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

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.

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.

Probate of Will of the late William R. Giberson, G.R. No. L-4113, June 30, 1952.
20
JUL
FACTS

Lela G. Dalton presented on February 10, 1949 an application with the Court of
First Instance of Cebu for the probate of the holographic will of William R.
Giberson, a citizen of the State of Illinois, United States, dated April 29, 1920 in
San Francisco, California. Spring Giberson, legitimate son of William R. Giberson,
presented an opposition alleging that the will is apocrypha (with questionable
authenticity), it does not represent the true will of the late Giberson, and has not
been granted according to the law.

ISSUE

Whether the wills executed outside the Philippines may be probated without
being first probated in the country of its execution.

RULING
YES. Section 635 of the Code of Civil Procedure stating that “a will made out of
the Philippine Islands… may be proved, allowed, and recorded in the Philippine
Islands, and shall have the same effect as if executed according to the laws of
these Islands” is still in force and has not been abrogated by Rule 78 of the Rules
of Court. Here, the will of William Giberson need not be probated first in the State
of Illinois, USA before it may be probated here in the Philippines. The Court
opined that Section 635 of the Code of Civil Procedure is substantive in nature
and therefore could not have been repealed by the Rules of Court which are only
procedural in nature.

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.

G.R. No. L-6044 November 24, 1952

FORTUNATA VDA. DE RODRIGUEZ, BENJAMIN RODRIGUEZ, MERCEDES

RODRIGUEZ DE HALLARE, LUZ RODRIGUEZ DE CARLOS AND ANTONIO RODRIGUEZ,
petitioners,
vs.
HON. BIENVENIDO A. TAN, Judge of the Court of First Instance of Rizal, and
ABELARDO RODRIGUEZ, respondents.

Godofredo C. Montesines and Antonio Rodriguez for petitioners.

Lorenzo Sumulong, Guillermo Romero and Antonio C. Masaquel for respondent.
Ramon Ozaeta as amicus curiae.

BAUTISTA ANGELO, J.:

This is a petition for certiorari seeking to nullify the order of respondent Judge
dated August 11, 1952, wherein after overruling the opposition to the institution
of the intestate estate proceedings of the late Flaviano Rodriguez, he appointed
Abelardo Rodriguez administrator of the estate upon filing a bond in the sum of
P2,000.

It is averred in the petition that Flaviano Rodriguez died on February 8, 1944, at

Parañaque, Rizal, leaving an estate with a value of P10,000; that the surviving
heirs are the widow, Fortunata Vda. de Rodriguez, and six children who are the
petitioners and respondent Abelardo Rodriguez all the heirs, who were then
already of age, entered into a verbal agreement whereby they agreed not to
make a liquidation of the estate but to place it under the administration of the
widow with the understanding that each of the six children would be entitled to
receive a portion of the income in equal shares from year to year for the needs of
their families provided that they do not exceed the participation to which they are
entitled; that on March 19, 1952, or eight years after the death of Flaviano
Rodriguez, respondent Abelardo Rodriguez filed a petition for administration of
their intestate estate of said deceased in spite of his knowledge that the estate
had no debts and all the heirs were of age; that on June 2, 1952, the other heirs,
petitioners herein, objected to the petition invoking the rule that if the estate is
free from obligations and the heirs are all of age, no administration proceedings
shall be allowed; that on August 11, 1952, respondent Judge, after overruling the
opposition, appointed Abelardo Rodriguez administrator of the estate upon filing
the requisite bond.

Respondents herein, in answer to the petition, admitted the existence of a verbal

agreement entered into between the heirs in 1944, wherein they agreed not to
liquidate the estate and to place it under the administration of the widow in view
of the unsettled conditions then prevailing at the time, but they contend that
while that was the understanding the same was not carried out because in reality
it was Benjamin Rodriguez, one of the petitioners herein, who took over the
administration of the estate and in the discharge of his duties he failed and
refused to give to respondent Abelardo Rodriguez his share in the income which
he badly needed for the support of his family, for which reason he started the
intestate proceedings which gave rise to the present petition for certiorari.

The issue to be determined is whether respondent Judge acted properly in

maintaining the administration proceedings and in appointing Abelardo Rodriguez
as administrator of the estate notwithstanding the fact that the estate has no
debts and all the heirs entitled to share in its distribution are all of age.

Under section 1, rule 74 of the Rules of Court, if the decedent left no debts and
the heirs are all of age, or the minors are represented by their judicial guardians,
the parties may, without securing letters of administration, divide the estate
among themselves as they see fit, and should they disagree, they may do so in an
ordinary action of partition.

Construing the scope of said section 1, (formerly section 596, Act No. 190), this
Court repeatedly held "that when a person dies without leaving pending
obligations to be paid, his heirs, whether of age or not, are not bound to submit
the property to a judicial administration, which is always long and costly, or to
apply for the appointment of an administrator by the court. It has been uniformly
held that in such case the judicial administration and the appointment of an
administrator are superfluous and unnecessary proceedings" (Ilustre vs. Alaras
Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bondad vs. Bondad,
34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil., 317;
Utulo vs. Pasion de Garcia, 66 Phil., 302).

It, therefore, appears from said section 1, as construed by this Court, that when
the estate has no pending obligations to be paid, his heirs, whether of age or not,
are not bound to submit the property to a judicial administration for the reason
that it is superfluous or unnecessary, and in most cases long and costly, in which
case the way left to the heirs is to divide the estate among themselves as they
may see fit, and should they disagree, they may do so in an ordinary action of
partition. But, is this pattern mandatory upon the heirs? Should the heirs be
unable to agree on a settlement of the estate, do they have to resort necessarily
to an ordinary action of partition? Can they not choose to institute administration
proceedings?

Our answer is that section 1 does not preclude the heirs from instituting
administration proceedings, even if the estate has no debts or obligations, if they
do not desire to resort for good reasons to an ordinary action of partition. While
section 1 allows the heirs to divide the estate among themselves as they may see
fit, or to resort to an ordinary action of partition, it does not compel them to do
so if they have good reasons to take a different course of action. Said section is
not mandatory or compulsory as may be gleaned from the use made therein of
the word may. If the intention were otherwise the framer of the rule would have
employed the word shall as was done in other provisions that are mandatory in
character. Note that the word may is used not only once but in the whole section
which indicates an intention to leave the matter entirely to the discretion of the
heirs.

The inquiry before us is not new. In a case where one of the heirs chose to
institute administration proceedings in court, even if the estate had no debts, and
the widow sought to dismiss the case invoking in support of her contention the
doctrine enunciated in the cases already adverted to, this Court said:

The principal ground of the opposition is that the heirs being of legal age, and
their being no proof that there is any valid and effective credit against the
deceased, no legal reason exists for the court to appoint an administrator, as
prayed for in the petition, citing in support of this contention the doctrine
enunciated in the case of Ilustre vs. Alaras Frondosa (17 Phil., 321); Bondad vs.
Bondad (34 Phil., 232); Baldemor vs. Malangyaon (34 Phil., 367).
It is true that, under section 596 of the Code of Civil Procedure, whenever all the
heirs of a person who died intestate are lawful age and legal capacity, and there
are no debts due from the estate, or all the debts have been paid, the heirs may,
by agreement duly executed in writing by all of them, and not otherwise,
apportion and divide the estate among themselves, as they may see fit, without
court proceedings. But there is nothing in this section which prohibits said heirs
from instituting special proceedings for the administration of the intestate estate
if they cannot agree on the extrajudicial partition and appointment of the same.
(Orozco vs. Garcia, 50 Phil., 149, 151.)

In this particular case, however, we find that the core of petitioners' objection is
not that the heirs have erroneously instituted these administration proceedings
but that the court erred in appointing Abelardo Rodriguez administrator of the
estate. It is claimed that Abelardo Rodriguez was appointed administrator without
the petitioners having been given an opportunity to be heard. But this claim has
no basis it appearing that the parties had been duly heard before the court issued
its order now complained of. It appears that both parties submitted the names of
the persons they wanted to be appointed as administrator and the court made its
choice only after weighing the fitness and qualifications of the persons
recommended. Thus, on this point, the court said:

The petitioner in this case appears to be qualified to act as administrator of the

estate of the deceased Flaviano Rodriguez and does not possess any of the
disqualifications. Moreover, he is one of the heirs left by the deceased. Inasmuch
as one of the oppositors appear to be more qualified to act as administrator of
the estate, the court is inclined to grant the petition presented by Abelardo
Rodriguez. (Annex D)

The petition is dismissed with costs. The preliminary injunction issued is hereby
dissolved.
G.R. No. L-16749 January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN,

DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased,
Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.

M. R. Sotelo for executor and heir-appellees.

Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.

LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of Davao, Hon.
Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated
September 14, 1949, approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be enjoyed during her
lifetime, and in case of death without issue, one-half of said residue to be payable
to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will
of the testator Edward E. Christensen. The will was executed in Manila on March
5, 1951 and contains the following provisions:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight
years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants
except my above named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact
that she was baptized Christensen, is not in any way related to me, nor has she
been at any time adopted by me, and who, from all information I have now
resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in
trust for the said Maria Helen Christensen with the Davao Branch of the Philippine
National Bank, and paid to her at the rate of One Hundred Pesos (P100.00),
Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted..

xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as
aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death and which may have come to
me from any source whatsoever, during her lifetime: ....

It is in accordance with the above-quoted provisions that the executor in his final
account and project of partition ratified the payment of only P3,600 to Helen
Christensen Garcia and proposed that the residue of the estate be transferred to
his daughter, Maria Lucy Christensen.

Opposition to the approval of the project of partition was filed by Helen

Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an
acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-
84 an acknowledged natural child of the deceased Edward E. Christensen. The
legal grounds of opposition are (a) that the distribution should be governed by the
laws of the Philippines, and (b) that said order of distribution is contrary thereto
insofar as it denies to Helen Christensen, one of two acknowledged natural
children, one-half of the estate in full ownership. In amplification of the above
grounds it was alleged that the law that should govern the estate of the deceased
Christensen should not be the internal law of California alone, but the entire law
thereof because several foreign elements are involved, that the forum is the
Philippines and even if the case were decided in California, Section 946 of the
California Civil Code, which requires that the domicile of the decedent should
apply, should be applicable. It was also alleged that Maria Helen Christensen
having been declared an acknowledged natural child of the decedent, she is
deemed for all purposes legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of the United
States and of the State of California at the time of his death, the successional
rights and intrinsic validity of the provisions in his will are to be governed by the
law of California, in accordance with which a testator has the right to dispose of
his property in the way he desires, because the right of absolute dominion over
his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877,
176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179,
Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed
various motions for reconsideration, but these were denied. Hence, this appeal.

The most important assignments of error are as follows:

I

THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE

SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF
EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST
SHARE IN THE INHERITANCE.

II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO

RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND
CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.

III

THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER

INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE
INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION
OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE
GOVERNED BY THE LAWS OF THE PHILIPPINES.

IV

THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF

DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE
LAWS.

V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE
LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE
ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States
and of the State of California at the time of his death. But there is also no
question that at the time of his death he was domiciled in the Philippines, as
witness the following facts admitted by the executor himself in appellee's brief:

In the proceedings for admission of the will to probate, the facts of record show
that the deceased Edward E. Christensen was born on November 29, 1875 in New
York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school
teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with
Port of Embarkation as the City of San Francisco, in the State of California, U.S.A.
He stayed in the Philippines until 1904.

In December, 1904, Mr. Christensen returned to the United States and stayed
there for the following nine years until 1913, during which time he resided in, and
was teaching school in Sacramento, California.

Mr. Christensen's next arrival in the Philippines was in July of the year 1913.
However, in 1928, he again departed the Philippines for the United States and
came back here the following year, 1929. Some nine years later, in 1938, he again
returned to his own country, and came back to the Philippines the following year,
1939.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1äwphï1.ñët

Being an American citizen, Mr. Christensen was interned by the Japanese Military
Forces in the Philippines during World War II. Upon liberation, in April 1945, he
left for the United States but returned to the Philippines in December, 1945.
Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB"
and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21,
1953.)

In April, 1951, Edward E. Christensen returned once more to California shortly

after the making of his last will and testament (now in question herein) which he
executed at his lawyers' offices in Manila on March 5, 1951. He died at the St.
Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3)

In arriving at the conclusion that the domicile of the deceased is the Philippines,
we are persuaded by the fact that he was born in New York, migrated to
California and resided there for nine years, and since he came to the Philippines in
1913 he returned to California very rarely and only for short visits (perhaps to
relatives), and considering that he appears never to have owned or acquired a
home or properties in that state, which would indicate that he would ultimately
abandon the Philippines and make home in the State of California.

Sec. 16. Residence is a term used with many shades of meaning from mere
temporary presence to the most permanent abode. Generally, however, it is used
to denote something more than mere physical presence. (Goodrich on Conflict of
Laws, p. 29)

As to his citizenship, however, We find that the citizenship that he acquired in

California when he resided in Sacramento, California from 1904 to 1913, was
never lost by his stay in the Philippines, for the latter was a territory of the United
States (not a state) until 1946 and the deceased appears to have considered
himself as a citizen of California by the fact that when he executed his will in 1951
he declared that he was a citizen of that State; so that he appears never to have
intended to abandon his California citizenship by acquiring another. This
conclusion is in accordance with the following principle expounded by Goodrich in
his Conflict of Laws.

The terms "'residence" and "domicile" might well be taken to mean the same
thing, a place of permanent abode. But domicile, as has been shown, has acquired
a technical meaning. Thus one may be domiciled in a place where he has never
been. And he may reside in a place where he has no domicile. The man with two
homes, between which he divides his time, certainly resides in each one, while
living in it. But if he went on business which would require his presence for
several weeks or months, he might properly be said to have sufficient connection
with the place to be called a resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker. Acquisition of a domicile
of choice requires the exercise of intention as well as physical presence.
"Residence simply requires bodily presence of an inhabitant in a given place,
while domicile requires bodily presence in that place and also an intention to
make it one's domicile." Residence, however, is a term used with many shades of
meaning, from the merest temporary presence to the most permanent abode,
and it is not safe to insist that any one use et the only proper one. (Goodrich, p.
29)

The law that governs the validity of his testamentary dispositions is defined in
Article 16 of the Civil Code of the Philippines, which is as follows:

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 be the nature of the
property and regardless of the country where said property may be found.

The application of this article in the case at bar requires the determination of the
meaning of the term "national law" is used therein.

There is no single American law governing the validity of testamentary provisions

in the United States, each state of the Union having its own private law applicable
to its citizens only and in force only within the state. The "national law" indicated
in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or
apply to any general American law. So it can refer to no other than the private law
of the State of California.

The next question is: What is the law in California governing the disposition of
personal property? The decision of the court below, sustains the contention of
the executor-appellee that under the California Probate Code, a testator may
dispose of his property by will in the form and manner he desires, citing the case
of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes
the provisions of Article 946 of the Civil Code of California, which is as follows:

If there is no law to the contrary, in the place where personal property is situated,
it is deemed to follow the person of its owner, and is governed by the law of his
domicile.

The existence of this provision is alleged in appellant's opposition and is not

denied. We have checked it in the California Civil Code and it is there. Appellee,
on the other hand, relies on the case cited in the decision and testified to by a
witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's
behalf that as the deceased Christensen was a citizen of the State of California,
the internal law thereof, which is that given in the abovecited case, should govern
the determination of the validity of the testamentary provisions of Christensen's
will, such law being in force in the State of California of which Christensen was a
citizen. Appellant, on the other hand, insists that Article 946 should be applicable,
and in accordance therewith and following the doctrine of the renvoi, the
question of the validity of the testamentary provision in question should be
referred back to the law of the decedent's domicile, which is the Philippines.

The theory of doctrine of renvoi has been defined by various authors, thus:

The problem has been stated in this way: "When the Conflict of Laws rule of the
forum refers a jural matter to a foreign law for decision, is the reference to the
purely internal rules of law of the foreign system; i.e., to the totality of the foreign
law minus its Conflict of Laws rules?"

On logic, the solution is not an easy one. The Michigan court chose to accept the
renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the
matter back to Michigan law. But once having determined the the Conflict of Laws
principle is the rule looked to, it is difficult to see why the reference back should
not have been to Michigan Conflict of Laws. This would have resulted in the
"endless chain of references" which has so often been criticized be legal writers.
The opponents of the renvoi would have looked merely to the internal law of
Illinois, thus rejecting the renvoi or the reference back. Yet there seems no
compelling logical reason why the original reference should be the internal law
rather than to the Conflict of Laws rule. It is true that such a solution avoids going
on a merry-go-round, but those who have accepted the renvoi theory avoid this
inextricabilis circulas by getting off at the second reference and at that point
applying internal law. Perhaps the opponents of the renvoi are a bit more
consistent for they look always to internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead
that greater uniformity will result from adoption of their respective views. And
still more strange is the fact that the only way to achieve uniformity in this choice-
of-law problem is if in the dispute the two states whose laws form the legal basis
of the litigation disagree as to whether the renvoi should be accepted. If both
reject, or both accept the doctrine, the result of the litigation will vary with the
choice of the forum. In the case stated above, had the Michigan court rejected
the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would
be for the woman. The same result would happen, though the courts would
switch with respect to which would hold liability, if both courts accepted the
renvoi.

The Restatement accepts the renvoi theory in two instances: where the title to
land is in question, and where the validity of a decree of divorce is challenged. In
these cases the Conflict of Laws rule of the situs of the land, or the domicile of the
parties in the divorce case, is applied by the forum, but any further reference goes
only to the internal law. Thus, a person's title to land, recognized by the situs, will
be recognized by every court; and every divorce, valid by the domicile of the
parties, will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)

X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable

property in Massachusetts, England, and France. The question arises as to how
this property is to be distributed among X's next of kin.

Assume (1) that this question arises in a Massachusetts court. There the rule of
the conflict of laws as to intestate succession to movables calls for an application
of the law of the deceased's last domicile. Since by hypothesis X's last domicile
was France, the natural thing for the Massachusetts court to do would be to turn
to French statute of distributions, or whatever corresponds thereto in French law,
and decree a distribution accordingly. An examination of French law, however,
would show that if a French court were called upon to determine how this
property should be distributed, it would refer the distribution to the national law
of the deceased, thus applying the Massachusetts statute of distributions. So on
the surface of things the Massachusetts court has open to it alternative course of
action: (a) either to apply the French law is to intestate succession, or (b) to
resolve itself into a French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a French court would do. If it
accepts the so-called renvoi doctrine, it will follow the latter course, thus applying
its own law.

This is one type of renvoi. A jural matter is presented which the conflict-of-laws
rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in
turn, refers the matter back again to the law of the forum. This is renvoi in the
narrower sense. The German term for this judicial process is 'Ruckverweisung.'"
(Harvard Law Review, Vol. 31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as

governing a particular case, the further question may arise: Are the rules as to the
conflict of laws contained in such foreign law also to be resorted to? This is a
question which, while it has been considered by the courts in but a few instances,
has been the subject of frequent discussion by textwriters and essayists; and the
doctrine involved has been descriptively designated by them as the "Renvoyer" to
send back, or the "Ruchversweisung", or the "Weiterverweisung", since an
affirmative answer to the question postulated and the operation of the adoption
of the foreign law in toto would in many cases result in returning the main
controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)

Another theory, known as the "doctrine of renvoi", has been advanced. The
theory of the doctrine of renvoi is that the court of the forum, in determining the
question before it, must take into account the whole law of the other jurisdiction,
but also its rules as to conflict of laws, and then apply the law to the actual
question which the rules of the other jurisdiction prescribe. This may be the law
of the forum. The doctrine of the renvoi has generally been repudiated by the
American authorities. (2 Am. Jur. 296)

The scope of the theory of renvoi has also been defined and the reasons for its
application in a country explained by Prof. Lorenzen in an article in the Yale Law
Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:

The recognition of the renvoi theory implies that the rules of the conflict of laws
are to be understood as incorporating not only the ordinary or internal law of the
foreign state or country, but its rules of the conflict of laws as well. According to
this theory 'the law of a country' means the whole of its law.

xxx xxx xxx

Von Bar presented his views at the meeting of the Institute of International Law,
at Neuchatel, in 1900, in the form of the following theses:

(1) Every court shall observe the law of its country as regards the application of
foreign laws.

(2) Provided that no express provision to the contrary exists, the court shall
respect:

(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute
shall be determined by the law of the domicile, or even by the law of the place
where the act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that
one of them is necessarily competent, which agree in attributing the
determination of a question to the same system of law.

xxx xxx xxx

If, for example, the English law directs its judge to distribute the personal estate
of an Englishman who has died domiciled in Belgium in accordance with the law
of his domicile, he must first inquire whether the law of Belgium would distribute
personal property upon death in accordance with the law of domicile, and if he
finds that the Belgian law would make the distribution in accordance with the law
of nationality — that is the English law — he must accept this reference back to
his own law.

We note that Article 946 of the California Civil Code is its conflict of laws rule,
while the rule applied in In re Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of California are to be enforced jointly,
each in its own intended and appropriate sphere, the principle cited In re
Kaufman should apply to citizens living in the State, but Article 946 should apply
to such of its citizens as are not domiciled in California but in other jurisdictions.
The rule laid down of resorting to the law of the domicile in the determination of
matters with foreign element involved is in accord with the general principle of
American law that the domiciliary law should govern in most matters or rights
which follow the person of the owner.

When a man dies leaving personal property in one or more states, and leaves a
will directing the manner of distribution of the property, the law of the state
where he was domiciled at the time of his death will be looked to in deciding legal
questions about the will, almost as completely as the law of situs is consulted in
questions about the devise of land. It is logical that, since the domiciliary rules
control devolution of the personal estate in case of intestate succession, the same
rules should determine the validity of an attempted testamentary dispostion of
the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as
controlling by the Conflict of Laws rules at the situs property, and the reason for
the recognition as in the case of intestate succession, is the general convenience
of the doctrine. The New York court has said on the point: 'The general principle
that a dispostiton of a personal property, valid at the domicile of the owner, is
valid anywhere, is one of the universal application. It had its origin in that
international comity which was one of the first fruits of civilization, and it this age,
when business intercourse and the process of accumulating property take but
little notice of boundary lines, the practical wisdom and justice of the rule is more
apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed
out as the national law is the internal law of California. But as above explained the
laws of California have prescribed two sets of laws for its citizens, one for
residents therein and another for those domiciled in other jurisdictions. Reason
demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens
domiciled abroad. If we must enforce the law of California as in comity we are
bound to go, as so declared in Article 16 of our Civil Code, then we must enforce
the law of California in accordance with the express mandate thereof and as
above explained, i.e., apply the internal law for residents therein, and its conflict-
of-laws rule for those domiciled abroad.

It is argued on appellees' behalf that the clause "if there is no law to the contrary
in the place where the property is situated" in Sec. 946 of the California Civil Code
refers to Article 16 of the Civil Code of the Philippines and that the law to the
contrary in the Philippines is the provision in said Article 16 that the national law
of the deceased should govern. This contention can not be sustained. As
explained in the various authorities cited above the national law mentioned in
Article 16 of our Civil Code is the law on conflict of laws in the California Civil
Code, i.e., Article 946, which authorizes the reference or return of the question to
the law of the testator's domicile. The conflict of laws rule in California, Article
946, Civil Code, precisely refers back the case, when a decedent is not domiciled
in California, to the law of his domicile, the Philippines in the case at bar. The
court of the domicile can not and should not refer the case back to California;
such action would leave the issue incapable of determination because the case
will then be like a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and the country of his
domicile. The Philippine court must apply its own law as directed in the conflict of
laws rule of the state of the decedent, if the question has to be decided,
especially as the application of the internal law of California provides no legitime
for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the
Philippines, makes natural children legally acknowledged forced heirs of the
parent recognizing them.

The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40
Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock,
52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to
support the decision can not possibly apply in the case at bar, for two important
reasons, i.e., the subject in each case does not appear to be a citizen of a state in
the United States but with domicile in the Philippines, and it does not appear in
each case that there exists in the state of which the subject is a citizen, a law
similar to or identical with Art. 946 of the California Civil Code.

We therefore find that as the domicile of the deceased Christensen, a citizen of

California, is the Philippines, the validity of the provisions of his will depriving his
acknowledged natural child, the appellant, should be governed by the Philippine
Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the
internal law of California..

WHEREFORE, the decision appealed from is hereby reversed and the case
returned to the lower court with instructions that the partition be made as the
Philippine law on succession provides. Judgment reversed, with costs against
appellees.
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 the registry receipt submitted on April 27, 1964 by the
executor.1

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 death.2 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 to the conflict of
law rule of Texas, it should not be presumed different from ours.3 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, Congress deleted 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.
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-parte presentation 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 of Bellis 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.

.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 No.

Lot No.

Area in Has.

Tax Dec.

Ass. Value

T-6530

3663

1.6249

18740

P 340.00

T-6548

3445-C
24.2998

18730

7,290.00

T-6525

3670

6.2665

18736

1,880.00

T-6521

3666

11.9251

18733
3,580.00

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.

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 absolute revocation 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, rather than an alteration
or departure therefrom.1 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 sense.2
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 real intent,3 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.)

. Guinto v. Medina, 50 O.G. #1 p. 199, October 7, 1953.

25
JUL
FACTS

Leon Guinto filed an action for forcible entry against Santiago Medina alleging
that he has been in possession of the said parcel of land since 1934 and that
Medina by means of force and intimidation deprived him of his possession
thereof. The trial court ruled in favor of Guinto but it dismissed the prayer for
damages. Pending appeal, Medina died. Medina was substituted by his heirs. The
Court awarded the damages appealed.

ISSUE

Whether or not the heirs of Medina are liable for damages, and if in the
affirmative to what extent.

RULING

YES. The action to recover damages survives notwithstanding the death of the
adverse party whom damages are sought to be recovered. In this case, the heirs
of Medina are liable to pay the damages as they are merely substituted in the
place of Medina upon his death. However, their liability is only to the extent of
the value of the property, which they might have received from the deceased
defendant.