding to the merits of the case, we must pass upon certain preliminary matters. In general, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. Questions of fact cannot be the subject of this particular mode of appeal, for this Court is not a trier of facts.[8] It is not our function to examine and evaluate the probative value of the evidence presented before the concerned tribunal upon which its impugned decision or resolution is based.[9] However, there are established exceptions to the rule on conclusiveness of the findings of fact by the lower courts, such as (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is

manifestly mistaken; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.[10] Moreover, our rules recognize the broad discretionary power of an appellate court to waive the lack of proper assignment of errors and to consider errors not assigned. Thus, the Court is clothed with ample authority to review rulings even if they are not assigned as errors in the appeal in these instances: (a) grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. [11] In the light of the foregoing established doctrines, we now proceed to resolve the merits of the case. The respondents main cause of action in the court a quo is the recovery of ownership and possession of property. It is undisputed that the subject property, Lot 3095 C-5, was owned by the deceased Juan Gabatan, during his lifetime.[12] Before us are two contending parties, both insisting to be the legal heir(s) of the decedent. Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be made in the proper special proceedings in court, and not in an ordinary suit for recovery of ownership and possession of property. This must take precedence over the action for recovery of possession and ownership. The Court has consistently ruled that the trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court,

a civil action is defined as one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong while a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.[13] In the early case of Litam, et al. v. Rivera,[14] this Court ruled that the declaration of heirship must be made in a special proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio v. Court of Appeals[15] where the Court held: xxx where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffsappellants 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. In the more recent case of Milagros Joaquino v. Lourdes Reyes,[16] the Court reiterated its ruling that matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in a special proceeding instituted precisely for the purpose of determining such rights. Citing the case of Agapay v. Palang,[17] this Court held that the status of an illegitimate child who claimed to be an heir to a decedents estate could not be adjudicated in an ordinary civil action which, as in this case, was for the recovery of property. However, we are not unmindful of our decision in Portugal v. PortugalBeltran,[18] where the Court relaxed its rule and allowed the trial court in a proceeding for annulment of title to determine the status of the party therein as heirs, to wit: It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceeding. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and had already in fact

presented evidence before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugals estate to administration proceedings since a determination of petitioners status as heirs could be achieved in the civil case filed by petitioners (Vide Pereira v. Court of Appeals, 174 SCRA 154 [1989]; Intestate Estate of Mercado v. Magtibay, 96 Phil. 383 [1955]), the trial court should proceed to evaluate the evidence presented by the parties during the trial and render a decision thereon upon the issues it defined during pre-trial, x x x. (emphasis supplied) Similarly, in the present case, there appears to be only one parcel of land being claimed by the contending parties as their inheritance from Juan Gabatan. It would be more practical to dispense with a separate special proceeding for the determination of the status of respondent as the sole heir of Juan Gabatan, specially in light of the fact that the parties to Civil Case No. 89-092, had voluntarily submitted the issue to the RTC and already presented their evidence regarding the issue of heirship in these proceeding. Also the RTC assumed jurisdiction over the same and consequently rendered judgment thereon. We GRANT the petition. After a meticulous review of the records of this case, we find insufficient and questionable the basis of the RTC in conferring upon respondent the status of sole heir of Juan Gabatan. Respondent, in asserting to be entitled to possession and ownership of the property, pinned her claim entirely on her alleged status as sole heir of Juan Gabatan. It was incumbent upon her to present preponderant evidence in support of her complaint. Under the Civil Code, the filiation of legitimate children is established by any of the following: ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. ART. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. Here, two conflicting birth certificates[19] of respondent were presented at the RTC. Respondent, during her direct testimony, presented and identified a purported certified true copy of her typewritten birth certificate which indicated that her mothers maiden name was Hermogena Clarito Gabatan. Petitioners, on the other hand, presented a certified true copy of respondents handwritten birth certificate which differed from the copy presented by respondent. Among the

differences was respondents mothers full maiden name which was indicated as Hermogena Calarito in the handwritten birth certificate. In resolving this particular issue, the trial court ruled in this wise: The parties are trying to outdo with (sic) each other by presenting two conflicting Certificate (sic) of Live Birth of plaintiff herein, Lourdes Evero Pacana, which are Exhibit A for the plaintiff and Exhibit 1 for the defendants. Which of this (sic) is genuine, and which is falsified. These (sic) issue is crucial and requires serious scrutiny. The Court is of the observation that Exhibit A for the plaintiff which is a certified true copy is in due form and bears the as is and where is rule. It has the impression of the original certificate. The forms (sic) is an old one used in the 1950s. Her mothers maiden name appearing thereof is Hermogina (sic) Clarito Gabatan. While Exhibit 1, the entries found thereof (sic) is handwritten which is very unusual and of dubious source. The form used is of latest vintage. The entry on the space for mothers maiden name is Hermogena Calarito. There seems to be an apparent attempt to thwart plaintiffs mother filiation with the omission of the surname Gabatan. Considering these circumstances alone the Court is inclined to believe that Exhibit A for the plaintiff is far more genuine and authentic certificate of live birth.[20] Having carefully examined the questioned birth certificates, we simply cannot agree with the above-quoted findings of the trial court. To begin with, Exhibit A, as the trial court noted, was an original typewritten document, not a mere photocopy or facsimile. It uses a form of 1950s vintage*21+ but this Court is unable to concur in the trial courts finding that Exhibit 1*22+ was of a later vintage than Exhibit A which was one of the trial courts bases for doubting the authenticity of Exhibit 1. On the contrary, the printed notation on the upper left hand corner of Exhibit 1 states Municipal Form No. 102 (Revised, January 1945) which makes it an older form than Exhibit A. Thus, the trial courts finding regarding which form was of more recent vintage was manifestly contradicted by the evidence on record. No actual signature appears on Exhibit A except that of a certain Maximo P. Noriga, Deputy Local Civil Registrar of the Office of the Local Civil Registrar, Cagayan de Oro City, who purportedly certified on July 6, 1977 that Exhibit A was a true copy of respondents birth certificate. The names of the attendant at birth (Petra Sambaan) and the local civil registrar (J.L. Rivera) in 1950 were typewritten with the notation (Sgd.) also merely typewritten beside their names. The words A certified true copy: July 6, 1977 above the signature of Maximo P. Noriga on Exhibit A appear to be inscribed by the same typewriter as the very entries in Exhibit A. It would seem that Exhibit A and the information stated therein were prepared and entered only in 1977. Significantly, Maximo P. Noriga was never presented as a witness to identify Exhibit A. Said document and the signature of Maximo P. Noriga therein

were identified by respondent herself whose self-serving testimony cannot be deemed sufficient authentication of her birth certificate. We cannot subscribe to the trial courts view that since the entries in Exhibit 1 were handwritten, Exhibit 1 was the one of dubious credibility. Verily, the certified true copies of the handwritten birth certificate of respondent (petitioners Exhibits 1 and 8) were duly authenticated by two competent witnesses; namely, Rosita Vidal (Ms. Vidal), Assistant Registration Officer of the Office of the City Civil Registrar, Cagayan de Oro City and Maribeth E. Cacho (Ms. Cacho), Archivist of the National Statistics Office (NSO), Sta. Mesa, Manila. Both witnesses testified that: (a) as part of their official duties they have custody of birth records in their respective offices,*23+ and (b) the certified true copy of respondents handwritten birth certificate is a faithful reproduction of the original birth certificate registered in their respective offices.[24] Ms. Vidal, during her testimony, even brought the original of the handwritten birth certificate before the trial court and respondents counsel confirmed that the certified true copy (which was eventually marked as Exhibit 1) was a faithful reproduction of the original.[25] Ms. Vidal likewise categorically testified that no other copy of respondents birth certificate exists in their records except the handwritten birth certificate.[26] Ms. Cacho, in turn, testified that the original of respondents handwritten birth certificate found in the records of the NSO Manila (from which Exhibit 8 was photocopied) was the one officially transmitted to their office by the Local Civil Registry Office of Cagayan de Oro.[27] Both Ms. Vidal and Ms. Cacho testified and brought their respective offices copies of respondents birth certificate in compliance with subpoenas issued by the trial court and there is no showing that they were motivated by ill will or bias in giving their testimonies. Thus, between respondents Exhibit A and petitioners Exhibits 1 and 8, the latter documents deserve to be given greater probative weight. Even assuming purely for the sake of argument that the birth certificate presented by respondent (Exhibit A) is a reliable document, the same on its face is insufficient to prove respondents filiation to her alleged grandfather, Juan Gabatan. All that Exhibit A, if it had been credible and authentic, would have proven was that respondents mother was a certain Hermogena Clarito Gabatan. It does not prove that same Hermogena Clarito Gabatan is the daughter of Juan Gabatan. Even the CA held that the conflicting certificates of live birth of respondent submitted by the parties only proved the filiation of respondent to Hermogena.[28] It was absolutely crucial to respondents cause of action that she convincingly proves the filiation of her mother to Juan Gabatan. To reiterate, to prove the relationship of respondents mother to Juan Gabatan, our laws dictate that the best evidence of such familial tie was the record of birth appearing in the Civil Register, or an authentic document or a final judgment. In the absence of

these, respondent should have presented proof that her mother enjoyed the continuous possession of the status of a legitimate child. Only in the absence of these two classes of evidence is the respondent allowed to present other proof admissible under the Rules of Court of her mothers relationship to Juan Gabatan. However, respondents mothers (Hermogenas) birth certificate, which would have been the best evidence of Hermogenas relationship to Juan Gabatan, was never offered as evidence at the RTC. Neither did respondent present any authentic document or final judgment categorically evidencing Hermogenas relationship to Juan Gabatan. Respondent relied on the testimony of her witnesses, Frisco Lawan, Felicisima Nagac Pacana and Cecilia Nagac Villareal who testified that they personally knew Hermogena (respondents mother) and/or Juan Gabatan, that they knew Juan Gabatan was married to Laureana Clarito and that Hermogena was the child of Juan and Laureana. However, none of these witnesses had personal knowledge of the fact of marriage of Juan to Laureana or the fact of birth of Hermogena to Juan and Laureana. They were not yet born or were very young when Juan supposedly married Laureana or when Hermogena was born and they all admitted that none of them were present at Juan and Laureanas wedding or Hermogenas birth. These witnesses based their testimony on what they had been told by, or heard from, others as young children. Their testimonies were, in a word, hearsay. Other circumstances prevent us from giving full faith to respondents witnesses testimonies. The records would show that they cannot be said to be credible and impartial witnesses. Frisco Lawan testified that he was the son of Laureana by a man other than Juan Gabatan and was admittedly not at all related to Juan Gabatan.[29] His testimony regarding the relationships within the Gabatan family is hardly reliable. As for Felicisima Nagac Pacana and Cecilia Nagac Villareal who are children of Justa Gabatan Nagac,[30] this Court is wary of according probative weight to their testimonies since respondent admitted during her crossexamination that her (respondents) husband is the son of Felicisima Nagac Pacana.[31] In other words, although these witnesses are indeed blood relatives of petitioners, they are also the mother and the aunt of respondents husband. They cannot be said to be entirely disinterested in the outcome of the case. Aside from the testimonies of respondents witnesses, both the RTC and the CA relied heavily on a photocopy of a Deed of Absolute Sale[32] (Exhibit H) presented by respondent and which appeared to be signed by the siblings and the heirs of the siblings of Juan Gabatan. In this document involving the sale of a lot different from Lot 3095 C-5, Hermogena Gabatan as heir of the deceased Juan Gabatan was indicated as one of the vendors. The RTC deemed the statement therein as an affirmation or recognition by Teofilo Gabatan, petitioners predecessor in interest, that Hermogena Gabatan was the heir of Juan Gabatan.[33]

The CA considered the same statement as a declaration against interest on the part of Teofilo Gabatan.[34] However, the admission of this Deed of Absolute Sale, including its contents and the signatures therein, as competent evidence was vigorously and repeatedly objected to by petitioners counsel for being a mere photocopy and not being properly authenticated.[35] After a close scrutiny of the said photocopy of the Deed of Absolute Sale, this Court cannot uphold the admissibility of the same. Under the best evidence rule, when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself.[36] Although the best evidence rule admits of exceptions and there are instances where the presentation of secondary evidence would be allowed, such as when the original is lost or the original is a public record, the basis for the presentation of secondary evidence must still be established. Thus, in Department of Education Culture and Sports v. Del Rosario,[37] we held that a party must first satisfactorily explain the loss of the best or primary evidence before he can resort to secondary evidence. A party must first present to the court proof of loss or other satisfactory explanation for non-production of the original instrument. In the case at bar, a perusal of the transcript of the testimony of Felicisima Nagac Pacana (who identified the photocopy of the Deed of Absolute Sale) plainly shows that she gave no testimony regarding the whereabouts of the original, whether it was lost or whether it was recorded in any public office. There is an ostensible attempt to pass off Exhibit H as an admissible public document. For this, respondent relied on the stamped notation on the photocopy of the deed that it is a certified true xerox copy and said notation was signed by a certain Honesto P. Velez, Sr., Assessment Officer, who seems to be an officer in the local assessors office. Regarding the authentication of public documents, the Rules of Court[38] provide that the record of public documents, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy.[39] The attestation of the certifying officer must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be.[40] To begin with, no proof whatsoever was presented by respondent that an original of Exhibit H was registered or exists in the records of the local assessors office. Furthermore, the stamped certification of Honesto P. Velez is insufficient authentication of Exhibit H since Velezs certification did not state that Exhibit H was a true copy from the original. Even worse, Velez was not presented as a witness to attest that Exhibit H was a true copy from the original. Indeed, it is highly doubtful that Velez could have made such an attestation since the assessors office is not the official repository of original notarized deeds of sale and could not have been the legal custodian contemplated in the rules.

It is the notary public who is mandated by law to keep an original of the Deed of Absolute Sale in his notarial register and to forward the same to the proper court. It is the notary public or the proper court that has custody of his notarial register that could have produced the original or a certified true copy thereof. Instead, the Deed of Absolute Sale was identified by Felicisima Nagac Pacana who, despite appearing to be a signatory thereto, is not a disinterested witness and as can be gleaned from her testimony, she had no personal knowledge of the preparation of the alleged certified true copy of the Deed of Absolute Sale. She did not even know who secured a copy of Exhibit H from the assessors office.*41+ To be sure, the roundabout and defective manner of authentication of Exhibit H renders it inadmissible for the purpose it was offered, i.e. as proof that Teofilo Gabatan acknowledged or admitted the status of Hermogena Gabatan as heir of Juan Gabatan. Even if we are to overlook the lack of proper authentication of Exhibit H and consider the same admissible, it still nonetheless would have only provided proof that a certain Hermogena Gabatan was the heir of Juan Gabatan. Exhibit H does not show the filiation of respondent to either Hermogena Gabatan or Juan Gabatan. As discussed above, the only document that respondent produced to demonstrate her filiation to Hermogena Gabatan (respondents Exhibit A) was successfully put in doubt by contrary evidence presented by petitioners. As for the issue of laches, we are inclined to likewise rule against respondent. According to respondents own testimony,*42+ Juan Gabatan died sometime in 1933 and thus, the cause of action of the heirs of Juan Gabatan to recover the decedents property from third parties or to quiet title to their inheritance accrued in 1933. Yet, respondent and/or her mother Hermogena, if they were truly the legal heirs of Juan Gabatan, did not assert their rights as such. It is only in 1978 that respondent filed her first complaint to recover the subject property, docketed as Civil Case No. 5840, against Rita Gabatan, the widow of Teofilo Gabatan.[43] However, that case was dismissed without prejudice for failure to prosecute.[44] Again, respondent waited until 1989 to refile her cause of action, i.e. the present case.[45] She claimed that she waited until the death of Rita Gabatan to refile her case out of respect because Rita was then already old.[46] We cannot accept respondents flimsy reason. It is precisely because Rita Gabatan and her contemporaries (who might have personal knowledge of the matters litigated in this case) were advancing in age and might soon expire that respondent should have exerted every effort to preserve valuable evidence and speedily litigate her claim. As we held in Republic of the Philippines v. Agunoy: Vigilantibus, sed non dormientibus, jura subveniunt, the law aids the vigilant, not those who sleep on their rights*O+ne may not sleep on a right while expecting to preserve it in its pristine purity.*47+

All in all, this Court finds that respondent dismally failed to substantiate, with convincing, credible and independently verifiable proof, her assertion that she is the sole heir of Juan Gabatan and thus, entitled to the property under litigation. Aggravating the weakness of her evidence were the circumstances that (a) she did not come to court with clean hands for she presented a tampered/altered, if not outright spurious, copy of her certificate of live birth and (b) she unreasonably delayed the prosecution of her own cause of action. If the Court cannot now affirm her claim, respondent has her own self to blame. WHEREFORE, the petition is GRANTED. The Court of Appeals Decision in CA-G.R. CV No. 52273, affirming the decision of the Regional Trial Court in Civil Case No. 89-092, is hereby REVERSED and SET ASIDE. The complaint and amended complaint in Civil Case No. 89-092 are DISMISSED for lack of merit. SO ORDERED.

G.R. No. 109373 March 20, 1995 PACIFIC BANKING CORPORATION EMPLOYEES ORGANIZATION, PAULA S. PAUG, and its officers and members, petitioners, vs.THE HONORABLE COURT OF APPEALS and VITALIANO N. NAAGAS II, as Liquidator of Pacific Banking Corporation, respondents. G.R. No. 112991 March 20, 1995 THE PRESIDENT OF THE PHILIPPINE DEPOSIT INSURANCE CORPORATION, as Liquidator of the Pacific Banking Corporation , petitioner, vs.COURT OF APPEALS, HON. JUDGE REGINO T. VERIDIANO II, DEPUTY SHERIFF RAMON ENRIQUEZ and ANG ENG JOO, ANG KEONG LAN and E.J ANG INT'L. LTD., represented by their Attorney-in-fact, GONZALO C. SY, respondents. MENDOZA, J.: These cases have been consolidated because the principal question involved is the same: whether a petition for liquidation under 29 of Rep. Act No. 265, otherwise known as the Central Bank Act, is a special proceeding or an ordinary civil action. The Fifth and the Fourteenth Divisions of the Court of Appeals reached opposite results on this question and consequently applied different periods for appealing. The facts are as follows: I. Proceedings in the CB and the RTC On July 5, 1985, the Pacific Banking Corporation (PaBC) was placed under receivership by the Central Bank of the Philippines pursuant to Resolution No. 699 of its Monetary Board. A few months later, it was placed under liquidation 1 and a Liquidator was appointed. 2 On April 7, 1986, the Central Bank filed with the Regional Trial Court of Manila Branch 31, a petition entitled "Petition for Assistance in the Liquidation of

Pacific Banking Corporation." 3 The petition was approved, after which creditors filed their claims with the court. On May 17, 1991, a new Liquidator, Vitaliano N. Naagas, 4 President of the Philippine Deposit Insurance Corporation (PDIC), was appointed by the Central Bank. On March 13, 1989 the Pacific Banking Corporation Employees Organization (Union for short), petitioner in G.R. No. 109373, filed a complaint-inintervention seeking payment of holiday pay, 13th month pay differential, salary increase differential, Christmas bonus, and cash equivalent of Sick Leave Benefit due its members as employees of PaBC. In its order dated September 13, 1991, the trial court ordered payment of the principal claims of the Union. 5 The Liquidator received a copy of the order on September 16, 1991. On October 16, 1991, he filed a Motion for Reconsideration and Clarification of the order. In his order of December 6, 1991, the judge modified his September 13, 1991 6 but in effect denied the Liquidator's motion for reconsideration. This order was received by the Liquidator on December 9, 1991. The following day, December 10, 1991, he filed a Notice of Appeal and a Motion for Additional Time to Submit Record on Appeal. On December 23, 1991, another Notice of Appeal was filed by the Office of the Solicitor General in behalf of Naagas. In his order of February 10, 1992, respondent judge disallowed the Liquidator's Notice of Appeal on the ground that it was late, i.e., more than 15 days after receipt of the decision. The judge declared his September 13, 1991 order and subsequent orders to be final and executory and denied reconsideration. On March 27, 1992, he granted the Union's Motion for issuance of a writ of Execution. Ang Keong Lan and E.J. Ang Int'l., private respondents in G.R. No. 112991, likewise filed claims for the payment of investment in the PaBC allegedly in the form of shares of stocks amounting to US$2,531,632.18. The shares of stocks, consisting of 154,462 common shares, constituted 11% of the total subscribed capital stock of the PaBC. They alleged that their claim constituted foreign exchange capital investment entitled to preference in payment under the Foreign Investments Law. In his order dated September 11, 1992, respondent judge of the RTC directed the Liquidator to pay private respondents the total amount of their claim as preferred creditors. The Liquidator received the order on September 16, 1992. On September 30, 1992 he moved for reconsideration, but his motion was denied by the court on October 2, 1992. He received the order denying his Motion for Reconsideration on October 5, 1992. On October 14, 1992 he filed a Notice of Appeal from the orders of September 16, 1992 and October 2, 1992. As in the case of the Union, however, the judge ordered the Notice of Appeal stricken off the record on the ground that it had been filed without authority of the Central Bank and beyond 15 days. In his order of

October 28, 1992, the judge directed the execution of his September 11, 1992 order granting the Stockholders/ Investors' claim. II. Proceedings in the Court of Appeals The Liquidator filed separate Petitions for Certiorari, Prohibition and Mandamus in the Court of Appeals to set aside the orders of the trial court denying his appeal from the orders granting the claims of Union and of the Stockholders/Investors. The two Divisions of the Court of Appeals, to which the cases were separately raffled, rendered conflicting rulings. In its decision of November 17, 1992 in CA-G.R. SP No. 27751 (now G.R. No. 09373) the Fifth Division 8 held in the case of the Union that the proceeding before the trial court was a special proceeding and, therefore, the period for appealing from any decision or final order rendered therein is 30 days. Since the notice of appeal of the Liquidator was filed on the 30th day of his receipt of the decision granting the Union's claims, the appeal was brought on time. The Fifth Division, therefore, set aside the orders of the lower court and directed the latter to give due course to the appeal of the Liquidator and set the Record on Appeal he had filed for hearing. On the other hand, on December 16, 1993, the Fourteenth Division 9 ruled in CA-G.R. SP No. 29351 (now G.R. No. 112991) in the case of the Stockholders/Investors that a liquidation proceeding is an ordinary action. Therefore, the period for appealing from any decision or final order rendered therein is 15 days and that since the Liquidator's appeal notice was filed on the 23rd day of his receipt of the order appealed from, deducting the period during which his motion for reconsideration was pending, the notice of appeal was filed late. Accordingly, the Fourteenth Division dismissed the Liquidator's petition. III. Present Proceedings The Union and the Liquidator then separately filed petitions before this Court. In G.R. No. 109373 the Union contends that: 1. The Court of Appeals acted without jurisdiction over the subject matter or nature of the suit. 2. The Court of Appeals gravely erred in taking cognizance of the petition for certiorari filed by Naagas who was without any legal authority to file it. 3. The Court of Appeals erred in concluding that the case is a special proceeding governed by Rules 72 to 109 of the Revised Rules of Court. 4. The Court of Appeals erred seriously in concluding that the notice of appeal filed by Naagas was filed on time. 5. The Court of Appeals erred seriously in declaring that the second notice of appeal filed on December 23, 1991 by the Solicitor General is a superfluity.

On the other hand, in G.R. No. 112991 the Liquidator contends that: 1. The Petition for Assistance in the Liquidation of the Pacific Banking Corporation is a Special Proceeding case and/or one which allows multiple appeals, in which case the period of appeal is 30 days and not 15 days from receipt of the order/judgment appealed from. 2. Private respondents are not creditors of PaBC but are plain stockholders whose right to receive payment as such would accrue only after all the creditors of the insolvent bank have been paid. 3. The claim of private respondents in the amount of US$22,531,632.18 is not in the nature of foreign investment as it is understood in law. 4. The claim of private respondents has not been clearly established and proved. 5. The issuance of a writ of execution against the assets of PaBC was made with grave abuse of discretion. The petitions in these cases must be dismissed. First. As stated in the beginning, the principal question in these cases is whether a petition for liquidation under 29 of Rep. Act No. 265 is in the nature of a special proceeding. If it is, then the period of appeal is 30 days and the party appealing must, in addition to a notice of appeal, file with the trial court a record on appeal in order to perfect his appeal. Otherwise, if a liquidation proceeding is an ordinary action, the period of appeal is 15 days from notice of the decision or final order appealed from. BP Blg. 129 provides: 39. Appeals. The period for appeal from final orders, resolutions, awards, judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award, judgment or decision appealed from: Provided, however, that in habeas corpus cases the period for appeal shall be forty-eight (48) hours from the notice of the judgment appealed from. No record on appeal shall be required to take an appeal. In lieu thereof, the entire record shall be transmitted with all the pages prominently numbered consecutively, together with an index of the contents thereof. This section shall not apply in appeals in special proceedings and in other cases wherein multiple appeals are allowed under applicable provisions of the Rules of Court. The Interim Rules and Guidelines to implement BP Blg. 129 provides: Period of Appeals. (a) All appeals, except in habeas corpus cases and in the cases referred to in paragraph (b) hereof, must be taken within fifteen (15) days from notice of the judgment, order, resolution or award appealed from.

(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeals shall be thirty (30) days, a record on appeal being required. The Fourteenth Division of the Court of Appeals held that the proceeding is an ordinary action similar to an action for interpleader under Rule 63. 10 The Fourteenth Division stated: The petition filed is akin to an interpleader under Rule 63 of the Rules of Court where there are conflicting claimants or several claims upon the same subject matter, a person who claims no interest thereon may file an action for interpleader to compel the claimants to "interplead" and litigate their several claims among themselves. (Section I Rule 63). An interpleader is in the category of a special civil action under Rule 62 which, like an ordinary action, may be appealed only within fifteen (15) days from notice of the judgment or order appealed from. Under Rule 62, the preceding rules covering ordinary civil actions which are not inconsistent with or may serve to supplement the provisions of the rule relating to such civil actions are applicable to special civil actions. This embraces Rule 41 covering appeals from the regional trial court to the Court of Appeals. xxx xxx xxx Thus, under Section 1 Rule 2 of the Rules of Court, an action is defined as "an ordinary suit in a court of justice by which one party prosecutes another for the enforcement or protection of a right or the prevention or redress of a wrong." On the other hand, Section 2 of the same Rule states that "every other remedy including one to establish the status or right of a party or a particular fact shall be by special proceeding." To our mind, from the aforequoted definitions of an action and a special proceeding, the petition for assistance of the court in the liquidation of an asset of a bank is not "one to establish the status or right of a party or a particular fact." Contrary to the submission of the petitioner, the petition is not intended to establish the fact of insolvency of the bank. The insolvency of the bank had already been previously determined by the Central Bank in accordance with Section 9 of the CB Act before the petition was filed. All that needs to be done is to liquidate the assets of the bank and thus the assistance of the respondent court is sought for that purpose. It should be pointed out that this petition filed is not among the cases categorized as a special proceeding under Section 1, Rule 72 of the Rules of Court, nor among the special proceedings that may be appealed under Section 1, Rule 109 of the Rules. We disagree with the foregoing view of the Fourteenth Division. Rule 2 of the Rules of Court provide:

1. Action defined. Action means an ordinary suit in a court of justice, by which the party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong. 2. Special Proceeding Distinguished. Every other remedy, including one to establish the status or right of a party or a particular fact, shall be by special proceeding. Elucidating the crucial distinction between an ordinary action and a special proceeding, Chief Justice Moran states:" 11 Action is the act by which one sues another in a court of justice for the enforcement or protection of a right, or the prevention or redress of a wrong while special proceeding is the act by which one seeks to establish the status or right of a party, or a particular fact. Hence, action is distinguished from special proceeding in that the former is a formal demand of a right by one against another, while the latter is but a petition for a declaration of a status, right or fact. Where a party litigant seeks to recover property from another, his remedy is to file an action. Where his purpose is to seek the appointment of a guardian for an insane, his remedy is a special proceeding to establish the fact or status of insanity calling for an appointment of guardianship. Considering this distinction, a petition for liquidation of an insolvent corporation should be classified a special proceeding and not an ordinary action. Such petition does not seek the enforcement or protection of a right nor the prevention or redress of a wrong against a party. It does not pray for affirmative relief for injury arising from a party's wrongful act or omission nor state a cause of action that can be enforced against any person. What it seeks is merely a declaration by the trial court of the corporation's insolvency so that its creditors may be able to file their claims in the settlement of the corporation's debts and obligations. Put in another way, the petition only seeks a declaration of the corporation's debts and obligations. Put in another way, the petition only seeks a declaration of the corporation's state of insolvency and the concomitant right of creditors and the order of payment of their claims in the disposition of the corporation's assets. Contrary to the rulings of the Fourteenth Division, liquidation proceedings do not resemble petitions for interpleader. For one, an action for interpleader involves claims on a subject matter against a person who has no interest therein. 12 This is not the case in a liquidation proceeding where the Liquidator, as representative of the corporation, takes charge of its assets and liabilities for the benefit of the creditors. 13 He is thus charged with insuring that the assets of the corporation are paid only to rightful claimants and in the order of payment provided by law. Rather, a liquidation proceeding resembles the proceeding for the settlement of state of deceased persons under Rules 73 to 91 of the Rules of Court.

The two have a common purpose: the determination of all the assets and the payment of all the debts and liabilities of the insolvent corporation or the estate. The Liquidator and the administrator or executor are both charged with the assets for the benefit of the claimants. In both instances, the liability of the corporation and the estate is not disputed. The court's concern is with the declaration of creditors and their rights and the determination of their order of payment. Furthermore, as in the settlement of estates, multiple appeals are allowed in proceedings for liquidation of an insolvent corporation. As the Fifth Division of the Court of Appeals, quoting the Liquidator, correctly noted: A liquidation proceeding is a single proceeding which consists of a number of cases properly classified as "claims." It is basically a two-phased proceeding. The first phase is concerned with the approval and disapproval of claims. Upon the approval of the petition seeking the assistance of the proper court in the liquidation of a close entity, all money claims against the bank are required to be filed with the liquidation court. This phase may end with the declaration by the liquidation court that the claim is not proper or without basis. On the other hand, it may also end with the liquidation court allowing the claim. In the latter case, the claim shall be classified whether it is ordinary or preferred, and thereafter included Liquidator. In either case, the order allowing or disallowing a particular claim is final order, and may be appealed by the party aggrieved thereby. The second phase involves the approval by the Court of the distribution plan prepared by the duly appointed liquidator. The distribution plan specifies in detail the total amount available for distribution to creditors whose claim were earlier allowed. The Order finally disposes of the issue of how much property is available for disposal. Moreover, it ushers in the final phase of the liquidation proceeding payment of all allowed claims in accordance with the order of legal priority and the approved distribution plan. Verily, the import of the final character of an Order of allowance or disallowance of a particular claim cannot be overemphasized. It is the operative fact that constitutes a liquidation proceeding a "case where multiple appeals are allowed by law." The issuance of an Order which, by its nature, affects only the particular claims involved, and which may assume finality if no appeal is made therefrom, ipso facto creates a situation where multiple appeals are allowed. A liquidation proceeding is commenced by the filing of a single petition by the Solicitor General with a court of competent jurisdiction entitled, "Petition for Assistance in the Liquidation of e.g., Pacific Banking Corporation. All claims against the insolvent are required to be filed with the liquidation court. Although the claims are litigated in the same proceeding, the treatment is individual. Each claim is heard separately. And the Order issued relative to a particular claim applies only to said claim, leaving the other claims unaffected, as each claim is considered separate and distinct from the others. Obviously, in the event that an appeal from an Order

allowing or disallowing a particular claim is made, only said claim is affected, leaving the others to proceed with their ordinary course. In such case, the original records of the proceeding are not elevated to the appellate court. They remain with the liquidation court. In lieu of the original record, a record of appeal is instead required to be prepared and transmitted to the appellate court. Inevitably, multiple appeals are allowed in liquidation proceedings. Consequently, a record on appeal is necessary in each and every appeal made. Hence, the period to appeal therefrom should be thirty (30) days, a record on appeal being required. (Record pp. 162-164). In G.R. No. 112991 (the case of the Stockholders/Investors), the Liquidator's notice of appeal was filed on time, having been filed on the 23rd day of receipt of the order granting the claims of the Stockholders/Investors. However, the Liquidator did not file a record on appeal with the result that he failed to perfect his appeal. As already stated a record on appeal is required under the Interim Rules and Guidelines in special proceedings and for cases where multiple appeals are allowed. The reason for this is that the several claims are actually separate ones and a decision or final order with respect to any claim can be appealed. Necessarily the original record on appeal must remain in the trial court where other claims may still be pending. Because of the Liquidator's failure to perfect his appeal, the order granting the claims of the Stockholders/Investors became final. Consequently.the Fourteenth Division's decision dismissing the Liquidator's Petition for Certiorari, Prohibition and Mandamus must be affirmed albeit for a different reason. On the other hand, in G.R. No. 109373 (case of the Labor Union), we find that the Fifth Division correctly granted the Liquidator's Petition for Certiorari. Prohibition and Mandamus. As already noted, the Liquidator filed a notice of appeal and a motion for extension to file a record on appeal on December 10, 1991, i.e., within 30 days of his receipt of the order granting the Union's claim. Without waiting for the resolution of his motion for extension, he filed on December 20, 1991 within the extension sought a record on appeal. Respondent judge thus erred in disallowing the notice on appeal and denying the Liquidator's motion for extension to file a record on appeal. The Fifth Division of the Court of Appeals correctly granted the Liquidator's Petition for Certiorari, Prohibition and Mandamus and its decision should, therefore, be affirmed. Second. In G.R. No. 109373, The Union claims that under 29 of Rep. Act No. 265, the court merely assists in adjudicating the claims of creditors, preserves the assets of the institution, and implements the liquidation plan approved by the Monetary Board and that, therefore, as representative of the Monetary Board, the Liquidator cannot question the order of the court or appeal from it. It contends that since the Monetary Board had previously admitted PaBC's liability to the laborers by

in fact setting aside the amount of P112,234,292.44 for the payment of their claims, there was nothing else for the Liquidator to do except to comply with the order of the court. The Union's contention is untenable. In liquidation proceedings, the function of the trial court is not limited to assisting in the implementation of the orders of the Monetary Board. Under the same section (29) of the law invoked by the Union, the court has authority to set aside the decision of the Monetary Board "if there is a convincing proof that the action is plainly arbitrary and made in bad faith." 14 As this Court held in Rural Bank of Buhi, Inc. v. Court of Appeals: 15 There is no question, that the action of the monetary Board in this regard may be subject to judicial review. Thus, it has been held that the Court's may interfere with the Central Bank's exercise of discretion in determining whether or not a distressed bank shall be supported or liquidated. Discretion has its limits and has never been held to include arbitrariness, discrimination or bad faith (Ramos v. Central Bank of the Philippines, 41 SCRA 567 [1971]). In truth, the Liquidator is the representative not only of the Central Bank but also of the insolvent bank. Under 28A-29 of Rep. Act No. 265 he acts in behalf of the bank "personally or through counsel as he may retain, in all actions or proceedings or against the corporation" and he has authority "to do whatever may be necessary for these purposes." This authority includes the power to appeal from the decisions or final orders of the court which he believes to be contrary to the interest of the bank. Finally the Union contends that the notice of appeal and motion for extension of time to file the record on appeal filed in behalf of the Central Bank was not filed by the office of the Solicitor General as counsel for the Central Bank. This contention has no merit. On October 22, 1992, as Assistant Solicitor General Cecilio O. Estoesta informed the trial court in March 27, 1992, the OSG had previously authorized lawyers of the PDIC to prepare and sign pleadings in the case. 16 Conformably thereto the Notice of Appeal and the Motion for Additional Time to submit Record on Appeal filed were jointly signed by Solicitor Reynaldo I. Saludares in behalf of the OSG and by lawyers of the PDIC. 17 WHEREFORE, in G.R. No. 109373 and G.R. No 112991, the decisions appealed from are AFFIRMED. SO ORDERED.

G.R. No. 174975 January 20, 2009 LUISA KHO MONTAER, ALEJANDRO MONTAER, JR., LILLIBETH MONTAERBARRIOS, AND RHODORA ELEANOR MONTAER-DALUPAN, Petitioners, vs.SHARI'A DISTRICT COURT, FOURTH SHARI'A JUDICIAL DISTRICT, MARAWI CITY, LILING DISANGCOPAN, AND ALMAHLEEN LILING S. MONTAER, Respondents. This Petition for Certiorari and Prohibition seeks to set aside the Orders of the Sharia District Court, Fourth Sharia Judicial District, Marawi City, dated August 22, 20061 and September 21, 2006.2 On August 17, 1956, petitioner Luisa Kho Montaer, a Roman Catholic, married Alejandro Montaer, Sr. at the Immaculate Conception Parish in Cubao, Quezon City.3 Petitioners Alejandro Montaer, Jr., Lillibeth Montaer-Barrios, and Rhodora Eleanor Montaer-Dalupan are their children.4 On May 26, 1995, Alejandro Montaer, Sr. died. On August 19, 2005, private respondents Liling Disangcopan and her daughter, Almahleen Liling S. Montaer, both Muslims, filed a "Complaint" for the judicial partition of properties before the Sharia District Court.6 The said complaint was entitled "Almahleen Liling S. Montaer and Liling M. Disangcopan v. the Estates and Properties of Late Alejandro Montaer, Sr., Luisa Kho Montaer, Lillibeth K. Montaer, Alejandro Kho Montaer, Jr., and Rhodora Eleanor K. Montaer," and docketed as "Special Civil Action No. 7-05."7 In the said complaint, private respondents made the following allegations: (1) in May 1995, Alejandro Montaer, Sr. died; (2) the late Alejandro Montaer, Sr. is a Muslim; (3) petitioners are the first family of the decedent; (4) Liling Disangcopan is the widow of the decedent; (5) Almahleen Liling S. Montaer is the daughter of the decedent; and (6) the estimated value of and a list of the properties comprising the estate of the decedent.8 Private respondents prayed for the Sharia District Court to order, among others, the following: (1) the partition of the estate of the decedent; and (2) the appointment of an administrator for the estate of the decedent.9 Petitioners filed an Answer with a Motion to Dismiss mainly on the following grounds: (1) the Sharia District Court has no jurisdiction over the estate of the late Alejandro Montaer, Sr., because he was a Roman Catholic; (2) private respondents failed to pay the correct amount of docket fees; and (3) private respondents complaint is barred by prescription, as it seeks to establish filiation between Almahleen Liling S. Montaer and the decedent, pursuant to Article 175 of the Family Code.10 On November 22, 2005, the Sharia District Court dismissed the private respondents complaint. The district court held that Alejandro Montaer, Sr. was not a Muslim, and its jurisdiction extends only to the settlement and distribution of the estate of deceased Muslims.11

On December 12, 2005, private respondents filed a Motion for Reconsideration.12 On December 28, 2005, petitioners filed an Opposition to the Motion for Reconsideration, alleging that the motion for reconsideration lacked a notice of hearing.13 On January 17, 2006, the Sharia District Court denied petitioners opposition.14 Despite finding that the said motion for reconsideration "lacked notice of hearing," the district court held that such defect was cured as petitioners "were notified of the existence of the pleading," and it took cognizance of the said motion.15 The Sharia District Court also reset the hearing for the motion for reconsideration.16 In its first assailed order dated August 22, 2006, the Sharia District Court reconsidered its order of dismissal dated November 22, 2005.17 The district court allowed private respondents to adduce further evidence.18 In its second assailed order dated September 21, 2006, the Sharia District Court ordered the continuation of trial, trial on the merits, adducement of further evidence, and pretrial conference.19 Seeking recourse before this Court, petitioners raise the following issues: I. RESPONDENT SHARIA DISTRICT COURT MARAWI CITY LACKS JURISDICTION OVER PETITIONERS WHO ARE ROMAN CATHOLICS AND NON-MUSLIMS. II. RESPONDENT SHARIA DISTRICT COURT MARAWI CITY DID NOT ACQUIRE JURISDICTION OVER "THE ESTATES AND PROPERTIES OF THE LATE ALEJANDRO MONTAER, SR." WHICH IS NOT A NATURAL OR JURIDICAL PERSON WITH CAPACITY TO BE SUED. III. RESPONDENT SHARIA DISTRICT COURT DID NOT ACQUIRE JURISDICTION OVER THE COMPLAINT OF PRIVATE RESPONDENTS AGAINST PETITIONERS DUE TO NONPAYMENT OF THE FILING AND DOCKETING FEES. IV. RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DENIED THE OPPOSITION OF PETITIONERS AND THEN GRANTED THE MOTION FOR RECONSIDERATION OF RESPONDENTS LILING DISANGCOPAN, ET AL. WHICH WAS FATALLY DEFECTIVE FOR LACK OF A "NOTICE OF HEARING." V. RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT SET SPL. CIVIL ACTION 7-05 FOR TRIAL EVEN IF THE COMPLAINT PLAINLY REVEALS THAT RESPONDENT ALMAHLEEN LILING S. MONTAER SEEKS RECOGNITION FROM ALEJANDRO MONTAER, SR. WHICH CAUSE OF ACTION PRESCRIBED UPON THE DEATH OF ALEJANDRO MONTAER, SR. ON MAY 26, 1995.

In their Comment to the Petition for Certiorari, private respondents stress that the Sharia District Court must be given the opportunity to hear and decide the question of whether the decedent is a Muslim in order to determine whether it has jurisdiction.20 Jurisdiction: Settlement of the Estate of Deceased Muslims Petitioners first argument, regarding the Sharia District Courts jurisdiction, is dependent on a question of fact, whether the late Alejandro Montaer, Sr. is a Muslim. Inherent in this argument is the premise that there has already been a determination resolving such a question of fact. It bears emphasis, however, that the assailed orders did not determine whether the decedent is a Muslim. The assailed orders did, however, set a hearing for the purpose of resolving this issue. Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the Sharia District Courts have exclusive original jurisdiction over the settlement of the estate of deceased Muslims: ARTICLE 143.Original jurisdiction. (1) The Shari'a District Court shall have exclusive original jurisdiction over: xxxx (b) All cases involving disposition, distribution and settlement of the estate of deceased Muslims, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property. The determination of the nature of an action or proceeding is controlled by the averments and character of the relief sought in the complaint or petition.21 The designation given by parties to their own pleadings does not necessarily bind the courts to treat it according to the said designation. Rather than rely on "a falsa descriptio or defective caption," courts are "guided by the substantive averments of the pleadings."22 Although private respondents designated the pleading filed before the Sharia District Court as a "Complaint" for judicial partition of properties, it is a petition for the issuance of letters of administration, settlement, and distribution of the estate of the decedent. It contains sufficient jurisdictional facts required for the settlement of the estate of a deceased Muslim,23 such as the fact of Alejandro Montaer, Sr.s death as well as the allegation that he is a Muslim. The said petition also contains an enumeration of the names of his legal heirs, so far as known to the private respondents, and a probable list of the properties left by the decedent, which are the very properties sought to be settled before a probate court. Furthermore, the reliefs prayed for reveal that it is the intention of the private respondents to seek judicial settlement of the estate of the decedent.24 These include the following: (1) the prayer for the partition of the estate of the decedent; and (2) the prayer for the appointment of an administrator of the said estate.

We cannot agree with the contention of the petitioners that the district court does not have jurisdiction over the case because of an allegation in their answer with a motion to dismiss that Montaer, Sr. is not a Muslim. Jurisdiction of a court over the nature of the action and its subject matter does not depend upon the defenses set forth in an answer25 or a motion to dismiss.26 Otherwise, jurisdiction would depend almost entirely on the defendant27 or result in having "a case either thrown out of court or its proceedings unduly delayed by simple stratagem.28 Indeed, the "defense of lack of jurisdiction which is dependent on a question of fact does not render the court to lose or be deprived of its jurisdiction." The same rationale applies to an answer with a motion to dismiss.30 In the case at bar, the Sharia District Court is not deprived of jurisdiction simply because petitioners raised as a defense the allegation that the deceased is not a Muslim. The Sharia District Court has the authority to hear and receive evidence to determine whether it has jurisdiction, which requires an a priori determination that the deceased is a Muslim. If after hearing, the Sharia District Court determines that the deceased was not in fact a Muslim, the district court should dismiss the case for lack of jurisdiction. Special Proceedings The underlying assumption in petitioners second argument, that the proceeding before the Sharia District Court is an ordinary civil action against a deceased person, rests on an erroneous understanding of the proceeding before the court a quo. Part of the confusion may be attributed to the proceeding before the Sharia District Court, where the parties were designated either as plaintiffs or defendants and the case was denominated as a special civil action. We reiterate that the proceedings before the court a quo are for the issuance of letters of administration, settlement, and distribution of the estate of the deceased, which is a special proceeding. Section 3(c) of the Rules of Court (Rules) defines a special proceeding as "a remedy by which a party seeks to establish a status, a right, or a particular fact." This Court has applied the Rules, particularly the rules on special proceedings, for the settlement of the estate of a deceased Muslim.31 In a petition for the issuance of letters of administration, settlement, and distribution of estate, the applicants seek to establish the fact of death of the decedent and later to be duly recognized as among the decedents heirs, which would allow them to exercise their right to participate in the settlement and liquidation of the estate of the decedent.32 Here, the respondents seek to establish the fact of Alejandro Montaer, Sr.s death and, subsequently, for private respondent Almahleen Liling S. Montaer to be recognized as among his heirs, if such is the case in fact. Petitioners argument, that the prohibition against a decedent or his estate from being a party defendant in a civil action33 applies to a special proceeding such as the settlement of the estate of the deceased, is misplaced. Unlike a civil action which has definite adverse parties, a special proceeding has no definite adverse

party. The definitions of a civil action and a special proceeding, respectively, in the Rules illustrate this difference. A civil action, in which "a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong"34 necessarily has definite adverse parties, who are either the plaintiff or defendant.35 On the other hand, a special proceeding, "by which a party seeks to establish a status, right, or a particular fact,"36 has one definite party, who petitions or applies for a declaration of a status, right, or particular fact, but no definite adverse party. In the case at bar, it bears emphasis that the estate of the decedent is not being sued for any cause of action. As a special proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of the estate,37 pay its liabilities,38 and to distribute the residual to those entitled to the same.39 Docket Fees Petitioners third argument, that jurisdiction was not validly acquired for non-payment of docket fees, is untenable. Petitioners point to private respondents petition in the proceeding before the court a quo, which contains an allegation estimating the decedents estate as the basis for the conclusion that what private respondents paid as docket fees was insufficient. Petitioners argument essentially involves two aspects: (1) whether the clerk of court correctly assessed the docket fees; and (2) whether private respondents paid the correct assessment of the docket fees. Filing the appropriate initiatory pleading and the payment of the prescribed docket fees vest a trial court with jurisdiction over the subject matter.40 If the party filing the case paid less than the correct amount for the docket fees because that was the amount assessed by the clerk of court, the responsibility of making a deficiency assessment lies with the same clerk of court.41 In such a case, the lower court concerned will not automatically lose jurisdiction, because of a partys reliance on the clerk of courts insufficient assessment of the docket fees.42 As "every citizen has the right to assume and trust that a public officer charged by law with certain duties knows his duties and performs them in accordance with law," the party filing the case cannot be penalized with the clerk of courts insufficient assessment.43 However, the party concerned will be required to pay the deficiency.44 In the case at bar, petitioners did not present the clerk of courts assessment of the docket fees. Moreover, the records do not include this assessment. There can be no determination of whether private respondents correctly paid the docket fees without the clerk of courts assessment. Exception to Notice of Hearing Petitioners fourth argument, that private respondents motion for reconsideration before the Sharia District Court is defective for lack of a notice of hearing, must fail as the unique circumstances in the present case constitute an exception to this requirement. The Rules require every written motion to be set for

hearing by the applicant and to address the notice of hearing to all parties concerned.45 The Rules also provide that "no written motion set for hearing shall be acted upon by the court without proof of service thereof."46 However, the Rules allow a liberal construction of its provisions "in order to promote [the] objective of securing a just, speedy, and inexpensive disposition of every action and proceeding."47 Moreover, this Court has upheld a liberal construction specifically of the rules of notice of hearing in cases where "a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein."48 In these exceptional cases, the Court considers that "no party can even claim a vested right in technicalities," and for this reason, cases should, as much as possible, be decided on the merits rather than on technicalities.49 The case at bar falls under this exception. To deny the Sharia District Court of an opportunity to determine whether it has jurisdiction over a petition for the settlement of the estate of a decedent alleged to be a Muslim would also deny its inherent power as a court to control its process to ensure conformity with the law and justice. To sanction such a situation simply because of a lapse in fulfilling the notice requirement will result in a miscarriage of justice. In addition, the present case calls for a liberal construction of the rules on notice of hearing, because the rights of the petitioners were not affected. This Court has held that an exception to the rules on notice of hearing is where it appears that the rights of the adverse party were not affected.50 The purpose for the notice of hearing coincides with procedural due process,51 for the court to determine whether the adverse party agrees or objects to the motion, as the Rules do not fix any period within which to file a reply or opposition.52 In probate proceedings, "what the law prohibits is not the absence of previous notice, but the absolute absence thereof and lack of opportunity to be heard."53 In the case at bar, as evident from the Sharia District Courts order dated January 17, 2006, petitioners counsel received a copy of the motion for reconsideration in question. Petitioners were certainly not denied an opportunity to study the arguments in the said motion as they filed an opposition to the same. Since the Sharia District Court reset the hearing for the motion for reconsideration in the same order, petitioners were not denied the opportunity to object to the said motion in a hearing. Taken together, these circumstances show that the purpose for the rules of notice of hearing, procedural process, was duly observed. Prescription and Filiation Petitioners fifth argument is premature. Again, the Sharia District Court has not yet determined whether it has jurisdiction to settle the estate of the decedent. In the event that a special proceeding for the settlement of the estate of a decedent is pending, questions regarding heirship, including prescription in

relation to recognition and filiation, should be raised and settled in the said proceeding.54 The court, in its capacity as a probate court, has jurisdiction to declare who are the heirs of the decedent.55 In the case at bar, the determination of the heirs of the decedent depends on an affirmative answer to the question of whether the Sharia District Court has jurisdiction over the estate of the decedent. IN VIEW WHEREOF, the petition is DENIED. The Orders of the Sharia District Court, dated August 22, 2006 and September 21, 2006 respectively, are AFFIRMED. Cost against petitioners. SO ORDERED.

G.R. No. 164108 May 8, 2009 ALFREDO HILADO, LOPEZ SUGAR CORPORATION, FIRSTFARMERS HOLDING CORPORATION, - versus THE HONORABLE COURT OF APPEALS, THE HONORABLE AMOR A. REYES, Presiding Judge, Regional Trial Court of Manila, Branch 21 and ADMINISTRATRIX JULITA CAMPOS BENEDICTO, The well-known sugar magnate Roberto S. Benedicto died intestate on 15 May 2000. He was survived by his wife, private respondent Julita Campos Benedicto (administratrix Benedicto), and his only daughter, Francisca Benedicto-Paulino.[1] At the time of his death, there were two pending civil cases against Benedicto involving the petitioners. The first, Civil Case No. 95-9137, was then pending with the Regional Trial Court (RTC) of Bacolod City, Branch 44, with petitioner Alfredo Hilado as one of the plaintiffs therein. The second, Civil Case No. 11178, was then pending with the RTC of Bacolod City, Branch 44, with petitioners Lopez Sugar Corporation and First Farmers Holding Corporation as one of the plaintiffs therein.[2] On 25 May 2000, private respondent Julita Campos Benedicto filed with the RTC of Manila a petition for the issuance of letters of administration in her favor, pursuant to Section 6, Rule 78 of the Revised Rules of Court. The petition was raffled to Branch 21, presided by respondent Judge Amor A. Reyes. Said petition acknowledged the value of the assets of the decedent to be P5 Million, net of liabilities.*3+ On 2 August 2000, the Manila RTC issued an order appointing private respondent as administrator of the estate of her deceased husband, and issuing letters of administration in her favor.[4] In January 2001, private respondent submitted an Inventory of the Estate, Lists of Personal and Real Properties, and Liabilities of the Estate of her deceased husband.[5] In the List of Liabilities attached to the inventory, private respondent included as among the liabilities, the abovementioned two pending claims then being litigated before the Bacolod City courts.[6] Private respondent stated that the amounts of liability corresponding to

the two cases as P136,045,772.50 for Civil Case No. 95-9137 and P35,198,697.40 for Civil Case No. 11178.[7] Thereafter, the Manila RTC required private respondent to submit a complete and updated inventory and appraisal report pertaining to the estate.[8] On 24 September 2001, petitioners filed with the Manila RTC a Manifestation/Motion Ex Abundanti Cautela,[9] praying that they be furnished with copies of all processes and orders pertaining to the intestate proceedings. Private respondent opposed the manifestation/motion, disputing the personality of petitioners to intervene in the intestate proceedings of her husband. Even before the Manila RTC acted on the manifestation/motion, petitioners filed an omnibus motion praying that the Manila RTC set a deadline for the submission by private respondent of the required inventory of the decedents estate.*10+ Petitioners also filed other pleadings or motions with the Manila RTC, alleging lapses on the part of private respondent in her administration of the estate, and assailing the inventory that had been submitted thus far as unverified, incomplete and inaccurate. On 2 January 2002, the Manila RTC issued an order denying the manifestation/motion, on the ground that petitioners are not interested parties within the contemplation of the Rules of Court to intervene in the intestate proceedings.*11+ After the Manila RTC had denied petitioners motion for reconsideration, a petition for certiorari was filed with the Court of Appeals. The petition argued in general that petitioners had the right to intervene in the intestate proceedings of Roberto Benedicto, the latter being the defendant in the civil cases they lodged with the Bacolod RTC. On 27 February 2004, the Court of Appeals promulgated a decision[12] dismissing the petition and declaring that the Manila RTC did not abuse its discretion in refusing to allow petitioners to intervene in the intestate proceedings. The allowance or disallowance of a motion to intervene, according to the appellate court, is addressed to the sound discretion of the court. The Court of Appeals cited the fact that the claims of petitioners against the decedent were in fact contingent or expectant, as these were still pending litigation in separate proceedings before other courts. Hence, the present petition. In essence, petitioners argue that the lower courts erred in denying them the right to intervene in the intestate proceedings of the estate of Roberto Benedicto. Interestingly, the rules of procedure they cite in support of their argument is not the rule on intervention, but rather various other provisions of the Rules on Special Proceedings.[13] To recall, petitioners had sought three specific reliefs that were denied by the courts a quo. First, they prayed that they be henceforth furnished copies of all processes and orders issued by the intestate court as well as the pleadings filed by administratrix Benedicto with the said court.[14] Second, they prayed that the intestate court set a deadline for the submission by administratrix Benedicto to

submit a verified and complete inventory of the estate, and upon submission thereof, order the inheritance tax appraisers of the Bureau of Internal Revenue to assist in the appraisal of the fair market value of the same.[15] Third, petitioners moved that the intestate court set a deadline for the submission by the administrator of her verified annual account, and, upon submission thereof, set the date for her examination under oath with respect thereto, with due notice to them and other parties interested in the collation, preservation and disposition of the estate.[16] The Court of Appeals chose to view the matter from a perspective solely informed by the rule on intervention. We can readily agree with the Court of Appeals on that point. Section 1 of Rule 19 of the 1997 Rules of Civil Procedure requires that an intervenor has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court x x x While the language of Section 1, Rule 19 does not literally preclude petitioners from intervening in the intestate proceedings, case law has consistently held that the legal interest required of an intervenor must be actual and material, direct and immediate, and not simply contingent and expectant.*17+ Nonetheless, it is not immediately evident that intervention under the Rules of Civil Procedure necessarily comes into operation in special proceedings. The settlement of estates of deceased persons fall within the rules of special proceedings under the Rules of Court,[18] not the Rules on Civil Procedure. Section 2, Rule 72 further provides that *i+n the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable to special proceedings.We can readily conclude that notwithstanding Section 2 of Rule 72, intervention as set forth under Rule 19 does not extend to creditors of a decedent whose credit is based on a contingent claim. The definition of intervention under Rule 19 simply does not accommodate contingent claims. Yet, even as petitioners now contend before us that they have the right to intervene in the intestate proceedings of Roberto Benedicto, the reliefs they had sought then before the RTC, and also now before us, do not square with their recognition as intervenors. In short, even if it were declared that petitioners have no right to intervene in accordance with Rule 19, it would not necessarily mean the disallowance of the reliefs they had sought before the RTC since the right to intervene is not one of those reliefs. To better put across what the ultimate disposition of this petition should be, let us now turn our focus to the Rules on Special Proceedings. In several instances, the Rules on Special Proceedings entitle any interested persons or any persons interested in the estate to participate in varying capacities in the testate or intestate proceedings. Petitioners cite these provisions before us, namely: (1) Section 1, Rule 79, which recognizes the right of any person

interested to oppose the issuance of letters testamentary and to file a petition for administration; (2) Section 3, Rule 79, which mandates the giving of notice of hearing on the petition for letters of administration to the known heirs, creditors, and to any other persons believed to have interest in the estate; (3) Section 1, Rule 76, which allows a person interested in the estate to petition for the allowance of a will; (4) Section 6 of Rule 87, which allows an individual interested in the estate of the deceased to complain to the court of the concealment, embezzlement, or conveyance of any asset of the decedent, or of evidence of the decedents title or interest therein; (5) Section 10 of Rule 85, which requires notice of the time and place of the examination and allowance of the Administrators account to persons interested; (6) Section 7(b) of Rule 89, which requires the court to give notice to the persons interested before it may hear and grant a petition seeking the disposition or encumbrance of the properties of the estate; and (7) Section 1, Rule 90, which allows any person interested in the estate to petition for an order for the distribution of the residue of the estate of the decedent, after all obligations are either satisfied or provided for. Had the claims of petitioners against Benedicto been based on contract, whether express or implied, then they should have filed their claim, even if contingent, under the aegis of the notice to creditors to be issued by the court immediately after granting letters of administration and published by the administrator immediately after the issuance of such notice.[19] However, it appears that the claims against Benedicto were based on tort, as they arose from his actions in connection with Philsucom, Nasutra and Traders Royal Bank. Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the notice to creditors required under Rule 86.[20] These actions, being as they are civil, survive the death of the decedent and may be commenced against the administrator pursuant to Section 1, Rule 87. Indeed, the records indicate that the intestate estate of Benedicto, as represented by its administrator, was successfully impleaded in Civil Case No. 11178, whereas the other civil case[21] was already pending review before this Court at the time of Benedictos death. Evidently, the merits of petitioners claims against Benedicto are to be settled in the civil cases where they were raised, and not in the intestate proceedings. In the event the claims for damages of petitioners are granted, they would have the right to enforce the judgment against the estate. Yet until such time, to what extent may they be allowed to participate in the intestate proceedings? Petitioners place heavy reliance on our ruling in Dinglasan v. Ang Chia,[22] and it does provide us with guidance on how to proceed. A brief narration of the facts therein is in order. Dinglasan had filed an action for reconveyance and damages against respondents, and during a hearing of the case, learned that the same trial court was hearing the intestate proceedings of Lee Liong to whom Dinglasan had sold the property years earlier. Dinglasan thus amended his complaint to implead

Ang Chia, administrator of the estate of her late husband. He likewise filed a verified claim-in-intervention, manifesting the pendency of the civil case, praying that a co-administrator be appointed, the bond of the administrator be increased, and that the intestate proceedings not be closed until the civil case had been terminated. When the trial court ordered the increase of the bond and took cognizance of the pending civil case, the administrator moved to close the intestate proceedings, on the ground that the heirs had already entered into an extrajudicial partition of the estate. The trial court refused to close the intestate proceedings pending the termination of the civil case, and the Court affirmed such action. If the appellants filed a claim in intervention in the intestate proceedings it was only pursuant to their desire to protect their interests it appearing that the property in litigation is involved in said proceedings and in fact is the only property of the estate left subject of administration and distribution; and the court is justified in taking cognizance of said civil case because of the unavoidable fact that whatever is determined in said civil case will necessarily reflect and have a far reaching consequence in the determination and distribution of the estate. In so taking cognizance of civil case No. V-331 the court does not assume general jurisdiction over the case but merely makes of record its existence because of the close interrelation of the two cases and cannot therefore be branded as having acted in excess of its jurisdiction. Appellants' claim that the lower court erred in holding in abeyance the closing of the intestate proceedings pending determination of the separate civil action for the reason that there is no rule or authority justifying the extension of administration proceedings until after the separate action pertaining to its general jurisdiction has been terminated, cannot be entertained. Section 1, Rule 88, of the Rules of Court, expressly provides that "action to recover real or personal property from the estate or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against the executor or administrator." What practical value would this provision have if the action against the administrator cannot be prosecuted to its termination simply because the heirs desire to close the intestate proceedings without first taking any step to settle the ordinary civil case? This rule is but a corollary to the ruling which declares that questions concerning ownership of property alleged to be part of the estate but claimed by another person should be determined in a separate action and should be submitted to the court in the exercise of its general jurisdiction. These rules would be rendered nugatory if we are to hold that an intestate proceedings can be closed by any time at the whim and caprice of the heirs x x x[23] (Emphasis supplied) [Citations omitted] It is not clear whether the claim-in-intervention filed by Dinglasan conformed to an action-in-intervention under the Rules of Civil Procedure, but we can partake of the spirit behind such pronouncement. Indeed, a few years later, the Court, citing

Dinglasan, stated: *t+he rulings of this court have always been to the effect that in the special proceeding for the settlement of the estate of a deceased person, persons not heirs, intervening therein to protect their interests are allowed to do so to protect the same, but not for a decision on their action.*24+ Petitioners interests in the estate of Benedicto may be inchoate interests, but they are viable interests nonetheless. We are mindful that the Rules of Special Proceedings allows not just creditors, but also any person interested or persons interested in the estate various specified capacities to protect their respective interests in the estate. Anybody with a contingent claim based on a pending action for quasi-delict against a decedent may be reasonably concerned that by the time judgment is rendered in their favor, the estate of the decedent would have already been distributed, or diminished to the extent that the judgment could no longer be enforced against it. In the same manner that the Rules on Special Proceedings do not provide a creditor or any person interested in the estate, the right to participate in every aspect of the testate or intestate proceedings, but instead provides for specific instances when such persons may accordingly act in those proceedings, we deem that while there is no general right to intervene on the part of the petitioners, they may be allowed to seek certain prayers or reliefs from the intestate court not explicitly provided for under the Rules, if the prayer or relief sought is necessary to protect their interest in the estate, and there is no other modality under the Rules by which such interests can be protected. It is under this standard that we assess the three prayers sought by petitioners. The first is that petitioners be furnished with copies of all processes and orders issued in connection with the intestate proceedings, as well as the pleadings filed by the administrator of the estate. There is no questioning as to the utility of such relief for the petitioners. They would be duly alerted of the developments in the intestate proceedings, including the status of the assets of the estate. Such a running account would allow them to pursue the appropriate remedies should their interests be compromised, such as the right, under Section 6, Rule 87, to complain to the intestate court if property of the estate concealed, embezzled, or fraudulently conveyed. At the same time, the fact that petitioners interests remain inchoate and contingent counterbalances their ability to participate in the intestate proceedings. We are mindful of respondents submission that if the Court were to entitle petitioners with service of all processes and pleadings of the intestate court, then anybody claiming to be a creditor, whether contingent or otherwise, would have the right to be furnished such pleadings, no matter how wanting of merit the claim may be. Indeed, to impose a precedent that would mandate the service of all court processes and pleadings to anybody posing a claim to the estate, much less contingent claims, would unduly complicate and burden the intestate proceedings,

and would ultimately offend the guiding principle of speedy and orderly disposition of cases. Fortunately, there is a median that not only exists, but also has been recognized by this Court, with respect to the petitioners herein, that addresses the core concern of petitioners to be apprised of developments in the intestate proceedings. In Hilado v. Judge Reyes,[25] the Court heard a petition for mandamus filed by the same petitioners herein against the RTC judge, praying that they be allowed access to the records of the intestate proceedings, which the respondent judge had denied from them. Section 2 of Rule 135 came to fore, the provision stating that the records of every court of justice shall be public records and shall be available for the inspection of any interested person x x x. The Court ruled that petitioners were interested persons entitled to access the court records in the intestate proceedings. We said: Petitioners' stated main purpose for accessing the records tomonitor prompt compliance with the Rules governing the preservation and proper disposition of the assets of the estate, e.g., the completion and appraisal of the Inventory and the submission by the Administratrix of an annual accounting appears legitimate, for, as the plaintiffs in the complaints for sum of money against Roberto Benedicto, et al., they have an interest over the outcome of the settlement of his estate. They are in fact "interested persons" under Rule 135, Sec. 2 of the Rules of Court x x x Allowing creditors, contingent or otherwise, access to the records of the intestate proceedings is an eminently preferable precedent than mandating the service of court processes and pleadings upon them. In either case, the interest of the creditor in seeing to it that the assets are being preserved and disposed of in accordance with the rules will be duly satisfied. Acknowledging their right to access the records, rather than entitling them to the service of every court order or pleading no matter how relevant to their individual claim, will be less cumbersome on the intestate court, the administrator and the heirs of the decedent, while providing a viable means by which the interests of the creditors in the estate are preserved. Nonetheless, in the instances that the Rules on Special Proceedings do require notice to any or all interested parties the petitioners as interested parties will be entitled to such notice. The instances when notice has to be given to interested parties are provided in: (1) Sec. 10, Rule 85 in reference to the time and place of examining and allowing the account of the executor or administrator; (2) Sec. 7(b) of Rule 89 concerning the petition to authorize the executor or administrator to sell personal estate, or to sell, mortgage or otherwise encumber real estates; and; (3) Sec. 1, Rule 90 regarding the hearing for the application for an order for distribution of the estate residue. After all, even the administratrix has

acknowledged in her submitted inventory, the existence of the pending cases filed by the petitioners. We now turn to the remaining reliefs sought by petitioners; that a deadline be set for the submission by administratrix Benedicto to submit a verified and complete inventory of the estate, and upon submission thereof: the inheritance tax appraisers of the Bureau of Internal Revenue be required to assist in the appraisal of the fair market value of the same; and that the intestate court set a deadline for the submission by the administratrix of her verified annual account, and, upon submission thereof, set the date for her examination under oath with respect thereto, with due notice to them and other parties interested in the collation, preservation and disposition of the estate. We cannot grant said reliefs. Section 1 of Rule 83 requires the administrator to return to the court a true inventory and appraisal of all the real and personal estate of the deceased within three (3) months from appointment, while Section 8 of Rule 85 requires the administrator to render an account of his administration within one (1) year from receipt of the letters testamentary or of administration. We do not doubt that there are reliefs available to compel an administrator to perform either duty, but a person whose claim against the estate is still contingent is not the party entitled to do so. Still, even if the administrator did delay in the performance of these duties in the context of dissipating the assets of the estate, there are protections enforced and available under Rule 88 to protect the interests of those with contingent claims against the estate. Concerning complaints against the general competence of the administrator, the proper remedy is to seek the removal of the administrator in accordance with Section 2, Rule 82. While the provision is silent as to who may seek with the court the removal of the administrator, we do not doubt that a creditor, even a contingent one, would have the personality to seek such relief. After all, the interest of the creditor in the estate relates to the preservation of sufficient assets to answer for the debt, and the general competence or good faith of the administrator is necessary to fulfill such purpose. All told, the ultimate disposition of the RTC and the Court of Appeals is correct. Nonetheless, as we have explained, petitioners should not be deprived of their prerogatives under the Rules on Special Proceedings as enunciated in this decision. WHEREFORE, the petition is DENIED, subject to the qualification that petitioners, as persons interested in the intestate estate of Roberto Benedicto, are entitled to such notices and rights as provided for such interested persons in the Rules on Settlement of Estates of Deceased Persons under the Rules on Special Proceedings. No pronouncements as to costs.SO ORDERED.

G.R. No. 116835 March 5, 1998 ANTONIETTA GARCIA VDA. DE CHUA, petitioner, vs.COURT OF APPEALS (Special Eight Division), HON. JAPAL M. GUIANI, RTC, Branch 14, 12th Judicial Region, Cotabato City, and FLORITA A. VALLEJO, as Administratrix of the Estate of the late Roberto L. Chua, respondents. Assailed before us in this Appeal by Certiorari under Rule 45 of the Rules of Court is the decision of the Court of Appeals in CA-GR Sp. No. 33101, promulgated on 19 April 1994 affirming the decision of the Regional Trial Court, Branch 14, of Cotabato City in Special Procedure Case No. 331. As culled from the records, the following facts have been established by evidence:During his lifetime, Roberto Lim Chua lived out of wedlock with private respondent Florita A. Vallejo from 1970 up to 1981. Out of this union, the couple begot two illegitimate children, namely, Roberto Rafson Alonzo and Rudyard Pride Alonzo. On 28 May 1992, Roberto Chua died intestate in Davao City. On 2 July 1992, private respondent filed with the Regional Trial Court of Cotabato City a Petition 1 which is reproduced hereunder: IN RE: PETITION FOR DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND PROPERTIES OF MINORS ROBERT RAFSON ALONZO SP. PROC. NO/ 331 and RUDYARD PRIDE ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. FLORITA ALONZO VALLEJO, Petitioner PETITION COMES NOW the petitioner assisted by counsel and unto this Honorable Court most respectfully states: 1. That she is of legal age, Filipino, married but separated from her husband and residing at Quezon Avenue, Cotabato City, Philippines; 2. That sometime from 1970 up to and until late 1981 your petitioner lived with Roberto Lim Chua as husband and wife and out of said union they begot two (2) children, namely, Robert Rafson Alonzo Chua who was born in General Santos City on April 28, 1977 and Rudyard Pride Alonzo Chua who was born in Davao City on August 30, 1978. A xerox copy of the birth certificate of each child is hereto attached as annex "A" and "B", respectively.

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7.

8.

That the aforementioned children who are still minors today are both staying with herein petitioner at her address at Quezon Avenue, Cotabato City; That Roberto Lim Chua, father of the above-mentioned minors, died intestate on May 28, 1992 in Davao City. That the aforementioned deceased left properties both real and personal worth P5,000,000.00 consisting of the following: a. Lot in Kakar, Cotabato City covered by TCTNo. T-12835 with an area of 290 sq. m. estimated at P50,000.00 b. Lot in Kakar, Cotabato City covered by TCTNo. T-12834 with an area of 323 sq. m. 50,000.00 c. Lot in Davao City covered by TCTNo. T-126583 with an area of 303 sq. m. 50,000.00 d. Lot in Davao City covered by TCTNo. T-126584 with an area of 303 sq. m. 50,000.00 e. Residential house in Cotabato City valued at 30,000.00 f. Residential house in Davao City valued at 600,000.00 g. Car, Colt Lancer with Motor No. 4G33-3 AF6393 210,000.00 h. Colt, Galant Super Saloon with MotorNo. 4G37-GB0165 545,000.00 i. Car, Colt Galant with Motor No. 4G52-52D75248 110,000.00 j. Reo Isuzu Dump Truck with MotorNo. DA640-838635 350,000.00 k. Hino Dump Truck with Motor No. ED100-T47148 350,000.00 l. Stockholdings in various corporations with par valueestimated at 3,335,000.00 Total P5,000,000.00 That deceased Roberto Lim Chua died single and without legitimate descendants or ascendants, hence, the above named minors Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua, his children with herein petitioner shall succeed to the entire estate of the deceased. (Article 988 of the Civil Code of the Philippines). That the names, ages and residences of the relatives of said minors are the following, to wit: Names Relationship Ages Residence 1. Carlos Chua Uncle 60 Quezon Avenue,Cotabato City 2. Aida Chua Auntie 55 Rosary Heights,Cotabato City 3. Romulo Uy Uncle 40 c/o OverseasFishing ExporationCo. Inc., Matina,Davao City That considering the fact that the aforementioned minors by operation of law are to succeed to the entire estate of Roberto Lim Chua under the provisions of Article 988 of the New Civil Code of the Philippines, it is

necessary that for the protection of the rights and interest of Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua, both minors and heirs of deceased Roberto Lim Chua, a guardian over the persons and properties of said minors be appointed by this Honorable Court. 9. That herein petitioner being the mother and natural guardian of said minors is also competent and willing to act as the guardian of minors Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua both staying and living with her; that petitioner possesses all the qualifications and none of the disqualifications of a guardian. WHEREFORE, premises considered, it is most respectfully prayed: 1. That, upon proper notice and hearing, an order be issued declaring minors ROBERTO RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA as heirs to the intestate estate of deceased ROBERTO LIM CHUA; 2. That Letters of Administration be issued to herein petitioner for the administration of the estate of the deceased ROBERTO LIM CHUA; 3. That the petitioner be also appointed the guardian of the persons and estate of minors ROBERT RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA; 4. That after all the property of deceased Roberto Lim Chua have been inventoried and expenses and just debts, have been paid, the intestate estate of Roberto Lim Chua be distributed to its rightful heirs, the minors in this case, pursuant to the provisions of Article 988 of the New Civil Code of the Philippines. 5. And for such other reliefs and remedies this Honorable Court may consider fit and proper in the premises. Cotabato City, Philippines, June 29, 1992. (Sgd.) FLORITA ALONZO VALLEJO(Petitioner) The trial court issued an order setting the hearing of the petition on 14 August 1992 and directed that notice thereof be published in a newspaper of general circulation in the province of Maguindanao and Cotabato City and or Davao City.On 21 July 1992, herein petitioner Antonietta Garcia Vda.de Chua, representing to be the surviving spouse of Roberto Chua, filed a Motion to Dismiss 2 on the ground of improper venue. Petitioner alleged that at the time of the decedent's death Davao City was his residence, hence, the Regional Trial Court of Davao City is the proper forum. Private respondent filed an opposition to the Motion to Dismiss 3 dated July 20, 1992 based on the following grounds: (1) That this petition is for the guardianship of the minor children of the petitioner who are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of Court the venue shall be at the place where the minor resides;

(2) That the above-named minors are residents of Cotabato City: (3) That the movant in this case has no personality to intervene nor oppose in the granting of this petition for the reason that she is a total stranger to the minors Robert Rafson Alonzo and Rudyard Pride Alonzo, all surnamed Chua. (4) That deceased Roberto L. Chua died a bachelor. He is the father of the abovenamed minors with the petitioner in this case; (5) That movant/oppositor Antonietta Chua is not the surviving spouse of the late Roberto L. Chua but a pretender to the estate of the latter since the deceased never contracted marriage with any woman until he died. On 6 August 1992, private respondent Vallejo filed a Motion for Admission of an Amended Petition 4 "in order that the designation of the case title can properly and appropriately capture or capsulize in clear terms the material averments in the body of the pleadings; thus avoiding any confusion or misconception of the nature and real intent and purpose of this petition." The amended petition 5 contained identical material allegations but differed in its title, thus:. IN RE: PETITION FOR THE SETTLEMENT OF THE INTESTATE ESTATE OF ROBERTO L. CHUA, DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND PROPERTIES OF MINORS ROBERT AND RUDYARD, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. FLORITA ALONZO VALLEJO,Petitioner. Paragraph 4 of the original petition was also amended to read as follows: 4. That Roberto Lim Chua, father of the abovementioned minors is a resident of Cotabato City and died intestate on May 28, 1992 at Davao City. The petition contained exactly the same prayers as the original petition. Petitioner opposed the motion to amend petition alleging that at the hearing of said motion on 24 July 1992, private respondent's counsel allegedly admitted that the sole intention of the original petition was to secure guardianship over the persons and property of the minors. On 21 August 1992, the trial court issued an Order 7 denying the motion to dismiss for lack of merit. The court ruled that Antonietta Garcia had no personality to file the motion to dismiss not having proven her status as wife of the decedent. Further, the court found that the actual residence of the deceased was Cotabato City, and even assuming that there was concurrent venue among the Regional Trial Courts where the decedent had resided, the R.T.C. of Cotabato had already taken cognizance of the settlement of the decedent's estate to the exclusion of all others. The pertinent portions of the order read: At the hearing of the motion to dismiss on August 19, 1992, counsel for movant Antonietta G. Chua presented 18 Exhibits in support of her allegation that she was the lawful wife of the decedent and that the latter resides in Davao City at the time of his death. Exh. "1" was the xerox copy of the alleged marriage contract

between the movant and the petitioner. This cannot be admitted in evidence on the ground of the timely objection of the counsels for petitioner that the best evidence is the original copy or authenticated copy which the movant cannot produce. Further, the counsels for petitioner in opposition presented the following: a certification from the Local Civil Registrar concerned that no such marriage contract was ever registered with them; a letter from Judge Augusto Banzali, the alleged person to have solemnized the alleged marriage that he has not solemnized such alleged marriage. Exhibit "2" through "18" consist among others of Transfer Certificate of Title issued in the name of Roberto L. Chua married to Antonietta Garcia, and a resident of Davao City; Residence Certificates from 1988 and 1989 issued at Davao City indicating that he was married and was born in Cotabato City; Income Tax Returns for 1990 and 1991 filed in Davao City where the status of the decedent was stated as married; passport of the decedent specifying that he was married and his residence was Davao City. Petitioner through counsels, objected to the admission in evidence of Exhibits "2" through "18" if the purpose is to establish the truth of the alleged marriage between the decedent and Antonietta Garcia. The best evidence they said is the marriage contract. They do not object to the admission of said exhibit if the purpose is to show that Davao City was the business residence of the decedent. Petitioner through counsels, presented Exhibit "A" through "K" to support her allegation that the decedent was a resident of Cotabato City; that he died a bachelor; that he begot two illegitimate children with the petitioner as mother. Among these exhibits are Income Tax Returns filed in Cotabato City from 1968 through 1979 indicating therein that he was single; birth certificates of the alleged two illegitimate children of the decedent; Resident Certificates of the decedent issued in Cotabato City; Registration Certificate of Vehicle of the decedent showing that his residence is Cotabato City. It is clear from the foregoing that the movant failed to establish the truth of her allegation that she was the lawful wife of the decedent. The best evidence is a valid marriage contract which the movant failed to produce. Transfer Certificates of Title, Residence Certificates, passports and other similar documents cannot prove marriage especially so when the petitioner has submitted a certification from the Local Civil Registrar concerned that the alleged marriage was not registered and a letter from the judge alleged to have solemnized the marriage that he has not solemnized said alleged marriage. Consequently, she has no personality to file the subject motion to dismiss. On the issue of the residence of the decedent at the time of his death, the decedent as a businessman has many business residences from different parts of the country where he usually stays to supervise and pursue his business ventures. Davao City is one of them. It cannot be denied that Cotabato City is his actual residence where his alleged illegitimate children also reside.

The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue (Fule vs. CA, L-40502, November 29, 1976). Even assuming that there is concurrent venue among the Regional Trial Courts of the places where the decedent has residences, the Regional Trial Court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts (Section 1, Rule 73). It was this Court which first took cognizance of the case when the petition was filed on July 2, 1992, docketed as Special Proceeding No. 331 and an order of publication issued by this Court on July 13, 1992. WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied for lack of merit. On 31 August 1992, upon motion of private respondent, the trial court issued an order appointing Romulo Lim Uy, a first cousin of the deceased, as special administrator of the decedent's estate. 8 On the same day, the trial court, likewise, issued an Order appointing Florita Vallejo as guardian over the persons and properties of the two minor children. Thereafter, petitioner filed a Motion dated 25 October 1993 10 praying that the letters of administration issued to Vallejo be recalled and that new letters of administration be issued to her. She, likewise, filed a Motion dated 5 November 1993 11 to declare the proceedings a mistrial. Both motions were denied by the trial court in its Order dated 22 November 1993. 12 Petitioner's motion for reconsideration of the order was denied by the trial court in an Order dated 13 December 1993. Assailing the last two orders of the trial court, petitioner filed a petition for certiorari and prohibition (Rule 65) with the respondent Court of Appeals, docketed as CA G.R. No. Sp. 33101, alleging that the trial court acted with grave abuse of discretion in: (1) unilaterally and summarily converting, if not treating, the guardianship proceedings into an intestate proceeding; (2) summarily hearing the intestate proceedings without jurisdiction and without any notice to herein petitioner whatsoever; and (3) issuing the questioned order (sic) on the alleged pretension that herein petitioner has no personality to intervene in SPL Proc. No. 331 questioning the highly anomalous orders precipitately issued ex-parte by the public respondent R.T.C. without notice to the petitioners. Petitioner in the main argued that private respondent herself admitted in her opposition to petitioner's motion to dismiss filed in the trial court and in open court that the original petition she filed is one for guardianship; hence, the trial court acted beyond its jurisdiction when it issued letters of administration over the

estate of Roberto L. Chua, thereby converting the petition into an intestate proceeding, without the amended petition being published in a newspaper of general circulation as required by Section 3, Rule 79. The Court of Appeals, in its decision promulgated on 19 April 1994, 14 denied the petition ratiocinating that the original petition filed was one for guardianship of the illegitimate children of the deceased as well as for administration of his intestate estate. While private respondent may have alleged in her opposition to the motion to dismiss that petition was for guardianship, the fact remains that the very allegations of the original petition unmistakably showed a twin purpose: (1) guardianship; and (2) issuance of letters of administration. As such, it was unnecessary for her to republish the notice of hearing through a newspaper of general circulation in the province. The amended petition was filed for the only reason stated in the motion for leave: so that the "case title can properly and appropriately capture or capsulize in clear terms the material averments in the body of the pleadings; thus avoiding any confusion or misconception of the nature and real intent and purpose of this petition," which was for guardianship over the persons and properties of her minor children and for the settlement of the intestate estate of the decedent who was their father. In other words, there being no change in the material allegations between the original and amended petitions, the publication of the first in a newspaper of general circulation sufficed for purposes of compliance with the legal requirements of notice. Moreover, the appellate court ruled that the petitioner's remedy is appeal from the orders complained of under Section 1(f), Rule 109 of the Rules of Court, not certiorari and prohibition. Not satisfied with the decision of the Court of Appeals, petitioner comes to this Court contending that the appellate court committed the following errors: I THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT THE ORIGINAL PETITION (Annex F, Petition) WAS FOR A TWIN PURPOSE, TO WIT: FOR GUARDIANSHIP AND FOR INTESTATE ESTATE PROCEEDINGS; II THE PUBLIC RESPONDENT COURT APPEALS SERIOUSLY ERRED IN HOLDING THAT THERE IS NO NEED TO PUBLISH THE AMENDED PETITION FOR ADMINISTRATION OF THE INTESTATE ESTATE THEREBY CONTRAVENING THE RULES OF COURT AND THE RULINGS OF THE SUPREME COURT. III THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT NULLIFYING THE ORDERS (Annex "P" to "T") PRECIPITATELY ISSUED EX-PARTE BY THE PUBLIC RESPONDENT REGIONAL TRIAL COURT IN THE INTESTATE PROCEEDINGS WITHOUT PRIOR HEARING OR NOTICE TO HEREIN PETITIONER THEREBY DEPRIVING

THE LATTER (ANTONIETTA GARCIA VDA. DE CHUA ) OF DUE PROCESS AND OPPORTUNITY TO BE HEARD. IV THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN SWEEPINGLY HOLDING THAT PETITIONER'S REMEDY IS APPEAL. 15 In support of her first assignment of error, petitioner submits that the Court of Appeals' conclusion that the original petition was one for guardianship and administration of the intestate estate is contradicted by the evidence on hand, asserting that the original petition failed to allege and state the jurisdictional facts required by the Rules of Court in petitions for administration of a decedent's estate, such as: (a) the last actual residence of the decedent at the time of his death; (b) names, ages and residences of the heirs; and (c) the names and residences of the creditors of the decedent. Petitioner also reiterates her argument regarding private respondent's alleged admission that the original petition was one for guardianship and not for issuance of letters of administration, pointing to the Opposition to the Motion to Dismiss dated 20 July 1992, where the private respondent alleged. 1. That this petition is for guardianship of the minor children of the petitioner who are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of Court the venue shall be at the place where the minor resides. As well as to the statements made by counsel for the private respondent during the 24 July 1992 hearing on the motion to dismiss: ATTY. RENDON: We filed our opposition to the motion to dismiss the petition because this is a petition for guardianship of minors, not for intestate proceedings. So this is a case where the mother wanted to be appointed as guardian because she is also the litigant here. Because whenever there is an intestate proceedings, she has to represent the minors, and under the Rules of Court in any guardianship proceedings, the venue is at the place where the minor is actually residing. The petition is devoid of merit. The title alone of the original petition clearly shows that the petition is one which includes the issuance of letters of administration. The title of said petition reads: IN RE: PETITION FOR DECLARATION OF HEIRSHIPS, GUARDIANSHIP OVER THE PERSON AND PROPERTIES OF MINORS ROBERTO ALONZO AND RUDYARD ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. 18 Likewise, the prayer of the petition states: 2. That Letters of Administration be issued to herein petition for the administration of the estate of the deceased ROBERTO LIM CHUA.

The original petition also contains the jurisdictional facts required in a petition for the issuance of letters of administration. Section 2, Rule 79 of the Rules of Court reads: Sec. 2. Contents of petition for letters of administration A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner: a) jurisdictional facts; b) The names, ages, and residences of the heirs and the names and residences of the creditors, of the decedent' c) The probative value and character of the property of the estate;. d) The name of the person for whom letters of administration are prayed; But no defect in the petition shall render void the issuance of letters of administration. (emphasis ours). The jurisdictional facts required in a petition for issuance of letters of administration are: (1) the death of the testator; (2) residence at the time of death in the province where the probate court is located; and (3) if the decedent was a non-resident, the fact of being a resident of a foreign country and that the decedent has left an estate in the province where the court is sitting. While paragraph 4 of the original petition stating: (4) That Roberto Lim Chua, father of the above mentioned minors, died intestate on May 28, 1992 in Davao City. failed to indicate the residence of the deceased at the time of his death, the omission was cured by the amended petitions wherein the same paragraph now reads: (4) That Roberto Lim Chua, father of the abovementioned minors is a resident of Cotabato City and died intestate on May 28, 1992 at Davao City. 20 (Emphasis in the original.) All told the original petition alleged substantially all the facts required to be stated in the petition for letters of administration. Consequently, there was no need to publish the amended petition as petitioner would insist in her second assignment of errors. Be that as it may, petitioner has no legal standing to file the motion to dismiss as she is not related to the deceased, nor does she have any interest in his estate as creditor or otherwise. The Rules are explicit on who may do so: Sec. 4. Opposition to petition for administration Any interested person, may by filing a written opposition, contest the petition on the ground of incompetency of the person for whom letters of administration are prayed therein, or on the ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any competent person or persons named in the opposition.. Only an interested person may oppose the petition for issuance of letters of administration. An interested person is one who would be benefited by the

estate such as an heir, or one who has a claim against the estate, such as a creditor; his interest is material and direct, and not one that is only indirect or contingent. 21 Petitioner was not able to prove her status as the surviving wife of the decedent. The best proof of marriage between man and wife is a marriage contract which Antonietta Chua failed to produce. The lower court correctly disregarded the photostat copy of the marriage certificate which she presented, this being a violation of the best evidence rule, together with other worthless pieces of evidence. The trial court correctly ruled in its 21 August 1992 Order that: . . . Transfer Certificates of Title, Residence Certificates, passports and other similar documents cannot prove marriage especially so when the petitioner has submitted a certification from the Local Civil Registrar concerned that the alleged marriage was not registered and a letter from the judge alleged to have solemnized the marriage that he has not solemnized said alleged marriage. . . . 22 Under her third assignment of error, petitioner claims that the trial court issued its orders, Annexes "P" to "T" without prior hearing or notice to her, thus, depriving her of due process. The orders referred to by petitioner are: Order dated 31 August 1992 appointing Romulo Lim Uy, first cousin of the deceased, as special administrator of the estate; Order dated 31 August 1992 appointing private respondent as guardian over the person and property of the minors; Order dated 5 August 1993, directing the transfer of the remains of the deceased from Davao City to Cotabato City; Order dated 6 September 1993 directing petitioner to turn over a Mitsubishi Gallant car owned by the estate of the deceased to the special administrator; and Order dated 28 September 1993, authorizing the sheriff to break open the deceased's house for the purpose of conducting an inventory of the properties found therein, after the sheriff was refused entry to the house by the driver and maid of petitioner. Apart from the fact that petitioner was not entitled to notice of the proceedings of the trial court, not being able to establish proof of her alleged marriage to the deceased, or of her interest in the estate as creditor or otherwise, petitioner categorically stated in the instant petition that on 25 October 1993 she filed a motion praying for the recall of the letters of administration issued by the trial court and another motion dated 5 August 1993 praying that the proceedings conducted by the trial court be declared as a mistrial and the court orders relative thereto be set aside and nullified. Petitioner further stated that her motions were denied by the trial court in its Order dated 22 November 21, 1993 and that on 30 November 1993 she filed a motion for reconsideration of the order of denial which in turn was denied by the trial court on 13 December 1993. Due process was designed to afford opportunity to be heard, not that an actual hearing should always and indispensably be held. 23 The essence of due process is simply an opportunity to be heard. 24 Here, even granting that the petitioner was not notified of the orders of the trial court marked as Exhibits "P" to

"T," inclusive, nonetheless, she was duly heard in her motions to recall letters of administration and to declare the proceedings of the court as a "mistrial," which motions were denied in the Order dated 22 November 1993. 25 A motion for the reconsideration of this order of denial was also duly heard by the trial court but was denied in its Order of 13 December 1993. Denial of due process cannot be successfully invoked by a party who has had the opportunity to be heard on his motion for reconsideration. As to the last assignment of errors, we agree with the Court of Appeals that the proper remedy of the petitioner in said court was an ordinary appeal and not a special civil action for certiorari; which can be availed of if a party has no plain, speedy and adequate remedy in the ordinary course of law. Except for her bare allegation that an ordinary appeal would be inadequate, nothing on record would indicate that extraordinary remedy of certiorari or prohibition is warranted. Finally, petitioner further argues as supplement to her memorandum that the ruling of the Court of Appeals treating the Special Proceeding No. 331 as one for both guardianship and settlement of estate is in contravention of our ruling in Gomez vs. Imperial, 28 which the petitioner quotes: The distribution of the residue of the estate of the deceased is a function pertaining property not to the guardianship proceedings, but to another proceeding which the heirs are at liberty to initiate. Petitioner's reliance on said case is misplaced. In the Gomez case, the action before the lower court was merely one for guardianship. Therefore said court did not have the jurisdiction to distribute the estate of the deceased. While in the case at bar, the petition filed before the court was both for guardianship and settlement of estate. IN VIEW OF THE FOREGOING, the petition of petitioner Antonietta Chua is hereby denied. SO ORDERED.

G.R. No. L-19060 May 29, 1964 IGNACIO GERONA, MARIA CONCEPCION GERONA, FRANCISCO GERONA and DELFIN GERONA, petitioners, vs.CARMEN DE GUZMAN, JOSE DE GUZMAN, CLEMENTE DE GUZMAN, FRANCISCO DE GUZMAN, RUSTICA DE GUZMAN, PACITA DE GUZMAN and VICTORIA DE GUZMAN respondents. Appeal by certiorari from a decision of the Court of Appeals, affirming that of the Court of First Instance of Bulacan. In the complaint, filed with the latter court on September 4, 1958, petitioners herein, namely, Ignacio, Maria Concepcion, Francisco and Delfin, all surnamed Gerona, alleged that they are the legitimate children of Domingo Gerona and Placida de Guzman; that the latter, who died on August 9, 1941 was a legitimate daughter of Marcelo de Guzman and his first wife, Teodora de la Cruz; that after the death of his first wife, Marcelo de Guzman married Camila Ramos, who begot him several children, namely, respondents Carmen, Jose, Clemente, Francisco, Rustica, Pacita and Victoria, all surnamed De Guzman; that Marcelo de Guzman died on September 11, 1945; that subsequently, or on May 6, 1948, respondents executed a deed of "extra-judicial settlement of the estate of the deceased Marcelo de Guzman", fraudulently misrepresenting therein that they were the only surviving heirs of the deceased Marcelo de Guzman, although they well knew that petitioners were, also, his forced heirs; that respondents had thereby succeeded fraudulently in causing the transfer certificates of title to seven (7) parcels of land, issued in the name of said deceased, to be cancelled and new transfer certificates of title to be issued in their own name, in the proportion of 1/7th individual interest for each; that such fraud was discovered by the petitioners only the year before the institution of the case; that petitioners forthwith demanded from respondents their (petitioners) share in said properties, to the extent of 1/8th interest thereon; and that the respondents refused to heed said demand, thereby causing damages to the petitioners. Accordingly, the latter prayed that judgment be rendered nullifying said deed of extra-judicial settlement, insofar as it deprives them of their participation of 1/18th of the properties in litigation; ordering the respondents to reconvey to petitioners their aforementioned share in said properties; ordering the register of deeds to cancel the transfer certificates of title secured by respondents as above stated and to issue new certificates of title in the name of both the petitioners and the respondents in the proportion of 1/8th for the former and 7/8th for the latter; ordering the respondents to render accounts of the income of said properties and to deliver to petitioners their lawful share therein; and sentencing respondents to pay damages and attorney's fees. In their answer, respondents maintained that petitioners' mother, the deceased Placida de Guzman, was not entitled to share in the estate of Marcelo de

Guzman, she being merely a spurious child of the latter, and that petitioners' action is barred by the statute of limitations. After appropriate proceedings, the trial court rendered a decision finding that petitioners' mother was a legitimate child, by first marriage, of Marcelo de Guzman; that the properties described in the complaint belonged to the conjugal partnership of Marcelo de Guzman and his second wife, Camila Ramos; and that petitioners' action has already prescribed, and, accordingly, dismissing the complaint without costs. On appeal taken by the petitioners, this decision as affirmed by the Court of Appeals, with costs against them. Petitioners maintain that since they and respondents are co-heirs of the deceased Marcelo de Guzman, the present action for partition of the latter's estate is not subject to the statute of limitations of action; that, if affected by said statute, the period of four (4) years therein prescribed did not begin to run until actual discovery of the fraud perpetrated by respondents, which, it is claimed, took place in 1956 or 1957; and that accordingly, said period had not expired when the present action was commenced on November 4, 1958. Petitioners' contention is untenable. Although, as a general rule, an action for partition among co-heirs does not prescribe, this is true only as long as the defendants do not hold the property in question under an adverse title (Cordova vs. Cordova, L-9936, January 14, 1948). The statute of limitations operates as in other cases, from the moment such adverse title is asserted by the possessor of the property (Ramos vs. Ramos, 45 Phil. 362; Bargayo v. Camumot, 40 Phil. 857; Castro v. Echarri, 20 Phil. 23). When respondents executed the aforementioned deed of extra-judicial settlement stating therein that they are the sole heirs of the late Marcelo de Guzman, and secured new transfer certificates of title in their own name, they thereby excluded the petitioners from the estate of the deceased, and, consequently, set up a title adverse to them. And this is why petitioners have brought this action for the annulment of said deed upon the ground that the same is tainted with fraud. Although, there are some decisions to the contrary (Jacinto v. Mendoza, L12540, February 28, 1959; Cuison v. Fernandez, L-11764, January 31, 1959; Maribiles v. Quinto, L-10408, October 18, 1956; and Sevilla v. De los Angeles, L7745, November 18, 1955), it is already settled in this jurisdiction that an action for reconveyance of real property based upon a constructive or implied trust, resulting from fraud, may be barred by the statute of limitations (Candelaria v. Romero, L12149, September 30, 1960; Alzona v. Capunita, L-10220, February 28, 1962). Inasmuch as petitioners seek to annul the aforementioned deed of "extrajudicial settlement" upon the ground of fraud in the execution thereof, the action therefor may be filed within four (4) years from the discovery of the fraud (Mauricio v. Villanueva, L-11072, September 24, 1959). Such discovery is deemed to have

taken place, in the case at bar, on June 25, 1948, when said instrument was filed with the Register of Deeds and new certificates of title were issued in the name of respondents exclusively, for the registration of the deed of extra-judicial settlement constitute constructive notice to the whole world (Diaz v. Gorricho, L-11229, March 29, 1958; Avecilla v. Yatco, L-11578, May 14, 1958; J.M. Tuason & Co., Inc. v. Magdangal, L-15539, January 30, 1962; Lopez v. Gonzaga, L-18788, January 31, 1964). As correctly stated in the decision of the trial court: In the light of the foregoing it must, therefore, be held that plaintiffs learned at least constructively, of the alleged fraud committed against them by defendants on 25 June 1948 when the deed of extra-judicial settlement of the estate of the deceased Marcelo de Guzman was registered in the registry of deeds of Bulacan, Plaintiffs' complaint in this case was not filed until 4 November 1958, or more than 10 years thereafter. Plaintiff Ignacio Gerona became of age on 3 March 1948. He is deemed to have discovered defendants' fraud on 25 June 1948 and had, therefore, only 4 years from the said date within which to file this action. Plaintiff Maria Concepcion Gerona became of age on 8 December 1949 or after the registration of the deed of extra-judicial settlement. She also had only the remainder of the period of 4 years from December 1949 within which to commence her action. Plaintiff Francisco Gerona became of age only on 9 January 1952 so that he was still a minor when he gained knowledge (even if only constructive) of the deed of extra-judicial settlement on 25 June 1948. Likewise, plaintiff Delfin Gerona became of legal age on 5 August 1954, so that he was also still a minor at the time he gained knowledge (although constructive) of the deed of extra-judicial settlement on 25 June 1948. Francisco Gerona and Delfin Gerona had, therefore, two years after the removal of their disability within which to commence their action (Section 45, paragraph 3, in relation to Section 43, Act 190), that is, January 29, 1952, with respect to Francisco, and 5 August 1954, with respect to Delfin. WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs against petitioners herein. It is so ordered.

G.R. No. L-41508 June 27, 1988 CANDELARIO VILLAMOR, PILAR DE LA SERNA, BARTOLOME VILLAMOR, RAFAELA RETUYA, SOFRONIO VILLAMOR, PILAR SEMBLANTE, ELEUTERIO VILLAMOR, CARIDAD GORECHO, MARCOS OR and GUADALUPE CEDEO petitioners, vs.HON. COURT OF APPEALS and DANIELA CENIZA UROT, in her capacity as administratrix of the estate of Fr. Nicanor Cortes, under Sp. Proc. No. 3062-R, respondents. This petition for review on certiorari seeks to annul and set aside the decision of the Court of Appeals which affirmed that of the then Court of First Instance of Cebu, Branch XL declaring null and void [1] the Project of Partition in Special Proceedings Nos. 262-C and 343-C executed on December 7, 1946, [2] the "Order" of April 14, 1948 which approved said Project of Partition, [3] the "Auto" of November 25, 1953 which closed and terminated the two (2) administration proceedings and which authorized the delivery of seven (7) parcels of land to Ireneo Villamor and Paula Villamor, and [4] the extra-judicial settlement and partition executed by the petitioners herein on July 28, 1969. Spouses Victor Cortes and Maria Castaeda had eight (8) children, namely: Rufino, Barbara, Florencio, Casimira, Brigida, Braulia, Margarita and Eugenia. Of the eight children, six died single and without issue. Barbara Cortes begot a son by the name of Eustaquio Cortes. Rufino Cortes, who died on June 12, 1909 left two alleged legitimate children, Ireneo Cortes Villamor and Paula Cortes Villamor. The last to die of the Cortes children was Eugenia Cortes. She died on January 8, 1931. Eustaquio Cortes, son of Barbara, married one Sixta Ceniza. Born to them were five children, namely: Dionisio, Bartolome, Nicanor, Agapita and Amancia, all surnamed Cortes. All five remained unmarried and died without will nor forced heirs. Dionisio, Amancia and Agapita predeceased their father Eustaquio. Eustaquio died on October 20, 1932, survived by his spouse and two sons, Bartolome and Nicanor. Bartolome who was a Catholic priest, died on November 14, 1937. Nicanor Cortes, also known as Father Gabriel Maria Cortes, died as a monk of the Carthusian Order in Barcelona, Spain on August 28, 1969. He was the last of the direct descendants of the Barbara Cortes line. On the other hand, Paula Villamor, alleged daughter of Rufino Cortes, died single on January 29, 1967 and without issue. Ireneo Villamor married one Bersabela Perez. Said marriage was blessed with five children, namely: Candelario, Bartolome, Sofronio, Eleuterio and Marcos, all surnamed Villamor, the petitioners, herein. Ireneo Villamor died on April 21, 1966. It appears that shortly after the death of Bartolome Cortes, Special Proceedings No. 227 was instituted for the settlement of his estate. Fr. Diosdado Camomot, a close friend of Bartolome, was named administrator.

Sometime between 1937 and 1938, Special Proceedings No. 262-C, which relates to the intestate estates of Eugenia, Casimira Florencio, Braulia, Margarita and Barbara, all surnamed Cortes was filed. This proceeding evidently did not include a brother, Rufino Cortes. Atty. Primitive Sato was appointed administrator. On September 27, 1938, Paula Cortes Villamor and Ireneo Cortes Villamor, claiming to be the legitimate children of Rufino Cortes, filed a petition for the administration of the estate of Rufino Cortes, under Special Proceedings No. 343-C, to protect their rights and counteract the effects of Special Proceedings No. 262-C. Notice of the hearing of the petition was published in the "Nasud," a newspaper of general circulation on October 13, 20 and 27, 1938. Appointed administrator in this proceeding was one Moises Mendoza, who thereafter submitted an inventory of the properties allegedly belonging to the estate of Rufino Cortes. The properties enumerated in the inventory were the very same properties subject of Special Proceedings Nos. 227 and 262-C. A scramble over the control and possession of the, properties ensued between the heirs of Barbara Cortes, represented by Sixta Ceniza with the help of Fr. Camomot, and the Rufino Cortes line represented by Ireneo and Paula Cortes Villamor. On May 20, 1946, Ireneo and Paula Cortes Villamor and Father Camomot filed a joint motion in Special Proceedings No. 262-C and Special Proceedings No. 343-C, wherein they manifested that "the heirs have arrived at an agreement to settle the matter amicably between themselves by partitioning the estate among them" 1 Thus, after six months of negotiation, or on December 7, 1946, a Project of Partition was executed by Sixta Ceniza and Father Camomot, in his capacity as administrator of the Estate of Bartolome Cortes, assisted by their counsel, Attys. Hipolito Alo and Fermin Yap, on one hand, and Ireneo and Paula Cortes Villamor, assisted by Atty. Gaudencio Juezan, on the other. The Project of Partition was thumbmarked Sixta Ceniza at the house of a relative, Fortunate vda. de Ceniza, where Sixta Ceniza lived at that time. In said Project of Partition, seven parcels of land were apportioned and delivered to Ireneo and Paula Cortes Villamor. The said Project of Partition is reproduced as follows: REPUBLIC OF THE PHILIPPINE COURT OF FIRST INSTANCE OF CEBU IN REPUBLIC ESTATE OF BARBARA CORTES, FLORENCIO CORTES, RUFINO CORTES, CASIMIRA CORTES, BRIGIDA CORTES, Sp. Proc. Nos. 262 & 343 BRAULIA CORTES, MARIA CORTES and EUGENIA CORTES, Deceased. -----------------------------------------PROJECT OF PARTITION

Come now Sixta Ceniza and Rev. Diosdado Camomot, the latter as administrator of the estate of Bartolome Cortes in Sp. Proc. No. 227 of this Court assisted by their Attorneys Hipolito Alo and Fermin Yap, to be known hereinafter as the First Party; Ireneo Cortes Villamor, assisted by their Attorney Gaudencio R. Juezan, to be referred hereinafter as the Second Party, to this Hon. Court respectfully state: That Sixta Ceniza above referred to is the sole heir of Bartolome Cortes now deceased, being the legitimate mother of the latter; That Rev. Diosdado Camomot is the legal administrator of the estate of said Bartolome Cortes in the Sp. Proc. No. 227 of this Court; That Barbara, Florencio, Rufino; Casimira, Brigida, Braulia, Maria and Eugenia, all surnamed Cortes, were brothers and sisters. They died without leaving any parent nor children except Rufino and Barbara Cortes; That Barbara Cortes left Bartolome Cortes as a nephew and the latter left his mother Sixta Ceniza as his heir; That Rufino Cortes left Ireneo and Paula Cortes as his heirs, being his legitimate children; That Sixta Ceniza, Ireneo Cortes Villamor and Paula Cortes Villamor are all Filipinos by birth and of legal ages and residents of Mandaue, Cebu, Philippines; That the deceased Eugenia Cortes and Rufino Cortes, left no debt, nor will; That the first and the second Parties hereby acknowledge that all the estate appearing in the inventories submitted under administration Sp. Proc. Nos. 262 and 343 in this Court, belong to the deceased Eugenia Cortes and Rufino Cortes, being the real owners thereof, of which Eustaquio and Bartolome Cortes were extra judicial administrators; That said Sixta Ceniza, Ireneo Cortes Villamor and Paula Cortes Villamor do hereby declare themselves as the only heirs of said Eugenia and Rufino Cortes and adjudicate to themselves the above-described properties and amicably partition same among themselves in the manner, form and share hereinbelow shown; That the First and Second Parties have agreed, as they do hereby agree, to partition, as they do hereby partition, the properties above referred to, amicably between them, in the form, manner, and share, to wit: To Sixta Ceniza through Rev. Diosdado Camomot, the latter in his capacity as administrator of the estate of Bartolome Cortes, the following parcels of land with improvements thereon, are hereby apportioned and delivered: 1. A parcel of agricultural land with all improvements thereon located in Alang-Alang, Mandaue, Cebu,
bounded as follows: North, Eustaquio Cortes East, Geronimo Lambo South, Conrado Jayme West, Serafina Mendoza Area, 47 Area, 37 Centares

Declared in the name of Bartolome Cortes as per Tax Dec. No. 31520 2. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Calle Gral, Ricarte East, Riachuelo South, Mariano del Castillo West, Juana Mayol Area, 18 Ares, Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31531 3. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Hrs. of Fermin Cortes East, Riachuelo South, Hrs. of Pio Mendoza and Juana Mendoza West, Severino Cabajug and Ceferino Mendoza Area, 16 Ares, and 80 Centares Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31529 4. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Rita Alilin and Ambrocio Cabahug South, Rita Alilin West, Ceferino Mendoza Area, 13 Ares & 40 Centares Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31628 5. A parcel of agricultural land with an improvements thereon located in Pagsubungan, Mandaue, Cebu, bounded as follows: North, Hrs. of Tomas Osmea and Victor Perez East, Fernando Atamosa South, Rio de Butuanon and Hrs. of Tomas Osmea West, Private Ceniza and Phil. Railway Co. Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31523 6. A parcel of agricultural land with all improvements thereon located in Pagsabungan, Mandaue, Cebu, bounded as follows: North, Hipolito Pareja East, Francisca Estrera South, Enrique Diano and Catalina Pareja West, Blas Retuerto Area 1 Ha. 38 Area, 21 Centares Declared in the name of Eugenia Cortes as per Tax Dec. No. 31536 7. A parcel of agricultural land with all improvements thereon located in Kanduman Mandaue, Cebu, bounded as follows: North, Jacinto Mayol East, Sergio Suyco South, Martin Seno West, Mariano Alivio Area, 1 Ha. 03 Area, 24 Centares

Declared in the name of the heirs of Casimira Cortes as per Tax Dec. No. 31514 8. A parcel of agricultural land with all improvements thereon located in Kanduman Mandaue, Cebu, bounded as follows: North, Jacinto Mayol and Policarpio and Josefa Cortes East, Claudia Osmea and Camino Vecinal South, Camino Vecinal and Hrs. of Tomas Osmea West, Jacinto Mayol Area, 2 Has, 45 Ares--07 Centares Declared in the name of the heirs of Casimira Cortes as per Tax Dec. No. 31515 9. A parcel of agricultural land with all improvements thereon located in Opao, Mandaue, Cebu, bounded as follows: North, Brook East, Hrs. of Cesario Mendoza and Benito Ceniza and Juan Trox South, Hermenegildo Alivio West, Basilia Cabahug and Prudencia Cabahug Area, 4 Has. 96 Area, 05 Centares Declared in the name of heirs of Casimira Cortes as per Tax Dec. No. 31516 10. A parcel of land [rural] with all improvements thereon located in Magikay Mandaue, Cebu, bounded on the North by Ireneo Villamor; East, Ireneo Villamor; South, Marcelo Cortes and Ireneo Villamor; West, Callejon, with an area of one Ha. 27 Area, and 99 Centares, covered by Tax Dec. No. 31518; 11. A parcel of land with all improvement thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Calle Ricarte East, Riachuelo South, Riachuelo West, Mariano del Castillo Area, 11 Ares Declared in the name of Bartolome Cortes as per Tax Dec. No. 31521 12. A mango tree located in the name of Apolonio Soco as per Tax Dec. No. 31527 declared in the name of Eustaquio Cortes. *14. A parcel of land [rural] with all improvements thereon located in Magikay Mandaue, Cebu, bounded on the North by Florentino Perez; East, Pablo Perez; South, Ireneo Villamor; West, Romualdo Omo, with an area of one Hectare, 39 Ares and 06 Centares, covered by Tax Dec. No. 31317; This is known as Lot No. 560-A of the plan called Hacienda de Mandaue." 15. A parcel of land [rural] with all improvements thereon located in Magikay Mandue Cebu, bounded on the north by Susana Cortes and others; East, by Susana Cortes and others; South Ireneo Villamor and Hermana; and West, Ireneo Villamor and Hermana; with an area of one Hectare, 26 Ares and 99 Centares, covered by Tax Dec. No. 31519. To Ireneo Cortes Villamor and Paula Cortes Villamor the following are hereby apportioned and delivered: 1. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Paula Perez East, Car. Prov. and Pelagia Pintor South, Rafaela Judilla and D. Mendoza West, Riachuelo Area, 1 Ha. 46 Ares and 30 Centares Declared in the name of Eustaquio

Cortes as per Tax Dec. No. 31533 2. A parcel of residential land with all improvements thereon Centro, Mandaue, Cebu, bounded as follows: North, Calle A. del Rosario East, Fidel Jayme South, Bartolome Cortes and Martina Soco West, Carr. Provincial Area, 5,390 square meters Declared in the name of Bartolome and Eustaquio Cortes as per Tax Dec. No. 31522 3. A parcel of agricultural land with all improvements thereon located in Kanzaga Consolacion, Cebu, bounded as follows: North, Ignacio Niez East, Saturnino Quipo y Sixto Ermac South, Alejandro del Rosario y Doroteo Bolhot West, Apolinario Palang Area, 22 Ares and 36 Centares Declared in the name of Eustaquio Cortes as per Tax Dec. No. 17031 4. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Camino Vecinal East, Andres Cabahug South, Julio Bars and Ciriaco Cortes West, Eusebio Soco and Phil. Railway Co. Area 53 Ares and 92 Centares Declared in the name of Eustaquio Cortes as per Tax Declaration No. 31534 5. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Severina Cabajug and others East, Simon Cortes South, Callejon West, Calle Gral. del Pilar Area, 72 Ares & 96 Centares Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31532 6. A parcel of agricultural land located in Alang-Alang, Mandaue, Cebu, with all improvements thereon, bounded as follows: North, Callejon and Marciano Cuison East, Calle Plaridel and Enrique Capirol South, Calle P. Burgos and Bernardo A. Flores West, Eusebio Soco Area, 4 Has. 53 Ares, 47 Centares Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31530 7. A parcel of agricultural land with all improvements thereon located in Centro, Mandaue, Cebu, bounded as follows: North, Benito Ceniza, Filomena Pans, Benito Ceniza East, Emiliano Cuson South, Calle A. del Rosario West, Carr. Prov. Rita Alilin and others

Area, 3 Has. 08 Ares, 32 Centares Declared in the name of Eustaquio Cortes as per Tax Dec. No. 31524

The parties hereto do hereby give their respective conformity to the foregoing partition and do hereby accept and receive the properties respectively apportioned to them as indicated above. That the parties hereto shall take immediate possession and enjoyment of their respective shares subject to the payment of the honorary fees of administrators Primitive N. Sato and Moises Mendoza whose claims for such honorary, are still pending determination by the Court, if the personal properties would not be sufficient to cover such fees. That the parties hereto shall take immediate possession and enjoyment of their respective shares subject to the payment of the honorary fees of administrators Primitive N. Sato and Moises Mendoza whose claims for such honorary, are still pending determination by the Court, if the personal properties would not be sufficient to cover such fees. That the Second Party hereby assume the responsibility to pay Atty. Gaudencio R. Juezan, the honorary fees of the latter.
City of Cebu, Philippines, December 7, 1946. [Thumbmark] SIXTA CENIZA [(SGD.) IRENEO CORTES VILLAMOR] Heirs of Bartolome Cortes Heirs of Eugenia & Rufino Cortes et al. [(SGD.) PAULA CORTES VILLAMOR] [SGD.] GAUDENCIO R. JUEZAN HIPOLITO ALO & FERMIN Atty. for Ireneo Cortes YAP Villamor and Paula Cortes By: Villamor [SGD.] FERMIN YAP Attys. for Sixta Ceniza & [SGD.] DIOSDADO CAMOMOT Administrator Diosdado Camomot Administrator of the of the estate of Bartolome estate of Bartolome Cortes in Sp. Proc. No. 227. Cortes in Sp. Proc. No. PRIMITIVO N. SATO 227 In his own behalf and that of Moises Mendoza, as administrators in Sp. Proc. Nos. 262 and 343. REPUBLIC OF THE PHILIPPINES MANDAUE, CEBU We, Sixta Ceniza, Rev. Diosdado Camomot, Ireneo Cortes Villamor and Paula Cortes Villamor, after being first duly sworn to, do hereby depose and say: That we are the parties referred to in the foregoing Project of Partition, which we have voluntarily made and that the contents thereof are true and correct SIXTA CENIZA [SGD.] REV. DIOSDADO CAMOMOT [SGD.] PAULA CORTES VILLAMOR [SGD.] IRENEO CORTES VILLAMOR MOISES MENDOZA Ad.in Sp. Proc. No. 343

Subscribed and sworn to before me this 7th day of December, 1946, at the municipality of Mandaue, Cebu, Philippines; Affiants exhibited to me their respective Residence Certificates: Rev. Diosdado Camomot Res Cert. No. A-1236398 issued on March 11, 1946 at San Fernando, Cebu; Sixta Ceniza Res Cert. No. A-149873 issued on Dec. 10, 1946 at Mandaue, Cebu; Ireneo Cortes Villamor-Res. Cert. No. A-419863 issued on Dec. 5, 1946 at Mandaue, Cebu; Paula Cortes Villamor Res. Cert. No. A-419786 issued on Nov. 7, 1946 at Mandaue, Cebu. [SGD.) FERMIN YAP Notary Public Until December 31, 1946 Doc. No. 53 Page No. 20 Book No. II Series of 1946 APPROVED: Cebu City, Feb. 1, 1947. [SGD.] EDMUNDO S. PICCIO Judge. 2

On April 14, 1948, Judge S. C. Moscoso approved the project of partition, and on September 30, 1948, the administrators delivered the seven parcels of land to Ireneo and Paula Villamor. Special Proceedings Nos. 262 and 343 were ordered closed and terminated by Judge Florentino Saguin on November 25, 1953. Entry of judgment was made on March 18, 1954. On November 23, 1960, Ireneo and Paula Villamor sold the parcel of land described in the Project of Partition as parcel 5 to Claudia Labos and Gregoria Suico, and on September 23, 1966, Ireneo Villamor obtained free patent titles over parcels 1, 2, 4, 6 and 7. Only parcel no. 3 remained unregistered. After Ireneo's death, his children, now petitioners, executed an extrajudicial partition, dividing the remaining 6 parcels of land among themselves. Meanwhile, upon the death of Sixta Ceniza on July 28, 1948, one Cristina Ceniza, sister of respondent Daniela Ceniza Urot instituted Special Proceedings No. 364-R for the administration of the estate of Sixta Ceniza. One Escolastico Ceniza, brother of respondent, was appointed special administrator. The latter's appointment, however, was revoked on February 20, 1954 upon petition of Fr. Nicanor Cortes through his counsel, Atty. Fermin Yap on January 14, 1954, and in his stead, Victorio Perez was appointed the special administrator. In this proceedings, the nephews and nieces of Sixta Ceniza, including herein respondent, prayed that they be declared the sole and only forced heirs of Sixta Ceniza, although at the time, Fr. Nicanor Cortes, the only surviving child of Sixta Ceniza, was still alive. On October 21, 1954, Fr. Cortes executed a power of attorney before the Vice-Consul of the Republic of the Philippines in Madrid, Spain, constituting and appointing Fr. Diosdado Camomot as his attorney-in-fact and giving him the power to appear for me and in my behalf in Special Proceedings No. 364-R of the Court of

First Instance of Cebu, with authority to designate and employ the services of an attorney or attorneys for the protection of my rights. On January 13, 1955, Victorio Perez submitted an inventory which specifically Identified the properties which came from the Project of Partition and the corresponding number of such property or parcel of land in said Project of Partition. On August 18, 1955, the court, through Judge Clementino Diez, denied the motion of the nephews and nieces of Sixta Ceniza to be declared her heirs and declared Fr. Nicanor Cortes as the only and universal heir of Sixta Ceniza. On May 16, 1962, Fr. Nicanor Cortes executed a Deed of Conveyance in favor of several persons wherein he conveyed ten parcels of land which included those received by his mother under the Project of Partition. On August 28, 1969, Fr. Nicanor Cortes died in Barcelona, Spain. Special Proceedings No. 3062-R of the Court of First instituted for the settlement Instance of Cebu was thereafter in of his estate. Appointed administratrix was respondent Daniela Ceniza Urot who, on June 4, 1970 filed Civil Case No. 11726 against petitioners, successors-in-interest of Ireneo Villamor of the seven parcels of land and Paula Villamor, for recovery received in the Project of Partition, accounting and receivership. In the complaint, respondent alleged inter alia that upon learning of the death of Fr. Nicanor Cortes, some of his nearest of kin who are his surviving first cousins, the Cenizas [all from the side of Sixta Ceniza] initiated Special Proceedings No. 3062-R for the settlement of the estate of the deceased monk; that prior to and in the course of initiating said proceedings, the surviving first cousins came upon documents showing that Fr. Cortes during his absence from the Philippines to pursue a monastic life was deprived of his inheritance by fraud, stealth and stratagem perpetrated by Paula and Ireneo Villamor; that shortly after the last world war and after the death of Fr. Bartolome Cortes and his sister Agapita, while Fr. Nicanor Cortes was in the monastery and his mother sick, aging, deaf and blind, Ireneo and Paula Villamor, who were domestics and protegees in the household of the Cortes family, initiated Special Proceedings 343-C whereby they fraudulently and falsely represented under oath, without notice to Fr. Nicanor Cortes or his legal representative, that Rufino Cortes died leaving two legitimate children, namely Paula Cortes Villamor and Ireneo Cortes Villamor; that Paula and Ireneo Cortes Villamor are not the legitimate children of Rufino who remained unmarried all his life; that Moises Mendoza, the administrator in Special Proceedings No. 343 submitted an inventory which falsely and fraudulently enumerated properties as belonging to Rufino Cortes when the truth is that Rufino Cortes neither had any property during his lifetime nor inherited any from his wealthy sisters, Casimira and Eugenia whom said Rufino predeceased; that said properties belonged to Eustaquio Cortes, Casimira and Eugenia Cortes, Bartolome Cortes, Sixta Cortes and/or Nicanor

Cortes; that under the same false and fraudulent representations without notice to Fr. Cortes or his legal representative, Ireneo and Paula Villamor prepared a Project of Partition and adjudicated to themselves the seven parcels of land whereas the rest was apportioned to Sixta Ceniza through Fr. Camomot, as administrator of the estate of Bartolome Cortes; that on April 14, 1948, Ireneo and Paula Villamor, in collusion with the administrators in both proceedings, had the project of partition approved by the court; that Ireneo and Paula Villamor, without benefit of a motion for declaration of heirs, much less a hearing thereon with proper notice to Fr. Nicanor Cortes or his legal representative, took delivery and possession of a substantial part of the properties and had the two administration proceedings closed on November 25, 1953; and that on July 28, 1969, defendants herein petitioners, as heirs of Ireneo and Paula Villamor, executed an extra-judicial settlement and partition of the lands in question. It was prayed that judgment be rendered declaring as null and void the project of partition, the orders of April 14, 1948 and November 25, 1953 and the extra-judicial settlement and partition executed on July 28, 1969; that the defendants [petitioners herein] be ordered to reconvey the parcels of land in question to the administratrix in Special Proceedings No. 3062-R and to render a true and correct accounting of the income and produce thereof as far back in time as may be legally feasible and that during the pendency of the case, that the properties be placed under receivership. Petitioners, instead of filing an answer, filed a motion to dismiss, alleging that the cause of action is barred by prior judgment and by the statute of limitations. On July 27, 1970, the Court denied the motion to dismiss. When petitioners' motion for reconsideration was denied on August 19, 1970, petitioners came to this Court by means of certiorari on August 31 1970, but the same was denied on September 15, 1970 for "being premature." On October 9, 1970, petitioners filed their answer and alleged as special defenses that aside from the fact that Special Proceedings No. 343-C was a proceeding in rem and all the requirements to obtain jurisdiction over the person of anybody have been complied with, Fr. Nicanor Cortes had personal knowledge of Special Proceedings No. 343-C; that the question of legitimacy of Ireneo and Paula Villamor had been duly pleaded and raised as the principal issue in Special Proceedings No. 343-C; that the question of declaration of heirship of the two Villamor had already been resolved by the court in said proceedings and have long become final, entry of judgment having been made on March 18, 1954; that with the age, respectability and social standing of Sixta Ceniza, no court could have tolerated the alleged acts of Ireneo and Paula Sixta Ceniza Villamor committed against Sixta Ceniza; that Sixta Ceniza had the best legal advice and ample protection from her counsels, a legal preliminary at the time and a dean of the University of Visayas and Fr. Diosdado Camomot, then the secretary to the Archbishop of Cebu, and after the death of Sixta Ceniza, Fr. Nicanor Cortes appeared through counsel in Special Proceedings No. 363 where Escolastico

Ceniza applied as administrator but was denied by the court in favor of Fr. Camomot upon the recommendation of Fr. Nicanor Cortes; and that all these times, Fr. Nicanor Cortes never complained nor raised any objection to the inventory of Special Proceedings No. 364 which was taken as a part of the inventories in Special Proceedings 262-C and 343-C. As affirmative defenses, the petitioners alleged that the court has no jurisdiction over the nature of the action, intrinsic fraud being the basis of the complaint; that the cause 6f action is barred by prior judgment and by the statute of limitations; and, that the complaint states no valid cause of action. On May 13, 1971, a receiver was appointed by the court in the person of Atty. Andres Taneo, Branch Clerk of Court. After trial, on January 21, 1972, the court rendered judgment against the petitioners holding that Ireneo and Paula Villamor took advantage of the helplessness of Sixta Ceniza when they had the Project of Partition thumbmarked by her; that Ireneo and Paula Villamor resorted to false and fraudulent representations in Special Proceedings Nos. 262 and 343 in that they misrepresented that they were the legitimate children of Rufino Cortes, when in truth, they were merely natural children of Rufino Cortes and that the properties described in the inventory pertained to Rufino Cortes when in fact, said properties belonged to Eugenia Cortes and after her death, the same passed to Eustaquio Cortes; that Fr. Nicanor Cortes had no knowledge of the fraudulent proceedings as well as the Project of Partition; that Ireneo and Paula Villamor, in collusion with the administrator Moises Mendoza and with the support and encouragement of Fr. Camomot who enjoyed the implicit trust of Fr. Nicanor Cortes, misled the probate court into authorizing the delivery of the parcels of land to them; that when the probate court approved the project of partition, there was no hearing for the purpose of determining the parties lawfully entitled to the estate nor was there an opportunity given to Fr. Nicanor Cortes to intervene or oppose; that under the circumstances, the fraud committed by Ireneo and Paula Villamor was extrinsic or collateral; and that the fraud was discovered for the first time by Atty. Ramon Ceniza, son of Jose Ceniza, one of the heirs at law of Fr. Cortes only in March 1970. On appeal, the Ninth Division of the Court of Appeals, as adverted to above, affirmed the judgment of the trial court, hence, the present recourse. Petitioners maintain that the Court of Appeals, like the trial court, totally ignored the letters of Fr. Nicanor Cortes disclaiming ownership and acknowledging the fact that petitioners and/or their predecessors-in-interest are the owners and possessors of the lands in question, which exhibits could have decided outright all the issues that Fr. Cortes had personal knowledge of Special Proceedings Nos. 262-C and 343-C and that the predecessors-in-interest of petitioners did not commit fraud against him. Petitioners insist that the helplessness of Sixta Ceniza could not have vitiated the project of partition for although she had become blind and could not walk by herself at the time she affixed her thumbmark on the project of partition, her mental faculty was very clear. It is further argued that all the fraud alleged by

private respondent were within the line of deliberation of the probate court or intrinsic fraud and could not have been extrinsic or collateral fraud; and therefore the cause of action of private respondent had long prescribed, considering that from September 1948 or some 22 years since petitioners' predecessors-in-interest came to possess the lands, petitioners have been in peaceful, notorious, public, actual and continuous possession, adversely against the whole world in concepto de dueo until they were disturbed in June 1970 when they received copies of the complaint in Civil Case No. R-11726. On the other hand, private respondent contends that the issues raised in the petition largely dwell as challenging the findings of fact of the trial court and/or the Court of Appeals, which cannot be done in a petition for review on certiorari. We find for the petitioners. After a careful consideration of the facts and circumstances of the case, we agree that the courts below forced their conclusions against the evidence adduced during the trial which error justifies a review of said evidence. This case is an exception to the general rule that only questions of law may be reviewed in an appeal by certiorari and that factual findings of the Court of Appeals are binding on this Court, if supported by substantial evidence. Thus, while it is settled that the jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the errors of law imputed to the latter, its findings of fact being conclusive 4 it is also settled that findings of fact of the Court of Appeals may be set aside: [1] when the conclusion is a finding grounded entirely on speculation, surmise and conjectures; [2] the inference made is manifestly mistaken; [3] there is grave abuse of discretion; [4] the judgment is based on misapprehension of facts; [5] the Court of Appeals went beyond the issues of the case and its findings are contrary to the admission of both appellant and appellee; [6] the findings of fact of the Court of Appeals are contrary to those of the trial court; [7] said findings of facts are conclusions without citation or specific evidence on which they are based; [8] the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and [9] when the finding of fact of the Court of Appeals is premised on the absence of evidence and is contradicted by evidence on record. We cannot sustain the findings of the courts that Fr. Nicanor Cortes had no personal knowledge of Special Proceedings Nos. 262 and 343 for the evidence on record is abundant to contradict such findings. In his testimony, Fr. Diosdado Camomot declared categorically that he informed Fr. Nicanor Cortes about Special Proceedings No. 343 6 and that he sent him a copy of the project of partition. 7 He explained that as administrator of the estate of Fr. Bartolome Cortes, he encountered trouble with the administrator in Sp. Proc. No. 343, Moises Mendoza, who claimed that the properties under his [Camomot's] administration belonged to Rufino Cortes; that when informed of said

problem, Sixta Ceniza advised him to write Fr. Nicanor Cortes about it, which he did; that in reply to his letter, Fr. Nicanor Cortes recommended that he settle the case amicably; and that after a long process of negotiation, the project of partition in question was executed and approved by the court, a copy of which he sent to Fr. Nicanor Cortes. Highly significant is the fact that among the witnesses who testified before the trial court, it was only Fr. Camomot who had personal knowledge of the events leading to the execution of the project of partition. Notwithstanding, the trial court, instead of according great weight to his testimony, summarily brushed it aside and even reached the unwarranted conclusion that he was in collusion with Ireneo and Paula Villamor. The testimony of Fr. Diosdado Camomot, however, is too detailed and straightforward to be a mere product of concoction or fabrication or a device to cover-up the collusion imputed to him by the trial court. Furthermore, said testimony is corroborated by other evidence on record that sustains its veracity. That he communicated with Fr. Nicanor Cortes was corroborated by Roure CenizaSanchez, a witness for therein plaintiff-administratrix Daniela Ceniza Urot. She testified that being the administrator, it was Fr. Camomot who informed Fr. Nicanor Cortes about the properties of his parents. 8 That the petition in Special Proceedings No. 343 was among the matters brought to the attention of Fr. Nicanor Cortes by Fr. Camomot can be deduced from the letter of Fr. Nicanor Cortes dated August 20, 1948, addressed to Pesing (Dra. Felicisima Cortes-Veloso]. The pertinent portion of the letter reads: As for the administration of Nanay's properties, I received from Atty. Primitive Sato a letter asking my consent to the appointment of my cousin Escolastico Ceniza as Administrator. Apparently, a new court trouble is brewing before the old one is completely settled. I cannot meddle on the matter for I am too far away. You discuss the matter among you [Roure Lucio, Father Camomot and the lawyers.] You had better select your administrator, whom you could trust implicitly, and submit his name to Father Camomot. And to avoid ill feeling among the other cousins, make it known that Father Camomot has taken charge of Nanay's affair, with my consent, about ten years now and I personally keep my hands off, being in the impossibility of knowing what is going on. 9 If it were not true that Fr. Camomot had informed Fr. Nicanor Cortes about Special Proceedings Nos. 262 and 343 there would be no basis for Fr. Cortes to observe or comment that "apparently, a new court trouble is brewing before the old one is completely settled. At that time, the only court proceedings in progress were Special Proceedings Nos. 262, 343 and 227. The "old one" adverted to by Fr. Nicanor Cortes could not refer exclusively to Special Proceedings No. 227 as surmised by Roure Ceniza-Sanchez, as the only trouble being encountered by Fr. Camomot as administrator of the estate of Fr. Bartolome Cortes in Special Proceedings No. 227 was the claim of Moises Mendoza as administrator in Special

Proceedings No. 343 over the properties under Fr. Camomot's administration. The trial court's conclusion that the "old one" could not refer to Special Proceedings Nos. 262 and 343 for the reason that the project of partition had been executed as early as December 7, 1946, is erroneous. While it may be true that said project of partition had already been executed, there still remained some loose ends that needed tieing up, so that it was not until November 25, 1953 that both proceedings were ordered closed and terminated. 10 The phrase "before the old one is completely settled" used by Fr. Cortes is thus apropos. The other evidence on record from which knowledge by Fr. Nicanor Cortes of both Special Proceedings Nos. 262 and 343 and the project of partition could be in erred are his letters dated April 6, 1967, May 11, 1967, November 29, 1962 and December 1, 1967, addressed to Ipyon [Concepcion Rosal], Mrs. Dulce Rallos Gitgano, Awang [Paula Villamor] and Mr. and Mrs. Candelario Villamor, respectively, and the Deed of Conveyance dated May 9,1962. The letter addressed to Ipyon [Concepcion Rosal] reads in part: Great is my desire to help there. It would be my pleasure to attend to your needs, especially about the land where you could build your house. But now, I have nothing to do with those lands there in our place. It is those who are in Possession of it who can decide. Did you not try to talk with Awang and Candelario regarding your old rights and the promises of those dead as to the place where you had built your house. It is better if you try perhaps they at Ibabao will respect on your being an old neighbor. The pertinent portion of the letter addressed to Mrs. Dulce Rallos Gitgano, on the other hand, states: In reply to your letter of last month, I wish to say that I have no longer anything to do with any property, including the lot on which you have built your house. As a monk, I have made the vow of poverty and have therefore renounced to all property rights. I regret to say that I am not in position to help you. Have you not tried to ask Candelario to reduce the rent of the lot to an amount more proportionate to your limited earnings? You may submit also to him your desire to buy the lot by monthly installments. 12 In his testimony, Candelario Villamor Identified the land where Concepcion Rosal wanted to build her house as parcel "No. 1 on page five of the complaint." 13 He further Identified the land which Mrs. Dulce Rallos Gitgano wanted to buy as "from the land which is the share of Ireneo Cortes Villamor and Paula Cortes Villamor and found in the project of partition on page four of said project of partition and boundary number two." 14 The records show that when Fr. Nicanor Cortes left the Philippines to become a monk, he was already 44 years old. He must have known then who the owners of the lands referred to were and certainly at that time neither Awang

[Paula Villamor] nor Candelario was in possession thereof. Yet, in his replies to the letters of Mesdames Rosal and Gitgano, he stated by name and with certainty the persons whom the latter should approach and who could properly exercise the right of disposition over said lands. In the absence of any showing that Awang and Candelario were designated as representatives or administrators of Fr. Cortes' properties, the only logical conclusion reached is that Fr. Nicanor Cortes knew the circumstances under which Awang and Candelario acquired ownership and possession of the lands in question and that he recognized such ownership and possession, otherwise he would not have given the advice or suggestions found in his letters. Fr. Nicanor Cortes' letter of November 29, 1962 to Awang reads: Regarding the land. The share of my late Mother [Nanay] Sixta was divided among those who served her and those to whom gratitude were due, by means of documents signed on October of 1947 before Notary Fermin Yap. Those documents were sent to me by Father Camomot with a letter where he stated that those were the true and voluntary will of my late Mother [Nanay". Because I was unable to answer his letter he wrote me again, once or twice reiterating that those documents were the true and voluntary will of Mother [Nanay]. 15 His letter to Mr. and Mrs. Candelario Villamor states: I have noticed that you have now a poultry farm which must be giving you, "together with the lands, quite an income. 16 In the Deed of Conveyance dated May 9, 1962 executed by Fr. Nicanor Cortes before the Consul General of the Republic of the Philippines, Madrid, Spain, wherein he ceded and transferred ten [10] parcels of land in favor of several persons for and in consideration of One Peso, Philippine currency and other valuable considerations, he declared: All parcels of land described above are my exclusive property having acquired the same by succession from the previous owners, namely: Eustaquio Cortes, Casimira Cortes, Eugenia Cortes, Bartolome Cortes, Sixta Ceniza de Cortes, as shown in the order of the Honorable Court of First Instance of Cebu in Special Proceedings No. 364-R, dated August 18, 1955. 17 The above-quoted portions of Fr. Cortes' letters and Deed of Conveyance show beyond any iota of doubt that he was kept posted on the developments in the Philippines. He know that his mother received some lands as "share" and that Candelario had acquired lands. He also knew the succession of ownership of the lands to which he succeeded as sole heir of his mother in Special Proceedings No. 364-P, From these statements, it would not be unreasonable or far-fetched to draw the conclusion that he knew about Special Proceedings Nos. 262 and 343 as well as the project of partition which were the root and origin of the "share" of his mother, the lands acquired by Candelario, as well as the lands inherited by him.

Moreover, stress must be laid on the fact that Fr. Nicanor Cortes intervened in Special Proceedings No. 364-R, the proceedings for the settlement of the estate of his mother, Sixta Ceniza. In the inventory submitted by the administrator thereof, the origin of some parcels of land included in the estate of his mother were specified thus: 1 A parcel of land situated in Alang-Alang Mandaue, Cebu-Tax Declaration No. 09343 with an area of .4737 more or less; and assessed at P70.00. Bounded on the North by Gaudencio R. Juezan; on the East by Jacinto Engracial; on the South by Roberto Archo and Cristina Cuizon; on the West by Filemon Pono. In the Project of Partition in Sp. Proc. Nos. 262 & 343, the said parcel is designated as parcel No. 1. 2. A parcel of land situated in Centro, Mandaue, Cebu-Tax Declaration No. 09347 with an area of .1347 more or less and assessed at P50.00. Bounded on the North by Rita Alilin; on the East by Jose Mendoza; on the south by Rita Alilin and on the West by Domingo Ybasitas [Ceferino Mendoza]. In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 4. 3. A parcel of land situated in Pagsabungan, Mandaue, Cebu, Tax Declaration No. 09346 with an area of .2246 more or less; and assessed at P70.00. Bounded on the North by Prevato Ceniza; on the East by Fernando Hatamosa on the South by Butuanon River and Prevato Ceniza; and on the West by Prevato Ceniza and Philippine Rail way. In the Project of Partition in Sp. Proc. 262 & 343, said parcel is designated as parcel No. 5. 4. A parcel of land situated in Pagsabunga, Mandaue, Cebu, Tax Declaration No. 02232 with an area of 1.0351 more or less; and assessed at P370.00. Bounded on the North by Hipolito Pareja; on the East by Cesario Congeon; on the South by Hrs. of Remigio Judilla; on the West by Sotero Judilla. In the Project of Partition in Sp. Proc. Nos. 262 & 343, Id parcel is designated as parcel No. 6. 5. A parcel of land, situated in Kanduman, Mandaue, Cebu, Tax Declaration No. 09345 with an area of 1.0324 more or less and assessed at P410.00. Bounded on the North by Jacinto Mayol; on the East by Sergio Suyco; on the south by Martin Seno; and the West by Mariano Alivio. In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 7. 6. A parcel of land situted in Kanduman, Mandaue, Cebu, Tax Declaration No. 09344 with an area of 2.4507 more or less; assessed at P980.00. Bounded on the North by Jacinto Mayol, Policarpio and Josefa Cortes; on the East by Claudio Osmena and Camino Vecinal; on the South by Camino Vecinal and Hrs. of Tomas Osmena and on the West by Jacinto Mayol;

In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 8. 7. A parcel of land situated in Maguicay Mandaue, Cebu, Tax Declaration No. 09348 with an area of .2799 more or less; assessed at P320.00. Bounded on the North by Ireneo Villamor; on the East by Ireneo Villamor; on the South by Marcelo Cortes and Ireneo Villamor; and on the West by Callejon. In the Project of Partition in Sp. Proc. Nos. 262 & 343, Id parcel is designated as parcel No. 10. 8. A parcel of land situated in Maguicay Mandaue, Cebu Tax Declaration No. 09347 with an area of 1.2996; as at P520.00. Bounded on the North by Lucas Perez and Sebastian Fajardo; on the East by Juan Cortes; on the South by Paula Villamor; and on the West by Paula Villamor. In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 13. 9. A parcel of land situated in Maguicay Mandaue, Cebu, Tax Declaration No. 09350 with an area of 1.2699-assessed at P320.00. Bounded on the North by Juan Cortes; on the East by Eutiquiano Mendoza; on the South by Simon Cortes and Ambrosia Cortes; and on the West by Juan Cortes. In the Project of Partition in Sp. Proc. Nos. 262 & 343, said parcel is designated as parcel No. 14. xxx xxx xxx II. A parcel of land situated in Paknaan Mandaue, Cebu, with an area of 1.000 more or less; assessed at P260.00. Bounded on the North by Hrs. of Roberto Ceniza and Escolastico Ceniza; on the East by Raymundo Ceniza; on the South by Eugenia Lumapas, Constancio Ceniza and Butuanon River; and on the West by Constancio Ceniza and Eugenia Lumapas. This parcel is not included in the Project of Partition in Sp. Proc. Nos. 262 & 343. [REMARKS: Parcel No. 2 in the Project of Partition in Sp. Proc. Nos. 262 & 343 Centro Mandaue, Cebu Bounded on the North by Calle Gral. Ricarte; East Riachuelo South, Mariano del Castillo; West, Juana Mayol is claimed by Atanasio Marababol who is said to have it declared in his name. Parcel No. 9 of the Project of Partition in Sp. Proc. Nos. 262 and 343 could not also be taken possession of as according to reliable information it is under contract of lease with the Bureau of Forestry in favor of someone. Parcel No. 11 of the Project of Partition in Sp. Proc. Nos. 262 & 343 is the same parcel No. 2 of said Project of Partition. 18 By reason of this circumstance, Fr. Nicanor Cortes is charged with knowledge of Special Proceedings Nos. 262 and 343 as well as the Project of Petition. The trial court relied heavily on the certification issued by the Clerk of the Court of First Instance of Cebu Esperanza T. Garcia, that: ... there appears to be:

1. No individual notice to one Fr. Nicanor Cortes or his legal representative nor any intervention on his part has been recorded; 19 But, as observed by counsel for petitioners, no probative value could be assigned to said certification, in view of another certification issued by the same Clerk of Court that "the prewar records of Sp. Proc. No. 262-C of the Court of First Instance of Cebu were lost and/or destroyed during World War II, and that presently, the records available in this office on said Special Proceedings only begins with a motion, dated May 22, 1946, filed by Attys. Hipolito Alo and Fermin Yap as attorneys for Rev. D. Camomot as Administrator in Sp. Proc. No. 227, and Atty. Gaudencio Juezan as attorney for the administrators Primitive Sato and Moises Mendoza and heirs of the deceased mentioned in Sp. Proc. Nos. 262-C and 343-C, respectively." 20 The loss and/or destruction of the pre-war records in Special Proceedings No. 262-C renders the determination of whether or not Fr. Nicanor Cortes was duly notified thereof an impossibility. However, the probability of his having been notified cannot be totally discounted. On the other hand, no personal notice was due Fr. Nicanor Cortes in Special Proceedings No. 343-C, not being the presumptive heir of Rufino Cortes. Thus, if it were true that Fr. Nicanor Cortes had no notice of Special Proceedings Nos. 262 and 343, the failure to give such notice must be attributed to whoever instituted Special Proceedings No. 262 wherein Fr. Cortes was a presumptive heir, and not to Ireneo and Paula Villamor, the petitioners in Special Proceedings No. 343, wherein Fr. Cortes was not a presumptive heir and where the publication of the petition as required by law was sufficient to give notice to the whole world including Fr. Cortes. The lower courts portrayed Sixta Ceniza as an old woman, who because of her "helplessness," became an easy prey to unscrupulous individuals like the predecessors-in-interest of the petitioners. The petitioners, however, contend that although it is true that Sixta Ceniza was blind and could not walk without somebody escorting her, her helplessness only affected her physical condition for according to Roure Ceniza-Sanchez, a granddaughter with whom said Sixta Ceniza lived at that time, Sixta Ceniza's mental faculty was "very clear". 21 We find this contention tenable. Just because a person is blind or of poor memory, it does not follow that she is of unsound said. This Court has ruled that where the mind of the testator is in perfectly sound condition, neither old age, nor is health nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will. 22 If Sixta Ceniza were really "helpless," in the sense understood by the courts, when she affixed her thumbmark in the project of partition, on December 7, 1946, how was she able to validly donate lands to "those who served her and those to whom gratitude were due by means of documents signed on October of 1947 before Notary Fermin Yap" as Fr. Nicanor Cortes himself communicated to Awang"?

The lower courts likewise relied on the alleged absence of evidence showing that Rufino Cortes had at any time been declared an owner of the lands in question for taxation purpose poses. The records show, however, that before the project of partition was executed on December 7, 1946, the contending parties in Special Proceedings Nos. 262 and 343 had been fighting for eight years since 1938 because the properties listed in the inventories submitted by the administrators were Identical. To settle their differences amicably, the parties who all claim to be the heirs of decedents, all children of Victor Cortes and Maria Castaeda, decided to partition the properties. Partition is defined as a division between two or more persons of real or personal property which they own as co-partners, joint tenants or tenants in common, effected by the setting apart of such interests so that they may enjoy and possess it in severalty. 24 The purpose of partition is to put an end to the common tenancy of the land or co-ownership. It seeks a severance of the individual interest of each joint owner vesting in each a sole estate in specific property and giving to each one the right to enjoy his estate without supervision or interference from the other. 25 And a partition by deed is a recognized method of effectuating a separation of interest in property held in common. 26 It is clear therefore that a partition presupposes that the thing to be divided is owned in common. It is immaterial in whose name the properties were declared for taxation purposes for it is presumed before hand that the parties to the partition admit the fact of co-ownership and now want to effect a separation of interest. We do not consider as "intriguing" the observation of the lower court and concurred in by the Court of Appeals that in both Special Proceedings in question, the administrators appointed were complete strangers to the decedents. There is nothing repulsive in this nor is this an indicium of fraud and collusion as found by the courts. Section 642 of the Code of Civil Procedure enumerates the persons who can act as executors and administrators. It provides that in case the persons who have the preferential right to be appointed are not competent or are unwilling to serve, administration may be granted to such other person as the court may appoint. What is intriguing is the fact that although Fr. Nicanor Cortes had a number of surviving first cousins, he chose and preferred a stranger, Fr. Diosdado Camomot as his attorney-in-fact to take charge of his and his Nanay's affairs. And even more intriguing is the fact that in the proceedings for the settlement of the estate of his mother, he took steps to have the appointment of Escolastico Ceniza, brother of private respondent, who was appointed as Special Administrator, revoked 27 and in which he succeeded. Another point. Special Proceedings Nos. 262 and 343 lasted for about sixteen years before entry of judgment was made on March 18, 1954, and during that period, not one but three judges had the occasion to reflect on the propriety and merits of both

proceedings as well as the project of partition. In the last page of the project of partition appears the signature of Judge Edmundo S. Piccio approving the same on February 1, 1947. On April 14, 1948, Judge S.C. Moscoso likewise approved the project of partition. 28 On November 25, 1953, both proceedings were ordered closed by Judge Florentino Saguin, and entry of judgment was made on March 18, 1954. Against this factual backdrop, it is highly improbable that any irregularity have attended said proceedings could not have been that might seasonably unravelled. The courts also held that the fraud committed by Ireneo and Paula Cortes Villamor in collusion with Administrator Moises Mendoza, their lawyer Gaudencio Juezan and Fr. Diosdado Camomot was extrinsic for it has been shown that when the probate court approved the project of partition, there was no hearing or trial in the Court of First Instance for the purpose of determining the parties lawfully entitled to the estate in the hands of the administrators; neither was there an opportunity given to Fr. Nicanor Cortes by giving him prior notice to intervene or oppose, much less present his evidence, nor was there a declaration of heirs. Assuming arguendo that extrinsic fraud had been committed by Ireneo and Paula Cortes Villamor, has the action prescribed? The courts held that the action has not prescribed for the preponderance of evidence shows that the fraud was discovered for the first time by Atty. Ramon B. Ceniza, son of Jose C. Ceniza, one of the heirs of Fr. Nicanor Cortes, only in March, 1970. Since the action was commenced on June 4, 1970, it was filed well within the four year period fixed by law. We disagree. Prescription has set in. An action for reconveyance of real property resulting from fraud may be barred by the statute of limitations, which requires that the action shall be filed within four [4] years from the discovery of fraud. 29 From what time should fraud be deemed to have been discovered in the case at bar. To ascertain what constitutes "a discovery of the facts constituting the fraud," reference must be had to the principles of equity. In actions in equity, the rule is that the means of knowledge are equivalent to actual knowledge; that is, that a knowledge of facts which would have put an ordinarily prudent man upon inquiry which, if followed up, would have resulted in a discovery of the fraud, was equivalent to actual discovery. 30 In the instant case, the discovery must be deemed to have taken place, at the latest, on August 18, 1955, when Judge Clementino Diez, in Special Proceedings No. 364-R declared Fr. Nicanor Cortes as the only and universal heir of Sixta Ceniza and granted letters of administration to Fr. Diosdado Camomot, the person constituted by Fr. Nicanor Cortes as his attorney-in-fact in said proceedings. From that time, the law imputes to Fr. Cortes knowledge of Special Proceedings Nos. 262 and 343, the project of partition, and such facts and circumstances as would have him, by the

exercise of due diligence, to a knowledge of the fraud. During the time that Special Proceedings No. 364-R had been pending circumstances existed which should have aroused Fr. Nicanor Cortes' suspicion or put him on inquiry considering that the inventory submitted therein specifically made mention of Special Proceedings Nos. 262 and 343 and the project of partition. The period of prescription commenced to run from August 18, 1955. However, from said date up to his death on August 28, 1969, Fr. Nicanor Cortes remained silent and failed to assert his right. He even conveyed at least three lands which were among those apportioned to Sixta Ceniza in the Project of Partition to several persons. Her predecessor-in-interest, Fr. Nicanor Cortes, not having filed any action for reconveyance within the prescriptive period provided by law, neither could private respondent do so now, for her right cannot rise higher than its source. Finally, it is well-settled that the negligence or omission to assert a right within a reasonable time warrants not only a presumption that the party entitled to assert it, either had abandoned it or declined to assert it, but also casts doubt on the validity of the claim of ownership. Such neglect to assert a right taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity. 31 WHEREFORE, the petition is hereby GRANTED. The judgment appealed from is set aside, and another entered dismissing the complaint in Civil Case No. R-11726 of the then Court of First Instance of Cebu. No costs. SO ORDERED. Feliciano and Cortes, JJ., concur. Fernan, J., took no part. Gutierrez, Jr., J., is on leave.

SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movantappellee. San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank. Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and appellees Avelina A. Magno, etc., et al. BARREDO, J.:p Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as those enumerated in the petition, and from exercising any authority or power as Regular Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings filed by her and acting on them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being particularly directed against the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for reconsideration of said order. Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from different orders of the same respondent court approving or otherwise sanctioning the acts of administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges. THE FACTS On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently providing as follows: FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate. SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said

G.R. Nos. L-27860 and L-27896 March 29, 1974 PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner, vs.THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents. G.R. Nos. L-27936 & L-27937 March 29, 1974 TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307).TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant, vs.LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON,

estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein. and may sell unimproved town lots. FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon. FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived. SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my last will and testament, and direct that no bond or other security be required of him as such executor. SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration of my estate, other than that necessary to prove and record this will and to return an inventory and appraisement of my estate and list of claims. (Pp. 2-4, Petition.) This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the provisions thereof. Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special Administrator, in which capacity he filed a motion on the same date as follows: URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING

Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most respectfully states: 1. That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to the petition for probate of the same. 2. That in said last will and testament herein petitioner Charles Newton Hodges is directed to have the right to manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the following: "I give, devise and bequeath all of the rest, residue and remainder of my estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto him, my said husband, during his natural lifetime." 3. That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business of buying and selling personal and real properties, and do such acts which petitioner may think best. 4. That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers and sisters and herein petitioner as executor surviving spouse, to inherit the properties of the decedent. 5. That the present motion is submitted in order not to paralyze the business of petitioner and the deceased, especially in the purchase and sale of properties. That proper accounting will be had also in all these transactions. WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges) be allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while deceased Linnie Jane Hodges was living. City of Iloilo, May 27, 1957. (Annex "D", Petition.) which the respondent court immediately granted in the following order: It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in which said petitioner and the deceased were engaged will be paralyzed, unless and until the Executor is named and appointed by the Court, the said petitioner is allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living. SO ORDERED. City of Iloilo May 27, 1957. (Annex "E", Petition.) Under date of December 11, 1957, Hodges filed as such Executor another motion thus: MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE HODGES. Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon. Court, most respectfully states:

1. That according to the last will and testament of the deceased Linnie Jane Hodges, the executor as the surviving spouse and legatee named in the will of the deceased; has the right to dispose of all the properties left by the deceased, portion of which is quoted as follows: Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime. Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. ... 2. That herein Executor, is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. That during the lifetime of herein Executor, as Legatee has the right to sell, convey, lease or dispose of the properties in the Philippines. That inasmuch as C.N. Hodges was and is engaged in the buy and sell of real and personal properties, even before the death of Linnie Jane Hodges, a motion to authorize said C.N. Hodges was filed in Court, to allow him to continue in the business of buy and sell, which motion was favorably granted by the Honorable Court. 3. That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying and selling real and personal properties, in accordance with the wishes of the late Linnie Jane Hodges. 4. That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the sales, leases, conveyances or mortgages made by him, approved by the Hon. Court. 5. That it is respectfully requested, all the sales, conveyances leases and mortgages executed by the Executor, be approved by the Hon. Court. and subsequent sales conveyances, leases and mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last will and testament, also be approved; 6. That the Executor is under obligation to submit his yearly accounts, and the properties conveyed can also be accounted for, especially the amounts received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages executed by the Executor, be approved by the Hon. Court, and also the subsequent sales, conveyances, leases, and mortgages in consonance with the wishes of the deceased contained in her last will and testament, be with authorization and approval of the Hon. Court. City of Iloilo, December 11, 1967. (Annex "G", Petition.) which again was promptly granted by the respondent court on December 14, 1957 as follows: ORDER As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter. So ordered. Iloilo City. December 14, 1957. (Annex "H", Petition.) On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged: Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the following account of his administration covering the period from January 1, 1958 to December 31, 1958, which account may be found in detail in the individual income tax return filed for the estate of deceased Linnie Jane Hodges, to wit: That a certified public accountant has examined the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and expenses, copy of which is hereto attached and made integral part of this statement of account as Annex "A". IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A", be approved by the Honorable Court, as substantial compliance with the requirements of the Rules of Court. That no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable court.

City of Iloilo April 14, 1959. (Annex "I", Petition.) The respondent court approved this statement of account on April 21, 1959 in its order worded thus: Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the estate of Linnie Jane Hodges, assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A" is approved. SO ORDERED. City of Iloilo April 21, 1959. (Annex "J", Petition.) His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April 21, 1959. In connection with the statements of account just mentioned, the following assertions related thereto made by respondent-appellee Magno in her brief do not appear from all indications discernible in the record to be disputable: Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.) xxx xxx xxx Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1959 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92. Appellee's Brief.)

xxx xxx xxx Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of Account by the Executor for the Year 1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.) Likewise the following: In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records "in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges. . As an executor, he was bound to file tax returns for the estate he was administering under American law. He did file such as estate tax return on August 8, 1958. In Schedule "M" of such return, he answered "Yes" to the question as to whether he was contemplating "renouncing the will". On the question as to what property interests passed to him as the surviving spouse, he answered: "None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interests of the deceased in their Community estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid." Again, on August 9, 1962, barely four months before his death, he executed an "affidavit" wherein he ratified and confirmed all that he stated in Schedule "M" of his estate tax returns as to his having renounced what was given him by his wife's will. 1 As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He listed all the assets of his conjugal partnership with Linnie Jane Hodges on a separate balance sheet and then stated expressly that her estate which has come into his possession as executor was "one-half of all the items" listed in said balance sheet. (Pp. 89-90, Appellee's Brief.) Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively from some of the pleadings and orders whenever We

feel that it is necessary to do so for a more comprehensive and clearer view of the important and decisive issues raised by the parties and a more accurate appraisal of their respective positions in regard thereto. The records of these cases do not show that anything else was done in the abovementioned Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations, filed the following: URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A SPECIAL ADMINISTRATRIX COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the Honorable Court, most respectfully states: 1. That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her husband, Charles Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon. Court dated June 28, 1957, the said Charles Newton Hodges was appointed Executor and had performed the duties as such. 2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on December 25, 1962, as shown by a copy of the death certificate hereto attached and marked as Annex "A". 3. That in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real and personal properties that may remain at the death of her husband Charles Newton Hodges, the said properties shall be equally divided among their heirs. That there are real and personal properties left by Charles Newton Hodges, which need to be administered and taken care of. 4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have not as yet been determined or ascertained, and there is necessity for the appointment of a general administrator to liquidate and distribute the residue of the estate to the heirs and legatees of both spouses. That in accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the testate proceedings of the wife. 5. That the undersigned counsel, has perfect personal knowledge of the existence of the last will and testament of Charles Newton Hodges, with similar provisions as that contained in the last will and testament of Linnie Jane Hodges. However, said last will and testament of Charles Newton Hodges is kept inside the vault or iron safe in his office, and will be presented in due time before this honorable Court. 6. That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the estate of Charles Newton Hodges, to perform the duties required by law, to

administer, collect, and take charge of the goods, chattels, rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of Court. 7. That there is delay in granting letters testamentary or of administration, because the last will and testament of deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the meantime, unless an administratrix (and,) at the same time, a Special Administratrix is appointed, the estate of both spouses are in danger of being lost, damaged or go to waste. 8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N. Hodges, who had been employed for around thirty (30) years, in the person of Miss Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane Hodges and at the same time Special Administratrix of the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of legal age, a resident of the Philippines, the most fit, competent, trustworthy and well-qualified person to serve the duties of Administratrix and Special Administratrix and is willing to act as such. 9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes reasonable. WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, with powers and duties provided for by law. That the Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno. (Annex "O", Petition.) which respondent court readily acted on in its order of even date thus: . For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the Executor dated December 25, 1962, which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed. Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00), and after having done so, let letters of Administration be issued to her." (Annex "P", Petition.) On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges (who had) arrived from the United States of America to help in the administration of the estate of said deceased" was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only to be replaced as such co-special administrator on January 22, 1963 by Joe Hodges, who, according to the motion of the same attorney, is "the nephew of

the deceased (who had) arrived from the United States with instructions from the other heirs of the deceased to administer the properties or estate of Charles Newton Hodges in the Philippines, (Pp. 47-50, id.) Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of administration to the same Joe Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same date this latter motion was filed, the court issued the corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for. At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to her husband "to have and to hold unto him, my said husband, during his natural lifetime", she, at the same time or in like manner, provided that "at the death of my said husband I give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike ". Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate, in order that upon the eventuality of his death, "the rest, residue and remainder" thereof could be determined and correspondingly distributed or divided among her brothers and sisters. And it was precisely because no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate should be governed by the laws of the Philippines or those of Texas, of which State she was a national, and, what is more, as already stated, Hodges made official and sworn statements or manifestations indicating that as far as he was concerned no "property interests passed to him as surviving spouse "except for purposes of administering the estate, paying debts, taxes and other legal charges" and it was the intention of the surviving husband of the deceased to distribute the remaining property and interests of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid", that the incidents and controversies now before Us for resolution arose. As may be observed, the situation that ensued upon the death of Hodges became rather unusual and so, quite understandably, the lower court's actuations presently under review are apparently wanting in consistency and seemingly lack proper orientation. Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is of valuable assistance in clearing up the matter. To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases, one with green cover and the other with a yellow

cover, that at the outset, a sort of modus operandi had been agreed upon by the parties under which the respective administrators of the two estates were supposed to act conjointly, but since no copy of the said agreement can be found in the record before Us, We have no way of knowing when exactly such agreement was entered into and under what specific terms. And while reference is made to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus: The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the charges contained in the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A. Magno, through her counsel, Atty. Rizal Quimpo, filed a written manifestation. After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss Avelina A. Magno, the Court finds that everything that happened before September 3, 1964, which was resolved on September 8, 1964, to the satisfaction of parties, was simply due to a misunderstanding between the representative of the Philippine Commercial and Industrial Bank and Miss Magno and in order to restore the harmonious relations between the parties, the Court ordered the parties to remain in status quo as to their modus operandi before September 1, 1964, until after the Court can have a meeting with all the parties and their counsels on October 3, as formerly agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo. In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by this Court until October 3, 1964. SO ORDERED. there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on Appeal, as follows: On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate and exclusive possession thereof and to place its own locks and keys for security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion that Administratrix Magno of the testate estate of Linnie Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds office and therefore PCIB is suffering great moral damage and prejudice as a result of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said office, to take immediate and exclusive possession thereof and place thereon its own locks and keys for security purposes; instructing the clerk of court or any available deputy to witness and supervise the opening of all doors and locks and taking possession of the PCIB. A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled to close the office

for the reason that the PCIB failed to comply with the order of this Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates should remain in status quo to their modus operandi as of September 1, 1964. To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office of both estates, the Court aside from the reasons stated in the urgent motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratix Magno. After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo City in the presence of the PCIB or its duly authorized representative and deputy clerk of court Albis of this branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office of said estates could operate for business. Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby ordered: (a) That all cash collections should be deposited in the joint account of the estates of Linnie Jane Hodges and estates of C.N. Hodges; (b) That whatever cash collections that had been deposited in the account of either of the estates should be withdrawn and since then deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C.N. Hodges; (c) That the PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of the Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only; (d) That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records, documents and papers she may have in her possession in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession; (e) That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner the accountant or any authorized representative of the estate of C.N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C.N. Hodges. Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB or its duly authorized representative and deputy clerk Albis or his duly authorized representative, both estates or any of the estates should not close it without previous consent and authority from this court. SO ORDERED. As may be noted, in this order, the respondent court required that all collections from the properties in the name of Hodges should be deposited in a joint account of

the two estates, which indicates that seemingly the so-called modus operandi was no longer operative, but again there is nothing to show when this situation started. Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that: 3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C.N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges and Messrs. William Brown and Ardell Young acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforementioned parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of C.N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one hundred percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned by C.N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changed its recognition of the afore-described basic demand by the PCIB as administrator of the estate of C.N. Hodges to one hundred percent (100%) of the assets claimed by both estates. but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We are not informed as to what exactly are the terms of the same which could be relevant in the resolution of the issues herein. On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of her lawyers, etc., as follows: Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the Agreement dated June 6, 1964 which Agreement is for the purpose of retaining their services to protect and defend the interest of the said Administratrix in these proceedings and the same has been signed by and bears the express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay the retailers fee of said lawyers, said fees made chargeable as expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys. Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307). Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied because no evidence has been presented in support thereof. Atty. Manglapus filed a reply to the opposition of counsel for the Administrator of the C. N. Hodges estate wherein it is claimed that expenses of administration include reasonable counsel or attorney's fees for services to the executor or administrator. As a matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm has been approved by the Court in its order dated March 31, 1964. If payment of the fees of the lawyers for the administratrix of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner the very agreement which provides for the payment of attorney's fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307). Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the Manifestation and Urgent Motion alleging principally that the estates of Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the former for the reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307). Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo issued an order requiring the parties to submit memorandum in support of their respective contentions. It is prayed in this manifestation that the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307). Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January 5, 1965 asking that after the consideration by the court of all allegations and arguments and pleadings of the PCIB in connection therewith (1) said manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965 approving the motion dated June 10, 1964 of the attorneys for the administratrix of the estate of Linnie Jane Hodges and agreement annexed to said motion. The said order further

states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or checks may be necessary for the above purpose and the administrator of the estate of C. N. Hodges is ordered to countersign the same. (pp. 6518-6523, Vol VII, Sp. 1307). Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965 asking that the order of January 4, 1965 which was issued by Judge Querubin be declared null and void and to enjoin the clerk of court and the administratrix and administrator in these special proceedings from all proceedings and action to enforce or comply with the provision of the aforesaid order of January 4, 1965. In support of said manifestation and motion it is alleged that the order of January 4, 1965 is null and void because the said order was never delivered to the deputy clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer of the late Judge Querubin in his office when said drawer was opened on January 13, 1965 after the death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307). Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965 asking that the order dated January 4, 1964 be reversed on the ground that: 1. Attorneys retained must render services to the estate not to the personal heir; 2. If services are rendered to both, fees should be pro-rated between them; 3. Attorneys retained should not represent conflicting interests; to the prejudice of the other heirs not represented by said attorneys; 4. Fees must be commensurate to the actual services rendered to the estate; 5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307). Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit dated July 15, 1965 asking that the manifestation and urgent motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents directly appertaining thereto be considered submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307). Considering the arguments and reasons in support to the pleadings of both the Administratrix and the PCIB, and of Atty. Gellada, hereinbefore mentioned, the Court believes that the order of January 4, 1965 is null and void for the reason that the said order has not been filed with deputy clerk Albis of this court (Branch V) during the lifetime of Judge Querubin who signed the said order. However, the said manifestation and urgent motion dated June 10, 1964 is being treated and considered in this instant order. It is worthy to note that in the motion dated January 24, 1964 (Pp. 1149- 1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his associates and Atty. Gibbs and other lawyers in addition to the

stipulated fees for actual services rendered. However, the fee agreement dated February 27, 1964, between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which provides for retainer fee of P4,000 monthly in addition to specific fees for actual appearances, reimbursement for expenditures and contingent fees has also been approved by the Court and said lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc. 1307). WHEREFORE, the order dated January 4, 1965 is hereby declared null and void. The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the administratrix of the testate estate of Linnie Jane Hodges is granted and the agreement annexed thereto is hereby approved. The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement the approval of the agreement annexed to the motion and the administrator of the estate of C. N. Hodges is directed to countersign the said check or checks as the case may be. SO ORDERED. thereby implying somehow that the court assumed the existence of independent but simultaneous administrations. Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order, also on appeal herein: Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and considering the allegations and reasons therein stated, the court believes that the deeds of sale should be signed jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale. SO ORDERED.(p. 248, Green Record on Appeal.) Notably this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges, involving properties registered in his name, should be co-signed by respondent Magno. 3 And this was not an isolated instance. In her brief as appellee, respondent Magno states: After the lower court had authorized appellee Avelina A. Magno to execute final deeds of sale pursuant to contracts to sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final deeds of sale (signed by appellee Avelina A. Magno and the administrator of the estate of C. N. Hodges, first Joe Hodges, then Atty. Fernando Mirasol and later the appellant) were

approved by the lower court upon petition of appellee Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court. Subsequently, the appellant, after it had taken over the bulk of the assets of the two estates, started presenting these motions itself. The first such attempt was a "Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed by appellee Avelina A. Magno and D. R. Paulino, Assistant VicePresident and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion was approved by the lower court on July 27, 1964. It was followed by another motion dated August 4, 1964 for the approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc. No. 1307. Vol. V, pp. 1825-1828), which was again approved by the lower court on August 7, 1964. The gates having been opened, a flood ensued: the appellant subsequently filed similar motions for the approval of a multitude of deeds of sales and cancellations of mortgages signed by both the appellee Avelina A. Magno and the appellant. A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as having presented for court approval deeds of sale of real properties signed by both appellee Avelina A. Magno and D. R. Paulino in the following numbers: (a) motion dated September 21, 1964 6 deeds of sale; (b) motion dated November 4, 1964 1 deed of sale; (c) motion dated December 1, 1964 4 deeds of sale; (d) motion dated February 3, 1965 8 deeds of sale; (f) motion dated May 7, 1965 9 deeds of sale. In view of the very extensive landholdings of the Hodges spouses and the many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the lower court has had to constitute special separate expedientes in Special Proceedings Nos. 1307 and 1672 to include mere motions for the approval of deeds of sale of the conjugal properties of the Hodges spouses. As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read: "1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property, and the prospective buyers under said contracts have already paid the price and complied with the terms and conditions thereof; "2. In the course of administration of both estates, mortgage debtors have already paid their debts secured by chattel mortgages in favor of the late C. N. Hodges, and are now entitled to release therefrom; "3. There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor

Fernando Cano, Bacolod City, Occ. NegrosFe Magbanua, Iloilo CityPolicarpio M. Pareno, La Paz, Iloilo CityRosario T. Libre, Jaro, Iloilo CityFederico B. Torres, Iloilo CityReynaldo T. Lataquin, La Paz, Iloilo CityAnatolio T. Viray, Iloilo CityBenjamin Rolando, Jaro, Iloilo City and cancellations of mortgages in favor of Pablo Manzano, Oton, IloiloRicardo M. Diana, Dao, San Jose, AntiqueSimplicio Tingson, Iloilo CityAmado Magbanua, Pototan, IloiloRoselia M. Baes, Bolo, Roxas CityWilliam Bayani, Rizal Estanzuela, Iloilo CityElpidio Villarete, Molo, Iloilo CityNorma T. Ruiz, Jaro, Iloilo City "4. That the approval of the aforesaid documents will not reduce the assets of the estates so as to prevent any creditor from receiving his full debt or diminish his dividend." And the prayer of this motion is indeed very revealing: "WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this honorable court approve the aforesaid deeds of sale and cancellations of mortgages." (Pp. 113-117, Appellee's Brief.) None of these assertions is denied in Petitioner's reply brief. Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the parties with whom Hodges had contracts that are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus: Considering that in both cases there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto, the Court believes that payment to both the administrator of the testate estate of C. N. Hodges and the administratrix of the testate estate of Linnie Jane Hodges or to either one of the two estates is proper and legal. WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them. SO ORDERED. (Pp. 334-335, Green Record on Appeal.) On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record on Appeal, the respondent court approved payments made by her of overtime pay to some employees of the court who had helped in gathering and preparing copies of parts of the records in both estates as follows:

Considering that the expenses subject of the motion to approve payment of overtime pay dated December 10, 1964, are reasonable and are believed by this Court to be a proper charge of administration chargeable to the testate estate of the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to be charged against the testate estate of the late Linnie Jane Hodges. The administrator of the testate estate of the late Charles Newton Hodges is hereby ordered to countersign the check or checks necessary to pay the said overtime pay as shown by the bills marked Annex "A", "B" and "C" of the motion. SO ORDERED. (Pp. 221-222, Green Record on Appeal.) Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to "contracts to sell" executed by Hodges, irrespective of whether they were executed by him before or after the death of his wife. The orders of this nature which are also on appeal herein are the following: 1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7, 1965. 2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on September 13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on time. 3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August 14, 1961, after the death of his wife. 4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21, 1958, after the death of his wife. 5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on February 10, 1959, after the death of his wife. 6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after the death of his wife. 8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death of his wife. 9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time. 10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time. 11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of his wife. 12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959, after her death. In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner alone and without the concurrence of respondent Magno, and such approvals have not been the subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus: The points of fact and law pertaining to the two abovecited assignments of error have already been discussed previously. In the first abovecited error, the order alluded to was general, and as already explained before, it was, as admitted by the lower court itself, superseded by the particular orders approving specific final deeds of sale executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well as the particular orders approving specific final deeds of sale

executed by the appellant, Philippine Commercial and Industrial Bank, which were never appealed by the appellee, Avelina A. Magno, nor by any party for that matter, and which are now therefore final. Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed: URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM. COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his undersigned attorneys in the above-entitled proceedings, and to this Honorable Court respectfully alleges: (1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City. (2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307). (3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307). (4) On December 14, 1957 this Honorable Court, on the basis of the following allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges: "That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges." (p. 44, Rec. Sp. Proc. 1307; emphasis supplied.) issued the following order: "As prayed for by Attorney Gellada, counsel for the Executory, for the reasons stated in his motion dated December 11, 1957 which the court considers well taken, all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges are hereby APPROVED. The said executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." (p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)

(5) On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things "That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court." (pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.). (6) On July 30, 1960 this Honorable Court approved the "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among other things: "That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court." (pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.) (7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account By The Executor for the Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged: That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein Executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court. (pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.) (8) On December 25, 1962, C.N. Hodges died. (9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno "Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed." (p. 100. Rec. Sp. Proc. 1307) (10) On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this Honorable Court's aforesaid Order of December 25, 1962 "With full authority to take possession of all the property of said deceased in any province or provinces in which it may be situated and to perform all other acts necessary for the preservation of said property, said Administratrix and/or Special Administratrix having filed a bond satisfactory to the Court." (p. 102, Rec. Sp. Proc. 1307)

(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963 issued Letters of Administration to: (a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges; (b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and (c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges. (p. 43, Rec. Sp. Proc. 1307) (12) On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307) issued the following order: "... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de propiedades cubiertas por contratos para vender, firmados, en vida, por el finado Charles Newton Hodges, cada vez que el precio estipulado en cada contrato este totalmente pagado. Se autoriza igualmente a la misma a firmar escrituras de cancelacion de hipoteca tanto de bienes reales como personales cada vez que la consideracion de cada hipoteca este totalmente pagada. "Cada una de dichas escrituras que se otorguen debe ser sometida para la aprobacion de este Juzgado." (p. 117, Sp. Proc. 1307). [Par 1 (c), Reply to Motion For Removal of Joe Hodges] (13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges, alleges: 3. That since January, 1963, both estates of Linnie Jane Hodges and Charles Newton Hodges have been receiving in full, payments for those "contracts to sell" entered into by C. N. Hodges during his lifetime, and the purchasers have been demanding the execution of definite deeds of sale in their favor. 4. That hereto attached are thirteen (13) copies deeds of sale executed by the Administratrix and by the co-administrator (Fernando P. Mirasol) of the estate of Linnie Jane Hodges and Charles Newton Hodges respectively, in compliance with the terms and conditions of the respective "contracts to sell" executed by the parties thereto." (14) The properties involved in the aforesaid motion of September 16, 1963 are all registered in the name of the deceased C. N. Hodges. (15) Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper in Iloilo thusly: For Sale Testate Estate of Linnie Jane Hodges and Charles Newton Hodges. All Real Estate or Personal Property will be sold on First Come First Served Basis. Avelina A. MagnoAdministratrix

(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of money to sundry persons. (17) Joe Hodges through the undersigned attorneys manifested during the hearings before this Honorable Court on September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines because of the aforesaid election by C. N. Hodges wherein he claimed and took possession as sole owner of all of said assets during the administration of the estate of Linnie Jane Hodges on the ground that he was the sole devisee and legatee under her Last Will and Testament. (18) Avelina A. Magno has submitted no inventory and accounting of her administration as Administratrix of the estate of Linnie Jane Hodges and Special Administratrix of the estate of C. N. Hodges. However, from manifestations made by Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will claim that at least fifty per cent (50%) of the conjugal assets of the deceased spouses and the rents, emoluments and income therefrom belong to the Higdon family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc. 1307). WHEREFORE, premises considered, movant respectfully prays that this Honorable Court, after due hearing, order: (1) Avelina A. Magno to submit an inventory and accounting of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them; (2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession; (3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A. Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly authorized representative, such as the undersigned attorneys) as the Coadministrator and attorney-in-fact of a majority of the beneficiaries of the estate of C. N. Hodges: (a) Advertising the sale and the sale of the properties of the estates: (b) Employing personnel and paying them any compensation. (4) Such other relief as this Honorable Court may deem just and equitable in the premises. (Annex "T", Petition.) Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges approved by the court, and because the above motion of October 5, 1963 had not yet been heard due to the absence from the country of Atty. Gibbs, petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR HEARING AND RESOLVE "URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME THEREFROM OF OCTOBER 5, 1963. COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings No. 1672, through its undersigned counsel, and to this Honorable Court respectfully alleges that: 1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N. Hodges filed, through the undersigned attorneys, an "Urgent Motion For An Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all Of The Assets Of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N. Hodges Existing as Of May, 23, 1957 Plus All Of The Rents, Emoluments and Income Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672). 2. On January 24, 1964 this Honorable Court, on the basis of an amicable agreement entered into on January 23, 1964 by the two co-administrators of the estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No. 1672), resolved the dispute over who should act as administrator of the estate of C. N. Hodges by appointing the PCIB as administrator of the estate of C. N. Hodges (pp. 905-906, CFI Rec. S. P. No. 1672) and issuing letters of administration to the PCIB. 3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforenamed parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed)of both estates would be administrated jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one-hundred percent (10017,) (or, in the alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changes its recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion of October 5, 1963. 5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this Honorable Court ordered the indefinite postponement of the hearing of the Motion of October 5, 1963. 6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able to properly carry out its duties and obligations as administrator of the estate of C. N. Hodges because of the following acts, among others, of Avelina A. Magno and those who claim to act for her as administratrix of the estate of Linnie Jane Hodges: (a) Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets in the Philippines of both estates including those claimed by the estate of C. N. Hodges as evidenced in part by her locking the premises at 206-208 Guanco Street, Iloilo City on August 31, 1964 and refusing to reopen same until ordered to do so by this Honorable Court on September 7, 1964. (b) Avelina A. Magno illegally acts as though she alone may decide how the assets of the estate of C.N. Hodges should be administered, who the PCIB shall employ and how much they may be paid as evidenced in party by her refusal to sign checks issued by the PCIB payable to the undersigned counsel pursuant to their fee agreement approved by this Honorable Court in its order dated March 31, 1964. (c) Avelina A. Magno illegally gives access to and turns over possession of the records and assets of the estate of C.N. Hodges to the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan, as evidenced in part by the cashing of his personal checks. (d) Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn to pay expenses of the estate of C. N. Hodges as evidenced in part by the check drawn to reimburse the PCIB's advance of P48,445.50 to pay the 1964 income taxes reported due and payable by the estate of C.N. Hodges. 7. Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and February 1, 1964, and the mandate contained in its Letters of Administration issued on January 24, 1964 to the PCIB, it has "full authority to take possession of all the property of the deceased C. N. Hodges "and to perform all other acts necessary for the preservation of said property." (p. 914, CFI Rec., S.P. No. 1672.) 8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate exclusive possession and control of all of the properties, accounts receivables, court cases, bank accounts and other assets, including the documentary records evidencing same, which existed in the Philippines on the date of C. N. Hodges' death, December 25, 1962, and were in his possession and registered in his name alone. The PCIB knows of no assets in the Philippines

registered in the name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane Hodges on December 25, 1962. All of the assets of which the PCIB has knowledge are either registered in the name of C. N. Hodges, alone or were derived therefrom since his death on December 25, 1962. 9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all of the rights of the previously duly appointed administrators of the estate of C. N. Hodges, to wit: (a) On December 25, 1962, date of C. N. Hodges' death, this Honorable Court appointed Miss Avelina A. Magno simultaneously as: (i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on May 28, 1957 was appointed Special Administrator (p. 13. CFI Rec. S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307). (ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI Rec., S.P. No. 1307). (b) On December 29, 1962 this Honorable Court appointed Harold K. Davies as cospecial administrator of the estate of C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No. 1307). (c) On January 22, 1963, with the conformity of Avelina A. Magno, Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed on January 22, 1963 by this Honorable Court as special coadministrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec. S.P. No. 1672) along with Miss Magno who at that time was still acting as special co-administratrix of the estate of C. N. Hodges. (d) On February 22, 1963, without objection on the part of Avelina A. Magno, this Honorable Court appointed Joe Hodges and Fernando P. Mirasol as coadministrators of the estate of C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672). 10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of December 25, 1962, took possession of all Philippine Assets now claimed by the two estates. Legally, Miss Magno could take possession of the assets registered in the name of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N. Hodges. With the appointment by this Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-administrators of the estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the full and exclusive possession of all of the assets of the estate of C.N. Hodges. With the appointment on January 24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became the only party entitled to the sole and exclusive possession of all of the assets of the estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable Court approved same, to wit: (a) The accounting of Harold K. Davies dated January 18, 1963 (pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its face the: (i) Conformity of Avelina A. Magno acting as "Administratrix of the Estate of Linnie Jane Hodges and Special Administratrix of the Estate of C. N. Hodges"; (ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs of C.N. Hodges; and (iii) Conformity of William Brown, a Texas lawyer acting for the Higdon family who claim to be the only heirs of Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672). Note: This accounting was approved by this Honorable Court on January 22, 1963 (p. 34, CFI Rec., S. P. No. 1672). (b) The accounting of Joe Hodges and Fernando P. Mirasol as of January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307). Note: This accounting was approved by this Honorable Court on March 3, 1964. (c) The PCIB and its undersigned lawyers are aware of no report or accounting submitted by Avelina A. Magno of her acts as administratrix of the estate of Linnie Jane Hodges or special administratrix of the estate of C.N. Hodges, unless it is the accounting of Harold K. Davies as special co-administrator of the estate of C.N. Hodges dated January 18, 1963 to which Miss Magno manifested her conformity (supra). 12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00 "for her services as administratrix of the estate of Linnie Jane Hodges" and in addition she agreed to be employed, starting February 1, 1964, at "a monthly salary of P500.00 for her services as an employee of both estates." 24 ems. 13. Under the aforesaid agreement of January 24, 1964 and the orders of this Honorable Court of same date, the PCIB as administrator of the estate of C. N. Hodges is entitled to the exclusive possession of all records, properties and assets in the name of C. N. Hodges as of the date of his death on December 25, 1962 which were in the possession of the deceased C. N. Hodges on that date and which then passed to the possession of Miss Magno in her capacity as Special Co-Administratrix of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as co-administrators of the estate of C. N. Hodges. 14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss Magno as an employee of the estate of C. N. Hodges effective August 31, 1964. On September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and

denied the PCIB access thereto. Upon the Urgent Motion of the PCIB dated September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the PCIB access thereto no later than September 8, 1964. 15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in physical possession of all of the assets of the estate of C. N. Hodges. However, the PCIB is not in exclusive control of the aforesaid records, properties and assets because Miss Magno continues to assert the claims hereinabove outlined in paragraph 6, continues to use her own locks to the doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know the combinations to the doors of the vault and safes situated within the premises at 206-208 Guanco Street despite the fact that said combinations were known to only C. N. Hodges during his lifetime. 16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane Hodges were assessed and paid on the basis that C. N. Hodges is the sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in the Philippines. Avelina A. Magno and her legal counsel at no time have questioned the validity of the aforesaid assessment and the payment of the corresponding Philippine death taxes. 17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive possession and control of all of the records, properties and assets of the estate of C. N. Hodges. 18. Such assets as may have existed of the estate of Linnie Jane Hodges were ordered by this Honorable Court in special Proceedings No. 1307 to be turned over and delivered to C. N. Hodges alone. He in fact took possession of them before his death and asserted and exercised the right of exclusive ownership over the said assets as the sole beneficiary of the estate of Linnie Jane Hodges. WHEREFORE, premises considered, the PCIB respectfully petitions that this Honorable court: (1) Set the Motion of October 5, 1963 for hearing at the earliest possible date with notice to all interested parties; (2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N. Hodges of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them; (3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession;

(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina A. Magno and her representatives to stop interferring with the administration of the estate of C. N. Hodges by the PCIB and its duly authorized representatives; (5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street, Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal as such by the PCIB effective August 31, 1964; (6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly representing Miss Magno from entering the premises at 206-208 Guanco Street, Iloilo City or any other properties of C. N. Hodges without the express permission of the PCIB; (7) Order such other relief as this Honorable Court finds just and equitable in the premises. (Annex "U" Petition.) On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges Estate" alleging: COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this Honorable Court respectfully alleges that: 1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges, American citizens originally from the State of Texas, U.S.A., acquired and accumulated considerable assets and properties in the Philippines and in the States of Texas and Oklahoma, United States of America. All said properties constituted their conjugal estate. 2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and categorically ruled that said spouses had lived and worked for more than 50 years in Iloilo City and had, therefore, acquired a domicile of choice in said city, which they retained until the time of their respective deaths. 3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last Will and Testament, a copy of which is hereto attached as Annex "A". The bequests in said will pertinent to the present issue are the second, third, and fourth provisions, which we quote in full hereunder. SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my husband, Charles Newton Hodges, to have and to hold unto him, my said husband during his natural lifetime. THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate by sale of any part thereof which he think best, and the purchase of any

other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, as above provided. He shall have the right to sub-divide any farmland and sell lots therein, and may sell unimproved town lots. FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: "Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon." 4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and Testament, a copy of which is hereto attached as Annex "B ". In said Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary using the identical language she used in the second and third provisos of her Will, supra. 5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her husband by more than five (5) years. At the time of her death, she had no forced or compulsory heir, except her husband, C. N. Hodges. She was survived also by various brothers and sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the HIGDONS. 6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N. Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.) 7. The Will of Linnie Jane Hodges, with respect to the order of succession, the amount of successional rights, and the intrinsic of its testamentary provisions, should be governed by Philippine laws because: (a) The testatrix, Linnie Jane Hodges, intended Philippine laws to govern her Will; (b) Article 16 of the Civil Code provides that "the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", shall prevail. However, the Conflict of Law of Texas, which is the "national law" of the testatrix, Linnie Jane Hodges, provide that the domiciliary law (Philippine law see

paragraph 2, supra) should govern the testamentary dispositions and successional rights over movables (personal properties), and the law of the situs of the property (also Philippine law as to properties located in the Philippines) with regards immovable (real properties). Thus applying the "Renvoi Doctrine", as approved and applied by our Supreme Court in the case of "In The Matter Of The Testate Estate of Eduard E. Christensen", G.R. No. L-16749, promulgated January 31, 1963, Philippine law should apply to the Will of Linnie Jane Hodges and to the successional rights to her estate insofar as her movable and immovable assets in the Philippines are concerned. We shall not, at this stage, discuss what law should govern the assets of Linnie Jane Hodges located in Oklahoma and Texas, because the only assets in issue in this motion are those within the jurisdiction of this motion Court in the two above-captioned Special Proceedings. 8. Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon dissolution, be divided equally between them. Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of the Hodges spouses constituting their conjugal estate pertained automatically to Charles Newton Hodges, not by way of inheritance, but in his own right as partner in the conjugal partnership. The other one-half (1/2) portion of the conjugal estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate capable of inheritance by her heirs. 9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under a clear and specific provision of her Will, be enhanced or increased by income, earnings, rents, or emoluments accruing after her death on May 23, 1957. Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said estate shall belong to him (C. N. Hodges) and he is further authorized to use any part of the principal of said estate as he may need or desire." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly, therefore, the estate of Linnie Jane Hodges, capable of inheritance by her heirs, consisted exclusively of no more than one-half (1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957. 10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a deceased leaving no ascendants or descendants is entitled, as a matter of right and by way of irrevocable legitime, to at least one-half (1/2) of the estate of the deceased, and no testamentary disposition by the deceased can legally and validly affect this right of the surviving spouse. In fact, her husband is entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership

share and 1/4 or 25% by way of inheritance and legitime) plus all "rents, emoluments and income" accruing to said conjugal estate from the moment of Linnie Jane Hodges' death (see paragraph 9, supra). 11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her sole and exclusive heir with full authority to do what he pleased, as exclusive heir and owner of all the assets constituting her estate, except only with regards certain properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without relying on our laws of succession and legitime, which we have cited above, C. N. Hodges, by specific testamentary designation of his wife, was entitled to the entirely to his wife's estate in the Philippines. 12. Article 777 of the New Civil Code provides that "the rights of the successor are transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately upon her death on May 23, 1957. For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph of how the conjugal estate of the spouses Hodges should be divided in accordance with Philippine law and the Will of Linnie Jane Hodges. 13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges, appropriated to himself the entirety of her estate. He operated all the assets, engaged in business and performed all acts in connection with the entirety of the conjugal estate, in his own name alone, just as he had been operating, engaging and doing while the late Linnie Jane Hodges was still alive. Upon his death on December 25, 1962, therefore, all said conjugal assets were in his sole possession and control, and registered in his name alone, not as executor, but as exclusive owner of all said assets. 14. All these acts of C. N. Hodges were authorized and sanctioned expressly and impliedly by various orders of this Honorable Court, as follows: (a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is allowed or authorized to continue the business in which he was engaged, and to perform acts which he had been doing while the deceased was living." (CFI Record, Sp. Proc. No. 1307, p. 11.) (b) On December 14, 1957, this Honorable Court, on the basis of the following fact, alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges: That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.) issued the following order: "As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, all the sales, conveyances, leases and mortgages of all the properties left by the

deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.) 24 ems (c) On April 21, 1959, this Honorable Court approved the verified inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things, "That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 77-78; emphasis supplied.) (d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged, among other things. "That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 81-82; emphasis supplied.) (e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of Account By The Executor For the Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged: "That no person interested in the Philippines be given notice, ofthe time and place of examining the herein account, as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.) 15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only by law, but in accordance with the dispositions of her will, there was, in fact, no need to liquidate the conjugal estate of the spouses. The entirely of said conjugal estate pertained to him exclusively, therefore this Honorable Court sanctioned and authorized, as above-stated, C. N. Hodges to manage, operate and control all the conjugal assets as owner. 16. By expressly authorizing C. N. Hodges to act as he did in connection with the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed her estate to C. N. Hodges as sole heir in accordance with the terms and conditions of

her Will. Thus, although the "estate of Linnie Jane Hodges" still exists as a legal and juridical personality, it had no assets or properties located in the Philippines registered in its name whatsoever at the time of the death of C. N. Hodges on December 25, 1962. 17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows: "At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: "Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon." Because of the facts hereinabove set out there is no "rest, residue and remainder", at least to the extent of the Philippine assets, which remains to vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the estate of C. N. Hodges. 18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane Hodges' Will is without merit because said provision is void and invalid at least as to the Philippine assets. It should not, in anyway, affect the rights of the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges acquired by way of inheritance from his wife Linnie Jane Hodges upon her death. (a) In spite of the above-mentioned provision in the Will of Linnie Jane Hodges, C. N. Hodges acquired, not merely a usufructuary right, but absolute title and ownership to her estate. In a recent case involving a very similar testamentary provision, the Supreme Court held that the heir first designated acquired full ownership of the property bequeathed by the will, not mere usufructuary rights. (Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876, February 28, 1962.) (b) Article 864, 872 and 886 of the New Civil Code clearly provide that no charge, condition or substitution whatsoever upon the legitime can be imposed by a testator. Thus, under the provisions of Articles 900, 995 and 1001 of the New Civil Code, the legitime of a surviving spouse is 1/2 of the estate of the deceased spouse. Consequently, the above-mentioned provision in the Will of Linnie Jane Hodges is clearly invalid insofar as the legitime of C. N. Hodges was concerned, which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4 of the entire conjugal estate of the deceased. (c) There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles 857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article 859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these. The substitution provided for by paragraph four of the Will of Linnie Jane Hodges is not

fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as the first heir designated, to preserve the properties for the substitute heirs. (Consolacion Florentino de Crisologo et al. vs. Manuel Singson, G. R. No.L13876.) At most, it is a vulgar or simple substitution. However, in order that a vulgar or simple substitution can be valid, three alternative conditions must be present, namely, that the first designated heir (1) should die before the testator; or (2) should not wish to accept the inheritance; or (3) should be incapacitated to do so. None of these conditions apply to C. N. Hodges, and, therefore, the substitution provided for by the above-quoted provision of the Will is not authorized by the Code, and, therefore, it is void. Manresa, commenting on these kisses of substitution, meaningfully stated that: "... cuando el testador instituyeun primer heredero, y por fallecimiento de este nombra otro u otros, ha de entenderse que estas segundas designaciones solo han de llegar a tener efectividad en el caso de que el primer instituido muera antes que el testador, fuera o no esta su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other words, when another heir is designated to inherit upon the death of a first heir, the second designation can have effect only in case the first instituted heir dies before the testator, whether or not that was the true intention of said testator. Since C. N. Hodges did not die before Linnie Jane Hodges, the provision for substitution contained in Linnie Jane Hodges' Willis void. (d) In view of the invalidity of the provision for substitution in the Will, C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges estate is irrevocable and final. 19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared and was registered in him exclusively as owner. Thus, the presumption is that all said assets constituted his estate. Therefore (a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which can not be affected by any testamentary disposition), their remedy, if any, is to file their claim against the estate of C. N. Hodges, which should be entitled at the present time to full custody and control of all the conjugal estate of the spouses. (b) The present proceedings, in which two estates exist under separate administration, where the administratrix of the Linnie Jane Hodges estate exercises an officious right to object and intervene in matters affecting exclusively the C. N. Hodges estate, is anomalous. WHEREFORE, it is most respectfully prayed that after trial and reception of evidence, this Honorable Court declare: 1. That the estate of Linnie Jane Hodges was and is composed exclusively of onehalf (1/2) share in the conjugal estate of the spouses Hodges, computed as of the date of her death on May 23, 1957; 2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his share as partner in the conjugal partnership;

3. That all "rents, emoluments and income" of the conjugal estate accruing after Linnie Jane Hodges' death pertains to C. N. Hodges; 4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges; 5. That, therefore, the entire conjugal estate of the spouses located in the Philippines, plus all the "rents, emoluments and income" above-mentioned, now constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon termination of Special Proceedings No. 1672; 6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and exclusive custody, control and management of all said properties; and 7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well as the HIGDONS, has no right to intervene or participate in the administration of the C. N. Hodges estate. PCIB further prays for such and other relief as may be deemed just and equitable in the premises." (Record, pp. 265-277) Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as follows: COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through undersigned counsel, unto this Honorable Court most respectfully states and manifests: 1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were American citizens who died at the City of Iloilo after having amassed and accumulated extensive properties in the Philippines; 2. That on November 22, 1952, Linnie Jane Hodges executed a last will and testament (the original of this will now forms part of the records of these proceedings as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18); 3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time survived by her husband, Charles Newton Hodges, and several relatives named in her last will and testament; 4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard, this Honorable Court issued an order admitting to probate the last will and testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28); 5. That the required notice to creditors and to all others who may have any claims against the decedent, Linnie Jane Hodges has already been printed, published and posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary period for filing such claims has long ago lapsed and expired without any claims having been asserted against the estate of Linnie Jane Hodges, approved by the Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to probate contains an institution of heirs in the following words: "SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated or located, to my beloved husband, Charles Newton Hodges to have and to hold unto him, my said husband, during his natural lifetime. THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and, he is hereby given the right to make any changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots. FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon. FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived." 7. That under the provisions of the last will and testament already above-quoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her husband, Charles Newton Hodges, and a vested remainder-estate or the naked title over the same estate to her relatives named therein; 8. That after the death of Linnie Jane Hodges and after the admission to probate of her last will and testament, but during the lifetime of Charles Newton Hodges, the said Charles Newton Hodges with full and complete knowledge of the life-estate or usufruct conferred upon him by the will since he was then acting as Administrator

of the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and clearly through oral and written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges; 9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges pursuant to her last will and testament, are her named brothers and sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David Higdon, the latter two being the wife and son respectively of the deceased Roy Higdon, Sadie Rascoe Era Boman and Nimroy Higdon, all of legal ages, American citizens, with residence at the State of Texas, United States of America; 10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the co-owner (together with her husband Charles Newton Hodges) of an undivided one-half interest in their conjugal properties existing as of that date, May 23, 1957, which properties are now being administered sometimes jointly and sometimes separately by the Administratrix of the estate of Linnie Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of which are under the control and supervision of this Honorable Court; 11. That because there was no separation or segregation of the interests of husband and wife in the combined conjugal estate, as there has been no such separation or segregation up to the present, both interests have continually earned exactly the same amount of "rents, emoluments and income", the entire estate having been continually devoted to the business of the spouses as if they were alive; 12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate was earning "rents, emoluments and income" until her death on May 23, 1957, when it ceased to be saddled with any more charges or expenditures which are purely personal to her in nature, and her estate kept on earning such "rents, emoluments and income" by virtue of their having been expressly renounced, disclaimed and repudiated by Charles Newton Hodges to whom they were bequeathed for life under the last will and testament of Linnie Jane Hodges; 13. That, on the other hand, the one-half interest of Charles Newton Hodges in the combined conjugal estate existing as of May 23, 1957, while it may have earned exactly the same amount of "rents, emoluments and income" as that of the share pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures, and other dispositions which are purely personal to him in nature, until the death of Charles Newton Hodges himself on December 25, 1962; 14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as compared to the portion to which the estate of Charles Newton Hodges may be entitled, which portions can be exactly determined by the following manner:

a. An inventory must be made of the assets of the combined conjugal estate as they existed on the death of Linnie Jane Hodges on May 23, 1957 one-half of these assets belong to the estate of Linnie Jane Hodges; b. An accounting must be made of the "rents, emoluments and income" of all these assets again one-half of these belong to the estate of Linnie Jane Hodges; c. Adjustments must be made, after making a deduction of charges, disbursements and other dispositions made by Charles Newton Hodges personally and for his own personal account from May 23, 1957 up to December 25, 1962, as well as other charges, disbursements and other dispositions made for him and in his behalf since December 25, 1962 up to the present; 15. That there remains no other matter for disposition now insofar as the estate of Linnie Jane Hodges is concerned but to complete the liquidation of her estate, segregate them from the conjugal estate, and distribute them to her heirs pursuant to her last will and testament. WHEREFORE, premises considered, it is most respectfully moved and prayed that this Honorable Court, after a hearing on the factual matters raised by this motion, issue an order: a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole heirs under the last will and testament of Linnie Jane Hodges and as the only persons entitled to her estate; b. Determining the exact value of the estate of Linnie Jane Hodges in accordance with the system enunciated in paragraph 14 of this motion; c. After such determination ordering its segregation from the combined conjugal estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for distribution to the heirs to whom they properly belong and appertain. (Green Record on Appeal, pp. 382-391) whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing before, petitioner withdrew the said motion and in addition to opposing the above motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that: 1. That it has received from the counsel for the administratrix of the supposed estate of Linnie Jane Hodges a notice to set her "Motion for Official Declaration of Heirs of the Estate of Linnie Jane Hodges"; 2. That before the aforesaid motion could be heard, there are matters pending before this Honorable Court, such as: a. The examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges "through ... written declarations and sworn public statements, renounced, disclaimed and repudiated life-estate and usufruct over the estate of Linnie Jane Hodges';

b. That "Urgent Motion for An Accounting and Delivery to the Estate of C. N. Hodges of All the Assets of the Conjugal Partnership of the Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All the Rents, Emoluments and Income Therefrom"; c. Various motions to resolve the aforesaid motion; d. Manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the Estate of Linnie Jane Hodges; which are all prejudicial, and which involve no issues of fact, all facts involved therein being matters of record, and therefore require only the resolution of questions of law; 3. That whatever claims any alleged heirs or other persons may have could be very easily threshed out in the Testate Estate of Charles Newton Hodges; 4. That the maintenance of two separate estate proceedings and two administrators only results in confusion and is unduly burdensome upon the Testate Estate of Charles Newton Hodges, particularly because the bond filed by Avelina Magno is grossly insufficient to answer for the funds and property which she has inofficiously collected and held, as well as those which she continues to inofficiously collect and hold; 5. That it is a matter of record that such state of affairs affects and inconveniences not only the estate but also third-parties dealing with it;" (Annex "V", Petition.) and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion of September 14, 1964, Annex U, prayed that: 1. Immediately order Avelina Magno to account for and deliver to the administrator of the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; 2. Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator Philippine Commercial & Industrial Bank; 3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; 4. Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved.(Prayer, Annex "V" of Petition.) On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the foregoing motion, holding thus: ORDER On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of administrator PCIB praying that (1) Immediately order Avelina Magno to account for and deliver to the administrator of the estate of C. N. Hodges all assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; (2) Pending the consideration of this

motion, immediately order Avelina Magno to turn over all her collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and (4) Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved. This motion is predicated on the fact that there are matters pending before this court such as (a) the examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges thru written declaration and sworn public statements renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion for accounting and delivery to the estate of C. N. Hodges of all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to resolve the aforesaid motion; and (d) manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the estate of Linnie Jane Hodges. These matters, according to the instant motion, are all pre-judicial involving no issues of facts and only require the resolution of question of law; that in the motion of October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges is not only part owner of the properties left as conjugal but also the successor to all the properties left by the deceased Linnie Jane Hodges. Said motion of December 11, 1957 was approved by the Court in consonance with the wishes contained in the last will and testament of Linnie Jane Hodges. That on April 21, 1959 this Court approved the inventory and accounting submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959 stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie Jane Hodges in accordance with the last will and testament already probated by the Court. That on July 13, 1960 the Court approved the annual statement of accounts submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21, 1960 wherein it is stated that the executor, C. N. Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of accounts submitted by executor, C. N. Hodges for the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is stated that executor Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in the Philippines; that administratrix Magno has executed illegal acts to the prejudice of the testate estate of C. N. Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix Magno has been filed asking that the motion be denied for lack of merit and that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges be set for presentation and reception of evidence. It is alleged in the aforesaid opposition that the examination of documents which are in the possession of administratrix Magno can be made prior to the hearing of the motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during said hearing. That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other motion) dated September 14, 1964 have been consolidated for the purpose of presentation and reception of evidence with the hearing on the determination of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges is the one that constitutes a prejudicial question to the motions dated October 5 and September 14, 1964 because if said motion is found meritorious and granted by the Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become moot and academic since they are premised on the assumption and claim that the only heir of Linnie Jane Hodges was C. N. Hodges. That the PCIB and counsel are estopped from further questioning the determination of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early as January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in the administration proceedings over the estate of Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the estate of C. N. Hodges. A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek deferment of the hearing and consideration of the motion for official declaration of heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for administratrix Magno to account for and deliver to the PCIB all assets of the conjugal partnership of the deceased spouses which has come to her possession plus all rents and income. A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19, 1966 has been filed alleging that the motion dated December 11, 1957 only sought the approval of all conveyances made by C. N. Hodges and requested the Court authority for all subsequent conveyances that will be executed by C. N. Hodges; that the order dated December 14, 1957 only approved the conveyances made by C. N. Hodges; that C. N. Hodges represented by counsel never made any claim in the estate of Linnie Jane Hodges and never filed a motion to declare himself as the heir of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the death of Linnie Jane Hodges; that it is further alleged in the rejoinder that

there can be no order of adjudication of the estate unless there has been a prior express declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has been made. Considering the allegations and arguments in the motion and of the PCIB as well as those in the opposition and rejoinder of administratrix Magno, the Court finds the opposition and rejoinder to be well taken for the reason that so far there has been no official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no disposition of her estate. WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.(Annex "W", Petition) In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter alia that: It cannot be over-stressed that the motion of December 11, 1957 was based on the fact that: a. Under the last will and testament of the deceased, Linnie Jane Hodges, the late Charles Newton Hodges was the sole heir instituted insofar as her properties in the Philippines are concerned; b. Said last will and testament vested upon the said late Charles Newton Hodges rights over said properties which, in sum, spell ownership, absolute and in fee simple; c. Said late Charles Newton Hodges was, therefore, "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. Likewise, it cannot be over-stressed that the aforesaid motion was granted by this Honorable Court "for the reasons stated" therein. Again, the motion of December 11, 1957 prayed that not only "all the sales, conveyances, leases, and mortgages executed by" the late Charles Newton Hodges, but also all "the subsequent sales, conveyances, leases, and mortgages ..." be approved and authorized. This Honorable Court, in its order of December 14, 1957, "for the reasons stated" in the aforesaid motion, granted the same, and not only approved all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but also authorized "all subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges. (Annex "X", Petition) and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him, as sole universal heir of all the properties of the estate of his wife, in the order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that "the court believes that there is no justification why the order of October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of

respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already referred to above, was set for hearing. In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court below). Together with such petition, there are now pending before Us for resolution herein, appeals from the following: 1. The order of December 19, 1964 authorizing payment by respondent Magno of overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and February 15, 1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration thereof. 2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by petitioner to be co-signed by respondent Magno, as well as the order of October 27, 1965 (pp. 276-277) denying reconsideration. 3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all collections in a joint account and the same order of February 15, 1966 mentioned in No. 1 above which included the denial of the reconsideration of this order of October 27, 1965. 4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of attorney's fees, fees of the respondent administratrix, etc. and the order of February 16, 1966 denying reconsideration thereof. 5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western Institute of Technology to make payments to either one or both of the administrators of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying reconsideration. 6. The various orders hereinabove earlier enumerated approving deeds of sale executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to 37 of this opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying reconsideration of said approval. 7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion for reconsideration was filed. 8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal, directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of title covering

the lands involved in the approved sales, as to which no motion for reconsideration was filed either. Strictly speaking, and considering that the above orders deal with different matters, just as they affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there are, therefore, thirtythree (33) appeals before Us, for which reason, petitioner has to pay also thirty-one (31) more docket fees. It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions and arguments under all of them covering also the fundamental issues raised in respect to the petition for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these cases together. 4 The assignments of error read thus: I to IV THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. V to VIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL. IX to XII THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A PROBATE COURT. XIII to XV THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XVI to XVIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND

ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL. XIX to XXI THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS A PROBATE COURT. XXII to XXV THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XXVI to XXIX THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO CONTRACTS TO SPELL WHICH WERE CANCELLED AND RESCINDED. XXX to XXXIV THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE COURT. XXXV to XXXVI THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XXXVII to XXXVIII THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY. XXXIX to XL THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO.

XLI to XLIII THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. XLIV to XLVI THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED WITH. XLVII to XLIX THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE COURT. L THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME. LI THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50. LII THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE WITH THE RULES OF COURT. LIII to LXI THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA BARRIDO,

PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND GRACIANO L. LUCERO. LXII THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK. LXIII THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965. LXIV THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF CONTAINED THEREIN. LXV THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO FULFILL. LXVI THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT. LXVII LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR. LXVIII THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXIX THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES. LXX

THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND THEIR LAWYERS. LXXI THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES. LXXII THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE. LXXIII THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXXIV THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES. LXXV THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES. LXXVI THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF. LXXVII THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE. LXXVIII THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE

DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's Brief.) To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno removed as administratrix, with the proposed appointment of Benito J. Lopez in her place, and that respondent court did actually order such proposed replacement, but the Court declared the said order of respondent court violative of its injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for disregarding the Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court, informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the Hodges estate. RESOLUTION OF ISSUES IN THE CERTIORARI ANDPROHIBITION CASES I As to the Alleged Tardinessof the Present Appeals The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve around practically the same main issues and that it is admitted that some of them have been timely taken, and, moreover, their final results hereinbelow to be stated and explained make it of no consequence whether or not the orders concerned have become final by the lapsing of the respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any of said appeals. II The Propriety Here of Certiorari andProhibition instead of Appeal The other preliminary point of the same respondent is alleged impropriety of the special civil action of certiorari and prohibition in view of the existence of the

remedy of appeal which it claims is proven by the very appeals now before Us. Such contention fails to take into account that there is a common thread among the basic issues involved in all these thirty-three appeals which, unless resolved in one single proceeding, will inevitably cause the proliferation of more or less similar or closely related incidents and consequent eventual appeals. If for this consideration alone, and without taking account anymore of the unnecessary additional effort, expense and time which would be involved in as many individual appeals as the number of such incidents, it is logical and proper to hold, as We do hold, that the remedy of appeal is not adequate in the present cases. In determining whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not enough that the remedy of appeal exists or is possible. It is indispensable that taking all the relevant circumstances of the given case, appeal would better serve the interests of justice. Obviously, the longer delay, augmented expense and trouble and unnecessary repetition of the same work attendant to the present multiple appeals, which, after all, deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action, make the remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the settling of such common fundamental issues would naturally minimize the areas of conflict between the parties and render more simple the determination of the secondary issues in each of them. Accordingly, respondent Magno's objection to the present remedy of certiorari and prohibition must be overruled. We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant. III On Whether or Not There is Still Any Part of the Testate Estate Mrs. Hodges that may be Adjudicated to her brothersand sisters as her estate, of which respondent Magno is theunquestioned Administratrix in special Proceedings 1307. In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely abused its discretion in further recognizing after December 14, 1957 the existence of the Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of administration therein of respondent Magno. Main ground for such posture is that by the aforequoted order of respondent court of said date, Hodges was already allowed to assert and exercise all his rights as universal heir of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be done in Special Proceedings 1307 except to formally close it. In other words, the contention of PCIB is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive heir of his

wife and the consequent formal unqualified adjudication to him of all her estate remain to be done to completely close Special Proceedings 1307, hence respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then. After carefully going over the record, We feel constrained to hold that such pose is patently untenable from whatever angle it is examined. To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense being read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The declaration of heirs and distribution by the probate court of the estate of a decedent is its most important function, and this Court is not disposed to encourage judges of probate proceedings to be less than definite, plain and specific in making orders in such regard, if for no other reason than that all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and legatees, should know with certainty what are and when their respective rights and obligations ensuing from the inheritance or in relation thereto would begin or cease, as the case may be, thereby avoiding precisely the legal complications and consequent litigations similar to those that have developed unnecessarily in the present cases. While it is true that in instances wherein all the parties interested in the estate of a deceased person have already actually distributed among themselves their respective shares therein to the satisfaction of everyone concerned and no rights of creditors or third parties are adversely affected, it would naturally be almost ministerial for the court to issue the final order of declaration and distribution, still it is inconceivable that the special proceeding instituted for the purpose may be considered terminated, the respective rights of all the parties concerned be deemed definitely settled, and the executor or administrator thereof be regarded as automatically discharged and relieved already of all functions and responsibilities without the corresponding definite orders of the probate court to such effect. Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides: SECTION 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the widow and inheritance tax, if any, chargeable to the estate in accordance with law have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which

each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court. ... it is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to the widow, and inheritance tax shall have been effected that the court should make a declaration of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief) xxx xxx xxx Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule 90) what brings an intestate (or testate) proceeding to a close is the order of distribution directing delivery of the residue to the persons entitled thereto after paying the indebtedness, if any, left by the deceased. (Santiesteban vs. Santiesteban, 68 Phil. 367, 370.) In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication of the estate of Mrs. Hodges had already been complied with when the order of December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings leading to the issuance of said order, constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by the petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general advance authorization to enable said "Executor to execute

subsequent sales, conveyances, leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the motion of December 11, 1957 on which the court predicated the order in question did not pray for any such adjudication at all. What is more, although said motion did allege that "herein Executor (Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines during his lifetime", thereby indicating that what said motion contemplated was nothing more than either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which were to be operative only during his lifetime or the use of his own share of the conjugal estate, pending the termination of the proceedings. In other words, the authority referred to in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will before final adjudication or distribution when the rights of third parties would not be adversely affected thereby or in the established practice of allowing the surviving spouse to dispose of his own share of he conjugal estate, pending its final liquidation, when it appears that no creditors of the conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more inclined to believe that Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted allegations of said motions read together cannot be construed as a repudiation of the rights unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have not been disposed of by him up to his death. Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved the motion of appellee Western Institute of Technology by its order We have quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were really convinced that the order of December 14, 1957 was already the order of adjudication and distribution of her estate. That said motion was later withdrawn

when Magno filed her own motion for determination and adjudication of what should correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn motion. It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband and gave him what amounts to full powers of dominion over the same during his lifetime, she imposed at the same time the condition that whatever should remain thereof upon his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's estate as he might possibly dispose of during his lifetime; hence, even assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon his death, for surely, no one can rightly contend that the testamentary provision in question allowed him to so adjudicate any part of the estate to himself as to prejudice them. In other words, irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial court's orders granting said motions, even in the terms in which they have been worded, could not have had the effect of an absolute and unconditional adjudication unto Hodges of the whole estate of his wife. None of them could have deprived his brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that no one appeared to oppose the motions in question may only be attributed, firstly, to the failure of Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even if they had been notified, they could not have taken said motions to be for the final distribution and adjudication of the estate, but merely for him to be able, pending such final distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's estate in accordance with the bequest in his favor, which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do not believe that the trial court could have acted in the sense pretended by petitioner, not only because of the clear language of the will but also because none of the interested parties had been duly notified of the motion and hearing thereof. Stated differently, if the orders of May 27, 1957 and December 4, 1957 were really intended to be read in the sense contended by petitioner, We would have no hesitancy in declaring them null and void. Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as said orders amounted to the order of adjudication and distribution ordained by Section 1 of

Rule 90. But the parallel attempted to be drawn between that case and the present one does not hold. There the trial court had in fact issued a clear, distinct and express order of adjudication and distribution more than twenty years before the other heirs of the deceased filed their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of the lower court in that respect read as follows: En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un valor igual al de los bienes que correspondan a cada heredero segun el testamento. Creo que no es obice para la terminacion del expediente el hecho de que la administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley, estan exentos de esta formalidad os administradores que son legatarios del residuo o remanente de los bienes y hayan prestado fianza para responder de las gestiones de su cargo, y aparece en el testamento que la administradora Alejandra Austria reune dicha condicion. POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla, hermana del testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas, Catalino y Froilan, hermanos del testador, declarando, ademas que la heredera Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus coherederos, conforme esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los gastos de la ultima enfermedad y funerales del testador, de la donacion hecha por el testador a favor de la Escuela a Publica del Municipio de Mangatarem, y de las misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza mencionada al principio de este auto, se haga la entrega y adjudicacion de los bienes, conforme se dispone en el testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que verificada la adjudicacion, se dara por terminada la administracion, revelandole toda responsabilidad a la administradora, y cancelando su fianza. ASI SE ORDENA. Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement of the estate of a deceased person cannot be but perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the circumstances attendant to its issuance do not suggest that such was the intention of the court, for nothing could have been more violative of the will of Mrs. Hodges. Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein executor (being) the only devisee or legatee of the deceased, in accordance with the last will and testament already probated," there is "no (other) person interested in the Philippines of the time and place of examining herein account to be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard to the contingent interests of her brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible, much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give him such a right. Factually, there are enough circumstances extant in the records of these cases indicating that he had no such intention to ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and even promised that "proper accounting will be had in all these transactions" which he had submitted for approval and authorization by the court, thereby implying that he was aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee: Under date of April 14, 1959, C. N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.) Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for

calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92, id.) Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of Account by the Executor for the year 1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an "individual evenly between him and the estate income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 92-93, id.) In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records "in order (that) the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges". Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the conjugal partnership up to the time of his death, more than five years after that of his wife. He never considered the whole estate as a single one belonging exclusively to himself. The only conclusion one can gather from this is that he could have been preparing the basis for the eventual transmission of his wife's estate, or, at least, so much thereof as he would not have been able to dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire, as intimated in his tax return in the United States to be more extensively referred to anon. And assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We might say here that We are inclined to the view that under the peculiar provisions of his wife's will, and for purposes of the applicable inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon the eventuality of his death, and whatever adjustment might be warranted should there be any such remainder then is a matter that could well be taken care of by the internal revenue authorities in due time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and December 11, 1957 and the aforementioned statements of account was the very same one who also subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real properties that may remain at the death of her husband, Charles Newton Hodges, the said properties shall be equally divided among their heirs." And it appearing that said attorney was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own understanding thereof. As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which is made in the above quotation from respondent Magno's brief, are over the oath of Hodges himself, who verified the motion. Said allegations read: 1. That the Hon. Court issued orders dated June 29, 1957, ordering the probate of the will. 2. That in said order of the Hon. Court, the relatives of the deceased Linnie Jane Hodges were enumerated. However, in the petition as well as in the testimony of Executor during the hearing, the name Roy Higdon was mentioned, but deceased. It was unintentionally omitted the heirs of said Roy Higdon who are his wife Aline Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A. 3. That to straighten the records, and in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges, it is requested of the Hon. Court to insert the names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon in the said order of the Hon. Court dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's Answer Record, p. 260) As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the testamentary dispositions of his wife. In connection with this point of Hodges' intent, We note that there are documents, copies of which are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn declarations recognizing the right of his co-heirs, such as the alleged tax return he filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to have answered the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the provisions made in his or her favor by the will and (11) dower, curtesy or a statutory interest? (X) Yes ( ) No 2d. Does the surviving spouse contemplate renouncing the will and electing to take dower, curtesy, or a statutory interest? (X) Yes ( ) No 3. According to the information and belief of the person or persons filing the return, is any action described under question 1 designed or contemplated? ( ) Yes (X) No (Annex 4, Answer Record, p. 263) and to have further stated under the item, "Description of property interests passing to surviving spouse" the following: None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interests of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid. (Annex 4, Answer Record, p. 263) In addition, in the supposed affidavit of Hodges, Annex 5, it is stated: I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate, as shown by the statement contained in Schedule M at page 29 of said return, a copy of which schedule is attached to this affidavit and made a part hereof. The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in Schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957. (Annex 5, Answer Record, p. 264) Although it appears that said documents were not duly presented as evidence in the court below, and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot close our eyes to their existence in the record nor fail to note that their tenor jibes with Our conclusion discussed above from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these documents, considering they are supposed to be copies of their originals found in the official files of the governments of the United States and of the Philippines, serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without basis in fact.

Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be declared her sole heir and that her whole estate be adjudicated to him without so much as just annotating the contingent interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it seems to us more factual and fairer to assume that Hodges was well aware of his position as executor of the will of his wife and, as such, had in mind the following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914: Upon the death of Bernarda in September, 1908, said lands continued to be conjugal property in the hands of the defendant Lasam. It is provided in article 1418 of the Civil Code that upon the dissolution of the conjugal partnership, an inventory shall immediately be made and this court in construing this provision in connection with section 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in the event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the partnership without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41 Phil., 713.) In the last mentioned case this court quoted with approval the case of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the surviving spouse in the administration of the community property. Attention was called to the fact that the surviving husband, in the management of the conjugal property after the death of the wife, was a trustee of unique character who is liable for any fraud committed by him with relation to the property while he is charged with its administration. In the liquidation of the conjugal partnership, he had wide powers (as the law stood prior to Act No. 3176) and the high degree of trust reposed in him stands out more clearly in view of the fact that he was the owner of a half interest in his own right of the conjugal estate which he was charged to administer. He could therefore no more acquire a title by prescription against those for whom he was administering the conjugal estate than could a guardian against his ward or a judicial administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil Procedure, with relation to prescription, provides that "this chapter shall not apply ... in the case of a continuing and subsisting trust." The surviving husband in the administration and liquidation of the conjugal estate occupies the position of a trustee of the highest order and is not permitted by the law to hold that estate or any portion thereof adversely to those for whose benefit the law imposes upon him the duty of administration and liquidation. No liquidation was ever made by Lasam hence, the conjugal property which came into his

possession on the death of his wife in September, 1908, still remains conjugal property, a continuing and subsisting trust. He should have made a liquidation immediately (desde luego). He cannot now be permitted to take advantage of his own wrong. One of the conditions of title by prescription (section 41, Code of Civil Procedure) is possession "under a claim of title exclusive of any other right". For a trustee to make such a claim would be a manifest fraud. And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters. PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a wholesale and general manner, would necessarily render the said orders void for being violative of the provisions of Rule 89 governing the manner in which such dispositions may be made and how the authority therefor and approval thereof by the probate court may be secured. If We sustained such a view, the result would only be that the said orders should be declared ineffective either way they are understood, considering We have already seen it is legally impossible to consider them as adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such point of view, the supposed irregularity would involve no more than some non-jurisdictional technicalities of procedure, which have for their evident fundamental purpose the protection of parties interested in the estate, such as the heirs, its creditors, particularly the government on account of the taxes due it; and since it is apparent here that none of such parties are objecting to said orders or would be prejudiced by the unobservance by the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor impediment to Our giving sanction to the blanket approval and authority contained in said orders. This solution is definitely preferable in law and in equity, for to view said orders in the sense suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and, withal, will give peace of mind and stability of rights to the innocent parties who relied on them in good faith, in the light of the peculiar pertinent provisions of the will of said decedent. Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A appears in the records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that the same consists of considerable real and other personal kinds of properties. And since, according to her will, her husband was to be the sole owner thereof during his lifetime, with full power and authority to dispose of any of them, provided that should there be any

remainder upon his death, such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the indications are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of. It is Our conclusion, therefore, that properties do exist which constitute such estate, hence Special Proceedings 1307 should not yet be closed. Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said proceeding. There is no showing that she has ever been legally removed as such, the attempt to replace her with Mr. Benito Lopez without authority from the Court having been expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing that it is not questioning said respondent's status as such administratrix. Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is concerned. It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the same were thus commingled pro indiviso and, consequently, the properties pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should administer everything, and all that respondent Magno can do for the time being is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in the inventory of an administrator of the estate of a decedent, (here that of Hodges) and who normally has no right to take part in the proceedings pending the establishment of his right or title; for which as a rule it is required that an ordinary action should be filed, since the probate court is without jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the estate, on the other. We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot be compared with the claim of a third party the basis of which is alien to the pending probate proceedings. In the present cases what gave rise to the claim of PCIB of exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges in the community properties, were the orders of the trial court issued in the course of the very settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of the issue of title between the parties is something that the court itself has done in the

exercise of its probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the properties herein involved pertain exclusively to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within the competence of the court to issue the root orders, why should it not be within its authority to declare their true significance and intent, to the end that the parties may know whether or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will? At this point, it bears emphasis again that the main cause of all the present problems confronting the courts and the parties in these cases was the failure of Hodges to secure, as executor of his wife's estate, from May, 1957 up to the time of his death in December, 1962, a period of more than five years, the final adjudication of her estate and the closure of the proceedings. The record is bare of any showing that he ever exerted any effort towards the early settlement of said estate. While, on the one hand, there are enough indications, as already discuss that he had intentions of leaving intact her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death, pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in the other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having these considerations in mind, it would be giving a premium for such procrastination and rather unfair to his co-heirs, if the administrator of his estate were to be given exclusive administration of all the properties in question, which would necessarily include the function of promptly liquidating the conjugal partnership, thereby identifying and segregating without unnecessary loss of time which properties should be considered as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are supposed to inherit equally among themselves. To be sure, an administrator is not supposed to represent the interests of any particular party and his acts are deemed to be objectively for the protection of the rights of everybody concerned with the estate of the decedent, and from this point of view, it maybe said that even if PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6 of Rule 78 fixing the priority among those to whom letters of administration should be granted that the criterion in the selection of the administrator is not his impartiality alone but, more importantly, the extent of his interest in the estate, so much so that the one assumed to have greater interest is preferred to another who has less. Taking both of these considerations into account, inasmuch as, according to Hodges' own inventory submitted by him as

Executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein, it is but logical that both estates should be administered jointly by representatives of both, pending their segregation from each other. Particularly is such an arrangement warranted because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly provides that "The executor of an executor shall not, as such, administer the estate of the first testator." It goes without saying that this provision refers also to the administrator of an executor like PCIB here. We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either." Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said sentence allows or permits that the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. After all, the former rule referring to the administrator of the husband's estate in respect to such liquidation was done away with by Act 3176, the pertinent provisions of which are now embodied in the rule just cited. Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the executor of the latter's will who had, as such, failed for more than five years to see to it that the same was terminated earliest, which was not difficult to do, since from ought that appears in the record, there were no serious obstacles on the way, the estate not being indebted and there being no immediate heirs other than Hodges himself. Such dilatory or indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of any remainder of Mrs. Hodges' share in the community properties, and who are now faced with the pose of PCIB that there is no such remainder. Had Hodges secured as early as possible the settlement of his wife's estate, this problem would not arisen. All things considered, We are fully convinced that the interests of justice will be better served by not permitting or allowing PCIB or any administrator of the estate of Hodges exclusive administration of all the properties in question. We are of the considered opinion and so hold that what would be just and proper is for both administrators of the

two estates to act conjointly until after said estates have been segregated from each other. At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not be given effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a fideicommissary substitution under Article 863 thereof. There is no vulgar substitution therein because there is no provision for either (1) predecease of the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the inheritance, as required by Article 859; and neither is there a fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone else. But from these premises, it is not correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in question are therefore inoperative and invalid. The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only when another heir is appointed in a will "so that he may enter into inheritance in default of the heir originally instituted," (Article 857, id.) and, in the present case, no such possible default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not dispose of from his inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. It is partially resolutory, since it bequeaths unto Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them 6 only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then. Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody

other than himself. The Court sees no legal impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the legitime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.) But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil Code 7 should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under said Article 16, construed in relation to the pertinent laws of Texas and the principle of renvoi, what should be applied here should be the rules of succession under the Civil Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth of the said conjugal properties, the other fourth being, as already explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition (Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she never changed nor intended to change her original residence of birth in Texas, United States of America, and contends that, anyway, regardless of the question of her residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof. Respondent Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents touching on the point already mentioned earlier, the genuineness and legal significance of which petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings. The Court regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by the parties in the court below nor their discussion, in their respective briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave importance as they are, appear to Us to be adequate enough to enable Us to render an intelligent comprehensive and just resolution. For one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of documents relied upon by respondent Magno is disputed. And there are a number of still other conceivable related issues which the parties may wish to raise but which it is not proper to mention here. In Justice, therefore, to all the parties concerned, these and all other relevant matters should first be

threshed out fully in the trial court in the proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will. To be more explicit, all that We can and do decide in connection with the petition for certiorari and prohibition are: (1) that regardless of which corresponding laws are applied, whether of the Philippines or of Texas, and taking for granted either of the respective contentions of the parties as to provisions of the latter, 8 and regardless also of whether or not it can be proven by competent evidence that Hodges renounced his inheritance in any degree, it is easily and definitely discernible from the inventory submitted by Hodges himself, as Executor of his wife's estate, that there are properties which should constitute the estate of Mrs. Hodges and ought to be disposed of or distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the pertinent laws of Texas applicable to the situation herein is basically one of fact, and, considering that the sole difference in the positions of the parties as to the effect of said laws has reference to the supposed legitime of Hodges it being the stand of PCIB that Hodges had such a legitime whereas Magno claims the negative - it is now beyond controversy for all future purposes of these proceedings that whatever be the provisions actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas, should only be one-fourth of the conjugal estate, such contention constitutes an admission of fact, and consequently, it would be in estoppel in any further proceedings in these cases to claim that said estate could be less, irrespective of what might be proven later to be actually the provisions of the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical conclusion, there having been no proper and legal adjudication or distribution yet of the estate therein involved; and (4) that respondent Magno remains and continues to be the Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code, and in the light of what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact, even our finding above about the existence of properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the size and extent of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as in their pleadings included in

the records on appeal, and it should accordingly yield, as to which exactly those properties are, to the more concrete and specific evidence which the parties are supposed to present in support of their respective positions in regard to the foregoing main legal and factual issues. In the interest of justice, the parties should be allowed to present such further evidence in relation to all these issues in a joint hearing of the two probate proceedings herein involved. After all, the court a quo has not yet passed squarely on these issues, and it is best for all concerned that it should do so in the first instance. Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-fourth of the conjugal partnership properties, it may be mentioned here that during the deliberations, the point was raised as to whether or not said holding might be inconsistent with Our other ruling here also that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with respect to the order of succession and to the amount of successional rights" that may be willed by a testator which, under Article 16 of the Civil Code, are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should be returned to the court a quo, so that the parties may prove what said law provides, it is premature for Us to make any specific ruling now on either the validity of the testamentary dispositions herein involved or the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the considered view that, at this stage and in the state of the records before Us, the feared inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges could in any event be less than that We have fixed above. It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said laws are already within the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held: It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the

Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed." No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite to the contrary, the parties herein have presented opposing versions in their respective pleadings and memoranda regarding the matter. And even if We took into account that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding succession in the laws of Texas, the disparity in the material dates of that case and the present ones would not permit Us to indulge in the hazardous conjecture that said provisions have not been amended or changed in the meantime. On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held: Upon the other point as to whether the will was executed in conformity with the statutes of the State of Illinois we note that it does not affirmatively appear from the transcription of the testimony adduced in the trial court that any witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly executed by examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. That section authorizes the courts here to take judicial notice, among other things, of the acts of the legislative department of the United States. These words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold that our courts can, under this provision, take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader language, used in the same section, where it is said that our courts may take judicial notice of matters of public knowledge "similar" to those therein enumerated. The proper rule we think is to require proof of the statutes of the States of the American Union whenever their provisions are determinative of the issues in any action litigated in the Philippine courts. Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because the petition does not state any fact from which it

would appear that the law of Illinois is different from what the court found, and, secondly, because the assignment of error and argument for the appellant in this court raises no question based on such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could not be set aside, even upon application made within six months under section 113 of the Code of Civil Procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied contain no reference to the subject, and we are cited to no authority in the appellant's brief which might tend to raise a doubt as to the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment. It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, the parties in a given case do not have any controversy or are more or less in agreement, the Court may take it for granted for the purposes of the particular case before it that the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise would be the competent evidence on the point. Thus, in the instant cases wherein it results from the respective contentions of both parties that even if the pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above, the absence of evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any consequence, unless the purpose is to show that it could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is just as We have determined it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend differently. To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically: Inasmuch as Article 16 of the Civil Code provides that "intestate and testamentary successions both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", while the law of Texas (the Hodges spouses being nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the domiciliary law (in this case Philippine law) governs the testamentary dispositions and successional rights over movables or personal properties, while the law of the situs (in this case also Philippine law with respect to

all Hodges properties located in the Philippines), governs with respect to immovable properties, and applying therefore the 'renvoi doctrine' as enunciated and applied by this Honorable Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary dispositions contained in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as to immovables situated in the Philippines. In its main brief dated February 26, 1968, PCIB asserts: The law governing successional rights. As recited above, there is no question that the deceased, Linnie Jane Hodges, was an American citizen. There is also no question that she was a national of the State of Texas, U.S.A. Again, there is likewise no question that she had her domicile of choice in the City of Iloilo, Philippines, as this has already been pronounced by the above-cited orders of the lower court, pronouncements which are by now res adjudicata (par. [a], See. 49, Rule 39, Rules of Court; In re Estate of Johnson, 39 Phil. 156). Article 16 of the Civil Code provides: "Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found." Thus the aforecited provision of the Civil Code points towards the national law of the deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession "both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions ...". But the law of Texas, in its conflicts of law rules, provides that the domiciliary law governs the testamentary dispositions and successional rights over movables or personal property, while the law of the situs governs with respect to immovable property. Such that with respect to both movable property, as well as immovable property situated in the Philippines, the law of Texas points to the law of the Philippines. Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied by this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as immovables situated in the Philippines. The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or community property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon the death of the latter, is to be divided into two, one-half pertaining to each of the spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the conjugal partnership property immediately pertained to Charles Newton Hodges as his own share, and not by virtue of any successional rights. There can be no question about this. Again, Philippine law, or more specifically, Article 900 of the Civil Code provides: If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. This legitime of the surviving spouse cannot be burdened by a fideicommisary substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art, 872, Civil code). It is clear, therefore, that in addition to one-half of the conjugal partnership property as his own conjugal share, Charles Newton Hodges was also immediately entitled to one-half of the half conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property, as his legitime. One-fourth of the conjugal property therefore remains at issue. In the summary of its arguments in its memorandum dated April 30, 1968, the following appears: Briefly, the position advanced by the petitioner is: a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20, petition). This is now a matter of res adjudicata (p. 20, petition). b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law governs the successional rights over the properties left by the deceased, Linnie Jane Hodges (pp. 20-21, petition). c. That under Philippine as well as Texas law, one-half of the Hodges properties pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not questioned by the respondents. d. That under Philippine law, the deceased, Charles Newton Hodges, automatically inherited one-half of the remaining one-half of the Hodges properties as his legitime (p. 21, petition). e. That the remaining 25% of the Hodges properties was inherited by the deceased, Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition). Upon the death of Charles Newton Hodges, the substitution 'provision of the will of

the deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 2325, petition). f. That the deceased, Charles Newton Hodges, asserted his sole ownership of the Hodges properties and the probate court sanctioned such assertion (pp. 25-29, petition). He in fact assumed such ownership and such was the status of the properties as of the time of his death (pp. 29-34, petition). Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option. On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal properties. It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in that the Philippine laws on succession should control. On that basis, as We have already explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering that We have found that there is no legal impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and, further, that the contention of PCIB that the same constitutes an inoperative testamentary substitution is untenable. As will be recalled, PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions, namely: (1) that the provision in question in Mrs. Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to her husband the whole free portion of her estate to the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and memoranda does PCIB maintain that the application of the laws of Texas would result in the other heirs of Mrs. Hodges not inheriting anything under her will. And since PCIB's representations in regard to the laws of Texas virtually constitute admissions of fact which the other parties and the Court are being made to rely and act upon, PCIB is "not permitted to contradict them or subsequently take a position contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018). Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges.

In the course of the deliberations, it was brought out by some members of the Court that to avoid or, at least, minimize further protracted legal controversies between the respective heirs of the Hodges spouses, it is imperative to elucidate on the possible consequences of dispositions made by Hodges after the death of his wife from the mass of the unpartitioned estates without any express indication in the pertinent documents as to whether his intention is to dispose of part of his inheritance from his wife or part of his own share of the conjugal estate as well as of those made by PCIB after the death of Hodges. After a long discussion, the consensus arrived at was as follows: (1) any such dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or foundations, shall be considered as intended to be of properties constituting part of Hodges' inheritance from his wife, it appearing from the tenor of his motions of May 27 and December 11, 1957 that in asking for general authority to make sales or other disposals of properties under the jurisdiction of the court, which include his own share of the conjugal estate, he was not invoking particularly his right over his own share, but rather his right to dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered as merely the products of "physical changes" of the properties of her estate which the will expressly authorizes Hodges to make, provided that whatever of said products should remain with the estate at the time of the death of Hodges should go to her brothers and sisters; (3) the dispositions made by PCIB after the death of Hodges must naturally be deemed as covering only the properties belonging to his estate considering that being only the administrator of the estate of Hodges, PCIB could not have disposed of properties belonging to the estate of his wife. Neither could such dispositions be considered as involving conjugal properties, for the simple reason that the conjugal partnership automatically ceased when Mrs. Hodges died, and by the peculiar provision of her will, under discussion, the remainder of her share descended also automatically upon the death of Hodges to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly, these construction of the will of Mrs. Hodges should be adhered to by the trial court in its final order of adjudication and distribution and/or partition of the two estates in question. THE APPEALS A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had already adjudicated unto himself all the properties constituting his wife's share of the conjugal partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said date, no longer any estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the various assailed orders sanctioning her actuations as such

are not in accordance with law. Such being the case, with the foregoing resolution holding such posture to be untenable in fact and in law and that it is in the best interest of justice that for the time being the two estates should be administered conjointly by the respective administrators of the two estates, it should follow that said assignments of error have lost their fundamental reasons for being. There are certain matters, however, relating peculiarly to the respective orders in question, if commonly among some of them, which need further clarification. For instance, some of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect to many of said orders, PCIB further claims that either the matters involved were not properly within the probate jurisdiction of the trial court or that the procedure followed was not in accordance with the rules. Hence, the necessity of dealing separately with the merits of each of the appeals. Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to the failure of Hodges and the lower court to liquidate the conjugal partnership, to recognize appellee Magno as Administratrix of the Testate Estate of Mrs. Hodges which is still unsegregated from that of Hodges is not to say, without any qualification, that she was therefore authorized to do and perform all her acts complained of in these appeals, sanctioned though they might have been by the trial court. As a matter of fact, it is such commingling pro-indiviso of the two estates that should deprive appellee of freedom to act independently from PCIB, as administrator of the estate of Hodges, just as, for the same reason, the latter should not have authority to act independently from her. And considering that the lower court failed to adhere consistently to this basic point of view, by allowing the two administrators to act independently of each other, in the various instances already noted in the narration of facts above, the Court has to look into the attendant circumstances of each of the appealed orders to be able to determine whether any of them has to be set aside or they may all be legally maintained notwithstanding the failure of the court a quo to observe the pertinent procedural technicalities, to the end only that graver injury to the substantive rights of the parties concerned and unnecessary and undesirable proliferation of incidents in the subject proceedings may be forestalled. In other words, We have to determine, whether or not, in the light of the unusual circumstances extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox approach, so as to cause the least disturbance in rights already being exercised by numerous innocent third parties, even if to do so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules. Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result later from PCIB's continuing to administer all the community properties, notwithstanding the certainty of the existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the meantime with a relative degree of regularity, that the Court ordered in the

resolution of September 8, 1972 the modification of the injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which respondent Magno was completely barred from any participation in the administration of the properties herein involved. In the September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should proceed jointly and that the respective administrators therein "act conjointly none of them to act singly and independently of each other for any purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or administering all the said properties to the exclusion of the administratrix of Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not irreparable, damage or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this date, more than a year after said resolution, the same has not been given due regard, as may be gleaned from the fact that recently, respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have all been denied soon after they were filed. 9 Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and then proceed to the more complicated ones in that order, without regard to the numerical sequence of the assignments of error in appellant's brief or to the order of the discussion thereof by counsel. Assignments of error numbersLXXII, LXXVII and LXXVIII. These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of sale (therein referred to involving properties in the name of Hodges) should be signed jointly by the PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had been deposited in the account of either of the estates should be withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; ... (d) (that) Administratrix Magno allow the PCIB to inspect whatever records, documents and papers she may have in her possession, in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of

the estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized representative of the estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the motion for reconsideration of the order of October 27, 1965 last referred to. (pp. 455-456, id.) As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8, 1967, and, more importantly, with what We have said the trial court should have always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the arrangement We are ordering, by this decision, to be followed. Stated differently, since the questioned orders provide for joint action by the two administrators, and that is precisely what We are holding out to have been done and should be done until the two estates are separated from each other, the said orders must be affirmed. Accordingly the foregoing assignments of error must be, as they are hereby overruled. Assignments of error Numbers LXVIIIto LXXI and LXXIII to LXXVI. The orders complained of under these assignments of error commonly deal with expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into question the payment of attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to the heirs of Mrs. Hodges. More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six employees of the court and three other persons for services in copying the court records to enable the lawyers of the administration to be fully informed of all the incidents in the proceedings. The reimbursement was approved as proper legal expenses of administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-456, id.) On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the trial court's order of November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend their interests (of the Parties of the First Part) in certain cases now pending litigation in the Court of First Instance of Iloilo , more specifically in Special Proceedings 1307 and 1672 " (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign whatever check or checks maybe needed to implement

the approval of the agreement annexed to the motion" as well as the "administrator of the estate of C. N. Hodges to countersign the said check or checks as the case maybe." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16, 1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's order of October 27, 1965, already referred to above, insofar as it orders that "PCIB should counter sign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.) Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence what were authorized were in effect expenditures from the estate of Hodges. As We have already demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way the remaining issues between the parties in these cases are ultimately resolved, 10 the final result will surely be that there are properties constituting the estate of Mrs. Hodges of which Magno is the current administratrix. It follows, therefore, that said appellee had the right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she has not yet collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to her credit. Of course, she is also entitled to the services of counsel and to that end had the authority to enter into contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And as regards to the reasonableness of the amount therein stipulated, We see no reason to disturb the discretion exercised by the probate court in determining the same. We have gone over the agreement, and considering the obvious size of the estate in question and the nature of the issues between the parties as well as the professional standing of counsel, We cannot say that the fees agreed upon require the exercise by the Court of its inherent power to reduce it. PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment under it, insofar as counsels' services would redound to the benefit of the heirs, would be in the nature of advances to such heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail. Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that juridically and factually the interests involved in her estate are distinct and different from those involved in her estate of Hodges and vice versa. Insofar as the matters related exclusively to the estate of Mrs. Hodges, PCIB,

as administrator of the estate of Hodges, is a complete stranger and it is without personality to question the actuations of the administratrix thereof regarding matters not affecting the estate of Hodges. Actually, considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension that when the two estates are segregated from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice any portion that would correspond to Hodges' estate. And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they appear to have been duly represented in the agreement itself by their attorney-in-fact, James L. Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as ordered by the trial court, all the expenses in question, including the attorney's fees, may be paid without awaiting the determination and segregation of the estate of Mrs. Hodges. Withal, the weightiest consideration in connection with the point under discussion is that at this stage of the controversy among the parties herein, the vital issue refers to the existence or non-existence of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the appointed administratrix of the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable from the interest of the brothers and sisters of Mrs. Hodges. Thus, it should not be wondered why both Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement should be more convenient and economical to both. The possibility of conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather insubstantial. Besides, should any substantial conflict of interest between them arise in the future, the same would be a matter that the probate court can very well take care of in the course of the independent proceedings in Case No. 1307 after the corresponding segregation of the two subject estates. We cannot perceive any cogent reason why, at this stage, the estate and the heirs of Mrs. Hodges cannot be represented by a common counsel. Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the records show, the estate has no creditors and the corresponding estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges, have already been paid, 11 no prejudice can caused to anyone by the comparatively small amount of attorney's fees in question. And in this connection, it may be added that, although strictly speaking, the attorney's fees of the counsel of an administrator is in the first instance his personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in the situation

on hand, the attorney-in-fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the sanction given to said fees by the probate court is proper. For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should be as they are hereby overruled. Assignments of error I to IV,XIII to XV, XXII to XXV, XXXVto XXX VI, XLI to XLIII and L. These assignments of error deal with the approval by the trial court of various deeds of sale of real properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding supposed written "Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the, contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores executed on February 5, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Florenia Barrido, executed on February 21, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Purificacion Coronado, executed on August 14, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Melquiades Batisanan, executed on June 9, 1959; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed on February 10, 1959 and the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815." Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was as absolute owner of the properties respectively covered by said sales that he executed the aforementioned contracts to sell, and consequently, upon his death, the implementation of said contracts may be

undertaken only by the administrator of his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is invoked with particular reference to five other sales, in which the respective "contracts to sell" in favor of these appellees were executed by Hodges before the death of his wife, namely, those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa Premaylon. Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it is quite obvious that PCIB's contention cannot be sustained. As already explained earlier, 1 1* all proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife should be deemed as continuing to be parts of her estate and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense that should there be no showing that such proceeds, whether in cash or property have been subsequently conveyed or assigned subsequently by Hodges to any third party by acts inter vivos with the result that they could not thereby belong to him anymore at the time of his death, they automatically became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions which are exactly of this nature. Consequently, the payments made by the appellees should be considered as payments to the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the will. The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his wife, present a different situation. At first blush, it would appear that as to them, PCIB's position has some degree of plausibility. Considering, however, that the adoption of PCIB's theory would necessarily have tremendous repercussions and would bring about considerable disturbance of property rights that have somehow accrued already in favor of innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal situation involving them by overlooking the possible technicalities in the way, the non-observance of which would not, after all, detract materially from what should substantially correspond to each and all of the parties concerned. To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they should not be made to suffer any prejudice on account of judicial controversies not of their own making. What is more, the transactions they rely on were submitted by them to the probate court for approval, and from already known and recorded actuations of said court then, they had reason to believe that it had authority to act on their motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to act in her capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All the sales in question were executed by Magno in 1966 already, but before that, the court had previously authorized or otherwise

sanctioned expressly many of her act as administratrix involving expenditures from the estate made by her either conjointly with or independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyersappellees merely followed precedents in previous orders of the court. Accordingly, unless the impugned orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them. It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same would finally be held to be only one-fourth of the conjugal properties of the spouses as of the time of her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on May 12, 1958. In none of its numerous, varied and voluminous pleadings, motions and manifestations has PCIB claimed any possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the questioned deeds of sale executed by appellee Magno may be treated as among those corresponding to the estate of Mrs. Hodges, which would have been actually under her control and administration had Hodges complied with his duty to liquidate the conjugal partnership. Viewing the situation in that manner, the only ones who could stand to be prejudiced by the appealed orders referred to in the assignment of errors under discussion and who could, therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges, definitely not PCIB. It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he had acted as executor of the will of his wife, he did not have to submit those contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living", (Order of May 27) which according to the motion on which the court acted was "of buying and selling personal and real properties", and "to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be said that he had authority to do so by virtue of these blanket orders, and PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the terms of the order itself for its main contention in these cases. On the other hand, if, as PCIB contends, he acted as heiradjudicatee, the authority given to him by the aforementioned orders would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in question were based were executed by Hodges before or after the death of his wife. In a word, We hold, for the reasons already stated, that the properties covered by the deeds being assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity attending the actuations of the trial court may be invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the defects pointed out not being strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance of rights already created in favor of innocent third parties, it is best that the impugned orders are not disturbed. In view of these considerations, We do not find sufficient merit in the assignments of error under discussion. Assignments of error V to VIII,XVI to XVIII, XXVI to XXIX, XXXVIIto XXXVIII, XLIV to XLVI and LI. All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees, appellees herein, of the terms and conditions embodied in the deeds of sale referred to in the assignments of error just discussed. It is claimed that some of them never made full payments in accordance with the respective contracts to sell, while in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the contracts with them had already been unilaterally cancelled by PCIB pursuant to automatic rescission clauses contained in them, in view of the failure of said buyers to pay arrearages long overdue. But PCIB's posture is again premised on its assumption that the properties covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have already held above that, it being evident that a considerable portion of the conjugal properties, much more than the properties covered by said deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid unnecessary legal complications, it can be assumed that said properties form part of such estate. From this point of view, it is apparent again that the questions, whether or not it was proper for appellee Magno to have disregarded the cancellations made by PCIB, thereby reviving the rights of the respective buyers-appellees, and, whether or not the rules governing new dispositions of properties of the estate were strictly followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges as the persons designated to inherit the same, or perhaps the government because of the still unpaid inheritance taxes. But, again, since there is no pretense that any objections were raised by said parties or that they would necessarily be prejudiced, the contentions of PCIB under the instant assignments of error hardly merit any consideration. Assignments of error IX to XII, XIXto XXI, XXX to XXIV, XXXIX to XL,XLVII to XLIX, LII and LIII to LXI.

PCIB raises under these assignments of error two issues which according to it are fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already cancelled by it in the performance of its functions as administrator of the estate of Hodges, the trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court "arrogated unto itself, while acting as a probate court, the power to determine the contending claims of third parties against the estate of Hodges over real property," since it has in effect determined whether or not all the terms and conditions of the respective contracts to sell executed by Hodges in favor of the buyers-appellees concerned were complied with by the latter. What is worse, in the view of PCIB, is that the court has taken the word of the appellee Magno, "a total stranger to his estate as determinative of the issue". Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the sales in their favor that is decisive. Since We have already held that the properties covered by the contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real parties in interest having the right to oppose the consummation of the impugned sales are not objecting, and that they are the ones who are precisely urging that said sales be sanctioned, the assignments of error under discussion have no basis and must accordingly be as they are hereby overruled. With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to surrender the respective owner's duplicate certificates of title over the properties covered by the sales in question and otherwise directing the Register of Deeds of Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the buyers-appellees, suffice it to say that in the light of the above discussion, the trial court was within its rights to so require and direct, PCIB having refused to give way, by withholding said owners' duplicate certificates, of the corresponding registration of the transfers duly and legally approved by the court. Assignments of error LXII to LXVII All these assignments of error commonly deal with the appeal against orders favoring appellee Western Institute of Technology. As will be recalled, said institute is one of the buyers of real property covered by a contract to sell executed by Hodges prior to the death of his wife. As of October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it received under date of October 4, 1965 and October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee Magno, in their respective capacities as administrators of the distinct estates of the Hodges

spouses, albeit, while in the case of PCIB it made known that "no other arrangement can be accepted except by paying all your past due account", on the other hand, Magno merely said she would "appreciate very much if you can make some remittance to bring this account up-to-date and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging that it was ready and willing to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid amount with the court pending resolution of the conflicting claims of the administrators." Acting on this motion, on November 23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion, holding that payment to both or either of the two administrators is "proper and legal", and so "movant can pay to both estates or either of them", considering that "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." The arguments under the instant assignments of error revolve around said order. From the procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion, that said motion was heard, considered and resolved on November 23, 1965, whereas the date set for its hearing was November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to the substantive aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of the probate court and that the order authorized payment to a person other than the administrator of the estate of Hodges with whom the Institute had contracted. The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear proof to the contrary, that the lower court had acted regularly by seeing to it that appellant was duly notified. On the other hand, there is nothing irregular in the court's having resolved the motion three days after the date set for hearing the same. Moreover, the record reveals that appellants' motion for reconsideration wherein it raised the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not convinced that the relief granted is not within the general intent of the Institute's motion. Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere reiterations of contentions We have already resolved above adversely to appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the propriety of not disturbing the lower court's orders sanctioning the sales questioned in all these appeal s by PCIB, that it is only when one of the parties to a contract to convey property executed by a deceased person raises substantial objections to its being implemented by the executor or administrator of the decedent's estate that Section 8 of Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate action outside of the probate court; but

where, as in the cases of the sales herein involved, the interested parties are in agreement that the conveyance be made, it is properly within the jurisdiction of the probate court to give its sanction thereto pursuant to the provisions of the rule just mentioned. And with respect to the supposed automatic rescission clauses contained in the contracts to sell executed by Hodges in favor of herein appellees, the effect of said clauses depend on the true nature of the said contracts, despite the nomenclature appearing therein, which is not controlling, for if they amount to actual contracts of sale instead of being mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) the pactum commissorium or the automatic rescission provision would not operate, as a matter of public policy, unless there has been a previous notarial or judicial demand by the seller (10 Manresa 263, 2nd ed.) neither of which have been shown to have been made in connection with the transactions herein involved. Consequently, We find no merit in the assignments of errorNumber LXII to LXVII. SUMMARY Considering the fact that this decision is unusually extensive and that the issues herein taken up and resolved are rather numerous and varied, what with appellant making seventy-eight assignments of error affecting no less than thirty separate orders of the court a quo, if only to facilitate proper understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of the whole situation be made together with our conclusions in regard to its various factual and legal aspects. . The instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their respective wills which were executed on different occasions, each one of them provided mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after funeral and administration expenses, taxes and debts) of my estate, both real and personal, wherever situated or located, to my beloved (spouse) to have and to hold unto (him/her) during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them survived the other, the remainder of what he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter. Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special administrator of her estate, and in a separate order of the same date, he was "allowed or authorized to continue the business in which he was engaged, (buying and selling personal and real properties) and to perform acts which he had been doing while the deceased was living." Subsequently, on December 14, 1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and had qualified as Executor thereof, upon his motion in which he asserted that he was "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges",

the trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, ... all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." Annually thereafter, Hodges submitted to the court the corresponding statements of account of his administration, with the particularity that in all his motions, he always made it point to urge the that "no person interested in the Philippines of the time and place of examining the herein accounts be given notice as herein executor is the only devisee or legatee of the deceased in accordance with the last will and testament already probated by the Honorable Court." All said accounts approved as prayed for. Nothing else appears to have been done either by the court a quo or Hodges until December 25, 1962. Importantly to be the provision in the will of Mrs. Hodges that her share of the conjugal partnership was to be inherited by her husband "to have and to hold unto him, my said husband, during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike", which provision naturally made it imperative that the conjugal partnership be promptly liquidated, in order that the "rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily known and identified, no such liquidation was ever undertaken. The record gives no indication of the reason for such omission, although relatedly, it appears therein: 1. That in his annual statement submitted to the court of the net worth of C. N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the combined income of the conjugal partnership and then merely divided the same equally between himself and the estate of the deceased wife, and, more importantly, he also, as consistently, filed corresponding separate income tax returns for each calendar year for each resulting half of such combined income, thus reporting that the estate of Mrs. Hodges had its own income distinct from his own. 2. That when the court a quo happened to inadvertently omit in its order probating the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon then already deceased, Hodges lost no time in asking for the proper correction "in order that the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really interested in the estate of the deceased Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly stated that "deceased Linnie Jane Hodges died leaving no descendants or ascendants except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the decedent", thereby indicating that he was not excluding his wife's brothers and sisters from the inheritance. 4. That Hodges allegedly made statements and manifestations to the United States inheritance tax authorities indicating that he had renounced his inheritance from his wife in favor of her other heirs, which attitude he is supposed to have reiterated or ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in which he even purportedly stated that his reason for so disclaiming and renouncing his rights under his wife's will was to "absolve (him) or (his) estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges", his wife, since her death. On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on December 29, 1962, a certain Harold K. Davies was appointed as her CoSpecial Administrator, and when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB alone. At the outset, the two probate proceedings appear to have been proceeding jointly, with each administrator acting together with the other, under a sort of modus operandi. PCIB used to secure at the beginning the conformity to and signature of Magno in transactions it wanted to enter into and submitted the same to the court for approval as their joint acts. So did Magno do likewise. Somehow, however, differences seem to have arisen, for which reason, each of them began acting later on separately and independently of each other, with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted and paid handsomely, conducted the business of the estate independently of Magno and otherwise acted as if all the properties appearing in the name of Charles Newton Hodges belonged solely and only to his estate, to the exclusion of the brothers and sisters of Mrs. Hodges, without considering whether or not in fact any of said properties corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On the other hand, Magno made her own expenditures, hired her

own lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealth with some of the properties, appearing in the name of Hodges, on the assumption that they actually correspond to the estate of Mrs. Hodges. All of these independent and separate actuations of the two administrators were invariably approved by the trial court upon submission. Eventually, the differences reached a point wherein Magno, who was more cognizant than anyone else about the ins and outs of the businesses and properties of the deceased spouses because of her long and intimate association with them, made it difficult for PCIB to perform normally its functions as administrator separately from her. Thus, legal complications arose and the present judicial controversies came about. Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval by the court a quo of the annual statements of account of Hodges, PCIB holds to the view that the estate of Mrs. Hodges has already been in effect closed with the virtual adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any estate to administer and the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly upon such theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the lower court's orders allowing respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as detailed earlier above, be set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers and sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch as the purported substitution is not, in its view, in accordance with the pertinent provisions of the Civil Code, it is ineffective and may not be enforced. It is further contended that, in any event, inasmuch as the Hodges spouses were both residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of her share of the conjugal partnership, notwithstanding the fact that she was citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code. Initially, We issued a preliminary injunction against Magno and allowed PCIB to act alone. At the same time PCIB has appealed several separate orders of the trial court approving individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for specified fees and incurring expenses of administration for different purposes and executing deeds of sale in favor of her co-appellees covering properties which are still registered in the name of Hodges, purportedly pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional and procedural grounds directly or indirectly predicated on the principal theory of appellant that all

the properties of the two estates belong already to the estate of Hodges exclusively. On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and contends that they were no more than the court's general sanction of past and future acts of Hodges as executor of the will of his wife in due course of administration. As to the point regarding substitution, her position is that what was given by Mrs. Hodges to her husband under the provision in question was a lifetime usufruct of her share of the conjugal partnership, with the naked ownership passing directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code, she claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs. Hodges cannot be less than her share or one-half of the conjugal partnership properties. She further maintains that, in any event, Hodges had as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole estate passed directly to her brothers and sisters effective at the latest upon the death of Hodges. In this decision, for the reasons discussed above, and upon the issues just summarized, We overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount to an adjudication to Hodges of the estate of his wife, and We recognize the present existence of the estate of Mrs. Hodges, as consisting of properties, which, while registered in that name of Hodges, do actually correspond to the remainder of the share of Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of her will, any portion of said share still existing and undisposed of by her husband at the time of his death should go to her brothers and sisters share and share alike. Factually, We find that the proven circumstances relevant to the said orders do not warrant the conclusion that the court intended to make thereby such alleged final adjudication. Legally, We hold that the tenor of said orders furnish no basis for such a conclusion, and what is more, at the time said orders were issued, the proceedings had not yet reached the point when a final distribution and adjudication could be made. Moreover, the interested parties were not duly notified that such disposition of the estate would be done. At best, therefore, said orders merely allowed Hodges to dispose of portions of his inheritance in advance of final adjudication, which is implicitly permitted under Section 2 of Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs. Hodges had no creditors and all pertinent taxes have been paid. More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the community estate of the spouses at the time of her death,

minus whatever Hodges had gratuitously disposed of therefrom during the period from, May 23, 1957, when she died, to December 25, 1962, when he died provided, that with regard to remunerative dispositions made by him during the same period, the proceeds thereof, whether in cash or property, should be deemed as continuing to be part of his wife's estate, unless it can be shown that he had subsequently disposed of them gratuitously. At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what would be the estate of Mrs. Hodges under them is basically one of fact, and considering the respective positions of the parties in regard to said factual issue, it can already be deemed as settled for the purposes of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers and sisters by virtue of her will may not be less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the view that under the laws of Texas, there is such a legitime of one-fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In other words, hereafter, whatever might ultimately appear, at the subsequent proceedings, to be actually the laws of Texas on the matter would no longer be of any consequence, since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as contended by it now, for admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create estoppel. In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition, however, that the latter would have complete rights of dominion over the whole estate during his lifetime and what would go to the former would be only the remainder thereof at the time of Hodges' death. In other words, whereas they are not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary substitution are absent; the provision in question is a simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the suspensive condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law. We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more than just stated, but this would depend on (1) whether upon the proper application of the principle of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that Hodges had no

legitime as contended by Magno, and (2) whether or not it can be held that Hodges had legally and effectively renounced his inheritance from his wife. Under the circumstances presently obtaining and in the state of the record of these cases, as of now, the Court is not in a position to make a final ruling, whether of fact or of law, on any of these two issues, and We, therefore, reserve said issues for further proceedings and resolution in the first instance by the court a quo, as hereinabove indicated. We reiterate, however, that pending such further proceedings, as matters stand at this stage, Our considered opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could not have anyway legally adjudicated or caused to be adjudicated to himself her whole share of their conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have been gratuitously disposed of therefrom, by Hodges in favor of third persons since then, for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the ones ultimately applicable, such one-fourth share would be her free disposable portion, taking into account already the legitime of her husband under Article 900 of the Civil Code. The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno is the legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be denied. The Court feels however, that pending the liquidation of the conjugal partnership and the determination of the specific properties constituting her estate, the two administrators should act conjointly as ordered in the Court's resolution of September 8, 1972 and as further clarified in the dispositive portion of its decision. Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious that, with Our holding that there is such an estate of Mrs. Hodges, and for the reasons stated in the body of this opinion, the said orders should be affirmed. This We do on the assumption We find justified by the evidence of record, and seemingly agreed to by appellant PCIB, that the size and value of the properties that should correspond to the estate of Mrs. Hodges far exceed the total of the attorney's fees and administration expenses in question. With respect to the appeals from the orders approving transactions made by appellee Magno, as administratrix, covering properties registered in the name of Hodges, the details of which are related earlier above, a distinction must be made between those predicated on contracts to sell executed by Hodges before the death

of his wife, on the one hand, and those premised on contracts to sell entered into by him after her death. As regards the latter, We hold that inasmuch as the payments made by appellees constitute proceeds of sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May 27 and December 14, 1957, said payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on the assumption that the size and value of the properties to correspond to the estate of Mrs. Hodges would exceed the total value of all the properties covered by the impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs. Hodges. And there being no showing that thus viewing the situation, there would be prejudice to anyone, including the government, the Court also holds that, disregarding procedural technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural and jurisdictional issues raised by it. And inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the government has objected to any of the orders under appeal, even as to these parties, there exists no reason for said orders to be set aside. DISPOSITIVE PART IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from said estate; in consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972, directing that petitionerappellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in

Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates, provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other onefourth shall remain under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator 12; and this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution. Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion. Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal docket fees, but this decision shall nevertheless become final as to each of the parties herein after fifteen (15) days from the respective notices to them hereof in accordance with the rules. Costs against petitioner-appellant PCIB. Zaldivar, Castro, Esguerra and Fernandez, JJ., concur. Makasiar, Antonio, Muoz Palma and Aquino, JJ., concur in the result.

Separate Opinions FERNANDO, J., concurring: I concur on the basis of the procedural pronouncements in the opinion. TEEHANKEE, J., concurring:

I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and with the affirmance of the appealed orders of the probate court in Cases L-27936-37. I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December 6, 1967 1 and ordering in lieu thereof that the Court's resolution of September 8, 1972 2 which directed that petitioner-appellant PCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly never independently from each other, as such administrators, is reiterated and shall continue in force and made part of the judgment. It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and (over five (5) years after her husband C.N. Hodges' death on December 25, 1962 during which time both estates have been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) that the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in granting C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling personal and real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made by him as such executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby merged with his own so that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs after him, 4 is wholly untenable and deserves scant consideration. Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14, 1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his own share of their conjugal partnership and estate and "never considered the whole estate as a single one belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time of his own death on December 25, 1962 5 and against the identical acts and judicial admissions of PCIB as administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole administration.

PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal rights and interests therein of her brothers and sisters as her designated heirs in her will. PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate of Mrs. Hodges of which respondent Avelina Magno is the duly appointed and acting administratrix. PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of administration of said estate and approving the sales contracts executed by her with the various individual appellees, which involve basically the same primal issue raised in the petition as to whether there still exists a separate estate of Linnie of which respondent-appellee Magno may continue to be the administratrix, must necessarily fail a result of the Court's main opinion at bar that there does exist such an estate and that the two estates (husband's and wife's) must be administered cojointly by their respective administrators (PCIB and Magno). The dispositive portion of the main opinion The main opinion disposes that: IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision: The existence of the Testate Estate of Linnie Jane Hodges, with respondentappellee Avelina A. Magno, as administratrix thereof is recognized, and It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issues of whether or not Charles Newton Hodges has effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by

the husband, and second, that should the purported renunciation be declared legally effective, no deduction whatsoever are to be made from said estate; In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates; provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; Thereafter, the trial court should forthwith segregate the remainder of the onefourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administrative of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator; And this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution. Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion. 8 Minimum estimate of Mrs. Hodges' estate:One-fourth of conjugal properties. The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was entitled to one-half of her estate as legitime and (2) that he had not effectively and legally renounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death,"

with the proviso that proceeds of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue to be part of her estate unless subsequently disposed of by him gratuitously to third parties subject to the condition, however, that if he is held to have validly and effectively renounced his inheritance under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's estate which shall pass intact to her brothers and sisters as her designated heirs called in her will to succeed to her estate upon the death of her husband C. N. Hodges. Differences with the main opinion I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to have dominion over all her estate during his lifetime ... as absolute owner of the properties ..." 9 and that she bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then." 10 As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N. Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit, Hodges as instituted heir with a resolutory term whereunder his right to the succession ceased in diem upon arrival of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term of the death of C. N. Hodges on December 25, 1962. Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N. Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters, I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate "completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language of the main opinion, supra and thereby render ineffectual and nugatory her institution of her brothers and sisters as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate "mortis causa," it

would seem that by the same token and rationale he was likewise proscribed by the will from making such dispositions of Linnie's estate inter vivos. I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by the probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17) years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to now might take a similar number of years to unravel with the numerous items, transactions and details of the sizable estates involved. Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C. N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance under the will), then Linnie's estate would consist not only of the minimum onefourth but one-half of the conjugal or community properties of the Hodges spouses, which would require again the partition and segregation of still another one-fourth of said. properties to complete Linnie's separate estate. My differences with the main opinion involve further the legal concepts, effects and consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach a solution of the pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no consensus appears to have been reached thereon by a majority of the Court, I propose to state views as concisely as possible with the sole end in view that they may be of some assistance to the probate court and the parties in reaching an expeditious closing and settlement of the estates of the Hodges spouses. Two Assumptions As indicated above, the declaration of the minimum of Mrs. Hodges' estate as onefourth of the conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state the Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the national law of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate would consist of no more than onefourth of the conjugal properties since the legitime of her husband (the other onefourth of said conjugal properties or one-half of her estate, under Article 900 of our

Civil Code) could not then be disposed of nor burdened with any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his inheritance under his wife's will. These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix, who avers that the law of the State of Texas governs her succession and does not provide for and legitime, hence, her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is one-half thereof and that in any event, Hodges had totally renounced all his rights under the will. The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12 Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims and issues which it deems "are not properly before the Court now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14 Suggested guidelines Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit of our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors and those entitled to the residue by way of inheritance considering that the estates have been long pending settlement since 1957 and 1962, respectively it was felt that the Court should lay down specific guidelines for the guidance of the probate court towards the end that it may expedite the closing of the protracted estates proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings. After all, the only question that remains depends for its determination on the resolution of the two questions of renvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the inheritance. But as already indicated above, the Court without reaching a consensus which would

finally resolve the conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed out fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15 The writer thus feels that laying down the premises and principles governing the nature, effects and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a legitime of onehalf of his wife Linnie's estate and/or that he had or had not effectively and validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving the only remaining question of how much more than the minimum one-fourth of the community properties of the Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested guidelines, which needless to state, represent the personal opinion and views of the writer: 1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein." 16 2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained authorization from the probate court to continue the conjugal partnership's business of buying and selling real and personal properties. In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges thus consistently reported the considerable combined income (in six figures) of the conjugal partnership or coownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently filed separate income tax returns and paid the income taxes for each resulting half of such combined income corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that "Hodges waived not only his rights to the fruits but to the properties themselves." 19

By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made by Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership and community estate and were so reported and treated by him. 3. With this premise established that all transactions of Hodges after his wife's death were for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that no gratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from her separate estate as held in the main opinion. On the contrary, any such gratuitous dispositions should be charged to his own share of the conjugal estate since he had no authority or right to make any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters whom she called to her succession upon his death, not to mention that the very authority obtained by him from the probate court per its orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business of buying and selling real properties for the account of their unliquidated conjugal estate and co-ownership, share and share alike and not to make any free dispositions of Linnie's estate. 4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or co-ownership, share and share alike since the conjugal partnership remained unliquidated which is another way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to have an equal stake and share in the conjugal partnership which was not only left unliquidated but continued as a co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he survived his wife. This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." 22 And this equally furnishes the rationale of the main opinion for continued conjoint administration by the administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal partnership," 23 since "it is but logical that both estates should be administered jointly by the representatives of both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance."24 5.Antly by the representatives of both, pending their segregation from each other.Particularly ... because the actuations so

far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5. As stressed in the main opinion, the determination of the only unresolved issue of how much more than the minimum of one-fourth of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges' estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate proceedings herein involved" be held by the probate court for the reception of "further evidence" in order to finally resolved these twin questions. 25 (a) On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated with him and that it was his "intention (as) surviving husband of the deceased to distribute the remaining property and interests of the deceased in their community estate to the devisee and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28 (b) On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23, 1957 and December 25, 1962. 29 6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and reiterated expressly in his affidavit of renunciation executed four years later for the avowed purpose of not being held liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a valid and effective renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by virtue of his renunciation. By simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue of the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an heir" 31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are called immediately to her succession. Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to their respective estates, with each estate, however, shouldering its own expenses of administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated in their respective wills. The question of renvoi becomes immaterial since most laws and our laws permit such renunciation of inheritance. 7. If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C. N. Hodges of his inheritance from his wife, however, what would be the consequence? (a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of the community properties of the said spouses, as of the time of (her) death on May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist of three-fourths of the community properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code) which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix. (b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal properties would then pertain share and share alike to their respective estates, with each estate shouldering its own expenses of administration in the same manner stated in the last paragraph of paragraph 6 hereof. . 8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he brothers and sisters of Mrs. Hodges are not

substitutes for Hodges; rather, they are also heirs instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate ... that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any portion thereof anybody other than himself" and describes Hodges "as universal and sole heir with absolute dominion over Mrs. Hodges' estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33 Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his lifetime nullify her institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death of (her) husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not only of his own estate but of his wife's estate as well. Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law." 34 Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would be called immediately to her succession instead of waiting for the arrival of suspensive term of Hodges' death, since as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would "enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Article 857 and 859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges' renunciation. Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural lifetime ... manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall belong to him. She further willed that while he could sell and purchase properties of her estate, and "use any part of the principal estate," such principal notwithstanding "any changes in the physical properties of said estate"(i.e. new properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass in full dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real ... to my beloved husband, Charles Newton Hodges, to have and to hold with him ... during his natural lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during his lifetime, ... to make any changes in the physical properties of said estate, by sale ... and the purchase of any other or additional property as he may think best ... . All rents, emoluments and income from said estate shall belong to him and he is further authorized to use any part of the principal of said estate as he may need or desire, ... he shall not sell or otherwise dispose of any of the improved property now owned by us, located at ... City of Lubbock, Texas ... . He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, ... to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters ... prior to the death of my husband ... the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived." 40 Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales made by Hodges after his wife Linnie's death were by operation of the law of trust as well as by his own acknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, with the express authorization of the probate court per its orders of May 25, and December 14, 1957 granting Hodges' motion to continue the conjugal partnership business of buying and selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her brothers and sisters upon his death. 9. Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term." 41 Thus, Article 885 of our Civil Code expressly provides that: ART 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.

Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers' and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42 As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day when the legacy "shall commence" is ex die, or a term with a suspensive effect, from a certain day. The designation of the day when the legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds that "A legacy based upon a certain age or upon the death of a person is not a condition but a term. If the arrival of the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to the succession, and in case of a resolutory term, his right terminates." 43 10. The sizable estates herein involved have now been pending settlement for a considerably protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the only remaining issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their heirs in turn 44 to come to terms for the adjudication and distribution to them pro-indiviso of the up to now unliquidated community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal partnership) rather than to get bogged down with the formidable task of physically segregating and partitioning the two estates with the numerous transactions, items and details and physical changes of properties involved. The estates proceedings would thus be closed and they could then name their respective attorneys-in-fact to work out the details of segregating, dividing or partitioning the unliquidated community properties or liquidating them which can be done then on their own without further need of intervention on the part of the probate court as well as allow them meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such manner as may be agreed upon between them. Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all of them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband, while certain other heirs

representing 17.34375% of Hodges' estate were joining cause with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle between the administrators of the two estates to the common prejudice of all the heirs. 11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the probate court as well as the parties towards expediting the winding up and closing of the estates and the distribution of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court should exert all effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind the Court's admonition in previous cases that "courts of first instance should exert themselves to close up estate within twelve months from the time they are presented, and they may refuse to allow any compensation to executors and administrators who do not actively labor to that end, and they may even adopt harsher measures." 46 Timeliness of appeals and imposition ofthirty-one (31) additional docket fees Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three different orders of the probate court approving sales contracts and other acts of administration executed and performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's decision at bar. (a) The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to show on their face and state the material data that the appeals were timely taken within the 30-day reglamentary period as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around practically the same main issues and ... it is admitted that some of them have been timely taken." 47 The main opinion thus proceeded with the determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's records on appeal and their failure to state the required material data showing the timeliness of the appeals. Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases merits the writer's concurrence in that the question raised has been subordinated to the paramount considerations of

substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the primary intent and purpose of the rules, viz "the proper and just determination of a litigation" 48 which calls for "adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice and of avoiding denials of substantial justice due to procedural technicalities." 49 Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and prohibition" "despite the conceded availability of appeal" on the ground that "there is a common thread among the basic issues involved in all these thirty-three appeals (which) deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action . . . " 50 (b) Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the resolution of all such incidental questioned orders involve basically one and the same main issue (in this case, the existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51 Considering the importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac vice given his concurrence to the assessment of the said thirty-one (31) additional appeal docket fees. MAKALINTAL, C.J., concurring: I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of the probate court in cases L-27936-37. However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges was entitled to a legitime in his deceased wife's estate which question, still to be decided by the said probate court, may depend upon what is the law of Texas and upon its applicability in the present case the said estate consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond that. It is important to

bear this in mind because the estate of Linnie Hodges consists of her share in the conjugal properties, is still under administration and until now has not been distributed by order of the court. The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie Hodges' minimum share is a misnomer and is evidently meant only to indicate that if her husband should eventually be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral relatives would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the remainder, which constitutes such legitime, would necessarily go to her husband in absolute ownership, unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the heirs who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal share.

Separate Opinions FERNANDO, J., concurring: I concur on the basis of the procedural pronouncements in the opinion. TEEHANKEE, J., concurring: I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and with the affirmance of the appealed orders of the probate court in Cases L-27936-37. I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing the lifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December 6, 1967 1 and ordering in lieu thereof that the Court's resolution of September 8, 1972 2 which directed that petitioner-appellant PCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly never independently from each other, as such administrators, is reiterated and shall continue in force and made part of the judgment. It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filed by it with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and (over five (5) years after her husband C.N. Hodges' death on December 25, 1962 during which time both estates have been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) that the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in granting C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling personal and real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made by him as such

executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate and nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby merged with his own so that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs after him, 4 is wholly untenable and deserves scant consideration. Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14, 1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his own share of their conjugal partnership and estate and "never considered the whole estate as a single one belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time of his own death on December 25, 1962 5 and against the identical acts and judicial admissions of PCIB as administrator of C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole administration. PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent with its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal rights and interests therein of her brothers and sisters as her designated heirs in her will. PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate of Mrs. Hodges of which respondent Avelina Magno is the duly appointed and acting administratrix. PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's estate (Sp. Proc No. 1307) and sanctioning her acts of administration of said estate and approving the sales contracts executed by her with the various individual appellees, which involve basically the same primal issue raised in the petition as to whether there still exists a separate estate of Linnie of which respondent-appellee Magno may continue to be the administratrix, must necessarily fail a result of the Court's main opinion at bar that there does exist such an estate and that the two estates (husband's and wife's) must be administered cojointly by their respective administrators (PCIB and Magno). The dispositive portion of the main opinion The main opinion disposes that:

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision: The existence of the Testate Estate of Linnie Jane Hodges, with respondentappellee Avelina A. Magno, as administratrix thereof is recognized, and It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issues of whether or not Charles Newton Hodges has effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deduction whatsoever are to be made from said estate; In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates; provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; Thereafter, the trial court should forthwith segregate the remainder of the onefourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administrative of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator;

And this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution. Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion. 8 Minimum estimate of Mrs. Hodges' estate:One-fourth of conjugal properties. The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving husband was entitled to one-half of her estate as legitime and (2) that he had not effectively and legally renounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of in favor of third persons from said date until his death," with the proviso that proceeds of remunerative dispositions or sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue to be part of her estate unless subsequently disposed of by him gratuitously to third parties subject to the condition, however, that if he is held to have validly and effectively renounced his inheritance under his wife's will, no deductions of any dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's estate which shall pass intact to her brothers and sisters as her designated heirs called in her will to succeed to her estate upon the death of her husband C. N. Hodges. Differences with the main opinion I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to have dominion over all her estate during his lifetime ... as absolute owner of the properties ..." 9 and that she bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then." 10 As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute ownership" and "absolute dominion" over her

estate to her husband, but rather that she named her husband C. N. Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit, Hodges as instituted heir with a resolutory term whereunder his right to the succession ceased in diem upon arrival of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term of the death of C. N. Hodges on December 25, 1962. Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N. Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters, I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate "completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language of the main opinion, supra and thereby render ineffectual and nugatory her institution of her brothers and sisters as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate "mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from making such dispositions of Linnie's estate inter vivos. I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by the probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17) years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to now might take a similar number of years to unravel with the numerous items, transactions and details of the sizable estates involved. Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions of renvoi and renunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C. N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance under the will), then Linnie's estate would consist not only of the minimum onefourth but one-half of the conjugal or community properties of the Hodges spouses, which would require again the partition and segregation of still another one-fourth of said. properties to complete Linnie's separate estate. My differences with the main opinion involve further the legal concepts, effects and consequences of the testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach a solution of the pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without any further undue complications and delays and

distributed to the heirs for their full enjoyment and benefit. As no consensus appears to have been reached thereon by a majority of the Court, I propose to state views as concisely as possible with the sole end in view that they may be of some assistance to the probate court and the parties in reaching an expeditious closing and settlement of the estates of the Hodges spouses. Two Assumptions As indicated above, the declaration of the minimum of Mrs. Hodges' estate as onefourth of the conjugal properties is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state the Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses would govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the national law of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate would consist of no more than onefourth of the conjugal properties since the legitime of her husband (the other onefourth of said conjugal properties or one-half of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his inheritance under his wife's will. These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix, who avers that the law of the State of Texas governs her succession and does not provide for and legitime, hence, her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is one-half thereof and that in any event, Hodges had totally renounced all his rights under the will. The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12 Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims and issues which it deems "are not properly before the Court now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2)

whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14 Suggested guidelines Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit of our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors and those entitled to the residue by way of inheritance considering that the estates have been long pending settlement since 1957 and 1962, respectively it was felt that the Court should lay down specific guidelines for the guidance of the probate court towards the end that it may expedite the closing of the protracted estates proceedings below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of this only remaining issue once more to this Court and dragging out indefinitely the proceedings. After all, the only question that remains depends for its determination on the resolution of the two questions of renvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the inheritance. But as already indicated above, the Court without reaching a consensus which would finally resolve the conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed out fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15 The writer thus feels that laying down the premises and principles governing the nature, effects and consequences of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was not entitled to claim a legitime of onehalf of his wife Linnie's estate and/or that he had or had not effectively and validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving the only remaining question of how much more than the minimum one-fourth of the community properties of the Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested guidelines, which needless to state, represent the personal opinion and views of the writer: 1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein." 16

2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On the contrary, he sought and obtained authorization from the probate court to continue the conjugal partnership's business of buying and selling real and personal properties. In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges thus consistently reported the considerable combined income (in six figures) of the conjugal partnership or coownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently filed separate income tax returns and paid the income taxes for each resulting half of such combined income corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that "Hodges waived not only his rights to the fruits but to the properties themselves." 19 By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made by Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership and community estate and were so reported and treated by him. 3. With this premise established that all transactions of Hodges after his wife's death were for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that no gratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from her separate estate as held in the main opinion. On the contrary, any such gratuitous dispositions should be charged to his own share of the conjugal estate since he had no authority or right to make any gratuitous dispositions of Linnie's properties to the prejudice of her brothers and sisters whom she called to her succession upon his death, not to mention that the very authority obtained by him from the probate court per its orders of May 25, and December 14, 1957 was to continue the conjugal partnership's business of buying and selling real properties for the account of their unliquidated conjugal estate and co-ownership, share and share alike and not to make any free dispositions of Linnie's estate. 4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or co-ownership, share and share alike since the conjugal partnership remained unliquidated which is another way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to

have an equal stake and share in the conjugal partnership which was not only left unliquidated but continued as a co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he survived his wife. This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." 22 And this equally furnishes the rationale of the main opinion for continued conjoint administration by the administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal partnership," 23 since "it is but logical that both estates should be administered jointly by the representatives of both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance."24 5.Antly by the representatives of both, pending their segregation from each other.Particularly ... because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5. As stressed in the main opinion, the determination of the only unresolved issue of how much more than the minimum of one-fourth of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges' estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of the two probate proceedings herein involved" be held by the probate court for the reception of "further evidence" in order to finally resolved these twin questions. 25 (a) On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that he was renouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated with him and that it was his "intention (as) surviving husband of the deceased to distribute the remaining property and interests of the deceased in their community estate to the devisee and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid;" 27 and The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962 by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of this affidavit is to ratify and confirm, and I do

hereby ratify and confirm, the declaration made in schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28 (b) On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23, 1957 and December 25, 1962. 29 6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and reiterated expressly in his affidavit of renunciation executed four years later for the avowed purpose of not being held liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a valid and effective renunciation. Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by virtue of his renunciation. By simple substitution then under Articles 857 and 859 of our Civil Code 30 and by virtue of the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an heir" 31 by force of his renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are called immediately to her succession. Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to their respective estates, with each estate, however, shouldering its own expenses of administration, estate and inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated in their respective wills. The question of renvoi becomes immaterial since most laws and our laws permit such renunciation of inheritance. 7. If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C. N. Hodges of his inheritance from his wife, however, what would be the consequence? (a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate would consist only of the minimum of "one-fourth of the community properties of the said

spouses, as of the time of (her) death on May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist of three-fourths of the community properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges' estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code) which could not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix. (b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal properties would then pertain share and share alike to their respective estates, with each estate shouldering its own expenses of administration in the same manner stated in the last paragraph of paragraph 6 hereof. . 8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs instituted simultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate ... that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any portion thereof anybody other than himself" and describes Hodges "as universal and sole heir with absolute dominion over Mrs. Hodges' estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to preserve anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33 Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant to C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his lifetime nullify her institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death of (her) husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not only of his own estate but of his wife's estate as well. Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law." 34

Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of heirs in fact and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would be called immediately to her succession instead of waiting for the arrival of suspensive term of Hodges' death, since as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would "enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Article 857 and 859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges' renunciation. Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural lifetime ... manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall belong to him. She further willed that while he could sell and purchase properties of her estate, and "use any part of the principal estate," such principal notwithstanding "any changes in the physical properties of said estate"(i.e. new properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass in full dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36 The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real ... to my beloved husband, Charles Newton Hodges, to have and to hold with him ... during his natural lifetime;" 37 that "(he) shall have the right to manage, control, use and enjoy said estate during his lifetime, ... to make any changes in the physical properties of said estate, by sale ... and the purchase of any other or additional property as he may think best ... . All rents, emoluments and income from said estate shall belong to him and he is further authorized to use any part of the principal of said estate as he may need or desire, ... he shall not sell or otherwise dispose of any of the improved property now owned by us, located at ... City of Lubbock, Texas ... . He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, ... to be equally divided among my brothers and sisters, share and share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters ... prior to the death of my husband ... the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived." 40 Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales made by Hodges after his wife Linnie's death were by operation of the law of trust as well as by his own acknowledgment and acts

deemed for and on behalf of their unliquidated conjugal partnership and community estate, share and share alike, with the express authorization of the probate court per its orders of May 25, and December 14, 1957 granting Hodges' motion to continue the conjugal partnership business of buying and selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her brothers and sisters upon his death. 9. Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4 of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term." 41 Thus, Article 885 of our Civil Code expressly provides that: ART 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers' and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42 As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day when the legacy "shall commence" is ex die, or a term with a suspensive effect, from a certain day. The designation of the day when the legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds that "A legacy based upon a certain age or upon the death of a person is not a condition but a term. If the arrival of the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to the succession, and in case of a resolutory term, his right terminates." 43 10. The sizable estates herein involved have now been pending settlement for a considerably protracted period (of seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the only remaining issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the heirs duly instituted in their

wills long admitted to probate. Hence, it is advisable for said instituted heirs and their heirs in turn 44 to come to terms for the adjudication and distribution to them pro-indiviso of the up to now unliquidated community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal partnership) rather than to get bogged down with the formidable task of physically segregating and partitioning the two estates with the numerous transactions, items and details and physical changes of properties involved. The estates proceedings would thus be closed and they could then name their respective attorneys-in-fact to work out the details of segregating, dividing or partitioning the unliquidated community properties or liquidating them which can be done then on their own without further need of intervention on the part of the probate court as well as allow them meanwhile to enjoy and make use of the income and cash and liquid assets of the estates in such manner as may be agreed upon between them. Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all of them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle between the administrators of the two estates to the common prejudice of all the heirs. 11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the probate court as well as the parties towards expediting the winding up and closing of the estates and the distribution of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court should exert all effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind the Court's admonition in previous cases that "courts of first instance should exert themselves to close up estate within twelve months from the time they are presented, and they may refuse to allow any compensation to executors and administrators who do not actively labor to that end, and they may even adopt harsher measures." 46 Timeliness of appeals and imposition ofthirty-one (31) additional docket fees Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and that her estate and that of her husband (since they jointly comprise unliquidated community properties)

must be administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three different orders of the probate court approving sales contracts and other acts of administration executed and performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's decision at bar. (a) The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to show on their face and state the material data that the appeals were timely taken within the 30-day reglamentary period as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around practically the same main issues and ... it is admitted that some of them have been timely taken." 47 The main opinion thus proceeded with the determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's records on appeal and their failure to state the required material data showing the timeliness of the appeals. Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases merits the writer's concurrence in that the question raised has been subordinated to the paramount considerations of substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the primary intent and purpose of the rules, viz "the proper and just determination of a litigation" 48 which calls for "adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice and of avoiding denials of substantial justice due to procedural technicalities." 49 Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and prohibition" "despite the conceded availability of appeal" on the ground that "there is a common thread among the basic issues involved in all these thirty-three appeals (which) deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action . . . " 50 (b) Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the resolution of all such

incidental questioned orders involve basically one and the same main issue (in this case, the existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51 Considering the importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac vice given his concurrence to the assessment of the said thirty-one (31) additional appeal docket fees. MAKALINTAL, C.J., concurring: I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L-27896 and affirms the appealed orders of the probate court in cases L-27936-37. However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges was entitled to a legitime in his deceased wife's estate which question, still to be decided by the said probate court, may depend upon what is the law of Texas and upon its applicability in the present case the said estate consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her share in the conjugal properties, is still under administration and until now has not been distributed by order of the court. The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie Hodges' minimum share is a misnomer and is evidently meant only to indicate that if her husband should eventually be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral relatives would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the remainder, which constitutes such legitime, would necessarily go to her husband in absolute ownership, unburdened by any substitution, term or condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the heirs who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal share.

G.R. No. L-55509 April 27, 1984 ETHEL GRIMM ROBERTS, petitioner, vs.JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents. N. J. Quisumbing and Associates for petitioners. Angara, Abello, Concepcion, Regala and Cruz for respondents.

AQUINO, J.:+.wph!1 The question in this case is whether a petition for allowance of wills and to annul a partition, approved in an intestate proceeding by Branch 20 of the Manila Court of First Instance, can be entertained by its Branch 38 (after a probate in the Utah district court). Antecedents. Edward M. Grimm an American resident of Manila, died at 78 in the Makati Medical Center on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm and their two children, named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a first marriage which ended in divorce (SubAnnexes A and B. pp. 36-47, Rollo). He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine estate which he described as conjugal property of himself and his second wife. The second win disposed of his estate outside the Philippines. In both wills, the second wife and two children were favored. The two children of the first marriage were given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his property outside this country, the testator said: t.hqw I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided for each of them in a separate will disposing of my Philippine property. (First clause, pp. 43-47, Rollo). The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah. Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon City were notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo). Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial District Court admitted to probate the two wills and the codicil It was issued upon consideration of the stipulation dated April 4, 1978 "by and between the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo). Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm as the second parties, with knowledge of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate. It was signed by David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda and the attorney-in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.

In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that Maxine's one-half conjugal share in the estate should be reserved for her and that would not be less than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the "net distributable estate". It recognized that the estate was liable to pay the fees of the Angara law firm (par. 5). It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net Distributable Estate" and that Ethel and Juanita Morris should each receive at least 12-1/2% of the total of the net distributable estate and marital share. A supplemental memorandum also dated April 25, 1978 was executed by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case). Intestate proceeding No. 113024.-At this juncture, it should be stated that fortythree days after Grimm's death, or January 9, 1978, his daughter of the first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate proceeding No. 113024 for the settlement of his estate. She was named special administratrix. On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion to dismiss the intestate proceeding on the ground of the pendency of Utah of a proceeding for the probate of Grimm's will. She also moved that she be appointed special administratrix, She submitted to the court a copy of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of the record. The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case withdrew that opposition and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint administrators. Apparently, this was done pursuant to the aforementioned Utah compromise agreement. The court ignored the will already found in the record. The three administrators submitted an inventory. With the authority and approval of the court, they sold for P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a business owned by the deceased. Linda and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned out that the buyer, Makiling Management Co., Inc., was incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco (Annex L, p. 90, testate case). Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to Joseph Server and others 193,267 shares of RFM Corporation (p. 135, Record). Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July 27, 1979 adjudicated to Maxine

onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8) each to his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in that order. Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as their lawyer who on August 9, moved to defer approval of the project of partition. The court considered the motion moot considering that it had already approved the declaration of heirs and project of partition (p. 149, Record). Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected with Makiling Management Co., Inc. when the Palawan Pearl Project was sold: that it was Maxine's son Pete who negotiated the sale with Rex Roberts and that he (Limqueco) was going to sue Maxine for the lies she imputed to him (Annex H, p. 78, testate case). Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated October 2, 1979. It was stated therein that Maxine paid P1,992,233.69 as estate tax and penalties and that he interposed no objection to the transfer of the estate to Grimm's heirs (p. 153, Record). The court noted the certification as in conformity with its order of July 27, 1979. After November, 1979 or for a period of more than five months, there was no movement or activity in the intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so that the Estate properties can be partitioned among the heirs and the present intestate estate be closed." Del Callar, Maxine's lawyer was notified of that motion. Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its appearance in collaboration with Del Callar as counsel for Maxine and her two children, Linda and Pete. It should be recalled that the firm had previously appeared in the case as Maxine's counsel on March 11, 1978, when it filed a motion to dismiss the intestate proceeding and furnished the court with a copy of Grimm's will. As already noted, the firm was then superseded by lawyer Limqueco. Petition to annul partition and testate proceeding No. 134559. On September 8, 1980, Rogelio A. Vinluan of the Angara law firm in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved by the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the properties received by them and to return the same to Maxine (pp. 25-35, Rollo). Grimm's second wife and two children alleged that they were defraud due to the machinations of the Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate proceeding is void because Grimm died testate and that the partition was contrary to the decedent's wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the testate proceeding be dismissed, or. alternatively that the two proceedings be consolidated and heard in Branch 20 and that the matter of the annulment of the Utah compromise agreement be heard prior to the petition for probate (pp. 22-23, Rollo). Ruling. We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss. A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court). The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other papers in the testate case. WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No costs. SO ORDERED.1wph1.t

G.R. No. 77047 May 28, 1988 JOAQUINA R-INFANTE DE ARANZ, ANTONIO R-INFANTE, CARLOS R. INFANTE, MERCEDES R-INFANTE DE LEDNICKY, ALFREDO R-INFANTE, TERESITA R-INFANTE, RAMON R-INFANTE, FLORENCIA R-INFANTE DE DIAS, MARTIN R-INFANTE, JOSE RINFANTE LINK and JOAQUIN R-INFANTE CAMPBELL, petitioners, vs.THE HON. NICOLAS GALING, PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, BRANCH NO. 166, PASIG, METRO MANILA AND JOAQUIN RINFANTE, respondents. Belo, Abiera and Associates for petitioners. Miguel J. Lagman for respondents. PADILLA, J.:

This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated 13 January 1987, in CA-G.R. SP No. 09622, entitled "Joaquina R-Infante de Aranz, et al., petitioners vs. Hon. Nicolas Galing, etc., et al., respondents," dismissing petitioners' petition for certiorari and prohibition as-, sailing the orders 2 of the Regional Trial Court of Pasig, Branch 166, dated 12 May 1986 and 30 May 1986, respectively, in Sp. Proc. No. 9995, entitled, "In the Matter of Petition for Approval of the Last Will and Testament of Montserrat R-Infante y G-Pola Joaquin R. Infante, Petitioner." On 3 March 1986, private respondent filed with the Regional Trial Court of Pasig, Branch 166, a petition for the probate and allowance of the last will and testament of the late Montserrat R-Infante y G-Pola The petition specified the names and addresses of herein petitioners as legatees and devisees, as follows: Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New Manila, Quezon City, Metro Manila; Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes, Makati, Metro Manila; Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San Juan, Metro Manila; Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St., San Juan, Metro Manila; Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City, Metro Manila; Teresita R-Infante Roxas residing at #121 9th Street, New Manila, Quezon City, Metro Manila; Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City, Metro Manila; Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-19-D, Madrid, 28028 Spain; Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon City, Metro Manila; Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro Manila; Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati, Metro Marta. 3 On 12 March 1986, the probate court issued an order selling the petition for hearing on 5 May 1986 at 8:30 o'clock in the morning. Said order was published in the "Nueva Era" A newspaper of general circulation in Metro Manila once a week for three (3) consecutive weeks. On the date of the hearing, no oppositor appeared. The hearing was then reset to 12 May 1986, on which date, the probate court issued the following order: There being no opposition to this instant case, as prayed for, the oner to-receive Branch Clerk of Court is hereby designated Co evidence ex-parte of the petitioner. SO ORDERED. 4

On the same day (12 May 1986), private respondent presented his evidence exparte and placed Arturo Arceo one of the testamentary witnesses, on the witness stand. During the proceedings, private respondent was appointed executor. On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May 1986 alleging that, as named legatees, no notices were sent to them as required by Sec. 4, Rule 76 of the Rules of Court and they prayed that they be given a period of ten (10) days within which to file their opposition to the probate of the will. On 30 May 1986, the probate court, acting on the opposition of private respondent and the reply thereto of petitioners, issued an order denying petitioners motion for reconsideration. Thereafter, petitioners filed with this Court a petition for certiorari and prohibition which was, however, referred to the Court of Appeals. On 13 January 1987, the Court of Appeals promulgated a decision dismissing the petition. 5 Hence, the instant petition. It is the view of petitioners that the Court of Appeals erred in holding that personal notice of probate proceedings to the known legatees and devisees is not a jurisdictional requirement in the probate of a will. Contrary to the holding of the Court of Appeals that the requirement of notice on individual heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some instances the requirements of due process, petitioners allege that under Sec. 4 of Rule 76 of the Rules of Court, said requirement of the law is mandatory and its omission constitutes a reversible error for being constitutive of grave abuse of discretion. 6 We grant the petition: Sec. 4, Rule 76 of the Rules of Cof reads: SEC. 4.Heirs, devisees, legatees, and executors to be notified by mail or personally. The court shag 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 resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not, the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing. It is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of a will shall be forwarded to the designated or other known heirs, legatees, and devisees residing in the Philippines at their places of residence, if such places of residence be known. There is no question that the residences of herein petitioners legatees and devisees were known to the probate court. The

petition for the allowance of the wig itself indicated the names and addresses of the legatees and devisees of the testator. 7 But despite such knowledge, the probate court did not cause copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by mere publication of the notice of hearing for three (3) weeks in a newspaper of general circulation in the province. The case of Joson vs. Nable 8 cited by the Court of Appeals in its assailed decision to support its theory is not applicable in the present case. In that case, petitioners Purificacion Joson and Erotica Joson failed to contest the will of Tomas Joson because they had not been notified of the hearing of the petition for probate. he the petition included the residence of petitioners as Dagupan Street No. 83, Manila, petitioners claimed that their residence was not Dagupan Street No. 83, Manila. There the Court said: Petitioners maintain that no notice was received by them partly because their residence was not Dagupan Street No. 83 as alleged in the petition for probate. If the allegation of the petition was wrong and the true residence of petitioners was not known, then notice upon them individually was not necessary. Under the provision abovequoted, individual notice upon heirs, legatees and devisees is necessary only when they are known or when their places of residence are known. In other instances, such notice is not necessary and the court may acquire and exercise jurisdiction simply upon the publication of the notice in a newspaper of general circulation. ... 9 In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla, said: ... It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t.s.n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened to a deposition or to a perpetuation of testimony, and even if it were so it does not measure or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. xxx xxx xxx ... In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the

probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of court. 11 WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby ANNULLED and SET ASIDE. The case is hereby ordered remanded to the Regional Trial Court of Pasig for further proceedings in accordance with this decision. No costs. SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur. G.R. No. L-26743 May 31, 1972 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF CIPRIANO ABUT, deceased. GENEROSO ABUT, petitioner, GAVINA ABUT, petitioner-appellant, vs.FELIPE ABUT, PRESENTACION DE RODRIGUEZ and ABSOLUTO ABUT, oppositors-appellees. Felipe N. Montesa for petitioner-appellant. Homobono A. Adaza for oppositors-appellees. MAKALINTAL, J.:p This is an appeal from an order dated July 2, 1966 of the Court of First Instance of Misamis Oriental (Br. IV) in its Sp. Proc. No. 911. The said order states: Gavina Abut, through counsel, seeks the admission of the amended petition in which she substitutes for the original petitioner, Generoso Abut, who died after his original petition was filed, published and the Court had taken jurisdiction thereof. In the original petition the deceased Generoso Abut appears to have been named executor of the will of the deceased Cipriano Abut; that he was in possession and custody of the latter's will; and that he sought to be named executor of the will of the deceased Cipriano Abut. In the amended petition Gavina Abut alleges that the will was delivered to her by Generoso Abut before his death and that it is now in her custody and possession, and she prays that she be appointed administratrix of the estate of the deceased Cipriano Abut. Considering the foregoing amendments embodied in the amended petition, and the fact that publication of the petition is a jurisdictional matter intended to inform whomsoever may be interested in said petition and to afford him or her an opportunity to assert his or her rights, the Court believes that the original petition should be, as it is hereby dismissed, without prejudice to the filing of another petition pursuant to the requirements of the Rules of Court. The decisive facts are largely matters of record. On August 4, 1965 Generoso Abut, one of the children of the deceased Cipriano Abut by his second marriage and the person named as executor in a will allegedly executed by the said deceased, filed a petition before the court a quo praying that after due notice and hearing the said will be approved and allowed and that letters testamentary issue in his favor. In an

amended order dated September 1, 1965 the court a quo motu proprio set the petition for hearing and further directed compliance with Sections 3 and 4 of Rule 76 of the Rules of Court. 1 These procedural steps admittedly took place. Opposition to the petition was filed by the children of Cipriano Abut by his first marriage, namely, Felipe Abut, Presentacion de Rodriguez and Absoluto Abut, now appellees here. During the pendency of the case below but before the court a quo could even start the formal hearing of the petition, which had been delayed by several postponements, Generoso Abut, the original petitioner who initiated the probate proceeding, died on January 10, 1966. This eventuality prompted Gavina Abut, a sister of Generoso Abut and an heir and devisee under the will of the testator Cipriano Abut, to ask the court a quo to substitute her in lieu of Generoso Abut and to admit an amended petition wherein she prayed that the probate of the will be allowed and that letters of administration with the will annexed be issued in her favor. For reasons stated in its order of July 2, 1966, hereinabove quoted, the court a quo dismissed the petition originally brought by the deceased Generoso Abut, "without prejudice to the filing of another petition pursuant to the requirements of the Rules of Court." The issue is whether or not the probate court correctly dismissed the petition simply because the original petitioner who was the executor named in the will sought to be probated died before the petition could be heard and/or terminated. Stated otherwise, after the court had acquired jurisdiction over the case involving probate of the will, did the demise of the original petitioner during the pendency of the proceeding divest the court of such jurisdiction and preclude the continuation of the case on the theory that the amended petition filed by herein petitioner, who admittedly was a person having an interest in the estate, seeking to substitute her in place of the original petitioner, but with a similar prayer for the allowance of the same will, required a new publication in order to invest the court with jurisdiction. We find the dismissal of the original petition for probate and the refusal of the probate court to admit the amended petition without a new publication thereof to be untenable. The jurisdiction of the court became vested upon the filing of the original petition and upon compliance with Sections 3 and 4 of Rule 76. 2 A proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of the estate of the deceased. The fact that the amended petition named additional heirs not included in the original petition 3 did not require that notice of the amended petition be published anew. All that Section 4 of Rule 76 provides is that those heirs be notified of the hearing for the probate of the will, either by mail or personally. In the case of Perez vs. Perez 4 this Court explained:

Thus it appears that such "no notice" argument has no legal foundation. At any rate the omission, if any, did not affect the jurisdiction of the court; it constituted a mere procedural error that may or may not be the basis of reversal (Jocson vs. Nable, 48 O.G. 90). Indeed, this Tribunal has ruled that the court acquires jurisdiction over all persons interested in the estate through the publication of the petition in the newspapers (In re Estate of Johnson, 39 Phil. 159; Jocson vs. Nable, supra) which in this case admittedly took place. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not jurisdictional requisite. So much so that even if the names of some legatees or heirs had been omitted from the petition for allowance of the will and therefore were not advised the decree allowing the will does not ipso facto become void for want of jurisdiction ... Jurisdiction of the court once acquired continues until the termination of the case, 5 and remains unaffected by subsequent events. The court below erred in holding that it was divested of jurisdiction just because the original petitioner died before the petition could be formally heard. Parties who could have come in and opposed the original petition, as herein appellees did, could still come in and oppose the amended petition, having already been notified of the pendency of the proceeding by the publication of the notice thereof. The admission of the amended petition, of course, does not mean that Gavina Abut's prayer that she be appointed administratrix with the will annexed is necessarily meritorious. It simply recognizes that since the lower court has acquired jurisdiction over the res, such jurisdiction continues until the termination of the case. The first question that the lower court should hear and decide is the probate of the will; and the question of whether or not Gavina Abut should be appointed administratrix must be decided on the basis of the facts to be presented and after the will is proved and allowed, as provided in Section 6 of Rule 78. WHEREFORE, the order dated July 2, 1966 is set aside and the case is remanded below, with direction for the lower court to admit the amended petition and thereafter proceed accordingly. Costs against oppositors-appellees. Reyes, J.B.L., Zaldivar, Fernando, Teehankee, Barredo, Makasiar and Antonio, JJ., concur. Castro, J., did not take part. Concepcion, C.J., is on leave.

G.R. No. L-26317 January 29, 1927 Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs.CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees. Nicanor Tavora for appellant.Jose Rivera for appellees.

JOHNSON, J.: The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new will and testament. On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac. Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved: That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney for the opponents, testified that the original Exhibit A could not be found. For the foregoing consideration and for the reason that the original of Exhibit A has been cancelled by the deceased father Miguel

Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed. The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been executed with all the formalities required by the law; that the same had been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact. With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No.L-26063.)1 After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the testator in 1920. Therefore the

judgment appealed from is hereby affirmed. And without any finding as to costs, it is so ordered. Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

[G.R. No. 161220, July 30, 2008] SPOUSES GORGONIO BENATIRO AND COLUMBA CUYOS-BENATIRO SUBSTITUTED BY THEIR HEIRS, NAMELY: ISABELITA, RENATO, ROSADELIA AND GORGONIO, JR., SURNAMED BENATIRO, AND SPOUSES RENATO C. BENATIRO AND ROSIE M. BENATIRO, RESPONDENTS, VS. HEIRS OF EVARISTO CUYOS, NAMELY: GLORIA CUYOS-TALIAN, PATROCENIA CUYOS-MIJARES, NUMERIANO CUYOS, AND ENRIQUE CUYOS, REPRESENTED BY THEIR ATTORNEY-IN-FACT, SALUD CUYOS, RESPONDENTS. DECISION AUSTRIA-MARTINEZ, J.: Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by petitioners seeking to annul the Decision[1] dated July 18, 2003 of the Court of Appeals (CA) and its Resolution[2] dated November 13, 2003 denying petitioners' motion for reconsideration issued in CA-G.R. SP No. 65630.[3] Spouses Evaristo Cuyos and Agatona Arrogante Cuyos were blessed with nine children, namely: Francisco, Victoria, Columba, Lope, Salud, Gloria, Patrocenia, Numeriano, and Enrique. On August 28, 1966, Evaristo died leaving six parcels of land located in Tapilon, Daanbantayan, Cebu covered by Tax Declaration (TD) Nos. 000725, 000728, 000729, 000730, 000731, 000732, all under the name of Agatona Arrogante. On July 13, 1971, one of the heirs, Gloria Cuyos-Talian (respondent Gloria) represented by Atty. Victor Elliot Lepiten (Atty. Lepiten), filed before the Court of First Instance (CFI) now Regional Trial Court (RTC), Cebu, Branch XI, a petition[4] for Letters of Administration, docketed as Special Proceeding (SP) No. 24-BN entitled "In the Matter of the Intestate Estate of Evaristo Cuyos, Gloria Cuyos-Talian, petitioner." The petition was opposed by Gloria's brother, Francisco, who was represented by Atty. Jesus Yray (Atty. Yray). In the hearing held on January 30, 1973, both parties together with their respective counsels appeared. Both counsels manifested that the parties had come to an

agreement to settle their case. The trial court on even date issued an Order[5] appointing Gloria as administratrix of the estate. The dispositive portion reads: WHEREFORE, letters of administration of the estate of the late Evaristo Cuyos and including the undivided half accruing to his spouse Agatona Arrogante who recently died is hereby issued in favor of Mrs. Gloria Cuyos Talian who may qualify as such administratrix after posting a nominal bond of P1,000.00.[6] Subsequently, in the Order[7] dated December 12, 1975, the CFI stated that when the Intestate Estate hearing was called on that date, respondent Gloria and her brother, oppositor Francisco, together with their respective counsels, appeared; that Atty. Yray, Francisco's counsel, manifested that the parties had come to an agreement to settle the case amicably; that both counsels suggested that the Clerk of Court, Atty. Andres C. Taneo (Atty. Taneo), be appointed to act as Commissioner to effect the agreement of the parties and to prepare the project of partition for the approval of the court. In the same Order, the Court of First Instance (CFI) appointed Atty. Taneo and ordered him to make a project of partition within 30 days from December 12, 1975 for submission and approval of the court. In his Commissioner's Report[8] dated July 29, 1976, Atty. Taneo stated that he issued subpoenae supplemented by telegrams to all the heirs to cause their appearance on February 28 and 29, 1976 in Tapilon, Daanbantayan, Cebu, where the properties are located, for a conference or meeting to arrive at an agreement; that out of the nine heirs, only respondents Gloria, Salud and Enrique Cuyos failed to attend; that per return of the service, these three heirs could not be located in their respective given addresses; that since some of the heirs present resided outside the province of Cebu, they decided to go ahead with the scheduled meeting. Atty. Taneo declared in his Report that the heirs who were present: 1. Agreed to consider all income of the properties of the estate during the time that Francisco Cuyos, one of the heirs, was administering the properties of the estate (without appointment from the Court) as having been properly and duly accounted for. 2. Agreed to consider all income of the properties of the estate during the administration of Gloria Cuyos Talian, (duly appointed by the Court) also one of the heirs as having been properly and duly accounted for. 3. Agreed to consider all motions filed in this proceedings demanding an accounting from Francisco Cuyos and Gloria Cuyos Talian, as having been withdrawn. 4. Agreed not to partition the properties of the estate but instead agreed to first sell it for the sum of P40,000.00 subject to the condition that should any of the

heirs would be in a position to buy the properties of the estate, the rest of the eight (8) heirs will just receive only Four Thousand Pesos (P4,000.00) each. 5. Agreed to equally divide the administration expenses to be deducted from their respective share of P4,000.00.[9] The Report further stated that Columba Cuyos-Benatiro (Columba), one of the heirs, informed all those present in the conference of her desire to buy the properties of the estate, to which everybody present agreed, and considered her the buyer. Atty. Taneo explained that the delay in the submission of the Report was due to the request of respondent Gloria that she be given enough time to make some consultations on what was already agreed upon by the majority of the heirs; that it was only on July 11, 1976 that the letter of respondent Gloria was handed to Atty. Taneo, with the information that respondent Gloria was amenable to what had been agreed upon, provided she be given the sum of P5,570.00 as her share of the estate, since one of properties of the estate was mortgaged to her in order to defray their father's hospitalization. Quoting the Commissioner's Report, the CFI issued the assailed Order[10] dated December 16, 1976, the dispositive portion of which reads as follows: WHEREFORE, finding the terms and conditions agreed upon by the heirs to be in order, the same being not contrary to law, said compromise agreement as embodied in the report of the commissioner is hereby approved. The Court hereby orders the Administratrix to execute the deed of sale covering all the properties of the estate in favor of Columba Cuyos Benatiro after the payment to her of the sum of P36,000.00. The said sum of money shall remain in custodia legis, but after all the claims and administration expenses and the estate taxes shall have been paid for, the remainder shall, upon order of the Court, be divided equally among the heirs. [11] The CFI disapproved the claim of respondent Gloria for the sum of P5,570.00, as the same had been allegedly disregarded by the heirs present during the conference. In an Order[12] dated January 11, 1978, the CFI appointed Lope Cuyos (Cuyos) as the new administrator of the estate, purportedly on the basis of the motion to relieve respondent Gloria, as it appeared that she was already residing in Central Luzon and her absence was detrimental to the early termination of the proceedings. On May 25, 1979, administrator Cuyos executed a Deed of Absolute Sale[13] over the six parcels of land constituting the intestate estate of the late Evaristo Cuyos in favor of Columba for a consideration of the sum of P36,000.00. Sometime in February 1998, the heirs of Evaristo Cuyos, namely: Gloria CuyosTalian, Patrocenia Cuyos-Mijares, Numeriano Cuyos and Enrique Cuyos,

represented by their attorney-in-fact, Salud Cuyos (respondents), allegedly learned that Tax Declaration Nos. 000725, 000728, 000729, 000730, 000731 and 000732, which were all in the name of their late mother Agatona Arrogante, were canceled and new Tax Declaration Nos., namely, 20-14129, 20-14130, 20-141131, 20-14132, 2014133 and 20-14134, were issued in Columba's name; and that later on, Original Certificates of Titles covering the estate of Evaristo Cuyos were issued in favor of Columba; that some of these parcels of land were subsequently transferred to the names of spouses Renato C. Benatiro and Rosie M. Benatiro, son and daughter-inlaw, respectively, of petitioners Gorgonio and Columba, for which transfer certificates of title were subsequently issued; that they subsequently discovered the existence of the assailed CFI Order dated December 16, 1976 and the Deed of Absolute Sale dated May 25, 1979. Respondents filed a complaint against petitioner Gorgonio Benatiro before the Commission on the Settlement of Land Problems (COSLAP) of the Department of Justice, which on June 13, 2000 dismissed the case for lack of jurisdiction.[14] Salud Cuyos brought the matter for conciliation and mediation at the barangay level, but was unsuccessful.[15] On July 16, 2001, Salud Cuyos, for herself and in representation[16] of the other heirs of Evaristo Cuyos, namely: Gloria, Patrocenia, Numeriano,[17] and Enrique, filed with the CA a petition for annulment of the Order dated December 16, 1976 of the CFI of Cebu, Branch XI, in SP No. 24-BN under Rule 47 of the Rules of Court. They alleged that the CFI Order dated December 16, 1976 was null and void and of no effect, the same being based on a Commissioner's Report, which was patently false and irregular; that such report practically deprived them of due process in claiming their share of their father's estate; that Patrocenia Cuyos-Mijares executed an affidavit, as well as the unnotarized statement of Gloria stating that no meeting ever took place for the purpose of discussing how to dispose of the estate of their parents and that they never received any payment from the supposed sale of their share in the inheritance; that the report was done in close confederacy with their co-heir Columba, who stood to be benefited by the Commissioner's recommendation, should the same be approved by the probate court; that since the report was a falsity, any order proceeding therefrom was invalid; that the issuance of the certificates of titles in favor of respondents were tainted with fraud and irregularity, since the CFI which issued the assailed order did not appear to have been furnished a copy of the Deed of Absolute Sale; that the CFI was not in custodia legis of the consideration of the sale, as directed in its Order so that it could divide the remainder of the consideration equally among the heirs after paying all the administration expenses and estate taxes; that the intestate case had

not yet been terminated as the last order found relative to the case was the appointment of Lope as administrator vice Gloria; that they never received their corresponding share in the inheritance; and that the act of petitioners in manifest connivance with administrator Lope amounted to a denial of their right to the property without due process of law, thus, clearly showing that extrinsic fraud caused them to be deprived of their property. Herein petitioners contend that respondents' allegation that they discovered the assailed order dated December 16, 1976 only in February 1998 was preposterous, as respondents were represented by counsel in the intestate proceedings; thus, notice of Order to counsel was notice to client; that this was only a ploy so that they could claim that they filed the petition for annulment within the statutory period of four (4) years; that they have been in possession of the six parcels of land since May 25, 1979 when the same was sold to them pursuant to the assailed Order in the intestate proceedings; that no extrinsic fraud attended the issuance of the assailed order; that Numeriano executed an affidavit in which he attested to having received his share of the sale proceeds on May 18, 1988; that respondents were estopped from assailing the Order dated December 16, 1976, as it had already attained the status of finality. On July 18, 2003, the CA granted the petition and annulled the CFI order, the dispositive portion of which reads: FOR ALL THE FOREGOING REASONS, the instant petition is hereby GRANTED. Accordingly, the Order issued by the Court of First Instance of Cebu Branch XI dated December 16, 1976 as well as the Certificates of Title issued in the name of Columba Cuyos-Benatiro and the subsequent transfer of these Titles in the name of spouses Renato and Rosie Benatiro are hereby ANNULLED and SET ASIDE. Further, SP Proc. Case No. 24-BN is hereby ordered reopened and proceedings thereon be continued.[18] The CA declared that the ultimate fact that was needed to be established was the veracity and truthfulness of the Commissioner's Report, which was used by the trial court as its basis for issuing the assailed Order. The CA held that to arrive at an agreement, there was a need for all the concerned parties to be present in the conference; however, such was not the scenario since in their separate sworn statements, the compulsory heirs of the decedent attested to the fact that no meeting or conference ever happened among them; that although under Section 3(m), Rule 133 on the Rules of Evidence, there is a presumption of regularity in the performance of an official duty, the same may be contradicted and overcome by other evidence to prove the contrary.

The CA noted some particulars that led it to conclude that the conference was not held accordingly, to wit: (1) the Commissioner's Report never mentioned the names of the heirs who were present in the alleged conference but only the names of those who were absent, when the names of those who were present were equally essential, if not even more important, than the names of those who were absent; (2) the Report also failed to include any proof of conformity to the agreement from the attendees, such as letting them sign the report to signify their consent as regards the agreed mechanisms for the estate's settlement; (3) there was lack or absence of physical evidence attached to the report indicating that the respondents were indeed properly notified about the scheduled conference. The CA then concluded that due to the absence of the respondents' consent, the legal existence of the compromise agreement did not stand on a firm ground. The CA further observed that although it appeared that notice of the report was given to Atty. Lepiten and Atty. Yray, lawyers of Gloria and Francisco Cuyos, respectively, the same cannot be taken as notice to the other heirs of Evaristo Cuyos; that a lawyer's authority to compromise cannot be simply presumed, since what was required was the special authority to compromise on behalf of his client; that a compromise agreement entered into by a person not duly authorized to do so by the principal is void and has no legal effect, citing Quiban v. Butalid;[19] that being a void compromise agreement, the assailed Order had no legal effect. Thus, the CA ruled that the Certificates of Titles obtained by herein petitioners were procured fraudulently; that the initial transfer of the properties to Columba CuyosBenatiro by virtue of a Deed of Absolute Sale executed by Lope Cuyos was clearly defective, since the compromise agreement which served as the basis of the Deed of Absolute Sale was void and had no legal effect. The CA elaborated that there was no showing that Columba paid the sum of P36,000.00 to the administrator as consideration for the sale, except for the testimony of Numeriano Cuyos admitting that he received his share of the proceeds but without indicating the exact amount that he received; that even so, such alleged payment was incomplete and was not in compliance with the trial court's order for the administratix to execute the deed of sale covering all properties of the estate in favor of Columba Cuyos-Benatiro after the payment to the administratrix of the sum of P36,000.00; that said sum of money shall remain in custodia legis, but after all the claims and administration expenses and the estate taxes shall have been paid for, the remainder shall, upon order of the Court, be divided equally among the heirs.

Moreover, the CA found that the copy of the Deed of Sale was not even furnished the trial court nor was said money placed under custodia legis as agreed upon; that the Certification dated December 9, 1998 issued by the Clerk of Court of Cebu indicated that the case had not yet been terminated and that the last Order in the special proceeding was the appointment of Lope Cuyos as the new administrator of the estate; thus, the transfer of the parcels of land, which included the execution of the Deed of Absolute Sale, cancellation of Tax Declarations and the issuance of new Tax Declarations and Transfer Certificates of Title, all in favor of petitioners, were tainted with fraud. Consequently, the CA concluded that the compromise agreement, the certificates of title and the transfers made by petitioners through fraud cannot be made a legal basis of their ownership over the properties, since to do so would result in enriching them at the expense of the respondents; and that it was also evident that the fraud attendant in this case was one of extrinsic fraud, since respondents were denied the opportunity to fully litigate their case because of the scheme utilized by petitioners to assert their claim. Hence, herein petition raising the following issues: Whether or not annulment of order under Rule 47 of the Rules of Court was a proper remedy where the aggrieved party had other appropriate remedies, such as new trial, appeal, or petition for relief, which they failed to take through their own fault. Whether or not the Court of Appeals misapprehended the facts when it annulled the 24 year old Commissioner's Report of the Clerk of Court - an official act which enjoys a strong presumption of regularity - based merely on belated allegations of irregularities in the performance of said official act. Whether or not upon the facts as found by the Court of Appeals in this case, extrinsic fraud existed which is a sufficient ground to annul the lower court's order under Rule 47 of the Rules of Court. [20] Subsequent to the filing of their petition, petitioners filed a Manifestation that they were in possession of affidavits of waiver and desistance executed by the heirs of Lope Cuyos[21] and respondent Patrocenia Cuyos-Mijares[22] on February 17, 2004 and December 17, 2004, respectively. In both affidavits, the affiants stated that they had no more interest in prosecuting/defending the case involving the settlement of the estate, since the subject estate properties had been bought by their late sister Columba, and they had already received their share of the purchase price. Another heir, respondent Numeriano Cuyos, had also earlier executed an Affidavit[23] dated December 13, 2001, stating that the subject estate was sold to Columba and that she had already received her share of the purchase price on May 18, 1988. In addition, Numeriano had issued a certification[24] dated May 18,

1988, which was not refuted by any of the parties, that he had already received P4,000.00 in payment of his share, which could be the reason why he refused to sign the Special Power of Attorney supposedly in favor of Salud Cuyos for the filing of the petition with the CA. The issue for resolution is whether the CA committed a reversible error in annulling the CFI Order dated December 16, 1976, which approved the Commissioner's Report embodying the alleged compromise agreement entered into by the heirs of Evaristo and Agatona Arrogante Cuyos. We rule in the negative. The remedy of annulment of judgment is extraordinary in character[25] and will not so easily and readily lend itself to abuse by parties aggrieved by final judgments. Sections 1 and 2 of Rule 47 impose strict conditions for recourse to it, viz.: Section 1.Coverage. This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. Section 2.Grounds for annulment. The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based "only on the grounds of extrinsic fraud and lack of jurisdiction," jurisprudence recognizes denial of due process as additional .ground therefor.[26] An action to annul a final judgment on the ground of fraud will lie only if the fraud is extrinsic or collateral in character.[27] Extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from presenting fully his side of the case by fraud or deception practiced on him by the prevailing party.[28] Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court. [29]

While we find that the CA correctly annulled the CFI Order dated December 16, 1976, we find that it should be annulled not on the ground of extrinsic fraud, as there is no sufficient evidence to hold Atty. Taneo or any of the heirs guilty of fraud, but on the ground that the assailed order is void for lack of due process. Clerk of Court Taneo was appointed to act as Commissioner to effect the agreement of the heirs and to prepare the project of partition for submission and approval of the court. Thus, it was incumbent upon Atty. Taneo to set a time and place for the first meeting of the heirs. In his Commissioner's Report, Atty. Taneo stated that he caused the appearance of all the heirs of Evaristo Cuyos and Agatona Arrogante Cuyos in the place, where the subject properties were located for settlement, by sending them subpoenae supplemented by telegrams for them to attend the conference scheduled on February 28 to 29, 1976. It was also alleged that out of the nine heirs, only six attended the conference; however, as the CA aptly found, the Commissioner did not state the names of those present, but only those heirs who failed to attend the conference, namely: respondents Gloria, Salud and Enrique who, as stated in the Report, based on the return of service, could not be located in their respective given addresses. However, there is nothing in the records that would establish that the alleged subpoenae, supplemented by telegrams, for the heirs to appear in the scheduled conference were indeed sent to the heirs. In fact, respondent Patrocenia CuyosMijares, one of the heirs, who was presumably present in the conference, as she was not mentioned as among those absent, had executed an affidavit[30] dated December 8, 1998 attesting, to the fact that she was not called to a meeting nor was there any telegram or notice of any meeting received by her. While Patrocenia had executed on December 17, 2004 an Affidavit of Waiver and Desistance[31] regarding this case, it was only for the reason that the subject estate properties had been bought by their late sister Columba, and that she had already received her corresponding share of the purchase price, but there was nothing in the affidavit that retracted her previous statement that she was not called to a meeting. Respondent Gloria also made an unnotarized statement[32] that there was no meeting held. Thus, the veracity of Atty. Taneo's holding of a conference with the heirs was doubtful. Moreover, there was no evidence showing that the heirs indeed convened for the purpose of arriving at an agreement regarding the estate properties, since they were not even required to sign anything to show their attendance of the alleged meeting. In fact, the Commissioner's Report, which embodied the alleged

agreement of the heirs, did not bear the signatures of the alleged attendees to show their consent and conformity thereto. It bears stressing that the purpose of the conference was for the heirs to arrive at a compromise agreement over the estate of Evaristo Cuyos. Thus, it was imperative that all the heirs must be present in the conference and be heard to afford them the opportunity to protect their interests. Considering that no separate instrument of conveyance was executed among the heirs embodying their alleged agreement, it was necessary that the Report be signed by the heirs to prove that a conference among the heirs was indeed held, and that they conformed to the agreement stated in the Report. Petitioners point out that the Commissioner was an officer of the court and a disinterested party and that, under Rule 133, Section 3(m) of the Rules on Evidence, there is a presumption that official duty has been regularly performed. While, under the general rule, it is to be presumed that everything done by an officer in connection with the performance of an official act in the line of his duty was legally done, such presumption may be overcome by evidence to the contrary. We find the instances mentioned by the CA, such as absence of the names of the persons present in the conference, absence of the signatures of the heirs in the Commissioner's Report, as well as absence of evidence showing that respondents were notified of the conference, to be competent proofs of irregularity that rebut the presumption. Thus, we find no reversible error committed by the CA in ruling that the conference was not held accordingly and in annulling the assailed order of the CFI. Petitioners attached a Certification[33] dated August 7, 2003 issued by the Officer In Charge (OIC), Branch Clerk of Court of the RTC, Branch 11, to show that copies of the Commissioner's Report were sent to all the heirs, except Salud and Enrique, as well as to Attys. Lepiten and Yray as enumerated in the Notice found at the lower portion of the Report with the accompanying registry receipts.[34] In Cua v. Vargas,[35] in which the issue was whether heirs were deemed constructively notified of and bound by an extra-judicial settlement and partition of the estate, regardless of their failure to participate therein, when the extra-judicial settlement and partition has been duly published, we held: The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule plainly states, however, that persons who do not participate or had no notice of an extrajudicial settlement will not be bound thereby. It contemplates a notice that

has been sent out or issued before any deed of settlement and/or partition is agreed upon (i.e., a notice calling all interested parties to participate in the said deed of extrajudicial settlement and partition), and not after such an agreement has already been executed as what happened in the instant case with the publication of the first deed of extrajudicial settlement among heirs. The publication of the settlement does not constitute constructive notice to the heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution. The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent's estate. In this connection, the records of the present case confirm that respondents never signed either of the settlement documents, having discovered their existence only shortly before the filing of the present complaint. Following Rule 74, these extrajudicial settlements do not bind respondents, and the partition made without their knowledge and consent is invalid insofar as they are concerned[36] (Emphasis supplied) Applying the above-mentioned case by analogy, what matters is whether the heirs were indeed notified before the compromise agreement was arrived at, which was not established, and not whether they were notified of the Commissioner's Report embodying the alleged agreement afterwards. We also find nothing in the records that would show that the heirs were called to a hearing to validate the Report. The CFI adopted and approved the Report despite the absence of the signatures of all the heirs showing conformity thereto. The CFI adopted the Report despite the statement therein that only six out of the nine heirs attended the conference, thus, effectively depriving the other heirs of their chance to be heard. The CFI's action was tantamount to a violation of the constitutional guarantee that no person shall be deprived of property without due process of law. We find that the assailed Order dated December 16, 1976, which approved a void Commissioner's Report, is a void judgment for lack of due process. We are not persuaded by petitioners' contentions that all the parties in the intestate estate proceedings in the trial court were duly represented by respective counsels, namely, Atty. Lepiten for petitioners-heirs and Atty. Yray for the oppositors-heirs; that when the heirs agreed to settle the case amicably, they manifested such intention through their lawyers, as stated in the Order dated January 30, 1973; that an heir in the settlement of the estate of a deceased person need not hire his own lawyer, because his interest in the estate is represented by the judicial administrator who retains the services of a counsel; that a judicial administrator is the legal representative not only of the estate but also of the heirs, legatees, and creditors whose interest he represents; that when the trial court

issued the assailed Order dated December 16, 1976 approving the Commissioner's Report, the parties' lawyers were duly served said copies of the Order on December 21, 1976 as shown by the Certification[37] dated August 7, 2003 of the RTC OIC, Clerk of Court; that notices to lawyers should be considered notices to the clients, since, if a party is represented by counsel, service of notices of orders and pleadings shall be made upon the lawyer; that upon receipt of such order by counsels, any one of the respondents could have taken the appropriate remedy such as a motion for reconsideration, a motion for new trial or a petition for relief under Rule 38 at the proper time, but they failed to do so without giving any cogent reason for such failure. While the trial court's order approving the Commissioner's Report was received by Attys. Yray and Lepiten, they were the lawyers of Gloria and Francisco, respectively, but not the lawyers of the other heirs. As can be seen from the pleadings filed before the probate court, Atty. Lepiten was Gloria's counsel when she filed her Petition for letters of administration, while Atty. Yray was Francisco's lawyer when he filed his opposition to the petition for letters of administration and his Motion to Order administrarix Gloria to render an accounting and for the partition of the estate. Thus, the other heirs who were not represented by counsel were not given any notice of the judgment approving the compromise. It was only sometime in February 1998 that respondents learned that the tax declarations covering the parcels of land, which were all in the name of their late mother Agatona Arrogante, were canceled; and new Tax Declarations were issued in Columba's name, and Original Certificates of Titles were subsequently issued in favor of Columba. Thus, they could not have taken an appeal or other remedies. Considering that the assailed Order is a void judgment for lack of due process of law, it is no judgment at all. It cannot be the source of any right or of any obligation.[38] In Nazareno v. Court of Appeals,[39] we stated the consequences of a void judgment, thus: A void judgment never acquires finality. Hence, while admittedly, the petitioner in the case at bar failed to appeal timely the aforementioned decision of the Municipal Trial Court of Naic, Cavite, it cannot be deemed to have become final and executory. In contemplation of law, that void decision is deemed non-existent. Thus, there was no effective or operative judgment to appeal from. In Metropolitan Waterworks & Sewerage System vs. Sison, this Court held that: x x x [A] void judgment is not entitled to the respect accorded to a valid judgment, but may be entirely disregarded or declared inoperative by any tribunal in which

effect is sought to be given to it. It is attended by none of the consequences of a valid adjudication. It has no legal or binding effect or efficacy for any purpose or at any place. It cannot affect, impair or create rights. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce. All proceedings founded on the void judgment are themselves regarded as invalid. In other words, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It, accordingly, leaves the parties litigants in the same position they were in before the trial. Thus, a void judgment is no judgment at all. It cannot be the source of any right nor of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void: "x x x it may be said to be a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head."[40] (Emphasis supplied) The CFI's order being null and void, it may be assailed anytime, collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, unless barred by laches.[41] Consequently, the compromise agreement and the Order approving it must be declared null and void and set aside. We find no merit in petitioners' claim that respondents are barred from assailing the judgment after the lapse of 24 years from its finality on ground of laches and estoppel. Section 3, Rule 47 of the Rules of Court provides that an action for annulment of judgment based on extrinsic fraud must be filed within four years from its discovery and, if based on lack of jurisdiction, before it is barred by laches or estoppel. The principle of laches or "stale demands" ordains that the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence could or should have been done earlier, or the negligence or omission to assert a right within a reasonable time, warrants a presumption that the party entitled to assert it either has abandoned it or declined to assert it.[42] There is no absolute rule as to what constitutes laches or staleness of demand; each case is to be determined according to its particular circumstances.[43] The question of laches is addressed to the sound discretion of the court and, being an equitable doctrine, its application is controlled by equitable considerations. It cannot be used to defeat justice or perpetrate fraud and injustice. It is the better rule that courts, under the principle of equity, will not be guided or bound strictly

by the statute of limitations or the doctrine of laches when to be so, a manifest wrong or injustice would result.[44] In this case, respondents learned of the assailed order only sometime in February 1998 and filed the petition for annulment of judgment in 2001. Moreover, we find that respondents' right to due process is the paramount consideration in annulling the assailed order. It bears stressing that an action to declare the nullity of a void judgment does not prescribe.[45] Finally, considering that the assailed CFI judgment is void, it has no legal and binding effect, force or efficacy for any purpose. In contemplation of law, it is nonexistent. Hence, the execution of the Deed of Sale by Lope in favor of Columba pursuant to said void judgment, the issuance of titles pursuant to said Deed of Sale, and the subsequent transfers are void ab initio. No reversible error was thus committed by the CA in annulling the judgment. WHEREFORE, the petition is DENIED and the Decision dated July 18, 2003 and Resolution dated November 13, 2003 of the Court of Appeals are AFFIRMED. The Regional Trial Court, Branch XI, Cebu and the Heirs of Evaristo Cuyos are DIRECTED to proceed with SP Proceedings Case No. 24-BN for the settlement of the Estate of Evaristo Cuyos. No costs. SO ORDERED.

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