Suarez vs.

CA This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision[1] and Resolution[2] in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders[3] in Civil Case No. 51203. First, the long settled facts. Marcelo and Teofista Isagon Suarez’ [4] marriage was blessed with both material wealth and progeny in herein respondents, namely, Danilo,[5] Eufrocina, Marcelo Jr., Evelyn, and Reggineo, [6]all surnamed Suarez. During their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties). After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez,[7] executed an Extrajudicial Settlement of Estate,[8] partitioning Marcelo Sr.’s estate, thus: WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON; WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and legal administrator of the property of the said minors; WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the deceased; NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON, and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following manner, to wit: 1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive ownership the following properties as her lawful share in the assets of the conjugal partnership of gains between her and the deceased, to wit: (a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal; Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal; Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with Prudential Bank.

(b)

(c)

(d)

(e)

2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled to a share equivalent to oneseventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to wit: (a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality ofPasig, Province of Rizal, with an assessed value of P4,150.00. Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00. A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig,Province of Rizal, with an assessed value of P440.00.

(b)

(c)

(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P590.00. (e) Two parcels of land, being Lots Nos. 43 and 45 of the amendmentsubdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O. Record No. _______, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P1,190.00. A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at San Felipe Neri, Province of Rizal, with an assessed value of P6,340.00. A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with an assessed value of P1,840.00. TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000 shares).

(f)

(g) (h)

PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of each heir being pro indiviso.

Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial Settlement of Estate as forming part of Marcelo’s and Isagon’s property regime, remained in the couple’s name. Not surprisingly, Teofista continued to administer and manage these properties. On the whole, apart from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her children; and respective titles thereto were not changed, with Teofista as de facto administrator thereof. In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the former’s shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta,Virginia Banta and Maria Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal, Branch 1, rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate principal amount of about P70,000.00.[9] When the judgment of the CFI became final and executory, herein subject properties were levied and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal

Realty. The aforementioned plaintiffs were the highest bidder, and bought the levied properties for the amount of P94,170.00. As a result, a certificate of sale was issued to them and registered in their favor on August 1, 1983. On July 31, 1984, the Provincial Sheriff of Rizal issued a final deed of sale over the subject properties. Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No. 51203, for the annulment of the auction sale and recovery of ownership of the levied properties. Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment rendered against their mother, Teofista, not having been impleaded therein; and consequently, the subject properties, which they own pro indiviso with their mother, can neither be levied nor be sold on execution. Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an Order[10] directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling, removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession

thereof, and (4) to surrender to them the owner’s duplicate copy of the torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the subject properties are co-owned by them and further informing the RTC of the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied Teofista’s and herein respondents’ motion, reiterated its previous order, which included, among others, the order for Teofista and all persons claiming right under her, to vacate the lots subject of the judicial sale. Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista’s and herein respondents’ petition, thus: We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to show how the respondent judge had acted without or in excess of jurisdiction or with grave abuse of discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense presumption of regularity. Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because she was a party in the consolidated cases where judgment was rendered against her in her personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is erroneous for an obligation that belong to the corporation. And with respect to the children of Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that not being parties in the consolidated cases, what they should have done was to immediately file a third party claim. The moment levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they should have seasonably filed such claim to protect their rights. As the record discloses, however, the children chose to remain silent, and even allowed the auction sale to be held, filing almost a year later a half-hearted complaint to annul the proceedings which they allowed to be dismissed by not diligently prosecuting it. In Santos v. Mojica (10 SCRA 318), a partition case with third- party claimants, the Supreme Court came out with the following ruling: “The procedure (a petition for certiorari) followed by him (a petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by law, for he should have filed a separate and independent action making parties therein the sheriff and the plaintiffs responsible for the execution xxx. It can, therefore, be said that (he) acted

[11] On the other litigation front concerning Civil Case No. Branch 155. there is identity of parties. Virginia and Maria Concepcion] and the developments subsequent to the filing of the complaint. who is the real partyin-interest in the previous final judgment. 51203. Finally. the petition for certiorari is hereby granted and the questioned orders dated February 25. the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory suit. Branch 155. Thus. with costs against petitioners. thus: Even without touching on the incidents and issues raised by both petitioner [herein respondents] and private respondents [petitioner Valente. the petition is denied and the restraining order previously issued is DISSOLVED. 21376 . Branch 155. 51203. thus: And the fact that herein private respondents. WHEREFORE. Virginia’s and Maria Concepcion’s turn to file a petition for certiorari with the CA. 1990 issued in Civil Case No. Violeta’s. To start with. as the legal heirs of Teofista Vda. But in yet another turn of events. As successors-in-interest of Teofista Suarez. at the instance of petitioner Valente for failure of herein respondents to prosecute. much less the third party claim contemplated by Section 17 of Rule 39. The CA granted their petition. it was now petitioner Valente’s. The law in point is Article 777 of the Civil Code. Virginia and Maria Concepcion from transferring to third parties the levied properties based on its preliminary finding that the auctioned properties are co-owned by Teofista and herein respondents.” Article 888 further provides: “The legitime of the legitimate children and descendants consists of onehalf of the hereditary estate of the father and of the mother. lifted its previous order of dismissal and directed the issuance of alias summons. Verily. 1989 and February 26. Violeta. . 1985. Subsequently. they were admittedly the children of Teofista Suarez. [w]e cannot but notice the glaring error committed by the trial court. apart from the requisites constitutive of this procedural tenet. enjoining petitioner Valente. the RTC. Violeta.improperly in filing the present petition because his remedy was to file a separate and independent action to vindicate his ownership over the land. however. Civil Case No. In Suarez v. which all rejected their bid to dismiss Civil Case No. herein respondents appealed to the Supreme Court. on February 25. not only where the parties in both actions are the same.21379 does not preclude the application of the doctrine of res judicata since. assailing the various orders of the RTC. Court of Appeals. the law applicable at the time of the institution of the case: The rights to the succession are transmitted from the moment of the death of the decedent. only one-half of the 5 parcels of land [subject properties] should have been the subject of the auction sale. de Suarez and supposedly not parties in Civil Case Nos. It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. WHEREFORE. private respondents merely stepped into the shoes of their mother in regard to the levied pieces of property. a writ of preliminary injunction was issued by the RTC Pasig. 51203 was dismissed by the RTC. 51203 are hereby annulled. 51203. Branch 155. 1985.[12] From this ruling. further respondent judge is ordered to dismiss Civil Case No. May 19. but where there is privity with them as in the cases of successors-ininterest by title subsequent to the commencement of the action or where there is substantial identity.[13] we reversed the appellate court.

3. That sometime in August 1990. as plaintiffs therein. Expectedly. and as per standing instructions of Judge Graduacion A. each and every pleading filed by herein respondents.]. including petitioner Valente. Branch 71. par. It was at this point when another series of events transpired. because of the unexpected notice we received that the room we were occupying was to be demolished in order to meet the schedule for the renovation of the building. That unfortunately. Therefore. the room was demolished before the undersigned could make a last check to see if everything was transferred. to which Civil Case No. 1990 from the Court of Appeals that ruled the dismissal of the above-entitled case. 51203. 2 likewise provides: “If there are two or more legitimate children or descendants. the legitime of the surviving spouse is equal to the legitime of each child.” Article 892. 1993. was hotly contested and opposed by therein defendants. and Civil Case No. ReyesClaravall. Most of these Motions to Dismiss were denied. and as the Branch was newly formed. to wit: 1. culminating in the present petition. Petitioners [herein respondents] became co-owners of the property not because of their mother [Teofista] but through their own right as children of their deceased father [Marcelo Sr. by Sheriff Alejandro O. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion. Moreover. the judge to which the case was raffled had to study the records anew. 51203 for the purported failure of herein respondents to prosecute the case. petitioners [herein respondents] are not barred in any way from instituting the action to annul the auction sale to protect their own interest. That just before the Christmas vacation in 1991. The first volume of the record in the above-entitled case was recorded as received on June 20. petitioner Valente. when the case had been remanded with a directive to “determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion. Upon our reinstatement of Civil Case No. even at that stage. to the different court branches in Pasig City. the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. 4. the decision of the Court of Appeals dated July 27. and was still undermanned. part of the records went missing and were lost. this Court received a Notice of Judgment dated October 22. 1990 as well as its Resolution of August 28. the same was bound as volume 2 of the case. filed a report on the records of the case. That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the Justice Hall. 5. 1990. The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different from and adverse to that of their mother [Teofista]. . 1990 are hereby REVERSED and set aside. On April 12. 2. 51203.The latter may freely dispose of the remaining half. 1990. With each transfer of Civil Case No. Branch 71 moved to the staffroom of Branch 159 at the Second Floor of the Justice Hall. repeatedly filed a Motion to Dismiss Civil Case No. 6. for varied reasons. from the foregoing. 51203 had to be re-raffled and transferred. subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. it had no equipment or furniture of its own.” Thus. the Clerk of Court of RTC. 51203 was remanded. along with the other defendants. the branch was forced to hastily move all of its records and equipment to branch 69. WHEREFORE. That on October 25. In between all these. Loquinario.” Civil Case No.

170. petitioner Valente. among numerous others. Virginia and Maria Concepcion be cancelled and TCT No. 6509 in the name of petitioner Valente. 8. the trial court eventually granted the motion for reconstitution.00. or documents entered as exhibits in other Courts. and will have to be reconstituted with the use of documents in the possession of the parties. and ordered petitioner Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other pleadings pertinent to the case. 1992 of the Supreme Court)[19] filed by herein respondents pointing out that the Supreme Court itself had noted the current increased value of the subject properties and that petitioner Valente. pointing out that plaintiffs (herein respondents) have yet to comply with the RTC. the branch moved its Office to its present location. and the other defendants -. 2. including transcripts of stenographic notes in a case that was submitted for decision.000. That all the efforts were in vain. 3. herein respondents filed a Motion for Reconstitution of Records [15] of the case. Finally. three (3) incidents. this Court received a copy of a Decision of the Supreme Court reversing the earlier ruling of the Court of Appeals. 12. That the undersigned now concludes that the first volume of the above-entitled case was probably lost during the renovation of the Justice Hall Building. Violeta. That it was only later on that this office discovered that important documents were indeed lost. be reinstated.7. 10. Initially. it prayed that TCT No. 11. which was bundled along with other cases which were decided and/or archived. 9. That on March 8. was reported as missing. married to Teofista Isagon. as said record could not be located 13. A Manifestation and Motion (to Execute/Enforce Decision dated September 4. 30680 in the name of Marcelo Suarez. Violeta. including herein petitioner Valente. Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject properties worth millions then. Judge Claravall ordered that a search for the same be made in all of the offices wherein this branch was forced to share a room with. The Supplemental Complaint further sought a re-bidding with respect to Teofista’s share in the subject properties. set off by the parties’ pleadings. 1993.opposed the motion.Violeta. for a judgment obligation worth onlyP70.[16] However. That it was at this time that the first volume of this case. A Motion for Leave to File and Admit Supplemental Complaint [18] filed by herein respondents. in the event that the same was transmitted to said Court. The Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject properties be annulled and set aside.00. Virginia and Maria Concepcion -. [17] Thereafter. An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision or to consider the matter submitted without evidence on the part of plaintiffs][20] filed by therein defendants. That from the time the same was found to be missing. [14] In this regard. anywhere. to wit: 1. That sometime in May 1992. for a measly bid price of P94. Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement of the estate of the . are worth mentioning. as the bid price was unconscionable and grossly inadequate to the current value of the subject properties. as well as the Court of Appeals.

In its decision of September 4. Teofista Suarez is ordered to reimburse the amount of P94. 1992 which mandates that: “xxx and Civil Case No.170. Teofista Suarez. 6509 in the name of defendant Valente Raymundo is also declared null and void. the portion of the estate of Marcelo Suarez belonging to the surviving spouse. Santos resolving: (a) herein respondents’ Manifestation and Motion (to execute/enforce Decision dated September 4. should be implemented for the following reasons: xxxx On the request for Answers to Written Interrogatories filed by the defendants. may be levied on execution. resolved the incidents. this court. c. issued by Presiding Judge Rodrigo B. the answer sought to be elicited through written interrogatories.00. issued by Judge Apolinario B. admitting herein respondents’ Supplemental Complaint. plus legal interest from the date of issuance of this order. aside from having been filed way out of time. are entirely irrelevant. the records reveal the following Orders issued by the different branches of the RTC: 1. Transfer Certificate of Title No. and (b) therein defendants’ (including herein petitioner Valente’s) Request for Answer to Written Interrogatories. thus: 2. and after being able to do so. which binds this court. 30680 in the name of Marcelo Suarez. On these incidents. and the Register of Deeds of Rizal. Pasig City. it is obvious that at this stage of the proceedings where the Supreme Court had already pronounced the undisputed facts. Pasig City. . in order for the court to determine the portion in the estate which belongs to Teofista. 1992. 1995. The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of this case while the plaintiffs [herein respondents] did everything possible to DELAY the disposition of the same obviously because the plaintiffs [herein respondents] are in full possession and enjoyment of the property in dispute. 1992. The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation thereto are declared null and void. being the final arbiter in any judicial dispute. 1992 of the Supreme Court). the SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented action. premises considered. Order dated March 17. [21] 2. is ordered to issue a new one in the name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. Lorenzo of Branch 266.[22] The RTC. and failing which. Order dated January 22. In said decision. therefore. b.” In order to enforce such mandate of the Supreme Court. thus: From the foregoing uncontroverted facts. the Supreme Court ordered the plaintiffs [herein respondents] to establish with evidence their personality as heirs of Marcelo Suarez. this Court is convinced beyond a shadow of doubt that the Decision of the Supreme Court of September 4. 51203 is reinstated only to determine that portion which belongs to petitioner and to annul the sale with regard to said portion. WHEREFORE.deceased Marcelo Suarez. to adduce evidence that would determine what portion belongs to plaintiffs hence the above matters need be litigated upon before the RTC can “annul the sale with regard to said portion” (belonging to the plaintiffs alleged heirs). this court orders that: a. implements the decision of the Supreme Court dated September 4. 1996. Branch 67. The Urgent Motion stated in paragraph 2.

1996. respectively. 1999. In resolving this latest crossfire between the parties. and in order for counsel for the plaintiffs [herein respondents] to have the opportunity to complete all documentary evidence and in view of abbreviating the proceedings and as prayed for. issued an Order dated January 11. This last Order and therein defendants’ Urgent Motion spawned another contentious issue between the parties. today’s scheduled pre-trial is re-set for the last time to May 19. are hereby ordered to submit to this court any evidence showing settlement of the estate of the deceased. the RTC. xxxx It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. Naturally. It is in this context that the Honorable Supreme Court reinstated the “action [of herein respondents] to annul the auction sale to protect their [herein respondents] own interest. 51203. filed a Motion for Reconsideration which the trial court denied on May 29. Marcelo Suarez. 1996 and May 29. including petitioner Valente. In this connection. In this connection. precisely it directed that the records of this case be remanded to the Regional Trial Court for further proceedings. While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the defendants [including petitioner Valente] to prove their defense. however. not appealable. Therein defendants.m. thus: Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to prove their affiliation with the deceased which is one of the matters written in the decision of the higher court which must be complied with. there was no trial on the merits before this Court that allowed the parties to adduce evidence to establish their respective claims in the plaintiffs’ [herein respondents] complaint and in the defendants’ [including petitioner Valente] counter-claim. [Herein respondents]. consistent with the directive of the Honorable Supreme Court (in its Decision promulgated on September 4. in part: This Court is of the view that the Honorable Supreme Court is not a trier of facts. in order for this court to determine the portion in the estate which belongs to Teofista Suarez. 1999 at 8:30 a. therefore. issued by Judge Santos denying the appeal interposed by petitioner Valente from the January 22. Order dated September 10. including Teofista Suarez. xxx The Supreme Court reversed the judgment of the Court of Appeals and ordered the reinstatement of Civil Case No.[24] Order dated April 8. [23] 4. Both parties duly filed their position papers. Judge Estrella issued an Order [25] requiring the parties to file their respective position papers due to the “divergent views on the nature of the hearing that should be conducted in compliance with” our decision in Suarez. 1996. confronted with the very recent decision of . ruling that these are interlocutory orders. 1996 Orders. the Court is. 1992). 3. and. 2000. which reads. with herein respondents attaching thereto a copy of the Extrajudicial Settlement of Estate executed by the heirs of Marcelo Suarez in 1957.d. counsel for plaintiffs [herein respondents] is advised to secure all the documentary evidence she needs material to this case which will expedite the disposition of this case. issued by Pairing Judge Santiago Estrella which declared. Branch 67.

the Honorable Supreme Court in “Heirs of Guido Yaptinchay. 124320. the decision of the Supreme Court had become final and executory. et al. xxx xxxx Hon. Pasig City. issued an order to execute/enforce the decision of the Supreme Court xxx. Under Section 3. March 2. 1996 and on motion of [herein respondents]. G. 2000. and not in an independent civil action. Del Rosario. . Likewise. 94918) reversed the decision of the Court of Appeals and mandates that Civil Case No.Obviously. The sale of the parcels of land was declared null and void. or the prevention or redress of a wrong” while a special proceeding is “a remedy by which a party seeks to establish a status. 1999” it is left with no choice but to obey said latter doctrine. however. 1992. 1996. Branch 67’s Orders dated January 11. a civil action is defined as “one by which a party sues another for the enforcement or protection of a right. Apolinario Santos of Br. March 2. Necessarily. 1999” this case is dismissed without prejudice to the plaintiffs’ [herein respondents’] filing a special proceeding consistent with said latest ruling. The appellate court granted the petition. G. curiously. 5809) in the name of respondents was also declared null and void. this Court holds that in the light of the doctrine laid down in the case of “Heirs of Yaptinchay vs. Del Rosario. 124320. No. 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.[27] Consequently.R. All the defendants in the trial court were impleaded as private respondents in the petition. March 2. Branch 67 on March 14. 1996.” 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. Yet. recalled and set aside RTC. WHEREFORE. 1999” where it held that – The declaration of heirship must be made in an administration proceeding. It disposed of the petition. the Supreme Court (G. the title (TCT No. only petitioner Valente filed a Comment thereto. No. 128). The appeal.[26] Herein respondents moved for reconsideration thereof which. G. 124320. 2000. 1996 and September 6. 51203 without prejudice. Rule 1 of the 1997 Revised Rules of Court. on motion of [herein respondents] was denied on September 10. 1996 denying the motion for reconsideration and the denial of the notice of appeal dated September 6. 67. et al. thus: We agree with [herein respondents]. In as much as the leading case on the matter is that of “Heirs of Yaptinchay v. was denied by the RTC. the foregoing premises considered. 2000 and March 14. vs. Court of Appeals (182 SCRA 119. Regional Trial Court. No. Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge Santos. Violeta. both orders of Judge Santos dated May 29. On September 4. 51203 be reinstated in order to determine the portion in the estate which belongs to Teofista Suarez.. herein respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the trial court’s order dismissing Civil Case No. 1996 had also become final and executory. The denial of petitioner Valente’s Motion for Reconsideration prompted the filing of this present petition for certiorari. This doctrine was reiterated in Solve vs. on January 22. or a particular fact.R. No. Del Rosario. and reinstated Judge Santos’ Orders dated May 29. xxxx [Petitioner Valente.R. a right.R.

Simply imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of discretion does not magically transform a petition into a special civil action forcertiorari. not appealable. and 2. we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA decision. 1996 issued by Judge Santos are interlocutory. understand the available remedies therefrom. a final order is one which leaves to the court nothing more to do to resolve the case. That disposition is a final and executory order. The CA ignored and violated the Supreme Court’s ruling in Heirs of Yaptinchay v.Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because: 1. At the outset. [32] The Orders dated May 29. an original petition. this Court by persons aggrieved thereby. Del Rosario[28] which held that a declaration of heirship must be made in a special proceeding and not in a civil action. such as petitioner Valente. if it does not. 1996 and September 6. appealable to. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of Court. and therefore. filed thereat by herein respondents. Petitioner apparently does not comprehend the distinction between an interlocutory order which is final and executory. However.[30] Upon the other hand. In . and a final order which disposes of the controversy or case. We find the petition bereft of merit. The key test to what is interlocutory is when there is something more to be done on the merits of the case. it is final. much less. via Rule 45.” We reject petitioner’s paltry contention. and may be questioned before. [29] It does not terminate or finally dismiss or finally dispose of the case. but leaves something to be done by the court before the case is finally decided on the merits.e. and therefore. 1996 and September 6. “Does it leave something to be done in the trial court with respect to the merits of the case?” If it does. we have disregarded this procedural flaw and now resolve this case based on the merits or lack thereof..[31] On more than one occasion. 1996 issued by Judge Santos were final and executory. The CA ruled that the Orders dated May 29. and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the questioned orders were interlocutory. we laid down the test to ascertain whether an order is interlocutory or final i. The CA decision disposed of the merits of a special civil action. We have defined an interlocutory order as referring to something between the commencement and the end of the suit which decides some point or matter but it is not the final decision on the whole controversy. it is interlocutory. as they leave something more to be done on the merits of the case. not appealable. On this score alone. the petition should have been dismissed outright. Petitioner asseverates that the assailed CA ruling “is unfair and it amounts to a trickery to prevent an appeal against a final order by claiming that the appealed order is merely interlocutory and later maintain that the same order has become final after declaring it to be interlocutory.

SP No. which is not an interlocutory order. The correct and available remedy available to petitioner Valente was. a petition for review on certiorari under Rule 45 of the Rules of Court. We cannot overemphasize the rule that the correct identification of the nature of an assailed order determines the remedies available to an aggrieved party. and the CA correctly upheld the RTC. It is a final order which completely disposed of the merits of the case with nothing more left to be done therein. 58090. as previously discussed. Rule 41 now provides for the appropriate remedy to be taken from an interlocutory order. when the proper remedy is an appeal by certiorariunder Rule 45. 1996 and September 6. Section 1. The old Rules of Court in Section 2. Judgments or orders subject to appeal . thus: SEC. Contrary to petitioner Valente’s stance. under Rule 65. An interlocutory order. in paragraph (d) of Judge Santos’ Order dated May 29. petitioner Valente erroneously sought relief through reversed remedies. He should have filed a petition forcertiorari. he comes before this Court on a petition for certiorari under Rule 65.R. On the other hand. from the final order of the CA. In the recent case of Jan-Dec Construction Corporation v. — An appeal may be taken from a judgment or final order that completely disposes of the case. 1996 was in order. thus: SECTION 1. Subject of appeal. He tried to appeal the interlocutory orders of the RTC which are unappealable. herein respondents were directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr. 2. Court of Appeals [33] we ruled in this wise: . Thus.fact. No interlocutory or incidental judgment or order shall stay the progress of an action. or of a particular matter therein when declared by these Rules to be appealable. 1996. petitioner Valente filed a petition forcertiorari from the CA decision in CA-G. Rule 41 reads. xxxx With the advent of the 1997 Rules of Civil Procedure. nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other. as ruled by the CA. Indeed. In fine. on this crucial distinction as applied to this case. the CA decision affirming the RTC’s denial was correct. Further. the aggrieved party may file an appropriate special civil action under Rule 65. there is no trickery or chicanery in the CA’s distinction between an interlocutory and a final order. Thus.—Only final judgments or orders shall be subject to appeal. No appeal may be taken from: xxx (c) xxx In all the above instances where the judgment or final order is not appealable. the denial of therein defendants’ (including petitioner Valente’s) appeal from the Orders dated May 29. the RTC Order denying petitioner Valente’s Notice of Appeal attained finality when he failed to file a petition forcertiorari under Rule 65 of the Rules of Court. Clearly. the RTC properly denied his Notice of Appeal.

bound by the judgment in Civil Case Nos. merely successors-in-interest of the latter to the property and by virtue thereof. The following records bear out Marcelo. 10646 to 10649 where Teofista. may be appealed to the Court by filing a petition for review. it should no longer have been a litigated issue when we ordered a remand to the lower court.’s heirs ― has been firmly established. and likewise demand that herein respondents first prove their filiation to Marcelo Sr.[39] We subsequently reversed this ruling on the wrong application of res . The CA decision in CA-G. Under Rule 45. and Teofista. directly or indirectly. i. Our ruling in Heirs of Yaptinchay is not applicable. a special civil action for certiorariunder Rule 65 is an independent action based on the specific grounds therein provided and proper only if there is no appeal or any plain. final orders or resolutions of the CA in any case.. is wrong. this Court is not a trier of facts. Marcelo Sr. In short. 21376 to 21379 consistent with the doctrine of res judicata. the status of herein respondents as legitimate children of Marcelo Sr.’s and Teofista’s paternity of herein respondents. the petition does not fare otherwise. and [38] 2. petitioner Valente’s. Moreover. 1984 and October 14.e. Violeta’s. 51203 is reinstated only to determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion. tribunal. Marcelo Sr. 20320 which incorrectly ruled that herein respondents were. Marcelo Sr. questioned the RTC.. it explicitly recognized the latter’s status as legitimate children of Teofista and Marcelo Sr. along with herein respondents. the remedy from a judgment or final order of the CA is appeal via petition for review under Rule 45 of the Rules. Branch 151’s Orders dated October 10. herein respondents’ status as heirs of Marcelo Sr.As a rule. or officer. It is an extraordinary process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost remedy of an ordinary appeal..[35] True. and Teofista ― and thus. Petitioner Valente insists that. which would be but a continuation of the appellate process over the original case. Independently of this procedural infirmity. and heirs of their deceased father. regardless of the nature of the action or proceedings involved. Although the CA ruled against Teofista and herein respondents.R. “Civil Case No.” There is clearly no intimation in our decision for the RTC to have to determine an already settled issue i. It seeks to correct errors of judgment committed by the court. [37] we found and so ruled that herein respondents are children. following our ruling in Heirs of Yaptinchay v. This having been settled. Sr. SP No. conjugal property of Teofista and Marcelo Sr. As was set forth in the dispositive portion of Suarez. Court of Appeals. In contrast. Virginia’s. [36] but as the final arbiter of disputes. speedy and adequate remedy in the ordinary course of law. and confirmed by this Court in Suarez v. Del Rosario . even on the merits of the case. undisputedly. and Maria Concepcion’s representation in the RTC that our ruling in Suarez required herein respondents to present evidence of their affiliation with the deceased. We disagree. [34] herein respondents must first be declared heirs of Marcelo Sr. The CA decision in CA-G. and the latter’s status as legitimate children: 1.e. petitioner Valente cannot assail. Herein respondents’ status as legitimate children of Marcelo Sr. decisions. 1986. SP Nos.R.. as children of Teofista. before they can file an action to annul the judicial sale of what is. It must be dismissed for lack of merit.

upon Marcelo Sr. by virtue of compulsory succession.. This judgment obligation is solely Teofista’s. We categorically held therein that “the proprietary interest of [herein respondents] in the levied and auctioned [properties] is different from and adverse to that of [Teofista]. Art. became owners of the subject properties only by virtue of an execution sale to recover Teofista’s judgment obligation. even titled in the name of Marcelo. herein respondents. or by an authentic document or a final judgment. Petitioner Valente. The action to impugn the legitimacy of the child shall be brought within one year from the recording of birth in the Civil Register. In the absence of the titles indicated in the preceding article. Art. the period shall be eighteen months if they should reside in thePhilippines. Articles 262. In stark contrast.[40] 263.’s legitimate children and heirs. married to Teofista. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register. Virginia and Maria Concepcion. (3) If the child was born after the death of the husband. if the husband should be in the same place. If he or his heirs are absent. which explicitly recognizes herein respondents as Marcelo Sr.’s estate. the filiation shall be proved by the continuous possession of status of a legitimate child. however.judicata in the conclusive case of Suarez. in fact.” Clearly. specifying Teofista’s paraphernal properties. the complaint for annulment and/or declaration of nullity of certain TCT’s was dismissed for failure of the petitioners to demonstrate “any proof or even a semblance of it” that they had been declared the legal heirs of the deceased couple. These properties were evidently conjugal properties and were.’s share in the conjugal partnership was transmitted by operation of law to his compulsory heirs. along with Violeta. The same document settles and partitions the estate of Marcelo Sr. any of his heirs. Plainly. and separates the properties she owns in common with her children. without having desisted from the same.[41] 265 and 266[42] of the Civil Code. the spouses Yaptinchay. an Extrajudicial Settlement of Marcelo Sr. Thus. herein respondents’ long possessed status of legitimate children of Marcelo Sr. The heirs of the husband may impugn the legitimacy of the child only in the following cases: (1) If the husband should die before the expiration of the period fixed for bringing his action. 265. (2) If the husband should die after the filing of the complaint. the applicable law at the time of Marcelo’s death.]. to wit: Art. and Teofista cannot be indirectly or directly attacked by petitioner Valente in an action to annul a judicial sale. In Heirs of Yaptinchay. Art. the records of this case reveal a document. 263. there is no need to re-declare herein respondents as heirs of Marcelo Sr. Marcelo Sr. If the birth of the child has been concealed. .’s death. 262. the term shall be counted from the discovery of the fraud. the CA’s factual finding of herein respondents’ status as heirs of Marcelo Sr. and payment therefor cannot be made through an execution sale of properties not absolutely owned by her. We retained and affirmed. or in a proper case. support the foregoing conclusion. and two years if abroad. Sr. [Herein respondents] became co-owners of the property not because of [Teofista] but through their own right as children of their deceased father [. 266. Marcelo Sr. and prolong this case interminably.

respondent. levied upon and sold on auction by the provincial sheriff of Rizal. just to establish the status of petitioners as heirs is not only impractical. in the order established in Sec. it is burdensome to the estate with the costs and expenses of an administration proceedings.[46] and preferred over concurring compulsory heirs in the distribution of the decedent’s estate. Thus. or in case he did. executed on February 15. however. not expeditious. Article 886 of the Civil Code defines legitime as “that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are.[45] excluding secondary compulsory heirs. Court of Appeals . at the time the subject properties were sold on execution sale to answer for Teofista’s judgment obligation. Section of the Revised Rules of Court. a separate declaration of heirship by herein respondents is not necessary to annul the judicial sale of their share in the subject properties. it should be judicially administered and the competent court should appoint a qualified administrator. although their respective shares therein remained pro indiviso. Said rule is an exception to the general rule that when a person dies leaving property. Rivera[50] and Solivio v. believing rightly or wrongly that she was the sole heir to Portugal’s estate. Teofista’s ownership over the subject properties is not absolute. he failed to name an executor therein. hence.[48] Herein respondents’ ownership of the subject properties is no longer inchoate. albeit not categorized as such in Article 778[43] of the Civil Code.’s estate in 1957. could and had already in fact presented evidence . to a special proceeding which could be long. only that portion could have been. or if a putative heirs has lost the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening. it must be stressed that herein respondents’ rights to the succession vested from the moment of their father’s death. 1988 the questioned Affidavit of Adjudication under the second sentence of Rule 74. prevailing over all kinds of succession. CFI Judge of Pampanga [52] cited inSolivio. In the case at bar. then the determination of. or if there are no special proceedings filed but there is. and was actually. Portugal-Beltran. xxx It appearing. therefore.[51] and Guilas v. Where special proceedings had been instituted but had been finally closed and terminated. We note the recent case of Portugal v.Compulsory succession is a distinct kind of succession. heirship should be raised and settled in said special proceedings. 6. or combination of heirs.[47] Even without delving into the Extrajudicial Settlement of Marcelo Sr. under the circumstances of the case. or group of heirs. And it is superfluous in light of the fact that the parties to the civil case —subject of the present case. Since Teofista owns only a portion of the subject properties. it became absolute upon Marcelo’s death. called compulsory heirs. It reserves a portion of the net estate of the decedent in favor of certain heirs.[49] where we scrutinized our rulings in Heirs of Yaptinchay and the cited cases of Litam v. a need to file one. Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the special proceedings are pending. among other issues. [44] The portion that is so reserved is the legitime. under the circumstances of the case. Ineluctably. that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land. Rule 78 in case the deceased left no will. the inclusion of herein respondents’ share therein was null and void. petitioner Valente does not even attempt to dispute the conjugal nature of the subject properties. In fine. then an ordinary civil action can be filed for his declaration as heir in order to bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. We ruled thus: The common doctrine in Litam. to still subject it. Significantly.” Herein respondents are primary compulsory heirs. however.

vs. WHEREFORE. with respect to their legitimate children and descendants. 778. No. in the maximum portion allotted by law. paragraph 1 of the Civil Code: The following are compulsory heirs: (1) Legitimate children and descendants. ANDRE BRIMO. in addition to the already settled status of herein respondents as heirs of Marcelo Sr. [48] See Article 777 of the Civil Code: The rights to the succession are transmitted from the moment of the death of the decedent. 278. 1996 and September 6. never exceeds the share of a legitimate child when there is more than 1 legitimate child to inherit. [47] The legitime of the legitimate children/descendants of the decedent shall be satisfied first before that of the surviving spouse. . The Orders dated May 29. In case the compulsory heirs are only 1 legitimate child and 1 surviving spouse. the share of the latter is only ¼ of the estate of the decedent. Succession may be: (1) Testamentary.. JUAN MICIANO. 1996 issued by Judge Santos are REINSTATED. [43] Art. under the circumstances of the present case. 51203 and require herein respondents to institute a separate special proceeding for a declaration of their heirship. the petition is DENIED. The legitime of the surviving spouse. In fine. SO ORDERED. or (3) Mixed.R. Brimo.. 887. opponent-appellant. petitioner-appellee. premises considered.before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. p. [42] G. Costs against the petitioner.[53] All told. [46] Id. [44] Balane. legitimate parents and ascendants. 58090 is AFFIRMED. administrator. under the circumstances. 1927 Testate Estate of Joseph G. paragraph 2: (2) In default of the foregoing. [45] See Art. Jottings and Jurisprudence in Civil Law (2002). L-22595 November 1.R. there being no compelling reason to still subject Portugal’s estate to administration proceedings since a determination of petitioners’ status as heirs could be achieved in the civil case filed by petitioners xxx. there is no need to dismiss Civil Case No. SP No. (2) Legal or intestate. with respect to their legitimate parents and ascendants. Articles 265 and 266 of the Civil Code are now Article 172 of the Family Code. The Decision of the Court of Appeals in CA-G.

J. by his attitude in these proceedings has not respected the will of the testator. so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. this citizenship having been conferred upon me by conquest and not by free choice. approved it. inasmuch as he did not present any evidence showing what the Turkish laws are on the matter. (2) denial of his participation in the inheritance.net Therefore. we find no abuse of discretion on the part of the court in this particular. He. having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess. and the condition is that the instituted legatees must respect the testator's will to distribute his property. as the herein oppositor who. (Lim and Lim vs. legal and testamentary successions. is prevented from receiving his legacy.) It has not been proved in these proceedings what the Turkish laws are. I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. I like desire to state that although by law. I am a Turkish citizen. but in accordance with the laws of the Philippines. nor by nationality and. in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions. lawphil. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws. and (5) the declaration that the Turkish laws are impertinent to this cause. whatever may be the nature of the property or the country in which it may be situated. 36 Phil. The judicial administrator of this estate filed a scheme of partition. (3) the denial of the motion for reconsideration of the order approving the partition. any legatee who fails to comply with it. the approval of the scheme of partition in this respect was not erroneous.. The institution of legatees in this will is conditional. must be complied with and executed. and in the absence of evidence on such laws.ROMUALDEZ. however. shall be regulated by the national law of the person whose succession is in question. If this condition as it is expressed were legal and valid. inasmuch as he is one of the persons designated as such in will. There is. Andre Brimo. Collector of Customs.: The partition of the estate left by the deceased Joseph G. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee. Brimo is in question in this case. . not in accordance with the laws of his nationality. no evidence in the record that the national law of the testator Joseph G. as expressed. and. provides the following: Nevertheless. It is discretionary with the trial court. therefore. and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. Brimo's will which are not in accordance with the laws of his Turkish nationality. requesting all of my relatives to respect this wish. among other things. they are presumed to be the same as those of the Philippines. my will. be made and disposed of in accordance with the laws in force in the Philippine islands. The court. one of the brothers of the deceased. on the other hand. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition. for which reason they are void as being in violation or article 10 of the Civil Code which. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. it must be taken into consideration that such exclusion is based on the last part of the second clause of the will. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence. 472. (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business. otherwise. Brimo was violated in the testamentary dispositions in question which. it is my wish that the distribution of my property and everything in connection with this. opposed it. which says: Second. acknowledges it when he desires to be given an opportunity to present evidence on this point. himself. not being contrary to our laws in force.

BELLIS.The fact is. . one of the brothers of the deceased (Joseph Brimo) opposed Miciano’s participation in the inheritance. Impossibleconditions are further defined as those contrary to law or good morals. is considered unwritten.The court approved the scheme of partition submitted by the judicialadministrator. filed a schemeof partition. Joseph Brimo is aTurkish citizen. and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. 1967 TESTATE ESTATE OF AMOS G. the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees. however. So ordered. and the scheme of partition submitted by the judicial administrator is approved in all other respects. as one of thelegatees. ISSUE: Whether Turkish law or Philippine law will be the basis on the distribution of Joseph Brimo’s estates. judicial administrator of the estate in question. Miciano vs Brimo | 50 Phil 867 FACTS: Juan Miciano. even should the testator otherwise provide. in such manner as to include Andre Brimo. No. being contrary to law. that the said condition is void.national law of the testator shall govern in his testamentary dispositions. It results from all this that the second clause of the will regarding the law which shall govern it. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever. Therefore. shall be considered as not imposed and shall not prejudice the heir or legatee in anymanner whatsoever. deceased. this condition. in the light of the legal provisions above cited. Andre Brimo. And said condition is contrary to law because it expressly ignores the testator's national law when. is null and void. executor. G. without any pronouncement as to costs. HELD: Though the last part of the second clause of the will expressly said that ―it be made and disposed of in accordance with the laws in force in the Philippine Island‖. L-23678 June 6. according to article 10 of the civil Code above quoted. and to the condition imposed upon the legatees. PEOPLE'S BANK and TRUST COMPANY. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS. Said condition then. even should the testator otherwise provide. such national law of the testator is the one to govern his testamentary dispositions.R. oppositors-appellants. being contrary to law. Thus. described as impossible conditions.

Bellis. Edwin G. 1952. Mallen by the delivery to her of shares of stock amounting to $240.00 to his first wife. the satisfaction of the legacy of Mary E. Amos Bellis. or on July 8. 37089 therein. by his second wife. Amos G. Bellis.000...S. 1964.. Mallen. Bellis. Bellis. 1958. Bellis. Bellis. ET AL. which in this case is Texas law." By his first wife. the same would not result in a reference back (renvoi) to Philippine law. proof of service of which is evidenced by the registry receipt submitted on April 27. Violet Kennedy.000. U. interposed no opposition despite notice to him. Bellis. Report of Administration and Project of Partition" wherein it reported. BELLIS.00 each in satisfaction of their respective legacies. whom he divorced. he had five legitimate children: Edward A. Henry A. Bellis died a resident of San Antonio. preparatory to closing its administration. Amos Bellis. heirs-appellees. his distributable estate should be divided.000.ñët The facts of the case are as follows: Amos G.000. The People's Bank and Trust Company. Bellis executed a will in the Philippines. Amos Bellis. Jr. but would still refer to Texas law. therefore. Mary E.00.000. 1964. This is a direct appeal to Us. the executor submitted and filed its "Executor's Final Account. approving the project of partition filed by the executor in Civil Case No. and Dorothy E. Mary E. the remainder shall go to his seven surviving children by his first and second wives.00 to his three illegitimate children..000. 16 of the Civil Code. which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. oppositors-appellants appealed to this Court to raise the issue of which law must apply — Texas law or Philippine law. Walter S. Jr. compulsory heirs of the deceased.00. Texas.000. Miriam Palma Bellis. Relying upon Art. as executor of the will. L-16749.vs. various amounts totalling P40. 1963. who survived him. report and administration and project of partition. Mallen. and a domicile of another. January 31. he had three illegitimate children: Amos Bellis.000. Jr. applied by this Court in Aznar v. and the legacies of Amos Bellis. or P40. Maria Cristina Bellis and Miriam Palma Bellis. Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40. EDWARD A. upon a question purely of law. renvoi would arise. In this regard. Maria Cristina Bellis and Miriam Palma Bellis. the lower court. Nonetheless. In the present case.A. Bellis and Dorothy Bellis. Alexander Bellis and Anna Bellis Allsman. the parties do not submit the case on. Maria Cristina Bellis. Mallen and to the three (3) illegitimate children.00. 1964.00 each and (c) after the foregoing two items have been satisfied. and finally.00 in the form of shares of stock to Mary E. 1 After the parties filed their respective memoranda and other pertinent pleadings. born in Texas. In the project of partition. 1964. namely: Edward A. he had three legitimate children: Edwin G. which did not provide for legitimes.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern. the doctrine of renvoi. in the following order and manner: (a) $240.000. 1964.1äwphï1. George Bellis (who pre-deceased him in infancy). if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated. Jr. Their respective motions for reconsideration having been denied by the lower court on June 11. Jr. 1964 by the executor. obligations. in equal shares. in which he directed that after all taxes. issued an order overruling the oppositions and approving the executor's final account. Said doctrine is usually pertinent where the decedent is a national of one country. from an order of the Court of First Instance of Manila dated April 30. Amos G..1äwphï1. Bellis. On January 17. (b) P120. on April 30. inter alia. and expenses of administration are paid for. paid all the bequests therein including the amount of $240. On January 8. Bellis. His will was admitted to probate in the Court of First Instance of Manila on September 15.ñët Subsequently. or a total of P120. Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and. it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. it applied the national law of the decedent. Christensen Garcia. since the properties here involved . Walter S. in trust. nor even discuss. Henry A. Alexander Bellis and Anna Bellis Allsman. On August 5.00 each or a total of P120. was "a citizen of the State of Texas and of the United States. 1958. the executor — pursuant to the "Twelfth" clause of the testator's Last Will and Testament — divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. U. ART. of proof as to the conflict of law rule of Texas. intestate and testamentary successions. and that under the laws of Texas. 2.S.B. paragraph three. 1039. However. Real property as well as personal property is subject to the law of the country where it is situated. and Art. 1039. Congress has not intended to extend the same to the succession of foreign nationals. inter alia. it should not be presumed different from ours. C. Congressdeleted the phrase. Wherefore. par. 1039 of the Civil Code. Precisely. .. It must have been their purpose to make the second paragraph of Art. which decrees that capacity to succeed is to be governed by the national law of the decedent. Concepcion. In the absence. Brimo.L. This is not correct. 10 of the old Civil Code as Art.. Capacity to succeed is governed by the law of the nation of the decedent. (b) the amount of successional rights. there are no forced heirs or legitimes. concur. since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law. Bellis. Congress added a new provision. Regala. 16 in the new. shall be regulated by the national law of the person whose succession is under consideration. So ordered. for as this Court ruled in Miciano v. stating that — Prohibitive laws concerning persons. 16. Footnotes 1 He later filed a motion praying that as a legal heir he be included in this case as one of the oppositors-appellants. and (d) the capacity to succeed. As further indication of this legislative intent. 17 of the new Civil Code. Assuming that such was the decedent's intention in executing a separate Philippine will. As stated. or by determinations or conventions agreed upon in a foreign country.. 867. with regard to four items: (a) the order of succession. prevails as the exception to Art. J. to file or adopt the opposition of his sisters to the project of partition. to the decedent's national law. render applicable the national law of the decedent. however. the amount of successional rights. a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law. both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions. 50 Phil. Amos G. Specific provisions must prevail over general ones. 870. in intestate or testamentary successions. Appellants would however counter that Art. or to allow him to adopt the briefs filed by his sisters — but this Court resolved to deny the motion. 2 of the Civil Code afore-quoted. JJ. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes. Accordingly. and those which have for their object public order. they never invoked nor even mentioned it in their arguments..A. They provide that — ART. (e) the intrinsic validity of the provisions of the will. 17. Article 16. 16. whatever may he the nature of the property and regardless of the country wherein said property may be found. is illegal and void. with costs against appellants.J. of the Civil Code. Makalintal. Rather. to submit his brief after paying his proportionate share in the expenses incurred in the printing of the record on appeal. The parties admit that the decedent. was a citizen of the State of Texas. Appellants would also point out that the decedent executed two wills — one to govern his Texas estate and the other his Philippine estate — arguing from this that he intended Philippine law to govern his Philippine estate. 11 of the old Civil Code as Art.are found in the Philippines. their acts or property. the Philippine law on legitimes cannot be applied to the testacy of Amos G. public policy and good customs shall not be rendered ineffective by laws or judgments promulgated. Bellis. 2 San Antonio. "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. Texas was his legal residence. 16 a specific provision in itself which must be applied in testate and intestate succession.3Appellants' position is therefore not rested on the doctrine of renvoi. under Art. For it has specifically chosen to leave. while reproducing without substantial change the second paragraph of Art. Dizon. Zaldivar. Reyes. for his national law cannot be ignored in regard to those matters that Article 10 — now Article 16 — of the Civil Code states said national law should govern. Sanchez and Castro. the order of the probate court is hereby affirmed in toto. it would not alter the law. par.

Collector. under Texas law. there are no compulsory heirs. there are no legitimes. still. Issue: Whether or not such illegitimate children of Bellis be entitled to successional rights. Even if the other will was executed in the Philippines. Furthermore. 95 Phil. Facts: Amos G. 500. Held: The said illegitimate children are not entitled to their legitimes. he made two wills. Bellis was a citizen and resident of Texas at the time of his death. Under Texas law. the other disposing his Philippine properties. 36 Phil. his national law. the recognized illegitimate children were not given any share.3 Lim vs. will govern the properties for succession even if it is stated in his testate that it shall be governed by the Philippine law. Texas has no conflict rule (Rule of Private International Law) governing successional rights. one disposing his Texas properties. In re Testate Estate of Suntay. 472. In both wills. . Before he died.

or any State or Territory thereof. Wills proved outside Philippines may be allowed here. — Wills proved and allowed in the United States. RULE 78. DALTON. Territory. SPRING GIBERSON. and recorded by the proper Court of First Instance in the Philippines. . Giberson. may be allowed.according to the laws of such country. filed. filed.and recorded in the Court of First Instance of the province in which the testator has real or personal estate on which such will may operate. L-4113 June 30. LELA G. 1952 Testamentaria del finado William R. solicitante-apelante. vs. according to the laws of such State.G. or in a foreign state or country. Wills proved outside islands may be allowed here. 637.R. opositor-apelado. SEC. — Wills proved and allowed in a foreign country. — SECTION 1. may be allowed. No. or country.

which occurred on September 3. is written wholly in the handwriting of the deceased and bears her proper signature. when she joined the family of her daughter. B. which had been incorporated under the style of Babcock & Templeton. G. California. but the writer further states that all interest and dividends are to be given to her only daughter. It appears that Jennie Rider Babcock had spent her married life in the State of Massachusetts. B. W. as well as her jewelry and personal effects "for their support until the youngest is of age. D. bearing the surname Templeton. but. During this stay in Manila she occupied an apartment in the house of her son. though temporarily residing in Manila at the time of her death. Templeton in San Francisco. Appeal from an order of the Court of First Instance of Manila admitting to probate the holographic will of Jennie Rider Babcock. jewelry. Jr. Inc. son and son-inlaw. Babcock. and which might be proved under the law of such state or country. mother of the three children who are principal beneficiaries of the will. is dependent upon the place of residence. It was found among the effects of the deceased shortly after her death. Babcock and G. the testatrix returned to Manila in July. 1923. Templeton took up his abode in San Francisco for the purpose of managing the business of said branch. The testatrix. WILLIAM RIDER BABCOCK. the character and incidents of this second sojourn in San Francisco constitute the most important fact in the case. had the status of a citizen of the State of California. it may be noted.G. R. Douglas Templeton. Mrs. L-28328 October 2. R. After remaining with the Templetons in San Francisco for several months.." The aforesaid instrument is admittedly of a testamentary character. From a legal point of view. the citizenship of a person born in the United States. BEATRICE BABCOCK TEMPLETON. D. During these years W. Beatrice Babcock Templeton. or domicile. of the testatrix. William Rider Babcock. with reference to the post mortem disposition of all her property. 1928 In the matter of the will of Jennie Rider Babcock. vs. respectively. W. The instrument therefore is not offered for probate under section 618 and related provisions of the Code of Civil Procedure but under section 636. contends that the testatrix acquired a legal domicile in the State of California by residence therein over two periods of time between 1917 and 1923. such domicile had been lost under the conditions presently to be discussed. It is alleged in the petition that the testatrix was at the time of her death a resident of the State of California. she may not have lost it as a result of her removal from that state. were running a business in Manila. Mrs. The purport of the paper is to the effect that the writer leaves her stock and money to her three grandchildren. and the parties have agreed that this paper could be proved in the State of California as the holographic will of the deceased. as was the testatrix in this case. This paper bears date of May 26.. and son. and the question before us ultimately resolves itself into a contention over the point whether the testatrix had ever acquired a legal domicile in the State of California and whether. Among the features of importance which characterize the incident we note the following: . but it is not executed as a will under the provisions of law generally governing the execution of the wills made in the Philippine Islands. with Babcock as president of the company and Templeton as its vice-president. When found. under the first paragraph of the Fourteenth Amendment to the Constitution of the United States. by Beatrice Babcock Templeton to secure probate of a paper writing purporting to express the wishes of Jennie Rider Babcock. at the time will was made. No. deceased. petitioner-appellee. Templeton. The petition in this case was filed in the Court of First Instance of Manila on September 8. Mr. as required by section 636 of our Code of Civil Procedure. The proponent of the will. 1926. opponent-appellant. had acquired stock in the company and had no other independent source of income than the dividends derived therefrom. until in 1917.R. and Billy Babcock Templeton. As a branch office had been opened in San Francisco requiring the presence of an officer of the company. She then returned to San Francisco and lived with the Templetons until May. consisting of corporate stock. Mrs. R. and that such domicile was never lost. resist the probate of the will on the ground that the testatrix had never acquired a legal domicile in the State of California. where she remained until August. supposing such domicile to have been acquired. since the trial court deduced from her acts and statements the conclusion that she had acquired a domicile in California. the brother of the proponent. Constance Babcock Templeton. Templeton. her husband having died in 1908. 1926. Templeton. if she had. The sole question in controversy therefore now is. Babcock. whether the testatrix. personal effects and money. 1920. But. or that. it was contained in an envelope indorsed with the name of her daughter. G. 1918. namely. she removed a year later to Manila where she lived with her son. which authorizes probate by our courts of a will made within the Philippine Islands by a citizen or subject of another state or country. when such will is executed in accordance with the law of the state or country of which the testator is a citizen of subject. 1926.

. and intention is revealed only in the acts and declaration of the person concerned. after arriving. and the circumstances that she had lived many years in Manila and was coming back to this city.First. 1924. she referred to California as her home state expressed her intention of returning there and building a home in which to live. It is a recognized rule that the intention with which removal is made from a particular state determines whether or not the domicile is abandoned. the testatrix established herself as a practitioner in Christian Science. without any apparent intention of removing from the state. fourthly. but she appears to have supplied the furniture necessary for her own use. where the evidence is scanty. she returned to Manila.net This record supplies no material with which to refute the conclusion of the trial court that a domicile was thus acquired by the testatrix in the state of California. Not long thereafter. owned a home in San Francisco in which he lived. and in no other act of his life does the citizen identify his interests with the state in which he lives more than in the act of voting. the Templetons established themselves in White Plains. after her return to Manila in 1924. but she suggested to friends here. we are of the opinion that the trial court committed no error in attaching importance to the circumstance that the deceased had voted in California elections. Babcock & Templeton. Templeton. in the Passenger Manifest of the vessel upon which she came to Manila. arriving at this place in January. a cult to which she was attached: thirdly she engaged in political activities. Inc. "Deliver me from living in New York. near New York City. This step on the part of the Templetons determined the course of the testatrix. The exercise of the franchise is one of the highest prerogatives of citizenship. But upon this point also. It may also be here stated that the testatrix had kin in New York State whom she had visited more than once during her above in California. and of course when she told the ship's official that she was from New York City. and what we consider the more critical question is whether or not the domicile thus acquired was subsequently lost by removal from said state." What really brought her back to the Philippine Islands. is not certain. We consider this circumstance of no probative force in connection with the issues of this lawsuit. after a few months of experience in that city. .D. He accordingly sold his home in San Francisco and went to live in New York. Though not of course conclusive of acquisition of domicile. A circumstance to which importance is attached by the appellant is that. it appears in evidence that only a short time before her death in Manila she was acquiring a few pieces of Spanish furniture to take back to her to California. the testatrix announced herself again in the Christian Science Journal as a practitioner of Christian Science in White Plains. are the numerous conversations. may have decisive weight. is in conformity with the evidence. taking part in a parade advertising a cause in which she was interested. her motive being found in her desire to be with her daughter and grandchildren. leaving behind in the care of friends three pieces of furniture to which she was especially attached and which she perhaps thought she might use later in California. secondly. In the year 1923. she formed an attachment for California. who gathered her personal effects together and accompanied them to New York. and in many conversations thereafter with intimate friends. Upon arriving in New York State. In particular." it being insisted that this is an admission on her part tending to show the acquisition by her of a domicile in New York State. This made it necessary for G. The sojourn of the testatrix in New York was apparently not congenial. Indeed. in which she stated that she was a resident of Manila. in which she revealed an intention of returning to live in California. her son-in-law. The finding of the trial court to the effect that the deceased had acquired a domicile in the State of California is in our opinion based upon facts which sufficiently support said finding. upon arriving in San Francisco. Here the testatrix occupied part of the apartment which the Templetons had taken. and she voted in at least one general election that occurred in that state. 1awph!l. made on the same voyage before disembarking at Manila. sufficiently explains why she claimed to be a resident of Manila in that declaration without making any conclusive commitment as to the place of her domicile in law. Papers of this character are not commonly written with legal precision. since. she caused New York City to be entered opposite her name in the column indicating "Last Permanent Residence. The impression that conditions in New York made upon her may be gauged by a statement subsequently made by her to one of her friends in Manila. apart from her dislike to the environment in New York. It is evident from the proof that the removal of the testatrix from California to New York did not proceed from her volition but resulted from circumstances over which she had no primary control. Of some importance. as throwing light upon the state of her mind towards California and the intention with which she removed from that state. and she appears to have inherited some property from a sister who had been living in New York and who died before the return of the testatrix to the Philippine Islands. that a desire to economize the cost of living may have had a part in her course. decided to close its office in San Francisco and to open a branch in New York City. to the effect that acquired domicile had not been lost. As little importance is to be attached to her Baggage Declaration and Entry. Templeton to remove with his family to New York State. voting in a place is an important circumstance and. the name of this place necessarily had to go down in the column mentioned. The Passenger Manifest gave the passenger no choice about indicating whether New York was the place of last residence or the place of last permanent residence. we are of the opinion that the conclusion of the trial court.

As between these two states. a question. . It results that the trial court committed no error in considering the testatrix a citizen of the State of California. or citizenship. she had any intention of acquiring a legal domicile in that state. in the state of his new abode. which state of the American Union has the best claim to her citizenship.. has not been entered in the competition. this California domicile has not been supplanted by a later domicile acquired in New York. But the proof shows that however long the testatrix had resided in the Philippine Islands. On the contrary her short stay there and her repeated statements made thereafter show that she could not possibly have had any intention of making that state a place of permanent abode. yet she was a resident of the Philippine Islands at the same time of her death. turns upon domicile. with as good right as the State of California. acquired by choice and by residing therein. Furthermore.In the case before us there are no declarations of the testatrix in evidence which would tend to show that. as we have already seen. 39 Phil. for the purpose of admitting this will to probate. Certainly in this case it cannot be said with any propriety that the domicile of the testatrix in California was suppressed by the acquisition on a new domicile in New York State. and there is no other state whose citizenship she can claim. with costs against the appellant. her will should not be admitted to probate as the will of a citizen of another state. Massachusetts. a person transferring his domicile from one state of the American Union to another loses his domicile in the state of his earlier abode upon acquiring a domicile. Her will is therefore provable under section 636 of the Code of Civil Procedure as the will of a citizen of another state or country. which. The testatrix therefore remained at the time of her death a citizen of the United States. Again. the place of her marital abode. 156). The judgment will therefore be affirmed. and that. California was surely the state of her legal domicile. upon removal to New York. The acquisition of the new legal domicile extinguishes the old. even supposing that the testatrix had not acquired a domicile in New York. having established herself in these Islands as a place of permanent abode. In the contrary. according the evidence in this record. and it is so ordered. and the only question to be determined in this case is. her repeated declarations reveal a fixed intention of returning ultimately to the United States. 156). and we must decide between California and New York. But it is said that. however long continued (In Re Estate of Johnson. she at no time had any intention of residing here permanently. As was pointed out by this court in In Re Estate of Johnson (39 Phil. it is a rule that a citizen of the United States cannot acquire citizenship in the Philippine Islands by residence here..

. 1985 (Annex II. and P90. U. VITUG.A.731. Vitug's estate with her (Mrs.731.66.147. it is a prohibited donation under the provisions of Article 133 of the Civil Code. Metro Manila. we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's) widower. Vitug. in the inventory of . naming private respondent Rowena Faustino-Corona executrix. assuming that it is a mere donation inter vivos. P518.749.99 from savings account No. the order of respondent Judge dated November 26. respondents. the Court of Appeals. 1980. 5 The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. 82027 March 29. On January 13. The agreement provides: We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK). 35342-038 of the Bank of America.749. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667." 4 Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19. No.66 . Vitug for reimbursement of his alleged advances to the estate. pending probate. On April 12. for any payment or withdrawal made for our above-mentioned account shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. In our said decision. 1970. there was allegedly no ground for reimbursement.40 spent for the payment of estate tax. Romarico G. We further agree with each other and the BANK that the receipt or check of either. S. 2the alleged advances consisted of P58. respondent Judge is directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America. As found by the Court of Appeals. the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of P667. petitioner Romarico G.27 as deficiency estate tax. vs. Vitug. 9 The dispositive portion of the decision of the Court of Appeals states: WHEREFORE. plus interests.. or the receipt or check of the survivor or survivors. In addition." 7 On the other hand.99 as "increment thereto. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the estate. he withdrew the sums of P518. and hence.. but the same order is sustained in all other respects.R. Makati. in the petition for certiorari filed by the herein private respondent. any or all of us during our lifetime. Makati. which he claimed were personal funds.834. and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors.G. 1990 ROMARICO G. 1985. Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. Vitug. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA. .27 and P90. petitioner." 3 According to Mr. 1985. that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime. 35342-038 were conjugal partnership properties and part of the estate. on November 10. This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores Luchangco Vitug. petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L." 8 and secondly. who died in New York. and shall be payable to and collectible or withdrawable by such survivor or survivors.834. held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code.

we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera. Gatmaitan. Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank. The conveyance in question is not. but simply. then. the time of death determining the event upon which the acquisition of such right by the one or the other depended. It is also our opinion that the agreement involves no modification petition of the conjugal partnership. Rivera v. People's Bank and Trust Co. more commonly denominated in banking parlance as an "and/or" account. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant. when the spouses Vitug opened savings account No." 14 In other words. 10 In his petition. By virtue of Exhibit C. 17 In Macam v. Inasmuch as Leonarda had died before Juana. one of mortis causa. the monies subject of savings account No. revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. for obvious reasons. nullifies the assumption that Stephenson was the exclusive owner of the bank account. first of all. which should be embodied in a will. 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property relations. having been acquired during the existence of the marita. solemn. As already stated. This contract. And since the funds were conjugal. Gatmaitan 12 in which we sustained the validity of "survivorship agreements" and considering them as aleatory contracts. say. of clear proof to the contrary. A will has been defined as "a personal. assails the appellate court's ruling on the strength of our decisions inRivera v.. it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other. the latter thereupon acquired the ownership of the house. is binding upon the parties thereto. . and hence it must be presumed to be conjugal. Certainly. 11 and Macam v. one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. In the absence.. it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool. Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture.actual properties possessed by the spouses at the time of the decedent's death. they merely put what rightfully belonged to them in a money-making venture. People's Bank and Trust Co. and the balance. their joint holdings: . 18 it was held: This Court is of the opinion that Exhibit C is an aleatory contract whereby. 15 In this case. which would have arguably been sanctionable as a prohibited donation.. as any other contract. 35342-038 were in the nature of conjugal funds In the case relied on. as held by the Court of Appeals. and that either of them could withdraw any part or the whole of said account during the lifetime of both. upon the death of either. Vitug. 20 Neither is the survivorship agreement a donation inter vivos. With costs against private respondent. in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first. the surviving spouse. if any. Secondly. according to article 1790 of the Civil Code. 35342-038. In the case at bar. Juana would become the owner of the house in case Leonarda died first. that they were joint (and several) owners thereof. They did not dispose of it in favor of the other. the bequest or device must pertain to the testator. which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased. relations. 13 The petition is meritorious. 16 we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other. because it was to take effect after the death of one party. belonged to the survivor. and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. by way of a joint and several bank account. 19 xxx xxx xxx There is no showing that the funds exclusively belonged to one party. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first. the spouses are not prohibited by law to invest conjugal property." But it not infrequently happens that a person deposits money in the bank in the name of another.

35342-038 of the Bank of America. a transaction stipulating on the value of currency. the decision of the respondent appellate court. As mandated by Art. No costs. which is not a mere contract but an inviolable social institution are governed by law. the term being death. the donation shall comply with the formalities of a will (Arts. or which is to occur at an indeterminate time. except that which takes effect after the death of the donor. and conjugal partnership. No such vice has been imputed and established against the agreement involved in this case.The validity of the contract seems debatable by reason of its "survivor-take-all" feature. it may be assailed and annulled upon such grounds. or. 1988. but in reality. consequences and incidents of marriage. it forms no more part of the estate of the deceased. 2010. dated February 9. 25 In either case. 1987. their property relationship was that of conjugal partnership governed by the Civil Code." . 52. dated June 29. one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain. or to defeat the legitime of a forced heir. the element of risk is present. and its resolution. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. donation between the spouses during the marriage. In the case at bar. the sale of a sweepstake ticket. donations. 24 Under Article 2010 of the Code: ART. 26 xxx xxx xxx There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes. WHEREFORE. Under the aforequoted provision. 728. that contract imposed a mere obligation with a term. and insurance have been held to fall under the first category. if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation. as we have warned: xxx xxx xxx But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. By an aleatory contract. 21 In the words of the Appellate Court: "Since private respondent and his late wife did not enter into a marriage settlement before marriage. For instance. the nature. et sequentia. Vitug having predeceased her husband. the latter has acquired upon her death a vested right over the amounts under savings account No. as held by the respondent court. in order to frustrate our laws on wills. the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain. and not subject to stipulation. 805). we hold that the court was in error. However." (2) "which is to occur at an indeterminate time. in which case. to transfer property in fraud of creditors. while a contract for life annuity or pension under Article 2021. has been categorized under the second. Vitug." A survivorship agreement. The conclusion is accordingly unavoidable that Mrs. Being the separate property of petitioner. Such agreements are permitted by the Civil Code. are SET ASIDE. The system of conjugal partnership prohibits. the risk was the death of one party and survivorship of the other. SO ORDERED. as already mentioned. To allow the prohibited donation by giving it a cloak of aleatory contract would sanction a (modification) of a marriage settlement during marriage by a mere stipulation. 133.

failed to file her memorandum. V. vs. IN HOLDING THAT THE LAND IN QUESTION COULD NOT BE THE SUBJECT OF A CONTRACT BETWEEN JANDOC AND LEYVA BECAUSE IT WAS THEN STILL GOVERNMENT LAND. 1988 ELIGIO T. IN NOT HOLDING THAT LEYVA'S RIGHTS OF OWNERSHIP OF LOT 1-H-3 PREVAIL OVER LAIZ'S CLAIMS THERETO. No. IN HOLDING THAT UNDER THE COMPROMISE AGREEMENT OF 1963 BETWEEN LEYVA AND JANDOC. Petitioner raised seven (7) assignments of error. ON QUESTIONS OF LAW. and the August 21. pp. COURT OF APPEALS. In the Resolution dated April 8. RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY. II. ON QUESTIONS OF LAW. VI. 157-184).R. RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY. 1977 Decision of the then Court of First Instance of South Cotabato. pp. IN HOLDING THAT LAIZ HAS A BETTER RIGHT TO THE PROPERTY BECAUSE HE HAS BEEN A POSSESSOR THEREIN IN GOOD FAITH SINCE 1954. PSU-124647-AMD TO LEYVA. respondents. LEYVA.. as between petitioner Leyva and private respondent Laiz. VII. FRANCISCO LAIZ and MANUELA JANDOC. "Francisco Laiz vs.G. the petition was given due course and the parties were required to file their respective memoranda (Ibid. 1987 (Ibid. IN NOT REVERSING THE DECISION OF THE TRIAL COURT. IV. RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY. to wit: I. 187210). 1987. Manuela Jandoc. has a preferred right of ownership over Lot.R. et. ON QUESTIONS OF LAW. while private respondent Jandoc. AND RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY. ON QUESTIONS OF LAW.. 71939 January 25.. Private respondent Francisco Laiz filed his Memorandum on June 2. IN NOT HOLDING THAT LEYVA'S 1963 COMPROMISE PREVAILS OVER LAIZ'S 1970 DEED OF ABSOLUTE SALE. RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY. The instant petition is without merit. 1-H-3 which is the property in question. AND NOT RENDERING JUDGMENT IN FAVOR OF LEYVA. No. p. The pivotal issue in this case is who. 1985 Resolution ** of the same Court denying herein petitioner's motion for reconsideration. This is a petition for review on certiorari of the April 14. RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY. ON QUESTIONS OF LAW. . RESPONDENT INTERMEDIATE APPELLATE COURT ERRED GRAVELY. 1987 (Ibid. CV-62591. III. 132). al. 1981 Decision * of the then Intermediate Appellate Court in AC-G. IN NOT ORDERING JANDOC TO RECONVEY LOT 4." affirming in toto the July 6. ON QUESTIONS OF LAW. THE LATTER WAS TO RECOGNIZE THE CLAIM OF LEYVA OVER THE SAME PROPERTY WHICH SHE SOUGHT TO BE REGISTERED IN HER NAME. petitioner. petitioner on June 18. ON QUESTIONS OF LAW. UNDER THE ESTABLISHED AND UNDISPUTED FACTS.

1959 to Francisco Laiz per Agreement of Sale. On the other hand. obviously in violation of the terms of the alleged compromise agreement thereby negating bad faith (Rollo. at the instance of petitioner LEYVA in the Office of the Register of Deeds of General Santos. (5) In his testimony Leyva himself declared that despite the Compromise Agreement. the Court of appeals concluded that the Compromise Agreement whether executed in 1963 or 1972 between Leyva and Jandoc cannot prevail over the Agreement of Sale between Laiz and Jandoc and that Laiz has a better right over the property in question than Leyva (Ibid. AMD-2 registered in the name of Manuela Jandoc. thereby confirming that the conflict in the land registration case still subsists. His rights thereto were confirmed not only by Manuela Jandoc herself in a Deed of Transfer executed on February 2. N-78 in the lower court. Garcia. p..). and (6) It is incredible that after Jandoc won in the Land Case No.This case was originally filed by private respondent LAIZ in the then Court of First Instance of Cotabato as a petition for the Cancellation of Adverse Claim. upholding the validity of the assailed Sale Agreement. This land is a portion of a bigger parcel known as Lot 1-H PSU 124647. a handwriting expert of the PC Crime Laboratory. which is undated although claimed to have been executed in 1963 but actually notarized on September 4. 75). Both the trial court and the Court of Appeals gave more weight to the testimony of Fiscal Sarinas as corroborated by Catolico and Versoza. the same having been previously sold by Jandoc on April 2. T-7225. one of the signatories therein (Record on Appeal. p. he continued opposing the registration of the property in favor of Jandoc.00 as earnest money considered as part of the price and proof of the perfection of the contract (Record on Appeal. 1970. p. (3) In the application for registration of Manuela Jandoc. p. Laiz was mentioned as one of the adverse possessors but not Leyva. p. pp. and (5) Laiz was issued a Transfer Certificate of Title over Lot 1-H-3 by virtue of a final judgment in the Specific Performance Case (Rollo. he did not mention any such agreement but only of conflicting claims between him and Jandoc. in the Court of Appeals and in the Supreme Court. 28). (4) Leyva's opposition to said registration proceedings on the basis of a foreshore lease contract with the government was disallowed by the trial court whose ruling was sustained by the Court of Appeals and finally by the Supreme Court (Rollo. Petitioner anchors his claim on his alleged Compromise Agreement with Manuela Jandoc. 78). against all of whom there is no evidence on record that they are biased witnesses who would fabricate a tale in support of the authenticity and due execution of aforesaid document (Rollo. covering Lot 1-H-3. as it was duly executed with the receipt of P200. formerly Chief of the Chemistry Branch in the PC Crime Laboratory who testified that the Agreement could have been written within the years 1964 to 1967 (Rollo. P. Camp Crame who testified that the purported signature of Jandoc appeared to be of another person and of Col. she will still enter into a Compromise Agreement with Leyva either in 1963 or in 1972 (Rollo. Leyva (Record on Appeal. 1972. 1 970 but also by a final judgment of the Court of First Instance of South Cotabato. 87) and by the Notary Public Victorio Versoza. II. p. (3) Its due execution was testified to by Provincial Fiscal Jose B. 71). certain properties covered thereunder which include Lot 1-H-3 will automatically belong to the former. the findings of fact of both the trial court and the Court of Appeals are as follows: I. (2) Said agreement was confirmed by a deed of transfer executed by Jandoc on February 2. Sarinas whose testimony was corroborated by Jose Catolico. is null and void for lack of subject matter. It provides among others. In evaluating the authenticity and due execution of the aforesaid documents of the contending parties. private respondent Francisco Laiz bases his claim on a private agreement of sale executed between him and Manuela Jandoc on April 3. (4) It has been established that the lot in question has been occupied by Laiz since 1954 although disturbed off and on by Eligio T. 81). p. 1968 requiring Laiz to vacate the premises. Jr. N-78 (filed by applicant Jandoc) on the condition that upon the issuance of the title in favor of Jandoc. On the Compromise Agreement between Leyva and Jandoc : (1) The agreement besides being undated with a belated notarization. 1959 is a valid and binding contract between the parties. 76). (2) The claim that the compromise agreement was executed in 1963 was belied by Leyva himself when in his letter dated February 6. that the Leyva spouses will withdraw their opposition to the Land Registration Case No. in favor of private respondent Laiz. General Santos City *** in an action for Specific Performance whereby Jandoc was compelled to execute the necessary documents which led to the issuance of the Transfer Certificate of Title on the lot in question. 1959 regarding the same lot. On the Agreement of Sale between Jandoc and Laiz: (1) The transfer of rights executed on April 2. . 7376). annotated on the back of his Transfer Certificate of Title No. But Leyva lays much stress on the findings of Francisco Cruz. 67). Upon consideration of the foregoing. Crispin B.

once it has been proved without contradiction.. with a . No. to the effect that the testator is presumed to know the dialect of the locality where he resides. 131 SCRA 501 [1984]. Indeed. People v. is drawn. strictly provides that: "No will. 144 SCRA 364 [1986]. alleged to be his will. because. 141 SCRA 240 [1986]).This Court has ruled in the case of Vda. In refusing to admit the will in question to probate. petitioner-appellant. Mercado. 692 [1950]) that "the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which cannot be mathematically precise but which on the contrary.) Nor can the presumption in favor of the will established by this court in Abangan vs. "shall be valid to pass any estate. as the last will and testament of the deceased Piraso." etc. not only is it not proven that English is the language of the City of Baguio where the deceased Piraso lived and where Exhibit A was drawn. People v. real or personal. that the said deceased Piraso did not know English. This appeal was taken from the judgment of the Court of First Instance of Benguet. deceased. 476). that the factual findings of the Court of Appeals are final and may not be reviewed by this Court except in certain instances which have no application here. The proponent-appellant assigns the following as alleged errors of the lower court: 1. 3.. it is well established that the appellate court will not disturb the factual findings of the lower court for the latter is in a better position to gauge credibility of witnesses (People v. as a will. before the present Code of Civil Procedure went into effect). nor charge or affect the same. it has long been established to the point of being elementary. G. Abangan (40 Phil. even he invoked in support of the probate of said document Exhibit A. Such statements were not unnecessary for the decision of the case. People v. unless there is proof to the contrary. 137 SCRA 137 [1985]. (Emphasis supplied. are subject to inherent infirmities. In holding that in order to be valid the will in question should have been drawn up in the Ilocano dialect. in which language the instrument Exhibit A. PREMISES CONSIDERED. vs. and the court is of the opinion that his will should have been written in that dialect. Pasco. People v. denying the probate of the instrument Exhibit A. the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED. Roxas (87 Phil. Section 628 of the Code of Civil Procedure. Adones. in the instant case. People v. ET AL. but that the record contains positive proof that said Piraso knew no other language than the Igorrote dialect.R. although imperfectly. People v. SIXTO ACOP. The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows: The evidence shows that Piraso knew how to speak the Ilocano dialect. SALMING PIRASO. 137 SCRA 166 [1985]. Danes 131 SCRA 286 [1984]. Tala. In not holding that the testator Piraso did not know the Ilocano dialect well enough to understand a will drawn up in said dialect. 1929 In re estate of Piraso." In any event. L-28946 January 16. de Roxas v. unless it be written in the language or dialect known by the testator . and could make himself understood in that dialect. opponents-appellees. 2. except as provides in the preceding section" (as to wills executed by a Spaniard or a resident of the Philippine Islands. SO ORDERED. 132 SCRA 189 [1984]. Jr.. Jones. Lopez. It is evident that what petitioner seeks from this Court is a review of the findings of fact of the Court of Appeals which affirmed the findings of the trial court.

The case was originally appealed to the Court of Appeals where the following assignment of error is made: The appellants respectfully submit that the Trial Court erred in holding that the supposed testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. and in admitting the will to probate. In view of the fact that the appeal involves a question of law the said court has certified the case to us. that is. Such a result based upon solidly established facts would be the same whether or not it be technically held that said will. and inevitably prevents its probate. with the costs of this instance against the appellant. Ciudad de Zamboanga'. vs. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. Exh. On the second page. is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. in order to be valid. he did not know the English language in which Exhibit A is written. petitioner-appellee. and this is sufficient to invalidate said will according to the clear and positive provisions of the law. proven. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. which is sought to be probated. Enero 20. So ordered. L-15153 August 31. having been written in the English language with which the latter was unacquainted. "Por la Testadora Anacleta Abellana'. Ciudad de Zamboanga. that the instrument in question could not be probated as the last will and testament of the deceased Piraso.. that it is quite certain that the instrument Exhibit A was written in English which the supposed testator Piraso did not know. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . it having been. "A". also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase. 1951. The judgment appealed from is affirmed. The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana.R. LUCIO BALONAN. The fact is. So that even if such a presumption could have been raised in this case it would have been wholly contradicted and destroyed. No. 1960 In the Matter of the summary settlement of the Estate of the deceased ANACLETA ABELLANA. which is the last page of said last Will and Testament. Faustino Macaso and Rafael Ignacio. we repeat.. We consider the other question raised in this appeal needless and immaterial to the adjudication of this case. .smattering of Ilocano. . and whether or not the testator Piraso knew the Ilocano dialect well enough to understand a will written in said dialect. G." comply with the requirements of law prescribing the manner in which a will shall be executed? . et al. at the bottom of which appears the signature of T. The facts as found by the trial court are as follows: It appears on record that the last Will and Testament (Exhibit "A"). Juan A. whether or not the Igorrote or Inibaloi dialect is a cultivated language and used as a means of communication in writing. must be written in the Ilocano dialect. EUSEBIA ABELLANA. and on the second page appears the signature of three (3) instrumental witnesses Blas Sebastian. was signed in accordance with law. oppositors-appellants. as it was. residence Certificate A1167629. Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. (Emphasis supplied) The appeal squarely presents the following issue: Does the signature of Dr.

Concepcion. Cases of the same import areas follows: (Ex Parte Juan Ondevilla.. and by his express direction. except as provided in the preceding section shall be valid to pass any estate. Where a testator does not know how. nor charge or affect the same. under the law now in force. . There is. the notary certifying thereto as provided in Article 695 of the Civil Code.. Richard Doe." is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No." All this must be written by the witness signing at the request of the testator.Domingo. in part provides as follows: Every will. et al. John Doe.. in this respect. and this is failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance. 552. and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. (Emphasis supplied).. Cabacungan. we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate. 5 Phil.. (Emphasis supplied. He did not do so. Garcia vs. it will not be sufficient that one of the attesting witnesses signs the will at the testator's request. we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction. Juan Abello. Caluya vs. Note that the old law as well as the new require that the testator himself sign the will. 27 Phil. It appearing that the above provision of the law has not been complied with. or is unable for any reason. In the case at bar the name of the testatrix. the decision appealed from is hereby set aside and the petition for the probate of the will denied. 13 Phil. therefore. WHEREFORE. real or personal. unless it be in writing and signed by the testator.) The clause "must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction. Vidal should have written at the bottom of the will the full name of the testator and his own name in one forms given above.The present law. other than a holographic will. however. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas. In the case of Barut vs. so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. and by his express direction. it is unimportant whether the person who writes the name of the testatrix signs his own or not. the testator's name must be written by some other person in his presence and by his express direction. Richard Doe. does not appear written under the will by said Abellana herself. . must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence. or if he cannot do so. and this in the testator's presence and by his express direction. 479. or that his name be affixed thereto by some other person in his presence and by his express direction. which. Lacuesta. 700: It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how.. or in this form: "By the testator. notwithstanding the fact that no one appeared to oppose it. Article 805 of the Civil Code. Anacleta Abellana. and attested and subscribed by three or more credible witness in the presence of the testator and of one another. or is unable.. . but it is necessary that the testator's name be written by the person signing in his stead in the place where he could have signed if he knew how or was able to do so. 330. a failure to comply with the express requirement in the law that the testator must himself sign the will. 190) which reads as follows: No will. 461. 21 Phil. was modified by section 618 above referred to. Phil. . to sign the will himself. to sign. it shall be signed in the following manner: John Doe by the testator. or by Dr. the witness Naval A. 489). 90 Phil. Therefore. or by the testator's name written by some other person in his presence. With costs against petitioner. The same ruling was laid down in the case of Cuison vs.

and only after he made clear that his refusal to make further payments was on account of that disagreement.Marshall Tamor Golding. U. he received threats on his business and his life.   Upon concluding that they were revolutionaries whose cause he politically opposed. DC. Circuit Judges. 96-70467. holding that he had not established a well-founded fear of persecution on account of political opinion. for Respondent. United States Department of Justice. Court of International Trade Judge. No. As a result. and he fled the country. Respondent. 8 U. 1253(h). CA. Washington.GONZALES NEYRA v. Petitioner. 1997. overlooked the uncontradicted evidence that petitioner's life and business had been threatened only after he expressed his political disagreement with the guerrilla organization. Crowley. Ann V.* Randall Caudle. and WALLACH. Argued and Submitted June 10. IMMIGRATION AND NATURALIZATION SERVICE. -. 1997 Before:  SCHROEDER.  1158(a). v. §§ In so holding.S. the majority of the BIA. and the immigration judge. San Francisco. KLEINFELD. for Petitioner. he told them so and refused to comply with their demands any longer.September 15.S.  Marco Antonio Gonzales-Neyra is a native and citizen of Peru who petitions for review of the Board of Immigration Appeals' denial of his application for asylum and withholding of deportation.   Petitioner paid “protection” money to “Sendero Luminoso” (also known as “Shining Path”) guerrillas while he believed that they were Peruvian police officers. IMMIGRATION AND NATURALIZATION SERVICE Marco Antonio GONZALES-NEYRA. A divided BIA denied his application. .C.

Gonzales-Neyra began hearing rumors that the Shining Path guerrillas were using the same kind of extortionist tactics as the police. or that they would do whatever possible to harass [him] in [his] business or close [his] business. his fear of future persecution was reasonable. GonzalesNeyra's family was threatened that if it did not disclose his whereabouts. BACKGROUND The immigration judge expressly found his testimony credible because there were no inconsistencies in that testimony and no contradictory evidence regarding the events that took place before petitioner fled Peru.  He testified this meant that “they were destroying businesses and killing people. Gonzales-Neyra's fear became even stronger. Gonzales-Neyra confronted the men who came to get the protection payment. The press reported that the police had identified them as members of the Shining Path. as a university student had been a member of the Christian Popular Party. saying that it was . Gonzales-Neyra told them that he would no longer give money to support their “armed struggle.”   They responded that if he “didn't do it.  and that there is a clear probability that Gonzales-Neyra will be persecuted if he were returned to Peru.”   Petitioner operated a video game business in Lima. because that was not part of [his] idea.  Petitioner testified that he paid the $300 to the guerrillas that day because he was afraid he would be killed on the spot. because it “was not in accordance with their ideology. He began to suspect that the men to whom he was paying the protection money were not members of the national police force.   Soon after the incident. his younger brother would be harmed.   These men told Gonzales-Neyra that if he did not pay. he became the target of extortion demands. but that he specifically told them that he was not going to “collaborate [with] them [anymore].   Before fleeing.   At that point.   They were going to destroy [his] business and [him] inside of it.”  As of December of 1990. as the BIA was required to do in this case. Like many other business people in Peru.  that given Gonzales-Neyra's showing of past persecution.”   They said that in their opinion. Gonzales-Neyra was told by his family that people would call his parents' home. “they were going to see to it that [his] business was [declared] illegal.  that [he] was not going to collaborate with a group that was trying to destroy [his] country.  In February of 1991. purporting to be members of the Peruvian national police. Because he did not share the Shining Path guerrillas' ideology. but rather members of the Shining Path. from May 1990 until January 1991. the guerrillas chastised him for being involved in the video game business. GonzalesNeyra fled his home and business.   In addition.” Because of that threat. whose ideas “were to enrich and increment democracy ․ within the country[. and “diverted their attention from national problems. Gonzales-Neyra's father began observing unknown people loitering on several occasions on the street in front of the family home. and that if [he] didn't do it. The men also ordered him to close his business soon. Gonzales-Neyra decided that he would no longer make the payments. a video game business such as his distracted the youth. would be compelled to reach a contrary conclusion:  that the persecution Gonzales-Neyra suffered was on account of political opinion.   When they demanded that he pay $300 per month.”  In January of 1991. made them stupid. they “clarified [his] suspicions. The facts are as petitioner testified. two men dressed in police uniforms came to Gonzales-Neyra's video store to demand payment.We conclude that any rational factfinder who took that evidence into account.]” in stark contrast to the goals of the Shining Path.”   When he demanded to know if they were in fact Shining Path guerrillas. Believing that the guerrilla group might now retaliate against him thinking that he was the one who had reported the men to the police.”   The demands upon him began in April of 1990. however. and in fact. to obtain money from business persons. he learned from a newspaper that the police had detained two men whom he recognized as the men who had first come to his establishment in 1990. his brother went into hiding for a year.   After his departure from Peru. Gonzales-Neyra complied. Every month thereafter. they were going to kill [him]. demanded that he provide protection money “for police use. they were going to kill him. Therefore. when two men dressed in police uniform.”   In addition. we grant Gonzales-Neyra's petition for review. because they confirmed ․ that they were members of the Sendero Luminoso Communist Party.

 (2) he holds a political opinion.   Likewise an asylum seeker claiming well-founded fear of persecution must show the second.S. businessmen.3d at 1487.3d 1425.   8 U. § An alien is eligible for asylum and may be granted asylum at the discretion of the Attorney General. precisely because any person or group perceived by the Shining Path as in a position to aid or thwart its efforts to overthrow the government is a potential target of its threats or violence. 1. In certain cases. Sangha.  The BIA also found that Gonzales-Neyra had not established a well-founded fear of future persecution because conditions in Peru had changed. 338 (9th Cir. though not necessarily the first. 1. development and human rights workers. if he establishes that he is a statutory “refugee”.Ct. who dissented from the BIA's decision. 103 F. 58 F. and demanding that the family provide information as to his whereabouts. Elias-Zacarias. applicants with credible cases of guerrilla mistreatment may merit administrative discretion. We may reverse the BIA's decision only if the evidence presented by Gonzales-Neyra is such that a reasonable factfinder would be compelled to conclude that the requisite fear of persecution existed. 502 U. ANALYSIS Prasad v. including government officials.3d 1482. some asylum applicants may have difficulty providing evidence that they were threatened or abused on Convention-covered grounds.   The alien must do this by offering “credible.1995)). 47 F.urgent that he be in touch.  8 U. started coming to his family's house. INS. 103 F. 812. Indians. educators and students. 816-17. 502 U.2d 38 (1992). 478. his family reported disturbing incidents. 478.  Sangha. 117 L. industrialists.”  1158(a). INS. the BIA rested on similar reasoning. 103 F. they had not targeted him for extortion because of his political opinion. 112 S. asking for him.S. The breadth of the guerrilla efforts to destabilize the country was reflected in the variety of targets of their violence.S. Peru:  Profile of Asylum Claims and Country Conditions (February 1995). labor leaders and workers.S.  The BIA relied upon portions of a State Department report. Elias-Zacarias. Because so many categories of Peruvians have been targeted. bankers and other professionals.Ct.]”  Sangha v.Ed. and while Gonzales-Neyra was living in hiding at his girlfriend's house before his departure from Peru. In affirming the immigration judge's order.3d 336. We therefore conclude that petitioner proved through compelling and undisputed evidence that the threats to his life and business constituted persecution causally connected to his political . 481 n.  (3) his political opinion is known to his persecutors.   The burden of proof is on the alien to establish eligibility for asylum.  After the Supreme Court's decision in INS v.  1101(a)(42)(A).   Because Gonzales-Neyra's family knew who his friends were. when reviewed as a whole. direct.   The judge reasoned that while the guerrillas may have extorted money from Gonzales-Neyra in order to fund their armed struggle.C. and specific evidence [. peasants. [Kamla Prasad]. 815 n. third and fourth elements. 812.Ed.” This point was brought out dramatically by BIA member Rosenberg. they did not believe that these people had innocent motives.   Unknown persons.1997) (citing Ghaly v. 112 S.   INS v. 1487 (9th Cir. 117 L. supports petitioner's claim of continued Shining Path insurrection in the country at least as strongly as it supports the BIA's position that conditions have changed for the better. military and police personnel.3d at 1487.2d 38 (1992).  and (4) the persecution has been or will be on account of his political opinion. politicians. an asylum seeker claiming to be a victim of persecution on account of political opinion must offer evidence that (1) he has been a victim of persecution. 1428 (9th Cir. 483-84. which. §  A “refugee” is an alien who is unable or unwilling to return to the country of his nationality “because of persecution or a wellfounded fear of persecution on account of ․ political opinion.  The immigration judge concluded that Gonzales-Neyra had failed to show that his fear was “on account of political opinion.C. INS.  Sometime soon after his confrontation with the guerrillas.1995) (citation omitted). religious personnel and foreigners. who claimed to be his friends.

INS. § Because we conclude that Gonzales-Neyra established past persecution on account of his political opinion.opposition to the Shining Path. we also hold that he was entitled to a rebuttable presumption that he had a well-founded fear that he would be similarly persecuted in the future.S. Indeed. . Because Gonzales-Neyra's evidence was not rebutted by the INS. INS. the BIA would still not exercise its discretion in his favor “given the unlikelihood of future persecution[. 1158(a). much of the report supports petitioner's claim that he has reason to fear similar persecution in the future.]” and given the fact that Gonzales-Neyra had failed to “establish[ ] that any mistreatment of him was so severe as to merit ․ a discretionary grant of asylum to him particularly in light of the [changed political climate in Peru. at 427-32. it shall be presumed that his life or freedom would be threatened on return to that country unless a preponderance of the evidence establishes that conditions in the country have changed to such an extent that it is no longer more likely than not that the applicant would be so persecuted there.R. 617 (9th Cir. 58 F. The BIA stated that even if Gonzales-Neyra had shown past persecution on account of political opinion.  The State Department report.C.”   If the applicant is determined to have suffered persecution in the past such that his life or freedom was threatened in the proposed country of deportation on account of ․ political opinion.3d 614.  INS v.Ed.  8 U.  1253(h). 81 L. 107 S. 467 U.Ct. and constitutes an abuse of discretion.  The government's focus on the Shining Path's economic motivation for the extortion demands is misplaced.S. 95 F. was economically viable. It ignores the evidence that the Shining Path representatives made it quite clear to Gonzales-Neyra that his political views motivated their hostility and threats after the January 1991 confrontation. but the threats upon his life and business that were made after the guerrillas learned of his political orientation. §  Even though the standard for withholding of deportation is more stringent than the wellfounded fear of persecution standard. INS [Gaya Prasad]. 480 U. 104 S. and pointed out by the dissenting BIA member.13(b)(1)(i)). §  While the granting of asylum is discretionary.  Kazlauskas v. The persecution of which Gonzales-Neyra complains is not the extortion.   A petitioner's deportation must be withheld if the petitioner has established a “clear probability of persecution. we hold that petitioner was eligible for asylum on account of political opinion. at 1210-13 “[s]ome forms of past persecution trigger a presumption that the applicant is entitled to withholding of deportation.1995).   The regulation provides: 208. 101 F.3d 902.”   Ghaly.1996) (quoting to 8 C.Ed.Ct.R.Ct. 1207.]” This hypothetical exercise of discretion rests on no firmer ground than the BIA's conclusion that petitioner was ineligible for asylum consideration. that he had a political opinion. does not relate to their subsequent motivation for persecuting him. and that they threatened him only after he expressed his opinion.” in other words that it is “more likely than not” that the alien would be persecuted if he were returned to his country.  In addition.  Surita v.S. 103 F. 407.3d 814. Cardoza-Fonseca.   As noted earlier. does not rebut the presumption raised by GonzalesNeyra's evidence of past persecution.3d at 1486.3d at 1429 (citations omitted).1996) (citing 8 C. Cardoza-Fonseca. 107 S.  Gonzales-Neyra provided evidence that he was persecuted. 94 L.S.16(b)(2)). 208. which was derided by the guerrillas. 2489.F. 821 (9th Cir. on which the BIA selectively relied to find that the situation in Peru had changed.S. 46 F.  INS v. withholding of deportation to a particular country is mandatory if the Attorney General determines that the alien's “life or freedom would be threatened in such country on account of ․ political opinion.2d 321 (1984). everything in the record suggests that he was financially able to pay and that his business.C. the fact that the guerrillas may have initially chosen Gonzales-Neyra as a target for money because he was a successful businessman. does not automatically entitle an alien to asylum:  the grant of asylum is discretionary. 905 (9th Cir.   Thus. See Sangha. Stevic. that he expressed it to his persecutors. we find no basis for the government's suggestion that the threats were on account of Gonzales-Neyra's economic inability to provide payments.F. 480 U. 421. as was the immigration judge's and the BIA's.  See Prasad v. § Eligibility. however.2d 434 (1987).  8 U.

R.   The INS did not establish by a preponderance of the evidence that conditions in Peru have changed to such an extent that it is no longer more likely than not that Gonzales-Neyra would be persecuted upon his return.  Vilorio-Lopez v.”  208. and was hunted thereafter.  8 C.F.   We have observed that “[a] key factor in finding evidence sufficient for withholding of deportation is whether harm or threats of harm were aimed against petitioner specifically. 852 F. INS.Thus. we hold that Gonzales-Neyra has met the requirements for withholding of deportation. § PETITION GRANTED.   As a result of the Shining Path threats.2d 1137.1988).16(b)(2). REMANDED for further proceedings. this petitioner left his business. went into hiding. 1141 (9th Cir. .

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