Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4963 January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA,
AND FAUSTINO NEBREDA, Jr., defendants-appellants.

Priscilo Evangelista for appellee.

Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the
Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her
four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of
minor age, before the Court of First Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in
this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims
that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took possession
illegally of said lands thus depriving her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her
husband, the late Faustino Nebreda, executed a public document whereby they agreed to separate as
husband and wife and, in consideration of their separation, Maria Uson was given a parcel of land by way
of alimony and in return she renounced her right to inherit any other property that may be left by her
husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision ordering
the defendants to restore to the plaintiff the ownership and possession of the lands in dispute without
special pronouncement as to costs. Defendants interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former
owner of the five parcels of lands litigated in the present case. There is likewise no dispute that Maria del
Rosario, one of the defendants-appellants, was merely a common-law wife of the late Faustino Nebreda
with whom she had four illegitimate children, her now co-defendants. It likewise appears that Faustino
Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this background, it is
evident that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the time
passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil
Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before
his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of
inheritance of Maria Uson over the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and leave
upon his death in the deed of separation they had entered into on February 21, 1931, cannot be
entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti
Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate children of the
late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights, however,
under the new Civil Code which became in force in June, 1950, they are given the status and rights of
natural children and are entitled to the successional rights which the law accords to the latter (article 2264
and article 287, new Civil Code), and because these successional rights were declared for the first time in
the new code, they shall be given retroactive effect even though the event which gave rise to them may
have occurred under the prior legislation (Article 2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are
declared for the first time shall have retroactive effect even though the event which gave rise to them may
have occurred under the former legislation, but this is so only when the new rights do not prejudice any
vested or acquired right of the same origin. Thus, said article provides that "if a right should be declared
for the first time in this Code, it shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior legislation, provided said new right
does not prejudice or impair any vested or acquired right, of the same origin." As already stated in the
early part of this decision, the right of ownership of Maria Uson over the lands in question became vested
in 1945 upon the death of her late husband and this is so because of the imperative provision of the law
which commands that the rights to succession are transmitted from the moment of death (Article 657, old
Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the
lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity
or compassion, agreed to assign the lands in question to the minor children for the reason that they were
acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat
the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we
are of the opinion that said assignment, if any, partakes of the nature of a donation of real property,
inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a
public document and must be accepted either in the same document or in a separate one (Article 633, old
Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged
assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE

BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE
BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de
Borja,appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA,

special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de
Borja,plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-
appellant.

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja,
1
special administratrix of the testate estate of Francisco de Borja, from the approval of a compromise
agreement by the Court of First Instance of Rizal, Branch I, in its Special Proceeding No. R-7866, entitled,
"Testate Estate of Josefa Tangco, Jose de Borja, Administrator".

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise
agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832,
entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First
Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which
is the main object of the aforesaid compromise agreement, as the separate and exclusive property of the
late Francisco de Borja and not a conjugal asset of the community with his first wife, Josefa Tangco, and
that said hacienda pertains exclusively to his testate estate, which is under administrator in Special
Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940,
filed a petition for the probate of her will which was docketed as Special Proceeding No. R-7866 of the
Court of First Instance of Rizal, Branch I. The will was probated on 2 April 1941. In 1946, Francisco de
Borja was appointed executor and administrator: in 1952, their son, Jose de Borja, was appointed co-
administrator. When Francisco died, on 14 April 1954, Jose became the sole administrator of the testate
estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took unto himself a
second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the
Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The
validity of Tasiana's marriage to Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with
several court suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain
pending determination in the courts. The testate estate of Josefa Tangco alone has been unsettled for
more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement
2
was entered into on 12 October 1963, by and between "[T]he heir and son of Francisco de Borja by his
first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa
Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of
the compromise agreement are as follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco,

AND

The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle, with finality, the
various court litigations, controversies, claims, counterclaims, etc., between them in
connection with the administration, settlement, partition, adjudication and distribution of
the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco,
first spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and without any
reservations to enter into and execute this agreement under the following terms and
conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in
Jalajala, Rizal, presently under administration in the Testate Estate of Josefa Tangco
(Sp. Proc. No. 7866, Rizal), more specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del

Municipio de Pililla de la Provincia de Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna de Bay; por el Sur con los herederos de
Marcelo de Borja; y por el Este con los terrenos de la Familia Maronilla

with a segregated area of approximately 1,313 hectares at the amount of P0.30 per
square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de
Borja the total amount of Eight Hundred Thousand Pesos (P800,000) Philippine
Currency, in cash, which represent P200,000 as his share in the payment and P600,000
as pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all surnamed de Borja
and this shall be considered as full and complete payment and settlement of her
hereditary share in the estate of the late Francisco de Borja as well as the estate of
Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal,
respectively, and to any properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or otherwise. The funds for this
payment shall be taken from and shall depend upon the receipt of full payment of the
proceeds of the sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular
obligation incurred by the late Francisco de Borja in favor of the Rehabilitation Finance
Corporation, now Development Bank of the Philippines, amounting to approximately
P30,000.00 and also assumes payment of her 1/5 share of the Estate and Inheritance
taxes on the Estate of the late Francisco de Borja or the sum of P3,500.00, more or less,
which shall be deducted by the buyer of Jalajala, "Poblacion" from the payment to be
made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid
directly to the Development Bank of the Philippines and the heirs-children of Francisco de
Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to

Tasiana Ongsingco Vda. de de Borja the balance of the payment due her under
paragraph 2 of this Agreement (approximately P766,500.00) and issue in the name of
Tasiana Ongsingco Vda. de de Borja, corresponding certified checks/treasury warrants,
who, in turn, will issue the corresponding receipt to Jose de Borja.
 5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco, and
Tasiana Ongsingco Vda. de de Borja, for themselves and for their heirs, successors,
executors, administrators, and assigns, hereby forever mutually renounce, withdraw,
waive, remise, release and discharge any and all manner of action or actions, cause or
causes of action, suits, debts, sum or sums of money, accounts, damages, claims and
demands whatsoever, in law or in equity, which they ever had, or now have or may have
against each other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal,
and Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case
No. 7452-CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the
Provincial Fiscal of Rizal, the intention being to completely, absolutely and finally release
each other, their heirs, successors, and assigns, from any and all liability, arising wholly
or partially, directly or indirectly, from the administration, settlement, and distribution of
the assets as well as liabilities of the estates of Francisco de Borja and Josefa Tangco,
first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de Borja
expressly and specifically renounce absolutely her rights as heir over any hereditary
share in the estate of Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under
paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles and
documents belonging to Francisco de Borja which are in her possession and said heir
Jose de Borja shall issue in turn the corresponding receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the sale of the
properties mentioned under paragraph 1 of this agreement and upon receipt of the total
and full payment of the proceeds of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will render this instrument NULL AND VOID
AND WITHOUT EFFECT THEREAFTER.

IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of
Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the
Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the
Court of First Instance of Nueva Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de
Borja opposed in both instances. The Rizal court approved the compromise agreement, but the Nueva
Ecija court declared it void and unenforceable. Special administratrix Tasiana Ongsingco Vda. de de
Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while
administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of
First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed,
but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot
enter into such kind of agreement without first probating the will of Francisco de Borja; (2) that the same
involves a compromise on the validity of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court
of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's
majority held the view that the presentation of a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and
public policy. It is likewise pointed out by appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial settlement of a decedent's estate by
agreement between heirs, upon the facts that "(if) the decedentleft no will and no debts, and the heirs are
all of age, or the minors are represented by their judicial and legal representatives ..." The will of
Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the
1963 agreement was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at
the time it was entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the
original Rules of Court of 1940, which allowed the extrajudicial settlement of the estate of a deceased
person regardless of whether he left a will or not. He also relies on the dissenting opinion of Justice
Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if the parties have
already divided the estate in accordance with a decedent's will, the probate of the will is a useless
ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than
useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an
examination of the terms of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2
of said agreement specifically stipulates that the sum of P800,000 payable to Tasiana Ongsingco —

shall be considered as full — complete payment — settlement of her hereditary share in

the estate of the late Francisco de Borja as well as the estate of Josefa Tangco, ... and to
any properties bequeathed or devised in her favor by the late Francisco de Borja by Last
Will and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed
to her for consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases
at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs
thereto before the probate of his will. The clear object of the contract was merely the conveyance by
Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation as to any other claimant, creditor or
legatee. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the
moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art.
3
777) there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the actual extent of such share is not determined
4
until the subsequent liquidation of the estate. Of course, the effect of such alienation is to be deemed
limited to what is ultimately adjudicated to the vendor heir. However, the aleatory character of the contract
does not affect the validity of the transaction; neither does the coetaneous agreement that the numerous
litigations between the parties (the approving order of the Rizal Court enumerates fourteen of them, Rec.
App. pp. 79-82) are to be considered settled and should be dismissed, although such stipulation, as noted
by the Rizal Court, gives the contract the character of a compromise that the law favors, for obvious
reasons, if only because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana
Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code. Wherefore,
barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco
de Borja's last will and testament and would exist even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and
as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and
surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it
is clear that the transaction was binding on both in their individual capacities, upon the perfection of the
contract, even without previous authority of the Court to enter into the same. The only difference between
an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be
enforced by execution proceedings. Art. 2037 of the Civil Code is explicit on the point:
 8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata;
but there shall be no execution except in compliance with a judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no

definite period for its performance, the same was intended to have a resolutory period of
60 days for its effectiveness. In support of such contention, it is averred that such a limit
was expressly stipulated in an agreement in similar terms entered into by said Ongsingco
with the brothers and sister of Jose de Borja, to wit, Crisanto, Matilde and Cayetano, all
surnamed de Borja, except that the consideration was fixed at P600,000 (Opposition,
Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which contained the following clause:

III. That this agreement shall take effect only upon the consummation of the sale of the
property mentioned herein and upon receipt of the total and full payment of the proceeds
of the sale by the herein owner heirs-children of Francisco de Borja, namely, Crisanto,
Cayetano and Matilde, all surnamed de Borja; Provided that if no sale of the said property
mentioned herein is consummated, or the non-receipt of the purchase price thereof by
the said owners within the period of sixty (60) days from the date hereof, this agreement
will become null and void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this
particular contract (Annex 1), and that the same appears not to have been finalized, since it bears no
date, the day being left blank "this — day of October 1963"; and while signed by the parties, it was not
notarized, although plainly intended to be so done, since it carries a proposed notarial ratification clause.
Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its par. 2 heretofore
transcribed that of the total consideration of P800, 000 to be paid to Ongsingco, P600,000 represent the
"prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to
the consideration of P600,000 recited in Annex 1, and that circumstance is proof that the duly notarized
contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb
and supersede the separate unformalize agreement with the other three Borja heirs. Hence, the 60 days
resolutory term in the contract with the latter (Annex 1) not being repeated in Annex A, can not apply to
the formal compromise with Jose de Borja. It is moreover manifest that the stipulation that the sale of the
Hacienda de Jalajala was to be made within sixty days from the date of the agreement with Jose de
Borja's co-heirs (Annex 1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda
de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco for her share
formed part of the estate of Francisco de Borja and could not be sold until authorized by the Probate
Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a
term of 120 days counted from the finality of the order now under appeal, for the carrying out by the
parties for the terms of the contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the
compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of
Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja, whose
estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This
circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her eventual share in the
estate of her late husband, not the estate itself; and as already shown, that eventual share she owned
from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of
her undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such
alienation is expressly recognized and provided for by article 1088 of the present Civil Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not
be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it
amounts to a compromise as to her status and marriage with the late Francisco de Borja. The point is
without merit, for the very opening paragraph of the agreement with Jose de Borja (Annex "A") describes
her as "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco
Vda. de de Borja", which is in itself definite admission of her civil status. There is nothing in the text of the
agreement that would show that this recognition of Ongsingco's status as the surviving spouse of
Francisco de Borja was only made in consideration of the cession of her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its
order of 21 September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in L-28568,
page 157), that the compromise agreement of 13 October 1963 (Annex "A") had been abandoned, as
shown by the fact that, after its execution, the Court of First Instance of Nueva Ecija, in its order of 21
September 1964, had declared that "no amicable settlement had been arrived at by the parties", and that
Jose de Borja himself, in a motion of 17 June 1964, had stated that the proposed amicable settlement
"had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-
mentioned was the compromise agreement of 13 October 1963, which already had been formally signed
and executed by the parties and duly notarized. What the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to back out from the compromise agreement,
pleading various reasons restated in the opposition to the Court's approval of Annex "A" (Record on
Appeal, L-20840, page 23): that the same was invalid because of the lapse of the allegedly intended
resolutory period of 60 days and because the contract was not preceded by the probate of Francisco de
Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which
objections have been already discussed. It was natural that in view of the widow's attitude, Jose de Borja
should attempt to reach a new settlement or novatory agreement before seeking judicial sanction and
enforcement of Annex "A", since the latter step might ultimately entail a longer delay in attaining final
remedy. That the attempt to reach another settlement failed is apparent from the letter of Ongsingco's
counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040;
and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964
referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a
novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de
Borja in finally seeking a court order for its approval and enforcement from the Court of First Instance of
Rizal, which, as heretofore described, decreed that the agreement be ultimately performed within 120
days from the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order
should be upheld, while the contrary resolution of the Court of First Instance of Nueva Ecija should be,
and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her
unfavorably, in that while the purchasing power of the agreed price of P800,000 has diminished, the value
of the Jalajala property has increased. But the fact is that her delay in receiving the payment of the
agreed price for her hereditary interest was primarily due to her attempts to nullify the agreement (Annex
"A") she had formally entered into with the advice of her counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33
SCRA 554, that "estates would never be settled if there were to be a revaluation with every subsequent
fluctuation in the values of currency and properties of the estate", is particularly opposite in the present
case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion),
concededly acquired by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the
husband's private property (as contended by his second spouse, Tasiana Ongsingco), or whether it forms
part of the conjugal (ganancial) partnership with Josefa Tangco. The Court of First Instance of Rizal
(Judge Herminio Mariano, presiding) declared that there was adequate evidence to overcome the
presumption in favor of its conjugal character established by Article 160 of the Civil Code.

We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become
moot and academic, in view of the conclusion reached by this Court in the two preceding cases (G.R. No.
L-28568), upholding as valid the cession of Tasiana Ongsingco's eventual share in the estate of her late
husband, Francisco de Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims
between the parties. But as the question may affect the rights of possible creditors and legatees, its
resolution is still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly
by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly registered
in their names as co-owners in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec.
No. 26403 (De Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned among
the co-owners: the Punta section went to Marcelo de Borja; the Bagombong section to Bernardo de Borja,
and the part in Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja
101 Phil. 911, 932).

The lot allotted to Francisco was described as —

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero;

S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of 13,488,870 sq. m.
more or less, assessed at P297,410. (Record on Appeal, pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de
Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de
Borja, in his capacity as Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have
the Hacienda above described declared exclusive private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that it was conjugal property of his parents (Francisco
de Borja and Josefa Tangco), conformably to the presumption established by Article 160 of the Philippine
Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that:

Art. 160. All property of the marriage is presumed to belong to the conjugal partnership,
unless it be proved that it pertains exclusively to the husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as
well as for attorney's fees.

After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had
adduced sufficient evidence to rebut the presumption, and declared the Hacienda de Jalajala (Poblacion)
to be the exclusive private property of the late Francisco de Borja, and his Administratrix, Tasiana
Ongsingco Vda. de Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to this
Court.

The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as
owned by the conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco de
Borja no less than two times: first, in the Reamended Inventory that, as executor of the estate of his
deceased wife Josefa Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance
of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of the same date, also
filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as
oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit
"3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja and
Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de
Borja, in Special Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in
December, 1955, an inventory wherein she listed the Jalajala Hacienda under the heading "Conjugal
Property of the Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the possession
of the Administrator of the Testate Estate of the Deceased Josefa Tangco in Special Proceedings No.
7866 of the Court of First Instance of Rizal" (Exhibit "4").

Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest
made by both Francisco de Borja and the Administratrix of his estate, in the course of judicial proceedings
in the Rizal and Nueva Ecija Courts, supporting the legal presumption in favor of the conjugal community,
the Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal property, but the
private exclusive property of the late Francisco de Borja. It did so on the strength of the following
evidences: (a) the sworn statement by Francis de Borja on 6 August 1951 (Exhibit "F") that —

He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337
hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been
bought at a foreclosure sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de
Borja and P15,000. by Marcelo de Borja; that upon receipt of a subsequent demand from the provincial
treasurer for realty taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of
Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal, Marcelo issue a
check for P17,000.00 to pay the back taxes and said that the amount would represent Francisco's
contribution in the purchase of the Hacienda. The witness further testified that —

Marcelo de Borja said that that money was entrusted to him by Francisco de Borja when
he was still a bachelor and which he derived from his business transactions. (Hearing, 2
February 1965, t.s.n., pages 13-15) (Emphasis supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the
inventories relied upon by defendant-appellant Jose de Borja since probate courts can not finally
determine questions of ownership of inventoried property, but that the testimony of Gregorio de Borja
showed that Francisco de Borja acquired his share of the original Hacienda with his private funds, for
which reason that share can not be regarded as conjugal partnership property, but as exclusive property
of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the
Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the husband.

We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's
testimony as to the source of the money paid by Francisco for his share was plain hearsay, hence
inadmissible and of no probative value, since he was merely repeating what Marcelo de Borja had told
him (Gregorio). There is no way of ascertaining the truth of the statement, since both Marcelo and
Francisco de Borja were already dead when Gregorio testified. In addition, the statement itself is
improbable, since there was no need or occasion for Marcelo de Borja to explain to Gregorio how and
when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly
discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not
clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers
precisely to the Hacienda in question. The inventories (Exhibits 3 and 4) disclose that there were two real
properties in Jalajala owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a
much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala (Poblacion). To
which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's
characterization of the land as "mi terreno personal y exclusivo" is plainly self-serving, and not admissible
in the absence of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are
not conclusive on the conjugal character of the property in question; but as already noted, they are clear
admissions against the pecuniary interest of the declarants, Francisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater probative weight than the self-serving statement of
Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the conjugal character of the Hacienda
de Jalajala (Poblacion) now in dispute has not been rebutted but actually confirmed by proof. Hence, the
appealed order should be reversed and the Hacienda de Jalajala (Poblacion) declared property of the
conjugal partnership of Francisco de Borja and Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for damages should be
ventilated in the corresponding special proceedings for the settlement of the estates of the deceased, the
same requires no pro announcement from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-
28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-28611 are reversed and set
aside. Costs against the appellant Tasiana Ongsingco Vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra,
JJ., concur.

Fernando, J., took no part.

Footnotes

1 She died during the pendency of these appeals, being substituted by Atty. Luis
Panaguiton Jr., administrator of the estate (S.C. Resolution, 27 February 1970).

2 Annex A, Record on Appeal, G.R. No. L-28040, pp. 16-21.

3 Also: Osorio vs. Osorio Steamship Co., 41 Phil. 531; Baun vs. Heirs of Baun, 53 Phil.
654; Barretto vs. Tuason, 59 Phil. 845; Cuevas vs. Abesamis, 71 Phil. 147; Jayme vs.
Gamboa, 75 Phil. 479; Iballe vs. Po.

4 Garcia vs. David, 67 Phil. 279; Jakosalem vs. Rafols, 73 Phil. 628.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court of
First Instance of Abra, respondents.

Federico Paredes for petitioners.

Demetrio V. Pre for private respondents.

MARTIN, J:

1
This is a petition for review of the Order of the Court of First Instance of Abra in Civil Case No. 856,
entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its order
dismissing the complaint in the aforementioned case.

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife
of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over certain
parcels of land located in Abra.

On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of the
motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include certain
allegations therein. The motion to amend the complaint was granted and on July 17, 1975, plaintiffs filed
their amended complaint.

On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that
Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was heard
on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena,
and asked for substitution by her minor children and her husband, the petitioners herein; but the court
after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party
in interest and has no legal personality to sue.

On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint and on
August 23, 1975, he moved to set aside the order of the dismissal pursuant to Sections 16 and 17 of Rule
2
3 of the Rules of Court.

On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff for
lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation praying
that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased mother, but
the court denied the counsel's prayer for lack of merit. From the order, counsel for the deceased plaintiff
filed a second motion for reconsideration of the order dismissing the complaint claiming that the same is
in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.

The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case
No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While it is true
that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case
up to its completion. The records of this case show that the death of Fortunata Barcena took place on
July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was
filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired
jurisdiction over her person. If thereafter she died, the Rules of Court prescribes the procedure whereby a
party who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3 of the
Rules of Court "whenever a party to a pending case dies ... it shall be the duty of his attorney to inform
the court promptly of such death ... and to give the name and residence of his executor, administrator,
guardian or other legal representatives." This duty was complied with by the counsel for the deceased
plaintiff when he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975
and asked for the proper substitution of parties in the case. The respondent Court, however, instead of
allowing the substitution, dismissed the complaint on the ground that a dead person has no legal
personality to sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of the decedent." From the moment of the
death of the decedent, the heirs become the absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods
3
provided for by law. The moment of death is the determining factor when the heirs acquire a definite
4
right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of
the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate
5
proceedings. When Fortunata Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon
her death. Her heirs have thus acquired interest in the properties in litigation and became parties in
interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution
as parties in interest for the deceased plaintiff.

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear
and be substituted for the deceased, within such time as may be granted ... ." The question as to whether
6
an action survives or not depends on the nature of the action and the damage sued for. In the causes of
action which survive the wrong complained affects primarily and principally property and property rights,
the injuries to the person being merely incidental, while in the causes of action which do not survive the
injury complained of is to the person, the property and rights of property affected being
7
incidental. Following the foregoing criterion the claim of the deceased plaintiff which is an action to quiet
title over the parcels of land in litigation affects primarily and principally property and property rights and
therefore is one that survives even after her death. It is, therefore, the duty of the respondent Court to
order the legal representative of the deceased plaintiff to appear and to be substituted for her. But what
the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was
dead, was to dismiss the complaint. This should not have been done for under the same Section 17, Rule
3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order
the opposing party to procure the appointment of a legal representative of the deceased. In the instant
case the respondent Court did not have to bother ordering the opposing party to procure the appointment
of a legal representative of the deceased because her counsel has not only asked that the minor children
be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them
because their father is busy in Manila earning a living for the family. But the respondent Court refused the
request for substitution on the ground that the children were still minors and cannot sue in court. This is
another grave error because the respondent Court ought to have known that under the same Section 17,
Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs.
Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent
Court that the uncle of the minors be appointed to act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules
of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of
parties in the case.

IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil Case
No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order of dismissal
of said complaint are set aside and the respondent Court is hereby directed to allow the substitution of the
minor children, who are the petitioners therein for the deceased plaintiff and to appoint a qualified person
as guardianad litem for them. Without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma, JJ., concur.

Footnotes

1 Which this Court treats as special civil action as per its Resolution dated February 11,
1976.

2 Section 16. Duty of Attorney upon which death, incapacity or incompetency of party. -
Whenever a party to a pending case dies, becomes incapacitated or incompetent, it shall
be the duty of his attorney to inform the court promptly of such death, incapacity or
incompetency, and to give the name and residence of his executor, administrator,
guardian or other legal representative.

Section 17. Death of party.—After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for deceased, within a period of thirty (30) days, or within
such time as may be granted. If the legal representative fails to appear within said time,
the court may order the opposing party to procure the appointment of a legal
representative of the within a time to be specified by the court, and the representative
shall immediately appear for and on behalf of the interest of the deceased. The court
charges involved in procuring such appointment, if defrayed by the opposing party, may
be recovered as costs. The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor or administrator and the
court may appoint guardian ad litem for the minor heirs.

3 Buan vs. Heirs of Buan, 53 Phil. 654.

4 Ibarle vs. Po, 92 Phil. 721.

5 Morales, et al. vs. Ybanez, 98 Phil. 677.

6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.

7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-41171 July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO-

HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of First
Instance of Cebu, Branch II, respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-55000 July 23, 1987

IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N. BORROMEO,

MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO B. MORALES,
AND CANUTO V. BORROMEO, JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-62895 July 23, 1987

JOSE CUENCO BORROMEO, petitioner,

vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As presiding Judge of the
(now) Regional Trial Court, Branch XV, Region VII, RICARDO V. REYES, as Administrator of the
Estate of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L.
ANTIGUA, respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-63818 July 23, 1987

DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate Estate of VITO
BORROMEO, Sp. Proceedings No. 916-R, Regional Trial Court of Cebu, joined by HON. JUDGE
FRANCISCO P. BURGOS, as Presiding Judge of Branch XV of the Regional Trial Court of Cebu, as
a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and NUMERIANO
ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA O.
BORROMEO, respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-65995 July 23, 1987

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and JOSE CUENCO
BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial Court of
Cebu; RICARDO V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No. 916-
R; and DOMINGO L. ANTIGUA, respondents.

GUTIERREZ, JR., J.:

These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of Cebu.

G.R. No. 41171

Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in Paranaque,
Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu.

On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the probate
of a one page document as the last will and testament left by the said deceased, devising all his
properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and
designating Junquera as executor thereof. The case was docketed as Special Proceedings No. 916-R.
The document, drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the
presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted as witnesses.

Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court held
that the document presented as the will of the deceased was a forgery.

On appeal to this Court, the decision of the probate court disallowing the probate of the will was affirmed
inTestate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).

The testate proceedings was converted into an intestate proceedings. Several parties came before the
court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo.

The following petitions or claims were filed:

1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a petition for
declaration of heirs and determination of heirship. There was no opposition filed against said
petition.

2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir. The
heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this petition.

3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon Ocampo,
Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre,
Lamberto Morre, and Patricia Morre, filed a petition for declaration of heirs and determination of
shares. The petition was opposed by the heirs of Jose and Cosme Borromeo.

4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda Borromeo

Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim. Jose Cuenco
Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos Borromeo represented
by Jose Talam filed oppositions to this claim.

When the aforementioned petitions and claims were heard jointly, the following facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased the
former), were survived by their eight (8) children, namely,

Jose Ma. Borromeo

Cosme Borromeo

Pantaleon Borromeo

Vito Borromeo

Paulo Borromeo

Anecita Borromeo

Quirino Borromeo and

Julian Borromeo

2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers and sisters
predeceased him.

3. Vito's brother Pantaleon Borromeo died leaving the following children:

a. Ismaela Borromeo,who died on Oct. 16, 1939

b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito Borromeo. He
was married to Remedios Cuenco Borromeo, who died on March 28, 1968. He had an only son-
Atty. Jose Cuenco Borromeo one of the petitioners herein.

c. Crispin Borromeo, who is still alive.

4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only daughter, Aurora B.
Ocampo, who died on Jan. 30, 1950 leaving the following children:

a. Anecita Ocampo Castro

b. Ramon Ocampo

c. Lourdes Ocampo

d. Elena Ocampo, all living, and

e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.

5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the following children:

a. Marcial Borromeo

b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios Alfonso, and his
only daughter, Amelinda Borromeo Talam
 c. Asuncion Borromeo

d. Florentina Borromeo, who died in 1948.

e. Amilio Borromeo, who died in 1944.

f. Carmen Borromeo, who died in 1925.

The last three died leaving no issue.

6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the following
children:

a. Exequiel Borromeo,who died on December 29, 1949

b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:

aa. Federico Borromeo

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)

cc. Canuto Borromeo, Jr.

dd. Jose Borromeo

ee. Consuelo Borromeo

ff. Pilar Borromeo

gg. Salud Borromeo

hh. Patrocinio Borromeo Herrera

c. Maximo Borromeo, who died in July, 1948

d. Matilde Borromeo, who died on Aug. 6, 1946

e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:

aa. Maria Borromeo Atega

bb. Luz Borromeo

cc. Hermenegilda Borromeo Nonnenkamp

dd. Rosario Borromeo

ee. Fe Borromeo Queroz

On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the
following, to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo:
 1. Jose Cuenco Borromeo

2. Judge Crispin Borromeo

3. Vitaliana Borromeo

4. Patrocinio Borromeo Herrera

5. Salud Borromeo

6. Asuncion Borromeo

7. Marcial Borromeo

8. Amelinda Borromeo de Talam, and

9. The heirs of Canuto Borromeo

The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into 4/9
and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed declared
intestate heirs.

On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an
agreement of partition of the properties of the deceased Vito Borromeo which was approved by the trial
court, in its order of August 15, 1969. In this same order, the trial court ordered the administrator, Atty
Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner they are divided and
partitioned in the said Agreement of Partition and further ordered that 40% of the market value of the 4/9
and 5/9 of the estate shall be segregated. All attorney's fees shall be taken and paid from this segregated
portion.

On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under the forged
will, filed a motion before the trial court praying that he be declared as one of the heirs of the deceased
Vito Borromeo, alleging that he is an illegitimate son of the deceased and that in the declaration of heirs
made by the trial court, he was omitted, in disregard of the law making him a forced heir entitled to
receive a legitime like all other forced heirs. As an acknowledged illegitimate child, he stated that he was
entitled to a legitime equal in every case to four-fifths of the legitime of an acknowledged natural child.

Finding that the motion of Fortunato Borromeo was already barred by the order of the court dated April
12, 1969 declaring the persons named therein as the legal heirs of the deceased Vito Borromeo, the court
dismissed the motion on June 25, 1973.

Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support his
motion for reconsideration, Fortunato changed the basis for his claim to a portion of the estate. He
asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967, supposedly signed by Pilar
N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio
Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B. Morales,
Remedios Alfonso and Amelinda B. Talam In the waiver, five of the nine heirs relinquished to Fortunato
their shares in the disputed estate. The motion was opposed on the ground that the trial court, acting as a
probate court, had no jurisdiction to take cognizance of the claim; that respondent Fortunato Borromeo is
estopped from asserting the waiver agreement; that the waiver agreement is void as it was executed
before the declaration of heirs; that the same is void having been executed before the distribution of the
estate and before the acceptance of the inheritance; and that it is void ab initio and inexistent for lack of
subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who
signed the waiver agreement assigning their hereditary rights to Fortunato Borromeo had lost the same
rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo.

A motion for reconsideration of this order was denied on July 7, 1975.

In the present petition, the petitioner seeks to annul and set aside the trial court's order dated December
24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo and the
July 7, 1975 order, denying the motion for reconsideration.

The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of respondent
Fortunato Borromeo because it is not a money claim against the decedent but a claim for properties, real
and personal, which constitute all of the shares of the heirs in the decedent's estate, heirs who allegedly
waived their rights in his favor. The claim of the private respondent under the waiver agreement,
according to the petitioner, may be likened to that of a creditor of the heirs which is improper. He alleges
that the claim of the private respondent under the waiver agreement was filed beyond the time allowed for
filing of claims as it was filed only sometime in 1973, after there had been a declaration of heirs (April 10,
1969), an agreement of partition (April 30, 1969), the approval of the agreement of partition and an order
directing the administrator to partition the estate (August 15, 1969), when in a mere memorandum, the
existence of the waiver agreement was brought out.

It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights" executed on
July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by Tomas L. Borromeo,
Fortunato Borromeo and Amelia Borromeo, is without force and effect because there can be no effective
waiver of hereditary rights before there has been a valid acceptance of the inheritance the heirs intend to
transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance or repudiation of inheritance
valid, the person must be certain of the death of the one from whom he is to inherit and of his right to the
inheritance. Since the petitioner and her co-heirs were not certain of their right to the inheritance until they
were declared heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is also
supported by Article 1057 of the same Code which directs heirs, devicees, and legatees to signify their
acceptance or repudiation within thirty days after the court has issued an order for the distribution of the
estate.

Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil Code
there is no need for a person to be first declared as heir before he can accept or repudiate an inheritance.
What is required is that he must first be certain of the death of the person from whom he is to inherit and
that he must be certain of his right to the inheritance. He points out that at the time of the signing of the
waiver document on July 31, 1967, the signatories to the waiver document were certain that Vito
Borromeo was already dead as well as of their rights to the inheritance as shown in the waiver document
itself.

With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver of
hereditary rights, respondent Borromeo asserts that since the waiver or renunciation of hereditary rights
took place after the court assumed jurisdiction over the properties of the estate it partakes of the nature of
a partition of the properties of the estate needing approval of the court because it was executed in the
course of the proceedings. lie further maintains that the probate court loses jurisdiction of the estate only
after the payment of all the debts of the estate and the remaining estate is distributed to those entitled to
the same.

The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an existing
inheritance cannot be considered as belonging to third persons with respect to the heirs, who by fiction of
law continue the personality of the former. Nor do such properties have the character of future property,
because the heirs acquire a right to succession from the moment of the death of the deceased, by
principle established in article 657 and applied by article 661 of the Civil Code, according to which the
heirs succeed the deceased by the mere fact of death. More or less, time may elapse from the moment of
the death of the deceased until the heirs enter into possession of the hereditary property, but the
acceptance in any event retroacts to the moment of the death, in accordance with article 989 of the Civil
Code. The right is vested, although conditioned upon the adjudication of the corresponding hereditary
portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive
their hereditary rights in 1967 even if the order to partition the estate was issued only in 1969.

In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be effective.
For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the
existence thereof; and (3) an intention to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22,
p. 8116, 8120). The intention to waive a right or advantage must be shown clearly and convincingly, and
when the only proof of intention rests in what a party does, his act should be so manifestly consistent
with, and indicative of an intent to, voluntarily relinquish the particular right or advantage that no other
reasonable explanation of his conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil.,
151, 159).

The circumstances of this case show that the signatories to the waiver document did not have the clear
and convincing intention to relinquish their rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and
Amelia Borromeo filed a pleading entitled "Compliance" wherein they submitted a proposal for the
amicable settlement of the case. In that Compliance, they proposed to concede to all the eight (8)
intestate heirs of Vito Borromeo all properties, personal and real, including all cash and sums of money in
the hands of the Special Administrator, as of October 31, 1967, not contested or claimed by them in any
action then pending in the Court of First Instance of Cebu. In turn, the heirs would waive and concede to
them all the 14 contested lots. In this document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an heir of the deceased Vito Borromeo,
entitled to share in the estate. This shows that the "Waiver of Hereditary Rights" was never meant to be
what the respondent now purports it to be. Had the intent been otherwise, there would not be any reason
for Fortunato, Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case amicably,
and offer to concede to them parts of the estate of the deceased; (2) On April 21 and 30, 1969, the
majority of the declared heirs executed an Agreement on how the estate they inherited shall be
distributed. This Agreement of Partition was approved by the trial court on August 15, 1969; (3) On June
29, 1968, the petitioner, among others, signed a document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all her (Patrocinio B.
Herrera's) rights, interests, and participation as an intestate heir in the estate of the deceased Vito
Borromeo. The stated consideration for said assignment was P100,000.00; (4) On the same date, June
29, 1968, the respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of
assignment) in turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the
same deed of assignment. The stated consideration was P50,000.00; (5) A Cancellation of Deed of
Assignment and Deed of Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on
October 15, 1968, while Fortunato Borromeo signed this document on March 24, 1969.

With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon the
validity of the waiver agreement. It must be noted that in Special Proceedings No. 916-R the lower court
disallowed the probate of the will and declared it as fake. Upon appeal, this Court affirmed the decision of
the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came before the
lower court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo.
We see no impediment to the trial court in exercising jurisdiction and trying the said claims or petitions.
Moreover, the jurisdiction of the trial court extends to matters incidental and collateral to the exercise of its
recognized powers in handling the settlement of the estate.

In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is hereby SET
ASIDE.

G.R. No. 55000

This case was originally an appeal to the Court of Appeals from an order of the Court of First Instance of
Cebu, Branch 11, dated December 24, 1974, declaring the waiver document earlier discussed in G.R. No.
41171 valid. The appellate court certified this case to this Court as the questions raised are all of law.

The appellants not only assail the validity of the waiver agreement but they also question the jurisdiction
of the lower court to hear and decide the action filed by claimant Fortunato Borromeo.

The appellants argue that when the waiver of hereditary right was executed on July 31, 1967, Pilar
Borromeo and her children did not yet possess or own any hereditary right in the intestate estate of the
deceased Vito Borromeo because said hereditary right was only acquired and owned by them on April 10,
1969, when the estate was ordered distributed.

They further argue that in contemplation of law, there is no such contract of waiver of hereditary right in
the present case because there was no object, which is hereditary right, that could be the subject matter
of said waiver, and, therefore, said waiver of hereditary right was not only null and void ab initio but was
inexistent.

With respect to the issue of jurisdiction, the appellants contend that without any formal pleading filed by
the lawyers of Fortunato Borromeo for the approval of the waiver agreement and without notice to the
parties concerned, two things which are necessary so that the lower court would be vested with authority
and jurisdiction to hear and decide the validity of said waiver agreement, nevertheless, the lower court set
the hearing on September 25, 1973 and without asking for the requisite pleading. This resulted in the
issuance of the appealed order of December 24, 1974, which approved the validity of the waiver
agreement. The appellants contend that this constitutes an error in the exercise of jurisdiction.

The appellee on the other hand, maintains that by waiving their hereditary rights in favor of Fortunato
Borromeo, the signatories to the waiver document tacitly and irrevocably accepted the inheritance and by
virtue of the same act, they lost their rights because the rights from that moment on became vested in
Fortunato Borromeo.

It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a person to
be declared as heir first before he can accept or repudiate an inheritance. What is required is that he is
certain of the death of the person from whom he is to inherit, and of his right to the inheritance. At the
time of the signing of the waiver document on July 31, 1967, the signatories to the waiver document were
certain that Vito Borromeo was already dead and they were also certain of their right to the inheritance as
shown by the waiver document itself.

On the allegation of the appellants that the lower court did not acquire jurisdiction over the claim because
of the alleged lack of a pleading invoking its jurisdiction to decide the claim, the appellee asserts that on
August 23, 1973, the lower court issued an order specifically calling on all oppositors to the waiver
document to submit their comments within ten days from notice and setting the same for hearing on
September 25, 1973. The appellee also avers that the claim as to a 5/9 share in the inheritance involves
no question of title to property and, therefore, the probate court can decide the question.

The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this case,
who are all declared heirs of the late Vito Borromeo are contesting the validity of the trial court's order
dated December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo
under the waiver agreement.

As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The essential
elements of a waiver, especially the clear and convincing intention to relinquish hereditary rights, are not
found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8) intestate heirs
various properties in consideration for the heirs giving to the respondent and to Tomas, and Amelia
Borromeo the fourteen (14) contested lots was filed inspite of the fact that on July 31, 1967, some of the
heirs had allegedly already waived or sold their hereditary rights to the respondent.

The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment, the deed of
reconveyance, and the subsequent cancellation of the deed of assignment and deed of reconveyance all
argue against the purported waiver of hereditary rights.

Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial court acquired
jurisdiction to pass upon the validity of the waiver agreement because the trial court's jurisdiction extends
to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of
the estate.

The questioned order is, therefore, SET ASIDE.

G.R. No. 62895

A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of the heirs-
distributees, praying for the immediate closure of Special Proceeding No. 916-R. A similar motion dated
May 29, 1979 was filed by Atty. Jose Amadora. Both motions were grounded on the fact that there was
nothing more to be done after the payment of all the obligations of the estate since the order of partition
and distribution had long become final.

Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid motions,
petitioner Jose Cuenco Borromeo-filed a petition for mandamus before the Court of Appeals to compel
the respondent judge to terminate and close Special Proceedings No. 916-R.

Finding that the inaction of the respondent judge was due to pending motions to compel the petitioner, as
co-administrator, to submit an inventory of the real properties of the estate and an accounting of the cash
in his hands, pending claims for attorney's fees, and that mandamus will not lie to compel the
performance of a discretionary function, the appellate court denied the petition on May 14, 1982. The
petitioner's motion for reconsideration was likewise denied for lack of merit. Hence, this petition.

The petitioner's stand is that the inaction of the respondent judge on the motion filed on April 28, 1972 for
the closure of the administration proceeding cannot be justified by the filing of the motion for inventory
and accounting because the latter motion was filed only on March 2, 1979. He claimed that under the
then Constitution, it is the duty of the respondent judge to decide or resolve a case or matter within three
months from the date of its submission.

The respondents contend that the motion to close the administration had already been resolved when the
respondent judge cancelled all settings of all incidents previously set in his court in an order dated June 4,
1979, pursuant to the resolution and restraining order issued by the Court of Appeals enjoining him to
maintain status quo on the case.

As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito Borromeo
which was approved by the trial court, in its order dated August 15, 1969. In this same order, the trial
court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the properties of the deceased in the
way and manner they are divided and partitioned in the said Agreement of Partition and further ordered
that 40% of the market value of the 4/9 and 5/9 of the estate shall be segregated and reserved for
attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G. R. No.
41171) his court has not finally distributed to the nine (9) declared heirs the properties due to the following
circumstances:

1. The court's determination of the market value of the estate in order to segregate the 40%
reserved for attorney's fees;

2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of the 5/9 of the
estate because of the waiver agreement signed by the heirs representing the 5/9 group which is
still pending resolution by this Court (G.R. No. 4117 1);

3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and

4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices of lis
pendens on the different titles of the properties of the estate.

Since there are still real properties of the estate that were not vet distributed to some of the declared
heirs, particularly the 5/9 group of heirs due to the pending resolution of the waiver agreement, this Court
in its resolution of June 15, 1983, required the judge of the Court of First Instance of Cebu, Branch 11, to
expedite the determination of Special Proceedings No. 916-R and ordered the co-administrator Jose
Cuenco Borromeo to submit an inventory of real properties of the estate and to render an accounting of
cash and bank deposits realized from rents of several properties.

The matter of attorney's fees shall be discussed in G.R. No. 65995.

Considering the pronouncements stated in:

1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated December
24, 1974;

2. G.R. No. 63818, denying the petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito Borromeo and ordering the remand of the case to
the Executive,Judge of the Regional trial Court of Cebu for re-raffling; and

3. G.R. No. 65995, granting the petition to restrain the respondents from further acting on any and
all incidents in Special proceedings No. 916-11 because of the affirmation of the decision of the
Intermediate Appellate Court in G.R. No. 63818.

the trial court may now terminate and close Special Proceedings No. 916-R, subject to the submission of
an inventory of the real properties of the estate and an accounting of the call and bank deposits of the
petitioner, as co-administrator of the estate, if he has not vet done so, as required by this Court in its
Resolution dated June 15, 1983. This must be effected with all deliberate speed.

G.R. No. 63818

On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for inhibition
in the Court of First Instance of Cebu, Branch 11, presided over by Judge Francisco P. Burgos to inhibit
the judge from further acting in Special Proceedings No. 916-R. 'The movants alleged, among others, the
following:

xxx xxx xxx

 6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production of the
certificates of title and to deposit the same with the Branch Clerk of Court, presumably for the
ready inspection of interested buyers. Said motion was granted by the Hon. Court in its order of
October 2, 1978 which, however, became the subject of various motions for reconsideration from
heirs-distributees who contended that as owners they cannot be deprived of their titles for the
flimsy reasons advanced by Atty, Antigua. In view of the motions for reconsideration, Atty Antigua
ultimately withdraw his motions for production of titles.

7. The incident concerning the production of titles triggered another incident involving Atty. Raul
H. Sesbreno who was then the counsel of herein movants Petra O. Borromeo and Amelinda B.
Talam In connection with said incident, Atty. Sesbreno filed a pleading which the tion. presiding,
Judge Considered direct contempt because among others, Atty. Sesbreno insinuated that the
Hon. Presiding Judge stands to receive "fat commission" from the sale of the entire property.
Indeed, Atty. Sesbreno was seriously in danger of being declared in contempt of court with the
dim prospect of suspension from the practice of his profession. But obviously to extricate himself
from the prospect of contempt and suspension. Atty. Sesbreno chose rapproachment and
ultimately joined forces with Atty. Antigua, et al., who, together, continued to harass administrator

xxx xxx xxx

9. The herein movants are informed and so they allege, that a brother of the Hon. Presiding
Judge is married to a sister of Atty. Domingo L. Antigua.

10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for the sale of
the entire estate or to buy out the individual heirs, on the one hand, and the herein movants, on
the other, who are not willing to sell their distributive shares under the terms and conditions
presently proposed. In this tug of war, a pattern of harassment has become apparent against the
herein movants, especially Jose Cuenco Borromeo. Among the harassments employed by Atty
Antigua et al. are the pending motions for the removal of administrator Jose Cuenco Borromeo,
the subpoena duces tecum issued to the bank which seeks to invade into the privacy of the
personal account of Jose Cuenco Borromeo, and the other matters mentioned in paragraph 8
hereof. More harassment motions are expected until the herein movants shall finally yield to the
proposed sale. In such a situation, the herein movants beg for an entirely independent and
impartial judge to pass upon the merits of said incidents.

11. Should the Hon. Presiding Judge continue to sit and take cognizance of this proceeding,
including the incidents above-mentioned, he is liable to be misunderstood as being biased in
favor of Atty Antigua, et al. and prejudiced against the herein movants. Incidents which may
create this impression need not be enumerated herein. (pp. 39-41, Rollo)

The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for reconsideration
having been denied, the private respondents filed a petition for certiorari and/or prohibition with
preliminary injunction before the Intermediate Appellate Court.

In the appellate court, the private respondents alleged, among others, the following:

xxx xxx xxx

16. With all due respect, petitioners regret the necessity of having to state herein that respondent
Hon. Francisco P. Burgos has shown undue interest in pursing the sale initiated by Atty. Domingo
L. Antigua, et al. Significantly, a brother of respondent Hon. Francisco P. Burgos is married to a
sister of Atty. Domingo L. Antigua.
 17. Evidence the proposed sale of the entire properties of the estate cannot be legally done
without the conformity of the heirs-distributees because the certificates of title are already
registered in their names Hence, in pursuit of the agitation to sell, respondent Hon. Francisco P.
Burgos urged the heirs-distributees to sell the entire property based on the rationale that
proceeds thereof deposited in the bank will earn interest more than the present income of the so
called estate. Most of the heirs-distributees, however. have been petitioner timid to say their
piece. Only the 4/9 group of heirs led by Jose Cuenco Borromeo have had the courage to stand
up and refuse the proposal to sell clearly favored by respondent Hon. Francisco P. Burgos.

xxx xxx xxx

20. Petitioners will refrain from discussing herein the merits of the shotgun motion of Atty.
Domingo L. Antigua as well as other incidents now pending in the court below which smack of
harassment against the herein petitioners. For, regardless of the merits of said incidents,
petitioners respectfully contend that it is highly improper for respondent Hon. Francisco P. Burgos
to continue to preside over Sp. Proc. No. 916-R by reason of the following circumstances:

(a) He has shown undue interest in the sale of the properties as initiated by Atty.
Domingo L. Antigua whose sister is married to a brother of respondent.

(b) The proposed sale cannot be legally done without the conformity of the heirs-
distributees, and petitioners have openly refused the sale, to the great disappointment of
respondent.

(c) The shot gun motion of Atty. Antigua and similar incidents are clearly intended to
harass and embarrass administrator Jose Cuenco Borromeo in order to pressure him into
acceding to the proposed sale.

(d) Respondent has shown bias and prejudice against petitioners by failing to resolve the
claim for attorney's fees filed by Jose Cuenco Borromeo and the late Crispin Borromeo.
Similar claims by the other lawyers were resolved by respondent after petitioners refused
the proposed sale. (pp. 41-43, Rollo)

On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari and/or
prohibition and disqualifying Judge Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916-R. The court also ordered the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-raffling.

A motion for reconsideration of the decision was denied by the appellate court on April 11, 1983. Hence,
the present petition for review seeking to modify the decision of the Intermediate Appellate Court insofar
as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the case of Intestate Estate
of Vito Borromeo and orders the remand of the case to the Executive Judge of the Regional Trial Court of
Cebu for re-raffling.

The principal issue in this case has become moot and academic because Judge Francisco P. Burgos
decided to retire from the Regional Trial Court of Cebu sometime before the latest reorganization of the
judiciary. However, we decide the petition on its merits for the guidance of the judge to whom this case
will be reassigned and others concerned.

The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend that
Judge Burgos has benn shown unusual interest in the proposed sale of the entire estate for
P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that this disinterest is shown by the
judge's order of March 2, 1979 assessing the property of the estate at P15,000,000.00. They add that he
only ordered the administrator to sell so much of the properties of the estate to pay the attorney's fees of
the lawyers-claimants. To them, the inhibition of Judge Burgos would have been unreasonable because
his orders against the failure of Jose Cuenco Borromeo, as administrator, to give an accounting and
inventory of the estate were all affirmed by the appellate court. They claim that the respondent court,
should also have taken judicial notice of the resolution of this Court directing the said judge to "expedite
the settlement and adjudication of the case" in G.R. No. 54232. And finally, they state that the
disqualification of judge Burgos would delay further the closing of the administration proceeding as he is
the only judge who is conversant with the 47 volumes of the records of the case.

Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge Burgos
appointed Ricardo V. Reyes as co-administrator of the estate on October 11, 1972, yet Borromeo was
singled out to make an accounting of what t he was supposed to have received as rentals for the land
upon which the Juliana Trade Center is erected, from January, 1977 to February 1982, inclusive, without
mentioning the withholding tax for the Bureau of Internal Revenue. In order to bolster the agitation to sell
as proposed by Domingo L. Antigua, Judge Burgos invited Antonio Barredo, Jr., to a series of
conferences from February 26 to 28, 1979. During the conferences, Atty. Antonio Barredo, Jr., offered to
buy the shares of the heirs-distributees presumably to cover up the projected sale initiated by Atty.
Antigua.

On March 2, 1979, or two days after the conferences, a motion was filed by petitioner Domingo L. Antigua
praying that Jose Cuenco Borromeo be required to file an inventory when he has already filed one to
account for cash, a report on which the administrators had already rendered: and to appear and be
examined under oath in a proceeding conducted by Judge Burgos lt was also prayed that
subpoena duces tecum be issued for the appearance of the Manager of the Consolidated Bank and Trust
Co., bringing all the bank records in the name of Jose Cuenco Borromeo jointly with his wife as well as
the appearance of heirs-distributees Amelinda Borromeo Talam and another heir distributee Vitaliana
Borromeo. Simultaneously with the filing of the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a
request for the issuance of subpoena duces tecum to the Manager of Consolidated Bank and 'Trust Co.,
Inc.; Register of Deeds of Cebu City; Register of Deeds for the Province of Cebu and another
subpoena duces tecum to Atty. Jose Cuenco Borromeo.

On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert of the
bank, the Register of deeds for the City of Cebu, the Register of Deeds for the Province, of Cebu. and to
Jose Cuenco Borromeo.

On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of Marcial
Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner Domingo L. Antigua by filing
a motion for relief of the administrator.

On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena duces tecum to
private respondent Jose Cuenco Borromeo to bring and produce all the owners" copies of the titles in the
court presided order by Judge Burgos.

Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding Atty. Jose
Cuenco Borromeo to bring and produce the titles in court.

All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the date of the
hearing, Judge Burgos issued an order denying the private respondents' motion for reconsideration and
the motion to quash the subpoena.1avvphi1

It was further argued by the private respondents that if ,judge Francisco P. Burgos is not inhibited or
disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of justice Because for the past
twelve years, he had not done anything towards the closure of the estate proceedings except to sell the
properties of the heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million pesos while
the Intestate Court had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition, more specifically, the insistence of
the trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs objected, cannot easily
be ignored. Suspicion of partiality on the part of a trial judge must be avoided at all costs. In the case
of Bautista v. Rebeuno(81 SCRA 535), this Court stated:

... The Judge must maintain and preserve the trust and faith of the parties litigants. He must hold
himself above reproach and suspicion. At the very first sign of lack of faith and trust to his actions,
whether well grounded or not, the Judge has no other alternative but inhibit himself from the case.
A judge may not be legally Prohibited from sitting in a litigation, but when circumstances appear
that will induce doubt to his honest actuations and probity in favor or of either partly or incite such
state of mind, he should conduct a careful self-examination. He should exercise his discretion in a
way that the people's faith in the Courts of Justice is not impaired, "The better course for the
Judge under such circumstances is to disqualify himself "That way he avoids being
misunderstood, his reputation for probity and objectivity is preserve ed. what is more important,
the Ideal of impartial administration of justice is lived up to.

In this case, the fervent distrust of the private respondents is based on sound reasons. As Earlier stated,
however, the petition for review seeking to modify the decision of the Intermediate Appellate Court insofar
as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito
Borromeo case and ordering the remand of the case to the Executive Judge of the Regional Trial Court
for re-raffling should be DENIED for the decision is not only valid but the issue itself has become moot
and academic.

G.R. No. 65995

The petitioners seek to restrain the respondents from further acting on any and all incidents in Special
Proceedings No. 916-R during the pendency of this petition and No. 63818. They also pray that all acts of
the respondents related to the said special proceedings after March 1, 1983 when the respondent Judge
was disqualified by the appellate court be declared null and void and without force and effect whatsoever.

The petitioners state that the respondent Judge has set for hearing all incidents in Special Proceedings
No. 916-R, including the reversion from the heirs-distributees to the estate, of the distributed properties
already titled in their names as early as 1970, notwithstanding the pending inhibition case elevated before
this Court which is docketed as G.R. No. 63818.

The petitioners further argue that the present status of Special Proceeding No. 916-R requires only the
appraisal of the attorney's fees of the lawyers-claimants who were individually hired by their respective
heirs-clients, so their attorney's fees should be legally charged against their respective clients and not
against the estate.

On the other hand, the respondents maintain that the petition is a dilatory one and barred by res
judicata because this Court on July 8, 1981, in G.R. No. 54232 directed the respondent Judge to expedite
the settlement and liquidation of the decedent's estate. They claim that this resolution, which was already
final and executory, was in effect reversed and nullified by the Intermediate Appellate Court in its case-AC
G.R.-No. SP - 11145 — when it granted the petition for certiorari and or prohibition and disqualified Judge
Francisco P. Burgos from taking further cognizance of Special Proceedings No. 916R as well as ordering
the transmission of the records of the case to the Executive Judge of the Regional Trial Court of Region
VII for re-raffling on March 1, 1983, which was appealed to this Court by means of a Petition for Review
(G.R. No. 63818).

We agree with the petitioners' contention that attorney's fees are not the obligation of the estate but of the
individual heirs who individually hired their respective lawyers. The portion, therefore, of the Order of
August 15, 1969, segregating the exhorbitantly excessive amount of 40% of the market value of the
estate from which attorney's fees shall be taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No. 63818, we grant the
petition.

WHEREFORE, —

(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974, declaring the
respondent entitled to 5/9 of the estate of the late Vito Borromeo and the order dated July 7,
1975, denying the petitioner's motion for reconsideration of the aforementioned order are hereby
SET ASIDE for being NULL and VOID;

(2) In G.R. No. 55000, the order of the trial court declaring the waiver document valid is hereby
SET ASIDE;

(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and ordering the inhibition of Judge Francisco P.
Burgos from further hearing Special Proceedings No. 916-R is declared moot and academic. The
judge who has taken over the sala of retired Judge Francisco P. Burgos shall immediately
conduct hearings with a view to terminating the proceedings. In the event that the successor-
judge is likewise disqualified, the order of the Intermediate Appellate Court directing the Executive
Judge of the Regional Trial Court of Cebu to re-raffle the case shall be implemented:

(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to restrain Judge
Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and ACADEMIC:

(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the close Special
Proceedings No. 916-R, subject to the submission of an inventory of the real properties of the
estate and an accounting of the cash and bank deposits by the petitioner-administrator of the
estate as required by this Court in its Resolution dated June 15, 1983; and

(6) The portion of the Order of August 15, 1969, segregating 40% of the market value of the
estate from which attorney's fees shall be taken and paid should be, as it is hereby DELETED.
The lawyers should collect from the heirs-distributees who individually hired them, attorney's fees
according to the nature of the services rendered but in amounts which should not exceed more
than 20% of the market value of the property the latter acquired from the estate as beneficiaries.

SO ORDERED.

Feliciano, Bidin and Cortes, JJ., concur.

Fernan (Chairman), took no part.
 SECOND DIVISION

[G.R. No. 129008. January 13, 2004]

TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband ZALDY

EVANGELISTA, ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted by her husband
BEDA UNGOS, petitioners, vs. COURT OF APPEALS, ESPERANZA P. ORFINADA,
LOURDES P. ORFINADA, ALFONSO ORFINADA, NANCY P. ORFINADA, ALFONSO JAMES
P. ORFINADA, CHRISTOPHER P. ORFINADA and ANGELO P. ORFINADA, respondents.

DECISION
TINGA, J.:

Whether the heirs may bring suit to recover property of the estate pending the appointment of an
administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeks to set aside
[1]
the Decision of the Court of Appeals in CA-G.R. SP No. 42053 dated January 31, 1997, as well as
[2]
its Resolution dated March 26, 1997, denying petitioners motion for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will in Angeles City leaving several
[3]
personal and real properties located in Angeles City, Dagupan City and Kalookan City. He also left a
widow, respondent Esperanza P. Orfinada, whom he married on July 11, 1960 and with whom he had
seven children who are the herein respondents, namely: Lourdes P. Orfinada, Alfonso Clyde P. Orfinada,
Nancy P. Orfinada-Happenden, Alfonso James P. Orfinada, Christopher P. Orfinada, Alfonso Mike P.
[4]
Orfinada (deceased) and Angelo P. Orfinada.
Apart from the respondents, the demise of the decedent left in mourning his paramour and their
children. They are petitioner Teodora Riofero, who became a part of his life when he entered into an
extra-marital relationship with her during the subsistence of his marriage to Esperanza sometime in 1965,
[5] [6]
and co-petitioners Veronica , Alberto and Rowena.
On November 14, 1995, respondents Alfonso James and Lourdes Orfinada discovered that on June
29, 1995, petitioner Teodora Rioferio and her children executed an Extrajudicial Settlement of Estate of a
Deceased Person with Quitclaim involving the properties of the estate of the decedent located in
Dagupan City and that accordingly, the Registry of Deeds in Dagupan issued Certificates of Titles Nos.
63983, 63984 and 63985 in favor of petitioners Teodora Rioferio, Veronica Orfinada-Evangelista, Alberto
Orfinada and Rowena Orfinada-Ungos. Respondents also found out that petitioners were able to obtain a
loan of P700,000.00 from the Rural Bank of Mangaldan Inc. by executing a Real Estate Mortgage over
[7]
the properties subject of the extra-judicial settlement.
On December 1, 1995, respondent Alfonso Clyde P. Orfinada III filed a Petition for Letters of
Administration docketed as S.P. Case No. 5118 before the Regional Trial Court of Angeles City, praying
[8]
that letters of administration encompassing the estate of Alfonso P. Orfinada, Jr. be issued to him.
On December 4, 1995, respondents filed a Complaint for the Annulment/Rescission of Extra Judicial
Settlement of Estate of a Deceased Person with Quitclaim, Real Estate Mortgage and Cancellation of
Transfer Certificate of Titles with Nos. 63983, 63985 and 63984 and Other Related Documents with
Damages against petitioners, the Rural Bank of Mangaldan, Inc. and the Register of Deeds of Dagupan
[9]
City before the Regional Trial Court, Branch 42, Dagupan City.
On February 5, 1996, petitioners filed their Answer to the aforesaid complaint interposing the
defense that the property subject of the contested deed of extra-judicial settlement pertained to the
 [10]
properties originally belonging to the parents of Teodora Riofero and that the titles thereof were
delivered to her as an advance inheritance but the decedent had managed to register them in his
[11]
name. Petitioners also raised the affirmative defense that respondents are not the real parties-in-
interest but rather the Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the administration
[12] [13]
proceedings. On April 29, 1996, petitioners filed aMotion to Set Affirmative Defenses for Hearing on
the aforesaid ground.
[14]
The lower court denied the motion in its Order dated June 27, 1996, on the ground that
respondents, as heirs, are the real parties-in-interest especially in the absence of an administrator who is
[15]
yet to be appointed in S.P. Case No. 5118. Petitioners moved for its reconsideration but the motion
[16]
was likewise denied.
This prompted petitioners to file before the Court of Appeals their Petition for Certiorari under Rule
[17]
65 of the Rules of Court docketed as CA G.R. S.P. No. 42053. Petitioners averred that the RTC
committed grave abuse of discretion in issuing the assailed order which denied the dismissal of the case
on the ground that the proper party to file the complaint for the annulment of the extrajudicial settlement of
[18]
the estate of the deceased is the estate of the decedent and not the respondents.
[19]
The Court of Appeals rendered the assailed Decision dated January 31, 1997, stating that it
discerned no grave abuse of discretion amounting to lack or excess of jurisdiction by the public
respondent judge when he denied petitioners motion to set affirmative defenses for hearing in view of its
discretionary nature.
[20]
A Motion for Reconsideration was filed by petitioners but it was denied. Hence, the petition before
this Court.
The issue presented by the petitioners before this Court is whether the heirs have legal standing to
prosecute the rights belonging to the deceased subsequent to the commencement of the administration
[21]
proceedings.
Petitioners vehemently fault the lower court for denying their motion to set the case for preliminary
hearing on their affirmative defense that the proper party to bring the action is the estate of the decedent
and not the respondents. It must be stressed that the holding of a preliminary hearing on an affirmative
defense lies in the discretion of the court. This is clear from the Rules of Court, thus:

SEC. 5. Pleadings grounds as affirmative defenses.- Any of the grounds for dismissal provided for in this rule,
except improper venue, may be pleaded as an affirmative defense, and a preliminary hearing may be had thereon as
if a motion to dismiss had been filed.[22] (Emphasis supplied.)

Certainly, the incorporation of the word may in the provision is clearly indicative of the optional
character of the preliminary hearing. The word denotes discretion and cannot be construed as having a
[23]
mandatory effect. Subsequently, the electivity of the proceeding was firmed up beyond cavil by the
1997 Rules of Civil Procedure with the inclusion of the phrase in the discretion of the Court, apart from
[24]
the retention of the word may in Section 6, in Rule 16 thereof.
Just as no blame of abuse of discretion can be laid on the lower courts doorstep for not hearing
petitioners affirmative defense, it cannot likewise be faulted for recognizing the legal standing of the
respondents as heirs to bring the suit.
Pending the filing of administration proceedings, the heirs without doubt have legal personality to
bring suit in behalf of the estate of the decedent in accordance with the provision of Article 777 of the New
Civil Code that (t)he rights to succession are transmitted from the moment of the death of the decedent.
The provision in turn is the foundation of the principle that the property, rights and obligations to the
extent and value of the inheritance of a person are transmitted through his death to another or others by
[25]
his will or by operation of law.
Even if administration proceedings have already been commenced, the heirs may still bring the suit if
an administrator has not yet been appointed. This is the proper modality despite the total lack of
[26]
advertence to the heirs in the rules on party representation, namely Section 3, Rule 3 and Section 2,
 [27] [28]
Rule 87 of the Rules of Court. In fact, in the case of Gochan v. Young, this Court recognized the
legal standing of the heirs to represent the rights and properties of the decedent under administration
pending the appointment of an administrator. Thus:

The above-quoted rules,[29] while permitting an executor or administrator to represent or to bring suits on behalf of
the deceased, do not prohibit the heirs from representing the deceased. These rules are easily applicable to cases in
which an administrator has already been appointed. But no rule categorically addresses the situation in
which special proceedings for the settlement of an estate have already been instituted, yet no administrator
has been appointed. In such instances, the heirs cannot be expected to wait for the appointment of an administrator;
then wait further to see if the administrator appointed would care enough to file a suit to protect the rights and the
interests of the deceased; and in the meantime do nothing while the rights and the properties of the decedent are
violated or dissipated.

Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz: (1) if the
[30]
executor or administrator is unwilling or refuses to bring suit; and (2) when the administrator is alleged
[31] [32]
to have participated in the act complained of and he is made a party defendant. Evidently, the
necessity for the heirs to seek judicial relief to recover property of the estate is as compelling when there
is no appointed administrator, if not more, as where there is an appointed administrator but he is either
disinclined to bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of
the estate during the pendency of administration proceedings has three exceptions, the third being when
there is no appointed administrator such as in this case.
As the appellate court did not commit an error of law in upholding the order of the lower court,
recourse to this Court is not warranted.
WHEREFORE, the petition for review is DENIED. The assailed decision and resolution of the Court
of Appeals are hereby AFFIRMED. No costs.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

[1]
Rollo, pp. 17-20.
[2]
Id, at 21-22.
[3]
Id. at 95.
[4]
Ibid.
[5]
The Complaint for Annulment/Rescission of the Extrajudicial Settlement of the Estate of a Deceased
Person dated December 2, 1995 contains an allegation under paragraph 9 that Veronica is not
one of the illegitimate children of the decedent Alfonso P. Orfinada, Jr. by Teodora Riofero but of
one Alonzo Orfinada.
[6]
Rollo, p. 95.
[7]
Id. at 95-96.
[8]
Id. at 96.
[9]
Id. at 28-37.
[10]
CA Rollo, p. 38.
[11]
Id. at 10.
[12]
Id. at 38.
[13]
Rollo, pp. 107-108.
[14]
CA Rollo, pp. 113-116.
[15]
Id. at 32-34.
[16]
Id. at 39-40.
[17]
Id. at 1-12.
[18]
Id. at 7.
[19]
Rollo, pp. 17-20.
[20]
Id. at 21-22.
[21]
Id. at 124.
[22]
Rule 16 of the Rules of Court. It is Section 6, Rule 16 of the 1997 Rules of Civil Procedure which
reads:
Section 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the
answer and, in the discretion of the court, a preliminary hearing maybe had thereon as if a
motion to dismiss had been filed.
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the same
or separate action of a counterclaim pleaded in the answer. (Emphasis supplied)
[23]
Republic Planters Bank v. Agana, Sr., G.R. No. 51765, 269 SCRA 1, 12 (1997).
[24]
Supra note 22.
[25]
Coronel v. Court of Appeals, G.R. No. 103577, October 7, 1996, 263 SCRA 15.
[26]
Section 3 of Rule 3 of the Rules of Court:
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the
title of the case and shall be deemed to be the real party in interest. A representative may be a
trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law
or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except when the contract involves things
belonging to the principal.
[27]
Section 2 of Rule 87:
Sec. 2. Executor or administrator may bring or defend actions which survive. For the recovery or
protection of the property or rights of the deceased, an executor or administrator may bring or
defend, in the right of the deceased, actions for causes which survive.
[28]
G.R. No. 131889, March 12, 2001, 354 SCRA 207.
[29]
Supra, note 26.
[30]
Pascual v. Pascual, 73 Phil. 561 (1942).
[31]
Velasquez v. George, G.R. No. L-62376, October 27, 1983, 125 SCRA 456.
[32]
Borromeo v. Borromeo, 98 Phil 432 (1956).
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,

vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of
First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court
of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and
testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private
respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and
her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of
Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of
the deceased, Adoracion Campos, which was allegedly executed in the United States and for her
appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was
a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in
Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila;
that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the
laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the
testatrix death, her last will and testament was presented, probated, allowed, and registered with the
Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who
was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the
former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the
appointment of an administratrix to administer and eventually distribute the properties of the estate
located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging
among other things, that he has every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to
Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the
veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter
Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the questioned will was
made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her
lifetime, was a citizen of the United States of America with a permanent residence at
4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C.
Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania,
U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary
sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C)
leaving property both in the Philippines and in the United States of America; that the Last
Will and Testament of the late Adoracion C. Campos was admitted and granted probate
by the Orphan's Court Division of the Court of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J. McLaughlin all in accordance with the
laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10);
and that the petitioner is not suffering from any disqualification which would render her
unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby
admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby
appointed Administratrix of the estate of said decedent; let Letters of Administration with
the Will annexed issue in favor of said Administratrix upon her filing of a bond in the
amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules
of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will
be set aside on the ground that the withdrawal of his opposition to the same was secured through
fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers
which he signed in connection with two Deeds of Conditional Sales which he executed with the
Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer
who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for
postponement until the hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of
January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing
provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the
morning for submission for reconsideration and resolution of the Honorable Court. Until
this Motion is resolved, may I also request for the future setting of the case for hearing on
the Oppositor's motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for
hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing
evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the
petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for
reconsideration but the same was denied. In the same order, respondent judge also denied the motion to
vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has
been questioned by the respondent, his children and forced heirs as, on its face, patently null and void,
and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano,
therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the
court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of
his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon
the filing of the Motion to Dismiss opposition with waiver of rights or interests against the
estate of deceased Adoracion C. Campos, thus, paving the way for the hearing ex-
parte of the petition for the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way of a
motion presented prior to an order for the distribution of the estate-the law especially
providing that repudiation of an inheritance must be presented, within 30 days after it has
issued an order for the distribution of the estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in complete
disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced
to support the Petition for Relief when no Notice nor hearing was set to afford petitioner
to prove the merit of his petition — a denial of the due process and a grave abuse of
discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time
of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court of First
Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July
1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the
reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to
support petitioner's contention that the motion to withdraw was secured through fraudulent means and
that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of the
contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion
to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the
petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been
substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore,
maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the
withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-
parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate
court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the court has declared that the will has been duly
authenticated. However, where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of
Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for
him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge
should have denied its reprobate outright, the private respondents have sufficiently established that
Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively
provide:

Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national
law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes
and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues
that such law should not apply because it would be contrary to the sound and established public policy
and would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article
16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied
in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific provisions must prevail over
general ones.
 xxx xxx xxx

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

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact
that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's
petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to
adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due
process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at
the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for
relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under
Rule 73, Section 1, of the Rules of Court, it is provided that:

SECTION 1. Where estate of deceased persons settled. — If the decedent is an

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

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

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Teehankee, J., (Chairman), took no part.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-22036 April 30, 1979

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH
PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR
DE FAUSTO,respondents-appellees.

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba,
Nueva Ecija, with a total area of around forty- four hectares That devise was made in the will of the
late Father Pascual Rigor, a native of Victoria Tarlac, in favor of his nearest male relative who would
study for the priesthood.

The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court
from the decision of the Court of Appeals affirming the order of the probate court declaring that the
said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of Victoria,
Tarlac, CA-G.R. No. 24319-R, August 1, 1963).

The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935,
leaving a will executed on October 29, 1933 which was probated by the Court of First Instance of
Tarlac in its order of December 5, 1935. Named as devisees in the will were the testators nearest
relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora
Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.

In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate
comprehension of the testamentary provisions):

Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en
el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de
CERTIFICADO DE TRANSFERENCIA DE TITULO SON; — Titulo Num. 6530, mide
16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m. cuadrados de
superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num.
6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas
cercano que estudie la carrera eclesiatica hasta ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado son;
 (1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este
legado;

(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar
y administrar de este legado al principiar a curzar la Sagrada Teologio, y ordenado
de Sacerdote, hasta su muerte; pero que pierde el legatario este derecho de
administrar y gozar de este legado al dejar de continuar sus estudios para ordenarse
de Presbiterado (Sacerdote).

Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año VEINTE
(20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual
legatario, quedase excomulgado, IPSO FACTO se le despoja este legado, y la
administracion de esto pasara a cargo del actual Parroco y sus sucesores de la
Iglecia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda

expresado, pasara la administracion de este legado a cargo del actual Parroco
Catolico y sus sucesores, de Victoria, Tarlac.

El Parroco administrador de estate legado, acumulara, anualmente todos los

productos que puede tener estate legado, ganando o sacando de los productos
anuales el CINCO (5) por ciento para su administracion, y los derechos
correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco celebrar
cada año, depositando todo lo restante de los productos de estate legado, en un
banco, a nombre de estate legado.

To implement the foregoing bequest, the administratix in 1940 submitted a project containing the
following item:

5. LEGACY OF THE CHURCH

That it be adjudicated in favor of the legacy purported to be given to the nearest male
relative who shall take the priesthood, and in the interim to be administered by the
actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines,
or his successors, the real properties hereinbelow indicated, to wit:

Title Lot No. Area in Has. Tax Dec. Ass. Value

No.

T- 3663 1.6249 18740 P 340.00

6530

T- 3445-C 24.2998 18730 7,290.00

6548

T- 3670 6.2665 18736 1,880.00

6525

T- 3666 11.9251 18733 3,580.00

6521

Total amount and value — 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed
that after payment of the obligations of the estate (including the sum of P3,132.26 due to the church
of the Victoria parish) the administratrix should deliver to the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and
implications of Father Rigor's bequest to his nearest male relative who would study for the
priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix and
the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the
same were not delivered to that ecclesiastic. The testate proceeding remained pending.

About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish
priest of Victoria filed in the pending testate proceeding a petition praying for the appointment of a
new administrator (succeeding the deceased administration Florencia Rigor), who should deliver to
the church the said ricelands, and further praying that the possessors thereof be ordered to render
an accounting of the fruits. The probate court granted the petition. A new administrator was
appointed. On January 31, 1957 the parish priest filed another petition for the delivery of the
ricelands to the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the
bequest be d inoperative and that they be adjudged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, "no nearest male relative of" the testator "has ever
studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was opposed by the
parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared
the bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his order of June
28, 1957. The parish priest filed two motions for reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of December 10, 1957
on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the grandson of
his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon
City. The administrator was directed to deliver the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had
created a testamentary trust for his nearest male relative who would take the holy orders but that
such trust could exist only for twenty years because to enforce it beyond that period would violate
"the rule against perpetuities. It ruled that since no legatee claimed the ricelands within twenty years
after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the new Civil Code.

The parish priest in this appeal contends that the Court of Appeals erred in not finding that the
testator created a public charitable trust and in not liberally construing the testamentary provisions
so as to render the trust operative and to prevent intestacy.

As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because no
one among the testator's nearest male relatives had studied for the priesthood and not because the
trust was a private charitable trust. According to the legal heirs, that factual finding is binding on this
Court. They point out that appellant priest's change of theory cannot be countenanced in this appeal
.

In this case, as in cases involving the law of contracts and statutory construction, where the intention
of the contracting parties or of the lawmaking body is to be ascertained, the primary issue is the
determination of the testator's intention which is the law of the case (dicat testor et erit lex. Santos
vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27
SCRA 546).

The will of the testator is the first and principal law in the matter of testaments. When his intention is
clearly and precisely expressed, any interpretation must be in accord with the plain and literal
meaning of his words, except when it may certainly appear that his intention was different from that
literally expressed (In re Estate of Calderon, 26 Phil. 333).

The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a
will It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)

One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be
ascertained from the words of the wilt taking into consideration the circumstances under which it was
made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).

To ascertain Father Rigor's intention, it may be useful to make the following re-statement of the
provisions of his will.

1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could continue enjoying and administering the same up
to the time of his death but the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.

4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses
with prayers for the repose of the souls of Father Rigor and his parents.

5. That if the devisee is excommunicated, he would be divested of the legacy and the administration
of the riceland would pass to the incumbent parish priest of Victoria and his successors.

6. That during the interval of time that there is no qualified devisee as contemplated above, the
administration of the ricelands would be under the responsibility of the incumbent parish priest of
Victoria and his successors, and

7. That the parish priest-administrator of the ricelands would accumulate annually the products
thereof, obtaining or getting from the annual produce five percent thereof for his administration and
the fees corresponding to the twenty masses with prayers that the parish priest would celebrate for
each year, depositing the balance of the income of the devise in the bank in the name of his
bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to devise
the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been
ordained a priest, he was excommunicated, and who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the testator and his parents.

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in
two situations: one, during the interval of time that no nearest male relative of the testator was
studying for the priesthood and two, in case the testator's nephew became a priest and he was
excommunicated.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or
how long after the testator's death would it be determined that he had a nephew who would pursue
an ecclesiastical vocation. It is that patent ambiguity that has brought about the controversy between
the parish priest of Victoria and the testator's legal heirs.

Interwoven with that equivocal provision is the time when the nearest male relative who would study
for the priesthood should be determined. Did the testator contemplate only his nearest male
relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime
after his death?

We hold that the said bequest refers to the testator's nearest male relative living at the time of his
death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee
or legatee must be living at the moment the succession opens, except in case of representation,
when it is proper" (Art. 1025, Civil Code).

The said testamentary provisions should be sensibly or reasonably construed. To construe them as
referring to the testator's nearest male relative at anytime after his death would render the provisions
difficult to apply and create uncertainty as to the disposition of his estate. That could not have been
his intention.

In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified
his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact
date of his death or state with certitude what category of nearest male relative would be living at the
time of his death, he could not specify that his nearest male relative would be his nephew or
grandnephews (the son of his nephew or niece) and so he had to use the term "nearest male
relative".

It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao,
the testator's nephew and godchild, who was the son of his sister, Mrs. Quiambao. To prove that
contention, the legal heirs presented in the lower court the affidavit of Beatriz Gamalinda, the
maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor's death her own
son, Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the priesthood
at the San Carlos Seminary, because she (Beatriz) knew that Father Rigor had intended that devise
for his nearest male relative beloning to the Rigor family (pp. 105-114, Record on Appeal).

Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted by
the parish priest of Victoria before the latter filed his second motion for reconsideration which was
based on the ground that the testator's grandnephew, Edgardo, was studying for the priesthood at
the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961.
For that reason, the legal heirs apprised the Court of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,
Appellant's brief).

Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative value. Our opinion that the said bequest refers to
the testator's nephew who was living at the time of his death, when his succession was opened and
the successional rights to his estate became vested, rests on a judicious and unbiased reading of
the terms of the will.

Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la camera
eclesiatica" would include indefinitely anyone of his nearest male relatives born after his death, he
could have so specified in his will He must have known that such a broad provision would suspend
for an unlimited period of time the efficaciousness of his bequest.

What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"?
The reasonable view is that he was referring to a situation whereby his nephew living at the time of
his death, who would like to become a priest, was still in grade school or in high school or was not
yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before
the nephew entered the seminary. But the moment the testator's nephew entered the seminary, then
he would be entitled to enjoy and administer the ricelands and receive the fruits thereof. In that
event, the trusteeship would be terminated.

Following that interpretation of the will the inquiry would be whether at the time Father Rigor died in
1935 he had a nephew who was studying for the priesthood or who had manifested his desire to
follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that
"not male relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and
35, Record on Appeal).

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable
conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was likewise
inoperative.

The appellant in contending that a public charitable trust was constituted by the testator in is favor
assumes that he was a trustee or a substitute devisee That contention is untenable. A reading of the
testamentary provisions regarding the disputed bequest not support the view that the parish priest of
Victoria was a trustee or a substitute devisee in the event that the testator was not survived by a
nephew who became a priest.

It should be understood that the parish priest of Victoria could become a trustee only when the
testator's nephew living at the time of his death, who desired to become a priest, had not yet entered
the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies
did not arise, and could not have arisen in this case because no nephew of the testator manifested
any intention to enter the seminary or ever became a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code,
now article 956, which provides that if "the bequest for any reason should be inoperative, it shall be
merged into the estate, except in cases of substitution and those in which the right of accretion
exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de la herencia,
fuera de los casos de sustitucion y derecho de acrecer").

This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides
that legal succession takes place when the will "does not dispose of all that belongs to the testator."
There being no substitution nor accretion as to the said ricelands the same should be distributed
among the testator's legal heirs. The effect is as if the testator had made no disposition as to the
said ricelands.

The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may
be mixed succession. The old rule as to the indivisibility of the testator's win is no longer valid. Thus,
if a conditional legacy does not take effect, there will be intestate succession as to the property
recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).

We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against the
petitioner.

SO ORDERED

Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos, JJ., concur.

Abad Santos, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23638 October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners,

vs.
ISMAELA DIMAGIBA, respondent.

----------------------------------------

G.R. No. L-23662 October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.

Jose D. Villena for petitioners.

Antonio Barredo and Exequiel M. Zaballero for respondent.

REYES, J.B.L., Actg. C.J.:

The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the
Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in
Special Proceeding No. 831 of said Court, admitting to probate the alleged last will and testament of the
deceased, and overruling the opposition to the probate.

It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the
Court of First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes,
executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as the sole
heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez,
Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and Paciencia, all
surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked.
Grounds advanced for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of
the proponent and revocation of the will by two deeds of conveyance of the major portion of the estate
made by the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set
aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618
and L-5620 (unpublished).

After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that
the will was genuine and properly executed; but deferred resolution on the questions of estoppel and
revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the will or
when the question of adjudication of the properties is opportunely presented."

Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the issues
of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court
overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto
the parties the right to raise the issue of implied revocation at the opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole
purpose of submitting an inventory of the estate, and this was done on February 9, 1960.

On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix
of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and
1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article 957(2) of
the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the oppositors
and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale."
Whereupon, the oppositors elevated the case to the Court of Appeals.

The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final
for lack of opportune appeal; that the same was appealable independently of the issue of implied
revocation; that contrary to the claim of oppositors-appellants, there had been no legal revocation by the
execution of the 1943 and 1944 deeds of sale, because the latter had been made in favor of the legatee
herself, and affirmed the decision of the Court of First Instance.

Oppositors then appealed to this Court.

In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree
of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether
or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-
appellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had
been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26,
1943 and April 3, 1944.

As to the first point, oppositors-appellants contend that the order allowing the will to probate should be
considered interlocutory, because it fails to resolve the issues of estoppel and revocation propounded in
their opposition. We agree with the Court of Appeals that the appellant's stand is untenable. It is
elementary that a probate decree finally and definitively settles all questions concerning capacity of the
testator and the proper execution and witnessing of his last will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Montañano vs. Suesa, 14 Phil. 676; Mercado vs.
Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the probate order is final and
appealable; and it is so recognized by express provisions of Section 1 of Rule 109, that specifically
prescribes that "any interested person may appeal in special proceedings from an order or judgment . . .
where such order or judgment: (a) allows or disallows a will."

Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their
opposition before taking an appeal, as otherwise there would be a multiplicity of recourses to the higher
Courts. This contention is without weight, since Rule 109, section 1, expressly enumerates six different
instances when appeal may be taken in special proceedings.

There being no controversy that the probate decree of the Court below was not appealed on time, the
same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree
nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the
decree was correctly dismissed.

The alleged revocation implied from the execution of the deeds of conveyance in favor of the
testamentary heir is plainly irrelevant to and separate from the question of whether the testament was
duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of
revocation become superfluous in law, there is no such will and hence there would be nothing to revoke.
Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely
implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original
intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will
itself, but merely the particular devise or legacy. Only the total and absoluterevocation can preclude
probate of the revoked testament (Trillana vs. Crisostomo, supra.).

As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the
presentation and probate of a will are requirements of public policy, being primarily designed to protect
the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's
ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of
a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised
Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel.
Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is
patently unmeritorious and the Court of Appeals correctly so ruled.

The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950
(Art. 869 of the Code of 1889), which recites:

Art. 957. The legacy or devise shall be without effect:

(1) . . . .

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof,
it being understood that in the latter case the legacy or devise shall be without effect only with
respect to the part thus alienated. If after the alienation the thing should again belong to the
testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter
be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of
repurchase;

xxx xxx xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a
presumed change of intention on the part of the testator. As pointed out by Manresa in his Commentaries
on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743) —

Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende
de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a
la presuncion de que ha cambiado de voluntad, y no quiere que el legado se cumpla. Mas para
que pueda presumirse esa voluntad, es necesario que medien actos del testador que la indiquen.
Si la perdida del derecho sobre la cosa ha sido independiente de la voluntad del testador, el
legado podraquedar sin efecto, mas no en virtud del numero 2 del articulo 869, que exige
siempre actos voluntarios de enajenacion por parte del mismo testador.

As observed by the Court of Appeals, the existence of any such change or departure from the original
intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the
subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee
Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed
in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620,
promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on
account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her
legatee, the testatrix merely intended to comply in advance with what she had ordained in her testament,
1
rather than an alteration or departure therefrom. Revocation being an exception, we believe, with the
Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the
Philippines, does not apply to the case at bar.
Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily
result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing
the annulment of the subsequent 1943 and 1944 deeds of sale were also that

it was the moral influence, originating from their confidential relationship, which was the only
cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618
and L-5620).

If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not
expressing her own free will and intent in making the conveyances. Hence, it can not be concluded,
either, that such conveyances established a decision on her part to abandon the original legacy.

True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it
be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola
(Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in an absolute
2
sense. Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were
avoided because the testator was mentally deranged at the time, the revocatory effect ordained by the
article should still ensue. And the same thing could be said if the alienation (posterior to the will) were
avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way
differs from one made through violence or intimidation. In either case, the transferor is not expressing his
3
real intent, and it can not be held that there was in fact an alienation that could produce a revocation of
the anterior bequest.

In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed.
Costs against appellants Reyes and Fernandez. So ordered.

Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

Footnotes

1
Scaevola (Codigo Civil, Vol. XV, 4th Ed., p. 378) aptly remarks:

"Cuando el testador, a sabiendas de la disposicion contenida en su ultima voluntad, enajena al

legatario la cosa legada, si bien esta sale del poder de aquel, va a parar al del legatario, acto que
no puede interpretarse como mudanza del a voluntad, puesto que transmits la cosa a la persona
a la que deseaba favoreer con ella. Por esta circunstancia y por la de no revocar el legado, mas
bien parece que persiste en su intencion de beneficiar al legatario, ya que no con la propia cosa,
con el derecho que le concede el art. 878. Si al donar el testador al futuro legatario la cosa que le
dejaba en el testamento, indica solo una realizacion anticipada de la ultima voluntad, el venderia
sin derogar la disposicion dellegado parece indicae tambien que no ha habido idea modificadora
de la intencion, sino que porsigue en la de favorecer al instituido, y ya que no es posible
conseguirlo con la cosa misma,se impone el verificarlo en la manera determinada por el articulo,
o sea mediante la entrega del precio."

2
"Deciamos anteriormente que necesitaba alguna explicacion la frase del num. 20.o del art. 869,
"aunque sea por la nulidad del contrato," para no apartarla de sus verdaderos y prudentes
limites. Literalmente entendida, autorizaria el que fuese revocado un legado por enajenacion que
hubiese realizado el testador con vicio en el consentimiento. Dice con razon eljurisconsulto
frances Demante, "quese llegaria a consecuencias contrariasa los principios mas elementales
del Derecho y de la razon si, exagerandodicha doctrina, se diese efecto revocatorio a una
enajenacion nulapor vicio de consentimiento." Como una voluntad impotente para transferirla
propiedad podria tener la fuerza de revocar un legado? Si la enajenacionlleva el vicio de
violencia o de error, sera posible artibuir algun efectoa acto semejante? Es logico deducir
entonces que el testador se arrepintio, como dicen las partidas del otorgamento de la manda?"
(Scaevola, op. cit.)

3
Cf. Torres vs. Lopez, 48 Phil. 772; Coso vs. Deza, 42 Phil.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7188 August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.

SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.

MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document
purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he
died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left
properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the legatees in
Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and
nephews who would inherit the estate of the deceased if he left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction
that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit
"A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin
of the front page of each of the three folios or sheets of which the document is composed, and numbered
the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all
this, in the presence of the three attesting witnesses after telling that it was his last will and that the said
three witnesses signed their names on the last page after the attestation clause in his presence and in the
presence of each other. The oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and at the time of the testator's
death, holographic wills were not permitted by law still, because at the time of the hearing and when the
case was to be decided the new Civil Code was already in force, which Code permitted the execution of
holographic wills, under a liberal view, and to carry out the intention of the testator which according to the
trial court is the controlling factor and may override any defect in form, said trial court by order dated
January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho
Abadia. The oppositors are appealing from that decision; and because only questions of law are involved
in the appeal, the case was certified to us by the Court of Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute
a holographic will which must be entirely written, dated and signed by the testator himself and need not
be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time
that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed
certain requirements for the execution of wills, such as numbering correlatively each page (not folio or
sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses,
requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of
the will were not signed by any one, not even by the testator and were not numbered, and as to the three
front pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil.,
875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every
page, said:

. . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures
guaranteeing authenticity should appear upon two folios or leaves; three pages having been
written on, the authenticity of all three of them should be guaranteed by the signature of the
alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared:

From an examination of the document in question, it appears that the left margins of the six
pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of
Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of
each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect
that constitutes an obstacle to its probate.

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code
which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-
petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides:
"The validity of a will as to its form depends upon the observance of the law in force at the time it is
made." The above provision is but an expression or statement of the weight of authority to the affect that
the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time
the supposed will is presented in court for probate or when the petition is decided by the court but at the
time the instrument was executed. One reason in support of the rule is that although the will operates
upon and after the death of the testator, the wishes of the testator about the disposition of his estate
among his heirs and among the legatees is given solemn expression at the time the will is executed, and
in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this
court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor and
that all adequate remedies and interpretations should be resorted to in order to carry out said intention,
and that when statutes passed after the execution of the will and after the death of the testator lessen the
formalities required by law for the execution of wills, said subsequent statutes should be applied so as to
validate wills defectively executed according to the law in force at the time of execution. However, we
should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees
and devisees under it becomes a vested right, protected under the due process clause of the constitution
against a subsequent change in the statute adding new legal requirements of execution of wills which
would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to
observe and follow the legal requirements at the time of its execution then upon his death he should be
regarded and declared as having died intestate, and his heirs will then inherit by intestate succession,
and no subsequent law with more liberal requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights
in the estate by intestate succession. The general rule is that the Legislature can not validate void wills
(57 Am. Jur., Wills, Sec. 231, pp. 192-193).

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With
costs.

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes
J.B.L., JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32636 March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.

C.A. Sobral for appellant.

Harvey & O' Brien and Gibbs & McDonough for appellee.

MALCOLM, J.:

The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First
Instance Tuason denying the probate of the document alleged to by the last will and testament of the
deceased. Appellee is not authorized to carry on this appeal. We think, however, that the appellant, who
appears to have been the moving party in these proceedings, was a "person interested in the allowance
or disallowance of a will by a Court of First Instance," and so should be permitted to appeal to the
Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended;
Villanueva vs. De Leon [1925], 42 Phil., 780).

It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3,
1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code,
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the National
Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove
themselves in our courts. the courts of the Philippine Islands are not authorized to take American Union.
Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements
of the law were not met. There was no was printed or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law
attested by the certificate of the officer having charge of the original, under the sale of the State of West
Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show
that the extract from the laws of West Virginia was in force at the time the alleged will was executed.

In addition, the due execution of the will was not established. The only evidence on this point is to be
found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will was
acknowledged by the testator in the presence of two competent witnesses, of that these witnesses
subscribed the will in the presence of the testator and of each other as the law of West Virginia seems to
require. On the supposition that the witnesses to the will reside without the Philippine Islands, it would
then the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec.
633.)

It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not
establish this fact consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in
beginning administration proceedings orginally in the Philippine Islands, the petitioner violated his own
theory by attempting to have the principal administration in the Philippine Islands.

While the appeal pending submission in this court, the attorney for the appellant presented an unverified
petition asking the court to accept as part of the evidence the documents attached to the petition. One of
these documents discloses that a paper writing purporting to be the was presented for probate on June 8,
1929, to the clerk of Randolph Country, State of West Virginia, in vacation, and was duly proven by the
oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses thereto , and ordered to be
recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk of
court of Randolph Country, West Virginia, appointed Claude W. Maxwell as administrator, cum
testamento annexo, of the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted
that the application for the probate of the will in the Philippines was filed on February 20, 1929, while the
proceedings in West Virginia appear to have been initiated on June 8, 1929. These facts are strongly
indicative of an intention to make the Philippines the principal administration and West Virginia the
ancillary administration. However this may be, no attempt has been made to comply with Civil Procedure,
for no hearing on the question of the allowance of a will said to have been proved and allowed in West
Virginia has been requested. There is no showing that the deceased left any property at any place other
than the Philippine Islands and no contention that he left any in West Virginia.

Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph
Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the
validity or validity of this alleged divorce.

For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance
against the appellant.

Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-20234 December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-
G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and
ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals (Petition,
Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did
not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that
"while each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands
aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677,
both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe dela
Serna died on August 30, 1939, and the aforesaid will was submitted to probate by said Gervasia
and Manuela before the Court of First Instance of Cebu which, after due publication as required
by law and there being no opposition, heard the evidence, and, by Order of October 31, 1939; in
Special Proceedings No. 499, "declara legalizado el documento Exhibit A como el testamento y
ultima voluntad del finado Bernabe de la Serna con derecho por parte du su viuda superstite
Gervasia Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de
los terranos descritos en dicho documents; y habido consideracion de la cuantia de dichos
bienes, se decreta la distribucion sumaria de los mismos en favor de la logataria universal
Manuela Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de
P500.00 para responder de cualesquiera reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria Finado
Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition
for the probate of the same will insofar as Gervasia was concerned was filed on November 6,
1952, being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for
failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In
the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being
executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art.
818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed,
on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making of a
will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third
person. However, this form of will has long been sanctioned by use, and the same has continued
to be used; and when, as in the present case, one such joint last will and testament has been
admitted to probate by final order of a Court of competent jurisdiction, there seems to be no
alternative except to give effect to the provisions thereof that are not contrary to law, as was done
in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to
the provisions of the joint will therein mentioned, saying, "assuming that the joint will in question is
valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of First
Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last will
and testament despite the fact that even then the Civil Code already decreed the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code).
The error thus committed by the probate court was an error of law, that should have been corrected by
appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final
decision, however erroneous. A final judgment rendered on a petition for the probate of a will is binding
upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and
public policy and sound practice demand that at the risk of occasional errors judgment of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs.
Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p.
322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree
admitting his will to probate. The contention that being void the will cannot be validated, overlooks that the
ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken with
finality when the will was probated in 1939. On this court, the dismissal of their action for partition was
correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the
probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It
could not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and
over whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will
could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on
her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each
testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one
prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs intestate,
and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or
unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make
them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of
1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R
is affirmed. No Costs.

Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon,
J.P., and Zaldivar, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23678 June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.

Vicente R. Macasaet and Jose D. Villena for oppositors appellants.

Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.

BENGZON, J.P., J.:

This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of
Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No.
37089 therein.1äwphï1.ñët

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first
wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis
(who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his
second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina
Bellis and Miriam Palma Bellis.

On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all
taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided,
in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b)
P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis,
or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to
his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
shares.1äwphï1.ñët

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will
was admitted to probate in the Court of First Instance of Manila on September 15, 1958.

The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling
P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released
from time to time according as the lower court approved and allowed the various motions or petitions filed
by the latter three requesting partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia,
the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to
$240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor — pursuant
to the "Twelfth" clause of the testator's Last Will and Testament — divided the residuary estate into seven
equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to
the project of partition on the ground that they were deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.

Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by
1
the registry receipt submitted on April 27, 1964 by the executor.

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April
30, 1964, issued an order overruling the oppositions and approving the executor's final account, report
and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national
law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11, 1964,
oppositors-appellants appealed to this Court to raise the issue of which law must apply — Texas law or
Philippine law.

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by
this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent
where the decedent is a national of one country, and a domicile of another. In the present case, it is not
disputed that the decedent was both a national of Texas and a domicile thereof at the time of his
2
death. So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law
of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law,
but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex
rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would
arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as
3
to the conflict of law rule of Texas, it should not be presumed different from ours. Appellants' position is
therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in
intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the
amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to
succeed. They provide that —

ART. 16. Real property as well as personal property is subject to the law of the country where it is
situated.

However, intestate and testamentary successions, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose succession is under consideration,
whatever may he the nature of the property and regardless of the country wherein said property
may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —

Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely,
Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when
they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must
have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must
be applied in testate and intestate succession. As further indication of this legislative intent, Congress
added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the
national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.

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

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

Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

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; to file or adopt the opposition of his sisters to the project of partition; to
submit his brief after paying his proportionate share in the expenses incurred in the printing of the
record on appeal; or to allow him to adopt the briefs filed by his sisters — but this Court resolved
to deny the motion.

2
San Antonio, Texas was his legal residence.

3
Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.
 FIRST DIVISION

[G.R. No. 108581. December 8, 1999]

LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself
and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

DECISION
YNARES-SANTIAGO, J.:

May a last will and testament admitted to probate but declared intrinsically void in an order that has
become final and executory still be given effect? This is the issue that arose from the following
antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The
latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after
Alejandros death, petitioner, who claims to have taken care of Alejandro before he died, filed a special
proceeding for the probate of the latters last will and testament. In 1981, the court issued an order
admitting Alejandros will to probate. Private respondents did not appeal from said order. In 1983, they
filed a Motion To Declare The Will Intrinsically Void. The trial court granted the motion and issued an
order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of
the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as
intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo
Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective
estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and
[1]
other taxes due to the government.

Petitioner moved for reconsideration arguing that she is entitled to some compensation since she
took care of Alejandro prior to his death although she admitted that they were not married to each
other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the
[2]
same was dismissed for failure to file appellants brief within the extended period granted. This dismissal
became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith
issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to
implement the final and executory Order. Consequently, private respondents filed several motions
including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT)
covering the properties of the late Alejandro. When petitioner refused to surrender the TCTs, private
respondents filed a motion for cancellation of said titles and for issuance of new titles in their names.
Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and
executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of
execution, on the ground that the order was merely interlocutory, hence not final in character. The court
added that the dispositive portion of the said Order even directs the distribution of the estate of the
deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order
dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which
nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents
before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or
lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be
said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise
assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which
declared the intrinsic invalidity of Alejandros will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to
[3]
maintain the status quo or lease of the premises thereon to third parties. Private respondents opposed
the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the
late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has
attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is
well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do
so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a
[4]
final judgment on probated will, albeit erroneous, is binding on the whole world.
It has been consistently held that if no appeal is taken in due time from a judgment or order of the
trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final
and the question determined by the court in such order can no longer be raised anew, either in the same
proceedings or in a different motion. The matters of due execution of the will and the capacity of the
testator acquired the character of res judicata and cannot again be brought into question, all juridical
[5]
questions in connection therewith being for once and forever closed. Such final order makes the will
[6]
conclusive against the whole world as to its extrinsic validity and due execution.
It should be noted that probate proceedings deals generally with the extrinsic validity of the will
[7]
sought to be probated, particularly on three aspects:

whether the will submitted is indeed, the decedents last will and testament;

compliance with the prescribed formalities for the execution of wills;

[8]
the testamentary capacity of the testator;

[9]
and the due execution of the last will and testament.

Under the Civil Code, due execution includes a determination of whether the testator was of sound
and disposing mind at the time of its execution, that he had freely executed the will and was not acting
[10]
under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, that he
was of the proper testamentary age and that he is a person not expressly prohibited by law from making a
[11]
will.
The intrinsic validity is another matter and questions regarding the same may still be raised even
[12]
after the will has been authenticated. Thus, it does not necessarily follow that an extrinsically valid last
will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides
for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to
[13]
the laws on succession, the unlawful provisions/dispositions thereof cannot be given effect. This is
specially so when the courts had already determined in a final and executory decision that the will is
intrinsically void. Such determination having attained that character of finality is binding on this Court
which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final
and executory decision of which the party had the opportunity to challenge before the higher tribunals
must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law
constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved
by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or
order. As early as 1918, it has been declared that public policy and sound practice demand that, at the
[14]
risk of occasional errors, judgments of courts must at some point of time fixed by law become final
otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium - the very object of which
 [15]
the courts were constituted was to put an end to controversies. To fulfill this purpose and to do so
[16]
speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. The only
instance where a party interested in a probate proceeding may have a final liquidation set aside is when
he is left out by reason of circumstances beyond his control or through mistake or inadvertence not
[17]
imputable to negligence, which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she
precisely appealed from an unfavorable order therefrom. Although the final and executory Order of
January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are
not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res
judicata with respect to those who were parties to the probate proceedings.Petitioner cannot again raise
those matters anew for relitigation otherwise that would amount to forum-shopping. It should be
remembered that forum shopping also occurs when the same issue had already been resolved adversely
[18]
by some other court. It is clear from the executory order that the estates of Alejandro and his spouse
should be distributed according to the laws of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set
aside by the trial court. In support thereof, petitioner argues that an order merely declaring who are heirs
and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of
[19]
shares from one person to another particularly when no project of partition has been filed. The trial
court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only
heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it
should be noted that in the same Order, the trial court also said that the estate of the late spouses be
distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of
intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will.
It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that
[20]
testacy is preferred to intestacy. But before there could be testate distribution, the will must pass the
scrutinizing test and safeguards provided by law considering that the deceased testator is no longer
available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is
[21]
usually onerous in nature and that no one is presumed to give - Nemo praesumitur donare. No
intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic
and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic
validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the
provisions of the will are valid according to the laws of succession. In this case, the court had ruled that
the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of
intestacy apply as correctly held by the trial court.
Furthermore, Alejandros disposition in his will of the alleged share in the conjugal properties of his
late spouse, whom he described as his only beloved wife, is not a valid reason to reverse a final and
executory order. Testamentary dispositions of properties not belonging exclusively to the testator or
properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns
the properties that were disposed of by Alejandro in the void will may still be properly ventilated and
determined in the intestate proceedings for the settlement of his and that of his late spouses estate.
Petitioners motion for appointment as administratrix is rendered moot considering that she was not
married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

[1]
Annex A of Petition; Rollo, pp. 19-20.
[2]
Court of Appeals resolution dated January 11, 1989 reads: For failure of appellant to file brief within the
extended period, the appeal interposed in this case is dismissed pursuant to Section 1(f), Rule 50 of the
Rules of Court. (Rollo, p. 20).
[3]
Mrs. Cresild Soliman and Zaldy Adalin.
[4]
Manolo v. Paredes, 47 Phil. 938; In Re Estate of Johnson, 39 Phil. 156, cited in De la Cerna v. Rebaca-
Potot, 12 SCRA 576.
[5]
Lopez v. Gonzales, 10 SCRA 167; Mercado v. Santos, 66 Phil. 215; Manahan v. Manahan, 58 Phil.
448; Riera v. Palmanori, 40 Phil. 105; In re Estate of Johnson, 39 Phil. 156; Austria v. Ventinilla, 27 Phil.
180; Montao v. Suesa, 14 Phil. 676; Chiong Joc-Soy v. Vao, 8 Phil. 119.
[6]
Mercado v. Paredes, 47 Phil. 938.
[7]
Ajero v. CA, 236 SCRA 488; Acain v. CA, 155 SCRA 100; Pastor v. CA, 122 SCRA 85.
[8]
Vda. de Kilayko v. Tengco, 207 SCRA 600.
[9]
Section 1, Rule 75, Rules of Court; Nepomuceno v. CA, 139 SCRA 206; Cayetano v. Leonidas, 129
SCRA 522; Maning v. CA, 114 SCRA 478; Nuguid v. Nuguid, 17 SCRA 449.
[10]
Mercado v. Santos, 66 Phil. 215.
[11]
Articles 796-798 of the Civil Code.
[12]
Estate of Hilario M. Ruiz v. CA, 252 SCRA 541; Maninang, et. al. v. CA, 114 SCRA 473;
Coronado v. CA, 191 SCRA 814. See also Castaeda v. Alemany, 3 Phil. 426.
[13]
Civil Code, Article 886. Legitime is that part of the testators property which he cannot dispose of
because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. and Article
904 reads The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly
specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or
substitution of any kind whatsoever. (emphases supplied).
[14]
Dy Cay v. Crossfield and OBrien, 38 Phil. 521.
[15]
De la Cerna v. Rebaca-Potot, 12 SCRA 576 (1964).
[16]
Dy Cay v. Crossfield and OBrien, 38 Phil. 521.
[17]
Vda. De Alberto v. CA, 173 SCRA 436; Vda. de Kilayko v. Tengco, 207 SCRA 600.
[18]
Gatmaytan v. CA, 267 SCRA 487; see also Golangco v. CA, 283 SCRA 493.
[19]
Petition, p. 13; Rollo, p. 15 citing Quizon v. Castillo, 79 Phil. 9 (1947).
[20]
Article 960, Civil Code provides in part: Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all property belonging to the testator. In such
case, legal succession shall take place only with respect to the property of which the testator has not
disposed;
x x x x x x x x x.
[21]
Handbook on Legal Maxims, p. 67.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which
on its face is void because it is written in English, a language not known to the illiterate testatrix, and
which is probably aforged will because she and the attesting witnesses did not appear before the notary
as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of
Appeals which reveal the following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married
Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy
named Agapito who used the surname Suroza and who considered them as his parents as shown in his
1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government.
That explains why on her death she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance
of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and
that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate
case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named
Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of
Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn
used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She
married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years
old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death,
she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the
executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's
alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following
day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank
of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy
sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son
Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's
guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68,
Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment
order.

In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn
was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by Marina and Marilyn and that the
thumbmarks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito
and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore
that the alleged will was falsified (p. 109, Record).

Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to
set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the
probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed
the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her
nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April
23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was
not Marcelina's sonbut merely an anak-anakan who was not legally adopted (p. 143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters
of administration because of the non-appearance of her counsel at the hearing. She moved for the
reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the notary
and because it is written in English which is not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record).

Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the
probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p.
398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977
(pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the
estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged
Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her
contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will
and that she did not know English, the language in which the win was written. (In the decree of probate
Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named
Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did
not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not
the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge
Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita)
had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to
desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and, should
she persist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion
dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of
the Court of Appeals for investigation, report and recommendation. He submitted a report dated October
7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings in
the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the
testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to
accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the testatrix
and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do
so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.

We hold that disciplinary action should be taken against respondent judge for his improper disposition of
the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs
and not the instituted heiress in the void win should have inherited the decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first instance for serious misconduct or
inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of
judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of
well-known legal rules" (In re lmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be

inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and
circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case
No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to
the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be executed in a language or
dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is
void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

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

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

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing
on the probate of the will so that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

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

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

SO ORDERED.

Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.

Concepcion Jr., J., is on leave.

Abad Santos, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated
January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause and
that of the left margin of the three pages thereof. Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose of three pages and all them were
signed in the presence of the testator and witnesses, and the witnesses in the presence of the
testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one thousand nine
hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado,
followed below by "A reugo del testator" and the name of Florentino Javier. Antero Mercado is alleged to
have written a cross immediately after his name. The Court of Appeals, reversing the judgement of the
Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was
signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the
express request of the testator in the presence of the testator and each and every one of the witnesses;
(2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said
testator has written a cross at the end of his name and on the left margin of the three pages of which the
will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused
Atty. Florentino Javier to write the testator's name under his express direction, as required by section 618
of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the
decision of the Court of Appeals) argues, however, that there is no need for such recital because the
cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino
Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the
latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,
104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296
and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or
even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken
the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and does not
have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10907 June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.

Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as
Judge of the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said
court, entitled "Testate Estate of the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a
document purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May
8, 1952, at the age of 92 years. The heir to the entire estate of the deceased — except the properties
bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud,
Santos Matias and Rafael Matias — is, pursuant to said instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed the
probate of her alleged will, and, after appropriate proceedings, the court, presided over by respondent
Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the petition for
probate. Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751),
where it is now pending decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as
special administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata.
The motion was set for hearing on February 23, 1956, on which date the court postponed the hearing to
February 27, 1956. Although notified of this order, Rodriguez did not appear on the date last mentioned.
Instead, he filed an urgent motion praying for additional time within which to answer the charges preferred
against him by Basilia Salud and for another postponement of said hearing. This motion was not granted,
and Basilia Salud introduced evidence in support of said charges, whereupon respondent Judge by an
order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and gross negligence, and,
accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia
Salud as special administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud,"
who "shall always act as aide, interpreter and adviser of Basilia Salud." Said order, likewise, provided that
"Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be
appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is
over eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office,
and that said movant is the universal heiress of the deceased and the person appointed by the latter as
executrix of her alleged will. This motion was denied in an order dated March 10, 1956, which maintained
"the appointment of the three above named persons" — Basilia Salud, Ramon Plata and Victorina Salud
— "for the management of the estate of the late Gabina Raquel pending final decision on the probate of
the alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as
special administratrix by reason of physical disability, due to old age, and recommended the appointment,
in her place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea
Matias sought a reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she
expressed her conformity to said resignation, but objected to the appointment, in lieu of Basilia Salud, of
Victorina Salud, on account of her antagonism to said Aurea Matias — she (Victorina Salud) having been
the principal and most interested witness for the opposition to the probate of the alleged will of the
deceased — and proposed that the administration of her estate be entrusted to the Philippine National
Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution authorized
by law therefor, should the court be reluctant to appoint the movant as special administratrix of said
estate. This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested
authority to collect the rents due, or which may be due, to the estate of the deceased and to collect all the
produce of her lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed
another motion praying for permission to sell the palay of the deceased then deposited in different rice
mills in the province of Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10,
1956, petitioner instituted the present action against Judge Gonzales, and Victorina Salud and Ramon
Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon the ground
that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

In support of this pretense, it is argued that petitioner should have preference in the choice of special
administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and,
the executrix appointed in the alleged will of the deceased, that until its final disallowance — which has
not, as yet, taken place she has a special interest in said estate, which must be protected by giving
representation thereto in the management of said estate; that, apart from denying her any such
representation, the management was given to persons partial to her main opponent, namely, Basilia
Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her
(Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious
unfitness for said office, she being over eighty (80) years of age and blind; that said disability is borne out
by the fact that on March 17, 1956, Basilia Salud resigned as special administratrix upon such ground;
that the Rules of Court do not permit the appointment of more than one special administrator; that
Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection therewith;
and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased and
the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction
and without any abuse of discretion; that petitioner can not validly claim any special interest in the estate
of the deceased, because the probate of the alleged will and testament of the latter — upon which
petitioner relies — has been denied; that Horacio Rodriguez was duly notified of the proceedings for his
removal; and that Victorina Salud and Ramon Plata have not done anything that would warrant their
removal.

Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for
the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February
17, 1956, the record shows that petitioner herein received copy of said motion of February 24, 1956, or
the date after that set for the hearing thereof. Again, notice of the order of respondent Judge, dated
February 23, 1956, postponing said hearing to February 27, 1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and
the appointment of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no
notice that her main opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be
considered for the management of said. As a consequence, said petitioner had no opportunity to object to
the appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and
adviser, and the order of February 27, 1956, to this effect, denied due process to said petitioner.
3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise
respondent Judge would not have directed that she "be assisted and advised by her niece Victorina
Salud," and that the latter "shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia Salud, Victorina
Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained
"the appointment of the three (3) above-named persons for the management of the estate of the late
Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias
and Basilia Salud regarding the person to be appointed special administrator of the estate of the
deceased. The former proposed Horacio Rodriguez, whereas the latter urged the appointment of
Victorina Salud. By an order dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe,
Judge, decided the matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground
that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides In the City
of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of
Cavite, is a resident thereof. In other words, the order of resident thereof. In other words, the order of
respondent Judge of February 27, 1956, removing Rodriguez and appointing Victorina Salud to the
management of the estate, amounted to a reversal of the aforementioned order of Judge Bernabe of
August 11, 1952.

6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent
Judge, the order to this effect is not, as yet, final and executory. It is pending review on appeal taken by
Aurea Matias. The probate of said alleged will being still within realm of legal possibility, Aurea Matias has
— as the universal heir and executrix designated in said instrument — a special interest to protect during
*
the pendency of said appeal. Thus, in the case of Roxas vs. Pecson (46 Off. Gaz., 2058), this Court held
that a widow, designated as executrix in the alleged will and testament of her deceased husband, the
probate of which had denied in an order pending appeal, "has . . . the same beneficial interest after the
decision of the court disapproving the will, which is now pending appeal, because the decision is not yet
final and may be reversed by the appellate court."

7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely,
one, represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong.
Inasmuch as the lower court had deemed it best to appoint more than one special administrator, justice
and equity demands that both factions be represented in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be
appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the
facts obtaining in said case. The lower court appointed therein one special administrator for some
properties forming part of said estate, and a special administratrix for other properties thereof. Thus, there
were two (2) separate and independent special administrators. In the case at bar there is only one (1)
special administration, the powers of which shall be exercised jointly by two special co-administrators. In
short, the Roxas case is not squarely in point. Moreover, there are authorities in support of the power of
courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A.
514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear
the matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to
all parties concerned, for action in conformity with the views expressed herein, with costs against
respondents Victorina Salud and Ramon Plata. It is so ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and
Felix, JJ.,concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in the
small room where it was executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large
room connecting with the smaller room by a doorway, across which was hung a curtain which made it
impossible for one in the outside room to see the testator and the other subscribing witnesses in the act
of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room
with the testator and the other subscribing witnesses at the time when they attached their signatures to
the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the
decree admitting the document to probate as the last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down in the
case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was
in the outer room when the testator and the other describing witnesses signed the instrument in the inner
room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing witness been proven to have been in the outer room at
the time when the testator and the other subscribing witnesses attached their signatures to the instrument
in the inner room, it would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer room. This because the line of
vision from this witness to the testator and the other subscribing witnesses would necessarily have been
impeded by the curtain separating the inner from the outer one "at the moment of inscription of each
signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether
they actually saw each other sign, but whether they might have been seen each other sign, had
they chosen to do so, considering their mental and physical condition and position with relation to
each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of
the subscription of each signature, must be such that they may see each other sign if they choose to do
so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have
executed the instrument in the presence of each other if it appears that they would not have been able to
see each other sign at that moment, without changing their relative positions or existing conditions. The
evidence in the case relied upon by the trial judge discloses that "at the moment when the witness
Javellana signed the document he was actually and physically present and in such position with relation
to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And the decision merely laid down the
doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not depend upon proof of the fact that their eyes were
actually cast upon the paper at the moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were such that by merely casting the eyes
in the proper direction they could have seen each other sign. To extend the doctrine further would open
the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose
for which this particular condition is prescribed in the code as one of the requisites in the execution of a
will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last
will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the
appellant.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator.1äwphï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his
own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1,
1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959.
On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but by order of July 20, 1959, the
court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after several hearings the
court issued the order admitting the will and its duplicate to probate. From this order, the oppositors
appealed directly to this Court, the amount involved being over P200,000.00, on the ground that the same
is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila
on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila,
published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and
Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said
three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and
for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also
present during the execution and signing of the decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were
in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of
the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and
attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte
last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed
copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the
petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page,
it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three
(3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its
duplicate were subscribed at the end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence
and in that of one another as witnesses (except for the missing signature of attorney Natividad on page
three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to be recited therein and is signed by the
aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix
that the attestation clause is in a language also known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and that both the original and the duplicate copies
were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may
have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was
signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix
in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as
the original, and further aver that granting that the documents were genuine, they were executed through
mistake and with undue influence and pressure because the testatrix was deceived into adopting as her
last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may
be inferred from the facts and circumstances surrounding the execution of the will and the provisions and
dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as
attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants
are enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it,
on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same
in the presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty.
Samson, who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a
language known to and spoken by both the testator and the witnesses, and read to and by the testatrix
and Atty. Fermin Samson, together before they were actually signed; that the attestation clause is also in
a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors,
Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by
the same had which wrote the signatures in the original will leaves us unconvinced, not merely because it
is directly contradicted by expert Martin Ramos for the proponents, but principally because of the paucity
of the standards used by him to support the conclusion that the differences between the standard and
questioned signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix besides those affixed to the original of the
testament (Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the
duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since
the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would
justify the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of
her signatures, and the effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different kinds
of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the
testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored
than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs.
Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise,
the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire
into other property and that they should respect the distribution made in the will, under penalty of
forfeiture of their shares in the free part do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often
results in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators.
Whether these clauses are valid or not is a matter to be litigated on another occassion. It is also well to
note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one
page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact
that the testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and
all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she had no control, where the
purpose of the law to guarantee the identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it
or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown
by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures
in every page. The text of the attestation clause and the acknowledgment before the Notary Public
likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory
requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the
law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses,
but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that
despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page
either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents
exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against
fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate
(Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one
signature in its third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the
original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate
(Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to
the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate,
Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament
was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of the petition for
probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by
disclosing the existence of the duplicate, and no showing is made that new interests were involved (the
contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any
substantial right, and we see no error in admitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ.,
concur.
Barrera and Dizon, JJ., took no part.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of
Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of
the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving
spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute
without the testator having been fully informed of the content thereof, particularly as to what properties he
was disposing and that the supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will and testament Hence
this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether the
supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses
to attest and subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Pañares
and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before
whom the will was supposed to have been acknowledged. Reduced to simpler terms, the question was
attested and subscribed by at least three credible witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses must appear before the notary public to acknowledge
the same. As the third witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning
of the trial court, maintains that there is substantial compliance with the legal requirement of having at
least three attesting witnesses even if the notary public acted as one of them, bolstering up his stand with
57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
 acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The notary
public before whom the will was acknowledged cannot be considered as the third instrumental witness
since he cannot acknowledge before himself his having signed the will. To acknowledge before means to
avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine,
to assent, to admit; and "before" means in front or preceding in space or ahead of. (The New Webster
Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third
witness were the notary public himself, he would have to avow assent, or admit his having signed the will
in front of himself. This cannot be done because he cannot split his personality into two so that one will
appear before the other to acknowledge his participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were
one of the attesting instrumental witnesses. For them he would be interested sustaining the validity of the
will as it directly involves him and the validity of his own act. It would place him in inconsistent position
and the very purpose of acknowledgment, which is to minimize fraud (Report of Code Commission p.
106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to
the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA
482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as notary in a will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will,
N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate
160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein
because the notaries public and witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledgingwitnesses. He the notary public acted not only
as attesting witness but also acknowledging witness, a situation not envisaged by Article 805 of the Civil
Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the will or file
another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in contravention of
the provisions of Article 80 be requiring at least three credible witnesses to act as such and of Article 806
which requires that the testator and the required number of witnesses must appear before the notary
public to acknowledge the will. The result would be, as has been said, that only two witnesses appeared
before the notary public for or that purpose. In the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last
will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOÑA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

REYES, J.B.L., J.:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the
Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased
Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with
Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea
Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting
that the said exhibits were not executed in conformity with law. The appeal was made directly to this
Court because the value of the properties involved exceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and
that the dispositions were procured through undue influence. These grounds were abandoned at the
hearing in the court below, where the issue was concentrated into three specific questions: (1) whether
the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2)
whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the
presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid
and ineffective. These questions are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao
and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that
on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the
deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it;
that Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon
Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased
took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one
would question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection
of the improbable story of the witnesses. It is squarely contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted
under oath that the testament was executed by testatrix and witnesses in the presence of each other, at
the house of the decedent on General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady
then over 80 years old, should leave her own house in order to execute her will, when all three witnesses
could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal
flaws in the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the
first time when Yap used it; and they claimed ability to recall that word four years later, despite the fact
that the term meant nothing to either. It is well known that what is to be remembered must first be
rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive
that Yap brought the will, and that the deceased alone signed it, precisely on March 30, 1950; but she
could remember no other date, nor give satisfactory explanation why that particular day stuck in her mind.
Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from
the kitchen of the house, that was later proved to have been separated from the deceased's quarters, and
standing at a much lower level, so that conversations in the main building could not be distinctly heard
from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he
was upstairs in a room where the servants used to eat when he heard Yap converse with his mistress;
but this correction is unavailing, since it was plainly induced by two highly leading questions from
contestant's counsel that had been previously ruled out by the trial Court. Besides, the contradiction is
hardly consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by
the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the
testament or of the codicil, and the identity of the person who inserted the date therein, are not material
and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details
of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the
codicil and testament (likelegado, partes iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this
codicil was executed after the enactment of the new Civil Code, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses
at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same
occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office,
and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on
the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the
mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore
on Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the
testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805
and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each
other, all that is thereafter required is that "every will must be acknowledged before a notary public by the
testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in executing the testamentary
disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his
certification that the testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of
the testatrix and her witnesses can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die
ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is
noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and
the witnesses should acknowledge the testament on the same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against appellant.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and
Concepcion, JJ.,concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA

CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, represented
herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA,
represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of
Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether
or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies
with the requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu
before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa.
The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
1
Manigos, in the preparation of that last will. It was declared therein, among other things, that the testator
was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola,
Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of
2
whom do not appear to be related to the testator.

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate
of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the
same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980,
3
the testator passed away before his petition could finally be heard by the probate court. On February 25,
1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as special
administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so
4
appointed by the probate court in its order of March 6, 1981.

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October
18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the
5
probate of the Testator's will and the appointment of a special administrator for his estate.

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No.
3965-R to the archives since the testate proceeding for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the
6
Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings.

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors
and objected to the allowance of the testator's will on the ground that on the alleged date of its execution,
the testator was already in the poor state of health such that he could not have possibly executed the
same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator
7
therein.

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo
Manigos, testified that the testator executed the will in question in their presence while he was of sound
and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good
health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he
and the other witnesses attested and signed the will in the presence of the testator and of each other. The
8
other two attesting witnesses were not presented in the probate hearing as the had died by then.

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome
the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed the Last Will and Testament now marked
Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing of the original
petition now marked Exhibit "D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want the signature
of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it
would seem that despite their avowal and intention for the examination of this signature
of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the
idea and instead presented Aurea Caballero and Helen Caballero Campo as witnesses
for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
9
law.

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for the
reason that its attestation clause is fatally defective since it fails to specifically state that the instrumental
witnesses to the will witnessed the testator signing the will in their presence and that they also signed the
will and all the pages thereof in the presence of the testator and of one another.

10
On October 15, 1991, respondent court promulgated its decision affirming that of the trial court, and
ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article 805
of the Civil Code, thus:
 The question therefore is whether the attestation clause in question may be considered
as having substantialy complied with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to be defective is "we do
certify that the testament was read by him and the attestator, Mateo Caballero, has
published unto us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the upper part of each
page, as his Last Will and Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of us (emphasis
supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to

indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of the
law would have it that the testator signed the will "in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another." If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in
11
substantial compliance with the requirement of the law."

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied
12
in the latter's resolution of January 14, 1992, hence this appeal now before us. Petitioners assert that
respondent court has ruled upon said issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more, on the same ground as that raised
before respondent court, the validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities
13
prescribed by law, to control to a certain degree the disposition of his estate after his death. Under the
14
Civil Code, there are two kinds of wills which a testator may execute. the first kind is the ordinary or
attested will, the execution of which is governed by Articles 804 to 809 of the Code. Article 805 requires
that:

Art. 805. Every will, other than a holographic will, 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, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.

The attestation should state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall be interpreted
to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting
15
witness. hence it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a practicable manner. On the
other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses
16
thereto, and then again, by the notary public before whom it is acknowledged.

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no attestation
by witnesses. A common requirement in both kinds of will is that they should be in writing and must have
17
been executed in a language or dialect known to the testator.

However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even be known to the
18
attesting witnesses. The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
19
instrument has been executed before them and to the manner of the execution the same. It is a
separate memorandum or record of the facts surrounding the conduct of execution and once signed by
the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law
20
has been observed. It is made for the purpose of preserving in a permanent form a record of the facts
that attended the execution of a particular will, so that in case of failure of the memory of the attesting
21
witnesses, or other casualty, such facts may still be proved.

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the
22
invalidity of the will, should state (1) the number of the pages used upon which the will is written; (2)
that the testator signed, or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that theattesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also signed the will and every page thereof in
the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is written is
to safeguard against possible interpolation or omission of one or some of its pages and to prevent any
23
increase or decrease in the pages; whereas the subscription of the signature of the testator and the
attesting witnesses is made for the purpose of authentication and identification, and thus indicates that
24
the will is the very same instrument executed by the testator and attested to by the witnesses.

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the
25
will as embodied in the attestation clause. The attestation clause, therefore, provide strong legal
26
guaranties for the due execution of a will and to insure the authenticity thereof. As it appertains only to
27
the witnesses and not to the testator, it need be signed only by them. Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the clause on a subsequent
28
occasion in the absence of the testator and its witnesses.

In its report, the Code Commission commented on the reasons of the law for requiring the formalities to
be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on wills
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
 This objective is in accord with the modern tendency with respect to the formalities in the
29
execution of wills. . . .

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three
sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing
the respective signatures of the testator and the three attesting witnesses. The part of the will containing
the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is recited in the English
30
language and is likewise signed at the end thereof by the three attesting witnesses hereto. Since it is
the proverbial bone of contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the Testament
was read by him and the testator, MATEO CABALLERO; has published unto us the
foregoing Will consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof, on the spaces provided for his
signature and on the left hand margin, in the presence of the said testator and in the
presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation
is the act of senses, while subscription is the act of the hand. The former is mental, the latter mechanical,
and to attest a will is to know that it was published as such, and to certify the facts required to constitute
an actual and legal publication; but to subscribe a paper published as a will is only to write on the same
31
paper the names of the witnesses, for the sole purpose of identification.

32
In Taboada vs. Rizal, we clarified that attestation consists in witnessing the testator's execution of the
will in order to see and take note mentally that those things are done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is
the signing of the witnesses' names upon the same paper for the purpose of identification of such paper
as the will which was executed by the testator. As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed
in the presence of the testator and of each other unless this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of
the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not expressly
state therein the circumstance that said witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses
as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although
the words "in the presence of the testator and in the presence of each and all of us" may, at first blush,
appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said phrase immediately follows the words
"he has signed the same and every page thereof, on the spaces provided for his signature and on the left
hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation
clause obviously cannot be characterized as merely involving the form of the will or the language used
therein which would warrant the application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is not proved that the will was in
fact executed and attested in substantial compliance with all the requirements of article
805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and of
each other since, as petitioners correctly observed, the presence of said signatures only establishes the
fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in
the presence of the testator and of each other. The execution of a will is supposed to be one act so that
where the testator and the witnesses sign on various days or occasions and in various combinations, the
33
will cannot be stamped with the imprimatur of effectivity.

34
We believe that the further comment of former Justice J.B.L. Reyes regarding Article 809, wherein he
urged caution in the application of the substantial compliance rule therein, is correct and should be
applied in the case under consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are
three or the will was notarized. All theses are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required to sign did
so in the presence of each other must substantially appear in the attestation clause,
being the only check against perjury in the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with respect to
the form of the attestation or the language employed therein. Such defects or imperfections would not
render a will invalid should it be proved that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the due execution and attestation has been
held to be limited to merely an examination of the will itself without resorting to evidence aliunde, whether
oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the testator and of each
35
other. In such a situation, the defect is not only in the form or language of the attestation clause but the
total absence of a specific element required by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of in the present case since there is no plausible
way by which we can read into the questioned attestation clause statement, or an implication thereof, that
the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages
and that said instrumental witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied by
the text of the will or a consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that the
acts not stated in the omitted textual requirements were actually complied within the execution of the will.
In other words, defects must be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting witnesses
can be supplied by only extrinsic evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from with such facts may be plausibly deduced. What private respondent
insists on are the testimonies of his witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by the indirection what in law he cannot do
directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements were at that time embodied
primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was later amended by
Act No. 2645, but the provisions respecting said formalities found in Act. No. 190 and the amendment
thereto were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case
36
of Abangan vs. Abangan, where it was held that the object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. Nonetheless, it was also emphasized that one must not lose sight
of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will,
hence when an interpretation already given assures such ends, any other interpretation whatsoever that
adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's
37 38
last will, must be disregarded. The subsequent cases of Avera vs. Garcia, Aldaba vs. Roque, Unson
39 40 41
vs. Abella, Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et al., and Nayve vs. Mojal, et
42
al. all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in nature and are to be strictly construed was followed in
43 44
the subsequent cases of In the Matter of the Estate of Saguinsin, In re Will of Andrada, Uy Coque vs.
45 46 47
Sioca, In re Estate of Neumark, and Sano vs. Quintana.

48
Gumban vs. Gorecho, et al., provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state
that the witnesses signed the will and each and every page thereof on the left margin in the presence of
the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants rely

on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil.,
180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506).
Appellee counters with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve
vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast
and, if possible, conciliate the last two decisions cited by opposing counsel, namely,
those of Sano vs. Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.
 In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which
does not recite that the witnesses signed the will and each and every page thereof on the
left margin in the presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate the fact that the
testator and the witnesses reciprocally saw the signing of the will, for such an act cannot
be proved by the mere exhibition of the will, if it is not stated therein. It was also held that
the fact that the testator and the witnesses signed each and every page of the will can be
proved also by the mere examination of the signatures appearing on the document itself,
and the omission to state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If
we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be

mentioned. In the first place, the Mojal, decision was concurred in by only four members
of the court, less than a majority, with two strong dissenting opinions; the Quintana
decision was concurred in by seven members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal decision was promulgated in December,
1924, while the Quintana decision was promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act No.
2645, and in section 634 of the same Code, as unamended. It is in part provided in
section 61, as amended that "No will . . .shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shallstate the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and of each other." Codal
section 634 provides that "The will shall be disallowed in either of the following case: 1.
If not executed and attested as in this Act provided." The law not alone carefully makes
use of the imperative, but cautiously goes further and makes use of the negative, to
enforce legislative intention. It is not within the province of the courts to disregard the
legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the
extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases
49 50 51
of Quinto vs. Morata, Rodriguez vs. Alcala, Enchevarria vs. Sarmiento, and Testate Estate of
52 53
Toray went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., Rey vs.
54 55 56 57
Cartagena, De Ticson vs. De Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs.
58 59 60 61
Fabia, Leynez vs. Leynez, Martir vs. Martir, Alcala vs. De Villa, Sabado vs.
62 63 64
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away from the strict interpretation
rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination
towards a liberal construction, recommended the codification of the substantial compliance rule, as it
believed this rule to be in accord with the modern tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809 of the Civil Code, with this explanation of the Code
Commission:

The present law provides for only one form of executing a will, and that is, in accordance
with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended
by Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said that the provisions of Section 618
of the Code of Civil Procedure, as amended regarding the contents of the attestation
clause were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs.
Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom of the testator in
disposing of his property.

However, in recent years the Supreme Court changed its attitude and has become more
liberal in the interpretation of the formalities in the execution of wills. This liberal view is
enunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21,
1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back to
the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization of
the manner of executing wills, article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form
of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in
65
substantial compliance with all the requirements of article 829."

66
The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of
the document or supply missing details that should appear in the will itself. They only permit a probe into
the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence
of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish
any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the
67
attestation clause and ultimately, of the will itself.

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is
hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its
Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo
Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said
decedent.
SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

# Footnotes

* The first name of this representative party petitioner is also spelled "Armistica" in the
corresponding allegation of the petition.

1 Original Record, 1-3.

2 Exhibit C; Folder of Exhibits in Special Proceeding No. 3899-R, 7-8.

3 Original Record, 1-3, 7, 24, 32.

4 Ibid., 32-34.

5 Ibid., 68-69, 157.

6 Ibid., 98, 116, 143, 148, 157-159.

7 TSN, July 3, 1986, 3-5, 13-17, 23-27; July 18, 1986, 5-10.

8 TSN, October 9, 1984, 11-26; January 4, 1985, 2; April 22, 1985, 10-18.

9 Original Record, 339-340; per Judge J. Militante.

10 Justice Cesar D. Francisco, ponente, with Justices Reynato S. Puno and Jaime D.
Lantin, concurring.

11 Rollo, 9.

12 Ibid., 33.

13 Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code.

14 Report of the Code of Commission, 103-105.

15 Art. 806, Civil Code.

16 Art. 808, id.

17 Art. 804, id.

18 3 Tolentino, Civil Code of the Philippines, 68 (1979 ed.).

19 Testate Estate of Paula Toray, 87 Phil. 139 (1950).

20 Vda. de Ramos, et al. vs. Court of Appeals et al., 81 SCRA 393 (1978).
21 Leynez vs. Leynez, 68 Phil. 745 (1939).

22 In re Estate of Neumarix, 46 Phil, 841 (1923).

23 In The Matter of the Estate of Sanguisin, 41 Phil. 875 (1920); In re Will of Andrada, 42
Phil. 180 (1921).

24 Testate Estate of Paula Toray, supra.

25 Gonzales vs. Gonzales de Carungcong, 90 Phil. 444 (1951).

26 Echevierria vs. Sarmiento, 66 Phil. 611 (1938).

27 Abangan vs. Abangan, 40 Phil. 476 (1919).

28 Cagro vs. Cagro, 92 Phil. 1032 (1953).

29 Report of the Code Commission, 103.

30 Exhibits C to C-18; Folder of Exhibits in Special Proceeding No. 3899-R; Original

Record, 4-6.

31 Hill vs. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A. 1918B 687.

32 118 SCRA 195 (1982).

33 Andalis vs. Pulgueras, 59 Phil. 643 (1934).

34 Lawyer's Journal, November 30, 1950, 556, cited in Tolentino, op. cit., supra, note 17
at 111-112.

35 Uy Coque vs. Sioca, 43 Phil. 405 (1922); Gumban vs. Gorecho, 50 Phil. 30 (1927);
Quinto vs. Morata, 54 Phil. 481 (1930); Rodriguez vs. Alacala, 55 Phil. 150 (1930);
Testate Estate of Paula Toray, supra; Gil vs. Marciano, 88 Phil. 261 (1951).

36 40 Phil, 476 (1919).

37 42 Phil. 145 (1921).

38 43 Phil. 378 (1922).

39 43 Phil. 494 (1922).

40 45 Phil. 216 (1923).

41 46 Phil. 922 (1924).

42 47 Phil. 152 (1924).

43 41 Phil. 875 (1920).

44 42 Phil. 180 (1921).

45 43 Phil. 405 (1922).

46 46 Phil. 841 (1923).

47 48 Phil. 506 (1925).

48 50 Phil. 30 (1927).

49 54 Phil. 481 (1930).

50 55 Phil. 150 (1930).

51 66 Phil. 611 (1933).

52 87 Phil. 139 (1950).

53 53 Phil. 104 (1929).

54 56 Phil. 282 (1931).

55 57 Phil. 437 (1932).

56 59 Phil. 653 (1934).

57 68 Phil. 126 (1939).

58 68 Phil. 128 (1939).

59 68 Phil. 745 (1939).

60 70 Phil. 89 (1940).

61 71 Phil. 561 (1940).

62 72 Phil. 531 (1941).

63 72 Phil. 546 (1941).

64 81 Phil., 429 (1948).

65 Report of the Code Commission, 104-105.

66 88 Phil. 260, 281 (1951).

67 Tolentino, op. cit., supra, note 17 at 111.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of

1
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.

2
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, in Sp. Proc. No. Q-
37171, and the instrument submitted for probate is the holographic will of the late Annie Sand,
who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's
holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not
acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of her
estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the
signature therein was in decedent's handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of
a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It
found, inter alia:
Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the
will actually executed by the testatrix. The only objections raised by the oppositors . . .
are that the will was not written in the handwriting of the testatrix which properly refers to
the question of its due execution, and not to the question of identity of will. No other will
was alleged to have been executed by the testatrix other than the will herein presented.
Hence, in the light of the evidence adduced, the identity of the will presented for probate
must be accepted, i.e., the will submitted in Court must be deemed to be the will actually
executed by the testatrix.

xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court
that the holographic will in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge
of the handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in question was
written to be the genuine handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the holographic will be entirely
written, dated and signed in the handwriting of the testatrix has been complied with.

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent)

Clemente Sand himself has testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday celebration in 1981, at or around
which time the holographic will in question was executed by the testatrix. To be of sound
mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the
estate to be disposed of, the proper object of her bounty, and thecharacter of the
testamentary act . . . The will itself shows that the testatrix even had detailed knowledge
of the nature of her estate. She even identified the lot number and square meters of the
lots she had conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book which contained the
law and jurisprudence on will and succession, there is more than sufficient showing that
she knows the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of
herein holographic will. While it was alleged that the said will was procured by undue and
improper pressure and influence on the part of the beneficiary or of some other person,
the evidence adduced have not shown any instance where improper pressure or
influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified
that the testatrix was still alert at the time of the execution of the will, i.e., at or around the
time of her birth anniversary celebration in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her independence of character and to
some extent, her sense of superiority, which has been testified to in Court, all show the
 unlikelihood of her being unduly influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue influence or improper pressure in question
herein only refer to the making of a will and not as to the specific testamentary provisions
therein which is the proper subject of another proceeding. Hence, under the
circumstances, this Court cannot find convincing reason for the disallowance of the will
herein.

Considering then that it is a well-established doctrine in the law on succession that in

case of doubt, testate succession should be preferred over intestate succession, and the
fact that no convincing grounds were presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid will submitted herein must be
3
admitted to probate. (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The
4
Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." It held
that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the time of prior dispositions.

Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not
dated. It also found that the erasures, alterations and cancellations made thereon had not been
authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following
cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time
of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;
 (2) If the testator was insane, or otherwise mentally incapable of making
a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence of

fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on

the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument
he signed should be his will at the time of affixing his signature thereto.

5
These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a
holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with the
formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the
time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary
6
acts of the decedent.

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they
7
be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New
Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a holographic will
that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic Will have not been noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined. Manresa gave an identical commentary when he said "la omission
de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
8
sentencia de 4 de Abril de 1985." (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the
9 10
holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of
authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic
wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and
with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the
year of its execution, written in its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify
them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810
of the New Civil Code — and not those found in Articles 813 and 814 of the same Code — are essential
to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot
located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the
will sought to be probated. However, in exceptional instances, courts are not powerless to do what the
11
situation constrains them to do, and pass upon certain provisions of the will. In the case at bench,
decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of
her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same
in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the
invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of
the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

#Footnotes

1 Sixteenth Division, composed of Associate Justices Luis L. Victor (ponente), Ricardo J.

Francisco (chairman), and Pacita Cañizares-Nye.

2 Presided by Judge Filemon H. Mendoza.

3 Rollo, pp. 37-39.

4 Impugned Decision, p. 5; Rollo, p. 46.

5 Pecson vs. Coronel, 45 Phil. 216 (1923); See 3 EDGARDO L. PARAS, Civil Code of
the Philippines Annotated (1989), pp. 145-146.

6 See Montanaño vs. Suesa, 14 Phil. 676 (1909).

7 See Fernando vs. Villalon, 3 Phil. 386 (1904).

8 See Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court
of Spain, dated April 4, 1895; See also, 3 MANRESA, Commentarios al Codigo Español
(Quinta ed.), p. 483;See further, 3 ARTURO M. TOLENTINO, Commentaries &
Jurisprudence on the Civil Code (1973), p. 107, citing Castan 341, 5 Valverde 82; 3
AMBROSIO PADILLA, Civil Code Annotated (1987),
pp. 157-158; 2 RAMON C. AQUINO and CAROLINA C. GRIÑO-AQUINO (1990), p. 42.

9 3 PARAS, op. cit.

10 It must be noted, however, that in Kalaw, this Court laid down an exception to the
general rule, when it invalidated the entire will because of an unauthenticated erasure
made by the testator. In that case, the will had only one substantial provision. This was
altered by substituting the original heir with another , with such alteration being
unauthenticated. This was altered by substituting the original heir with another, with such
alteration being unauthenticated. This Court held that the whole will was void "for the
simple reason that nothing remains in the Will after (the provision is invalidated) which
could remain valid. To state that the Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix. But, that change of mind can
neither be given effect because she failed to authenticate it in the manner required by law
by affixing her full signature."
11 Nepomuceno vs. Court of Appeals, 139 SCRA 206 (1985); See Nuguid vs. Nuguid, 17
SCRA 449 (1966); See also Cayetano vs. Leonidas, 129 SCRA 522 (1984).
 EN BANC

[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of
First Instance of Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA,Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of
First Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO
GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE

PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA
NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION,
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL
ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S.
Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C. Aquino
for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.

Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del
Rosario Sarmiento, Et. Al.

SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE;
TESTATRIX’S DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER
WILL.— The declarations in court of the opthalmologist as to the condition of the testatrix’s eyesight fully
establish the fact that her vision remained mainly for viewing distant objects and not for reading print; that
she was, at the time of the execution of the second will on December 29, 1960, incapable of reading and
could not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.— Upon
its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together
into a single sheet of paper, apparently to save on space. Plainly, the testament was not prepared with
any regard for the defective vision of Dña. Gliceria, the typographical errors remained uncorrected
thereby indicating that the execution thereof must have been characterized by haste. It is difficult to
understand that so important a document containing the final disposition of one’s worldly possessions
should be embodied in an informal and untidy written instrument; or that the glaring spelling errors should
have escaped her notice if she had actually retained the ability to read the purported will and had done
so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE —
READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale behind the
requirement of reading the will to the testator if he is blind or incapable of reading the will himself is to
make the provisions thereof known to him, so that he may be able to object if they are not in accordance
with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960 will there
is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that "if
the testator is blind, the will shall be read to him twice," have not been complied with, the said 1960 will
suffer from infirmity that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS;

GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.—
Considering that the alleged deed of sale was executed when Gliceria del Rosario was already practically
blind and that the consideration given seems unconscionably small for the properties, there was likelihood
that a case for annulment might be filed against the estate or heirs of Alfonso Precilla. And the
administratrix being the widow and heir of the alleged transferee, cannot be expected to sue herself in an
action to recover property that may turn out to belong to the estate. This, plus her conduct in securing
new copies of the owner’s duplicate of titles without the court’s knowledge and authority and having the
contract bind the land through issuance of new titles in her husband’s name, cannot but expose her to the
charge of unfitness or unsuitability to discharge the trust, justifying her removal from the administration of
the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT
OF POSSESSION OF REAL PROPERTY." — On the matter of lis pendens, the provisions of the Rules of
Court are clear: notice of the pendency of an action may be recorded in the office of the register of deeds
of the province in which the property is situated, if the action affects "the title or the right of possession of
(such) real property."cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply the
fitness or unfitness of said special administratrix to continue holding the trust, it does not involve or affect
at all the title to, or possession of, the properties covered by TCT Nos. 81735, 81736 and 81737. Clearly,
the pendency of such case (L-26615) is not an action that can properly be annotated in the record of the
titles to the properties.

DECISION
REYES, J.B.L., J.:

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No.
62618) admitting to probate the alleged last will an, testament of the late Gliceria Avelino del Rosario
dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by
certain alleged heirs of said decedent seeking (1) to compel the probate court to remove Consuelo S.
Gonzales-Precilla as special administratrix of the estate, for conflict of interest, to appoint a new one in
her stead; and (2) to order the Register of Deeds of Manila to annotate notice of lis pendens in TCT Nos.
81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married to Consuelo Gonzales y
Narciso, and said to be properly belonging to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as
follows:chanrob1es virtual 1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no
descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old
more or less, and possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the
Court of First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del
Rosario, executed on 29 December 1960, and for her appointment as special administratrix of the latter’s
estate, said to be valued at about P100,000.00, pending the appointment of a regular administrator
thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a
legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario
and children, relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta
Natividad de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios,
Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and
Delfin, surnamed Mauricio, — the latter five groups of persons all claiming to be relatives of Doña Gliceria
within the fifth civil degree. The oppositions invariably charged that the instrument executed in 1960 was
not intended by the deceased to be her true will; that the signatures of the deceased appearing in the will
was procured through undue and improper pressure and influence the part of the beneficiaries and/or
other persons; that the testatrix did not know the object of her bounty; that the instrument itself reveals
irregularities in its execution, and that the formalities required by law for such execution have not been
complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group
of Dr. Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda.
de Precilla as special administratrix, on the ground that the latter possesses interest adverse to the
estate. After the parties were duly heard, the probate court, in its order of 2 October 1965, granted
petitioner’s prayer and appointed her special administratrix of the estate upon a bond for P30,000.00. The
order was premised on the fact the petitioner was managing the properties belonging to the estate even
during the lifetime of the deceased, and to appoint another person as administrator or co administrator at
that stage of the proceeding would only result in further confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court an urgent motion to
require the Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965. The court denied this motion on 22 October 1965 for being premature, it being
unaware that such deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de
Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the
special administratrix. It was their claim that the special administratrix and her deceased husband,
Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of
absolute sale dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon located on Quiapo and San
Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is the
duty of the administrator to protect and conserve the properties of the estate, and it may become
necessary that, an action for the annulment of the deed of sale land for recovery of the aforementioned
parcels of land be filed against the special administratrix, as wife and heir of Alfonso Precilla, the removal
of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing the Special
Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It was
alleged that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla,
in her capacity as special administratrix of the estate of the deceased Gliceria A. del Rosario, filed with
Branch IV of the Court of First Instance of Manila a motion for the issuance of new copies of the owner’s
duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly needed by her "in
the preparation of the inventory" of the properties constituting the estate. The motion having been
granted, new copies of the owner’s duplicates of certificates appearing the name of Gliceria del Rosario
(among which were TCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8
December 1965, according to the oppositors, the same special administratrix presented to the Register of
Deeds the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly
executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in consequence,
said certificates of title were cancelled and new certificates (Nos. 81735, 81736 and 81737) were issued
in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario
(Exhibit "D"). In declaring the due execution of the will, the probate court took note that no evidence had
been presented to establish that the testatrix was not of sound mind when the will was executed; that the
fact that she had prepared an earlier will did not, prevent her from executing another one thereafter; that
the fact that the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page
does not render the latter invalid; that, the erasures and alterations in the instrument were insignificant to
warrant rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were
noted by the oppositors are even indicative of their truthfulness. The probate court, also considering that
petitioner had already shown capacity to administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and interested therein, appointed said
petitioner regular administratrix with a bond for P50,000.00. From this order all the oppositors appealed,
the case being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14 December 1965 for
the removal of the then special administratrix, as follows:jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special administratrix and to appoint
another one in her stead, is in order that an action may be filed against the special administratrix for the
annulment of the deed of sale executed by the decedent on January 10, 1961. Under existing documents,
the properties sold pursuant to the said deed of absolute sale no longer forms part of the estate. The
alleged conflict of interest is accordingly not between different claimants of the same estate. If it is desired
by the movants that an action be filed by them to annul the aforesaid deed absolute sale, it is not
necessary that the special administratrix be removed and that another one be appointed to file such
action. Such a course of action would only produce confusion and difficulties in the settlement of the
estate. The movants may file the aforesaid proceedings, preferably in an independent action, to secure
the nullity of the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the
decedent, the same was also denied, for the reason that if the movants were referring to the old titles,
they could no longer be produced, and if they meant the new duplicate copies thereof that were issued at
the instance of the special administratrix, there would be no necessity therefor, because they were
already cancelled and other certificates were issued in the name of Alfonso Precilla. This order
precipitated the oppositors’ filing in this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr.
Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due course on 6
October 1966.

On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the
Register of Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736,
and 81737 in the name of Alfonso Precilla. And when said official refused to do so, they applied to the
probate court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate a lis
pendens notice in the aforementioned titles contending that the matter of removal and appointment of the
administratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the Supreme Court.
Upon denial of this motion on 12 November 1966, oppositors filed another mandamus action, this time
against the probate court and the Register of Deeds. The case was docketed and given due course in this
Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the order allowing the
probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario,
during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish,
a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and
Valentin Marquez, and acknowledged before notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francisco
Decena, and Francisco Lopez and acknowledged before notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and
Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late husband of
petitioner special administratrix) to witness the execution of the last will of Doña Gliceria A. del Rosario;
that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the
afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind,
although she was being aided by Precilla when she walked; 3 that the will, which was already prepared,
was first read "silently" by the testatrix herself before she signed it; 4 that he three witnesses thereafter
signed the will in the presence of the testatrix and the notary public and of one another. There is also
testimony that after the testatrix and the witnesses to the will acknowledged the instrument to be their
voluntary act and deed, the notary public asked for their respective residence certificates which were
handed to him by Alfonso Precilla, clipped together; 5 that after comparing them with the numbers already
written on the will, the notary public filled in the blanks in the instrument with the date, 29 January 1960,
before he affixed his signature and seal thereto. 6 They also testified that on that occasion no pressure or
influence has been exerted by any person upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are
evident from the records. The will appeared to have been prepared by one who is not conversant with the
spelling of Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog
with a Visayan accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8 admitted their
relationship or closeness to Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria
del Rosario on 29 December 1960 to witness an important document, 10 and who took their residence
certificates from them a few days before the will was signed. 11 Precilla had met the notary public and
witnesses Rosales and Lopez at the door of the residence of the old woman; he ushered them to the
room at the second floor where the signing of the document took place; 12 then he fetched witness
Decena from the latter’s haberdashery shop a few doors away and brought him to, the house the
testatrix. 13 And when the will was actually executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness of the probate
court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and
defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses
Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating.
Said ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that
when Doña Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to have
cataract (opaque lens), 15 and that it was "above normal in pressure", denoting a possible glaucoma, a
disease that leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D
from which you could inform the court as to the condition of the vision of the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which
showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left
eye with her correction 20 over 300 (20/300).

"Q In layman’s language, Doctor, what is the significance of that notation that the right had a degree of 20
over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of
twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw virtua1aw
library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes
Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting
fingers," 17 at five feet. The cross-examination of the doctor further elicited the following
responses:jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?

"A After her discharge from the hospital, she was coming to my clinic for further examination and then
sometime later glasses were prescribed.

x x x

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the eye which I
operated — she could see only forms but not read. That is on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n.,
hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that
Gliceria del Rosario was provided with aphakic lenses and "had been under medical supervision up to
1963 with apparently good vision", the doctor had this to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean that she was able to read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report
was made on pure recollections and I recall she was using her glasses although I recall also that we have
to give her medicines to improve her vision, some medicines to improve her identification some more.

x x x

"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand
knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact
that notwithstanding the operation and removal of the cataract in her left eye and her being fitted with
aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not
for reading print. Thus, the conclusion is inescapable that with the condition of her eyesight in August,
1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was
incapable f reading, and could not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit
"D", acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to much so that the words had to
be written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the
word "and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was
not prepared with any regard for the defective vision of Doña Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for
"Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one’s worldly possessions should be embodied in an informal
and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she
had actually retained the ability to read the purported will and had done so. The record is thus convincing
that the supposed testatrix could not have physically read or understood the alleged testament, Exhibit
"D", and that its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to
kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the
photographs, Exhibits "E" to "E-1", in no way proves; that she was able to read a closely typed page,
since the acts shown do not require vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or signing of one’s name, when sufficiently
practiced, becomes automatic, so that one need only to have a rough indication of the place where the
signature is to be affixed in order to be able to write it. Indeed, a close examination of the checks,
amplified in the photograph, Exhibit "O", et seq., reinforces the contention of oppositors that the alleged
testatrix could not see at normal reading distance: the signatures in the checks are written far above the
printed base, lines, and the names of the payees as well as the amounts written do not appear to be in
the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as
appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have
required observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged."cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so
that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to
insure that the dispositions of the will are properly communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will
should be read to the latter, not only once but twice, by two different persons, and that the witnesses have
to act within the range of his (the testator’s) other senses. 19

In connection with the will here in question, there is nothing in the records to show that the above
requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated
suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the probate
court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of
the estate of the deceased Doña Gliceria (Petition, G.R. No. L-26615, Annex "B").

The oppositors’ petition was based allegedly on the existence in the special administratrix of an interest
adverse to that of the estate. It was their contention that through fraud her husband had caused the
deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the
latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the
ownership of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of
P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition)
reasoned out that since the properties were already sold no longer form part of the estate. The conflict of
interest would not be between the estate and third parties, but among the different claimants of said
properties, in which case, according to the court, the participation of the special administratrix in the
action for annulment that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity
of the conveyance or sale of the properties. In short, if proper, the action for annulment would have to be
undertaken on behalf of the estate by the special administratrix, affecting as it does the property or rights
of the deceased. 20 For the rule is that only where there is no special proceeding for the settlement of the
estate of the deceased may the legal heirs commence an action arising out of a right belonging to their
ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an
ordinary and separate action would have to be instituted, the matter not falling within the competence of
the probate court. 22 Considering the facts then before it, i.e., the alleged deed of sale having been
executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that
the consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for annulment might indeed be filed against the
estate or heirs of Alfonso Precilla. And the administratrix, being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong
to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies of the
owner’s duplicates of TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and
on the pretext that she needed them in the preparation of the inventory of the estate, when she must have
already known by then that the properties covered therein were already "conveyed" to her husband by the
deceased, being the latter’s successor, and having the contract bind the land through issuance of new
titles in her husband’s name cannot but expose her to the charge of unfitness or unsuitableness to
discharge the trust, justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the Hongkong
and Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the
same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken
action on the complaint against the alleged withdrawals from the bank deposits of the deceased, because
as of that time the court had not yet been apprised that such deposits exist. Furthermore, as explained by
the special administratrix in her pleading of 30 October 1965, the withdrawals referred to by the
oppositors could be those covered by checks issued in the name of Gliceria del Rosario during her
lifetime but cleared only after her death. That explanation, which not only appears plausible but has not
been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with the
issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of
the pendency of an action may be recorded in the office of the register of deeds of the province in which
the property is situated, if the action affects "the title or the right of possession of (such) real property." 23
In the case at bar, the pending action which oppositors seek to annotate in the records of TCT Nos.
81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As
previously discussed in this opinion, however, that case is concerned merely with the correctness of the
denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy there
is simply the fitness or unfitness of said special administratrix to continue holding the trust; it does not
involve or affect at all the title to, or possession of, the properties covered by said TCT Nos. 81735, 81736
and 81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated
in the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will
of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being
meritorious, the appealed order is set aside and the court below is ordered to remove the administratrix,
Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased Doña Gliceria
Avelino del Rosario as special administrator for the purpose of instituting action on behalf of her estate to
recover the properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864,
petition is dismissed. No costs.

Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ., concur.

Zaldivar and Castro, JJ., took no part.

Barredo, J., is on leave.

Endnotes:

1. At that time, no inventory of the properties belonging to the estate has yet been submitted by the
special administratrix.

2. Precilla died on 17 July 1965 or before the death of Gliceria Rosario.

3. Page 24, hearing of 2 Dec. 1965; page 75, hearing of 3 Dec. 1965; page 61, hearing of 22 Dec. 1965.

4. Pages 17, 31, hearing of 2 Dec. 1965; page 110, 3 Dec. 1965; page 61, hearing of 22 Dec. 1965.

5. Page 15, hearing of 22 Dec. 1965.

6. Page 16, idem.

7. Page 58, t.s.n., hearing of 2 December 1965.

8. Pages 85, 86, t.s.n, hearing of 3 December 1965; pages 47, 48, t.s.n., hearing of 22 December 1965.

9. Pages 10, 37, t.s.n., hearing of 2 December 1965; page 83; t.s.n., hearing of 3 December 1965; pages
37, 38, t.s.n., hearing of 22 December 1965.

10. Page 44, t.s.n., healing of 3 December 1965; pages 45-46, t.s.n., 22 December 1965.

11. Pages 69-70, t.s.n., hearing of 3 December 1965; page 47, t.s.n., hearing of 22 December 1965; page
30, t.s.n., 2 December, 1965.

12. Page 47, t.s.n., 3 December 1965; pages 54, 55, t.s.n. hearing of 22 December 1965; pages 35, 36,
t.s.n., 21 January 1966.

13. Pages 14, 15, 2 December 1965.

14. Page 14, t.s.n., 1 December 1965; page 13, t.s.n., 3 December 1965; page 27, t.s.n., 22 December
1965; page 9, t.s.n., 21 January 1966.

15. Page 13, t.s.n., hearing of 23 March 1966.

16. Page 17, t.s.n., hearing of 23 March 1966.

17. "Counting fingers" is a standard procedure adopted to determine the extent of vision of a patient with
very poor vision. (page 25, t.s.n., hearing of 23 March 1966).

18. Article 808, New Civil Code.

19. Vol. III, Reyes and Puno, An Outline of Philippine Civil Law, 1967 ed., page 21, citing Alexander or
Wills.

20. Section 2, Revised Rule 87.

21. Vera v. Galauran, 67 Phil. 213.

22. Baquial v. Amihan, 92 Phil. 501; Mallari v. Mallari, 92 Phil. 694; Ongsingco v. Tan, 97 Phil. 330.

22a Cf. Jaroda v. Cusi, L-28214, 30 July 1969, 28 SCRA 1008.

23. Section 24, Revised Rule 14.