Art 856 - 959 Full Text

1 | W i l l s a n d S u c c e s s i o n ( A r t s . 8 4 0 – 9 5 9 )

Art. 857 – Substitution of Heir

Art. 858 (1) & (4) – Simple or Common Substitution; Fideicommissary Substitution

Art. 859 - Substitution in case of predecease, renunciation or incapacity of heir.

G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix, petitioner-

appellee,vs.

MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ,

legatees, oppositors- appellants.

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she submitted an inventory of the estate as follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila........................................ P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ........................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..........................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co................................................................... 2,350.73

TOTAL........................................................ P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan- tizada con prenda de las acciones de La Carlota............ P 5,000,00

VALOR LIQUIDO........................................ P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en atencion a que dicha propiedad fue creacion del querido padre del otorgante y por ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.


A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier memento vender a tercero los bienes objeto delegado, sin intervencion alguna de los titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the testator's express win to give this property to them Nonetheless, the lower court approved the project of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of his estate over which he could impose no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle

because the testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what she is given under the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that there are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.


The appellants do not question the legality of the substitution so provided. The appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the one-third usufruct over the estate given to the widow Marcelle However, this question has become moot because as We have ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or stated differently because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or transmission. The Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be only one tranmission or substitution, and the substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman, however, construe the word "degree" as generation, and the present Code has obviously followed this interpretation. by providing that the substitution shall not go beyond one degree "from the heir originally instituted." The Code thus clearly indicates that the second heir must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only relatives who are one generation or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.


The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to costs.

SO ORDERED.

Art. 863 – Fideicomissary Substitution

February 13, 1930

G.R. No. 31703CARMEN G. DE PEREZ, trustee of the estate of Ana

Maria Alcantara, plaintiff-appellee,vs.

MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila,

defendants-appellants.

The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena.

And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana.

The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.

The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.

The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors:

1. The lower court erred in holding that a trust was created by the will of Doña Ana Maria Alcantara.

2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is

the property of the children of the plaintiff as "herederos fidei-comisarios."

3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs.

The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute.

The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below:

Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix and properties composing my hereditary estate, that she may enjoy them with God's blessing and my own.

Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible.

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the duties of administering my estate, because I recognize that his character is not adapted to management and administration.

The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution.

This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the


instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact that by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution.

The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instants case is a fideicommissary substitution.

In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance.

The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:

1. A first heir called primarily to the enjoyment of the estate.

2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate.

3. A second heir.

To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary. (Emphasis ours.)

It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust."

It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution.

Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribed that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree."

Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above.


Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the case where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit:

1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will.

2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she should die after the testatrix.

3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI.

Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator.

By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara.

Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.

The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.

G.R. Nos. L-27860 and L-27896 March 29, 1974

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles

Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo), petitioner,

vs.THE HONORABLE VENICIO ESCOLIN, Presiding

Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents.

G.R. Nos. L-27936 & L-27937 March 29, 1974

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc.

No. 1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant,

vs.LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR

CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO

THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO ALINGASA,

ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in

Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee.

Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as those enumerated in the petition, and from exercising any authority or power as Regular Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings filed by her and acting on them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for


preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being particularly directed against the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for reconsideration of said order.

Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from different orders of the same respondent court approving or otherwise sanctioning the acts of administration of the respondent Magno on behalf of the testate Estate of Mrs. Hodges.

THE FACTS

On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently providing as follows:

FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate.

SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein. and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived.

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my last will and testament, and direct that no bond or other security be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration of my estate, other than that necessary to prove and record this will and to return an inventory and appraisement of my estate and list of claims. (Pp. 2-4, Petition.)

This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the provisions thereof.

Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special Administrator, in which capacity he filed a motion on the same date as follows:

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING

Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most respectfully states:

1. — That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to the petition for probate of the same.

2. — That in said last will and testament herein petitioner Charles Newton Hodges is directed to have the right to


manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the same way, a provision was placed in paragraph two, the following: "I give, devise and bequeath all of the rest, residue and remainder of my estate, to my beloved husband, Charles Newton Hodges, to have and (to) hold unto him, my said husband, during his natural lifetime."

3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business of buying and selling personal and real properties, and do such acts which petitioner may think best.

4. — That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers and sisters and herein petitioner as executor surviving spouse, to inherit the properties of the decedent.

5. — That the present motion is submitted in order not to paralyze the business of petitioner and the deceased, especially in the purchase and sale of properties. That proper accounting will be had also in all these transactions.

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges) be allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while deceased Linnie Jane Hodges was living.

City of Iloilo, May 27, 1957. (Annex "D", Petition.)

which the respondent court immediately granted in the following order:

It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in which said petitioner and the deceased were engaged will be paralyzed, unless and until the Executor is named and appointed by the Court, the said petitioner is allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living.

SO ORDERED.

City of Iloilo May 27, 1957. (Annex "E", Petition.)

Under date of December 11, 1957, Hodges filed as such Executor another motion thus:

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR MAY DO IN

ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE HODGES.

Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon. Court, most respectfully states:

1. — That according to the last will and testament of the deceased Linnie Jane Hodges, the executor as the surviving spouse and legatee named in the will of the deceased; has the right to dispose of all the properties left by the deceased, portion of which is quoted as follows:

Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to have and to hold unto him, my said husband, during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. ...

2. — That herein Executor, is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. That during the lifetime of herein Executor, as Legatee has the right to sell, convey, lease or dispose of the properties in the Philippines. That inasmuch as C.N. Hodges was and is engaged in the buy and sell of real and personal properties, even before the death of Linnie Jane Hodges, a motion to authorize said C.N. Hodges was filed in Court, to allow him to continue in the business of buy and sell, which motion was favorably granted by the Honorable Court.

3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been buying and selling real and personal properties, in accordance with the wishes of the late Linnie Jane Hodges.


4. — That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the sales, leases, conveyances or mortgages made by him, approved by the Hon. Court.

5. — That it is respectfully requested, all the sales, conveyances leases and mortgages executed by the Executor, be approved by the Hon. Court. and subsequent sales conveyances, leases and mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last will and testament, also be approved;

6. — That the Executor is under obligation to submit his yearly accounts, and the properties conveyed can also be accounted for, especially the amounts received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages executed by the Executor, be approved by the Hon. Court, and also the subsequent sales, conveyances, leases, and mortgages in consonance with the wishes of the deceased contained in her last will and testament, be with authorization and approval of the Hon. Court.

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

which again was promptly granted by the respondent court on December 14, 1957 as follows:

O R D E R

As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter.

So ordered.

Iloilo City. December 14, 1957.

(Annex "H", Petition.)

On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged:

Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the following account of his administration covering the period from January 1, 1958 to December 31, 1958, which account may be found in detail in the individual income tax return filed for the estate of deceased Linnie Jane Hodges, to wit:

That a certified public accountant has examined the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and expenses, copy of which is hereto attached and made integral part of this statement of account as Annex "A".

IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A", be approved by the Honorable Court, as substantial compliance with the requirements of the Rules of Court.

That no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable court.

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order worded thus:

Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the estate of Linnie Jane Hodges, assets and liabilities, income and expenses as shown in the individual income tax return for the estate of the deceased and marked as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted


order of April 21, 1959. In connection with the statements of account just mentioned, the following assertions related thereto made by respondent-appellee Magno in her brief do not appear from all indications discernible in the record to be disputable:

Under date of April 14, 1959, C.N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)

xxx xxx xxx

Under date of July 21, 1960, C.N. Hodges filed his second "Annual Statement of Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1959 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92. Appellee's Brief.)

xxx xxx xxx

Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement of Account by the Executor for the Year 1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C.N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his

combined personal assets and that of the estate of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)

Likewise the following:

In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C.N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records "in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges. .

As an executor, he was bound to file tax returns for the estate he was administering under American law. He did file such as estate tax return on August 8, 1958. In Schedule "M" of such return, he answered "Yes" to the question as to whether he was contemplating "renouncing the will". On the question as to what property interests passed to him as the surviving spouse, he answered:

"None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interests of the deceased in their Community estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid."

Again, on August 9, 1962, barely four months before his death, he executed an "affidavit" wherein he ratified and confirmed all that he stated in Schedule "M" of his estate tax returns as to his having renounced what was given him by his wife's will. 1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12, 1958. He listed all the assets of his conjugal partnership with Linnie Jane Hodges on a separate balance sheet and then stated expressly that her estate which has come into his possession as executor was "one-half of all the items" listed in said balance sheet. (Pp. 89-90, Appellee's Brief.)

Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for a more comprehensive and clearer view of the important and decisive issues raised by the parties and a more


accurate appraisal of their respective positions in regard thereto.

The records of these cases do not show that anything else was done in the above-mentioned Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations, filed the following:

URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the Honorable Court, most respectfully states:

1. That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her husband, Charles Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon. Court dated June 28, 1957, the said Charles Newton Hodges was appointed Executor and had performed the duties as such.

2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on December 25, 1962, as shown by a copy of the death certificate hereto attached and marked as Annex "A".

3. That in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real and personal properties that may remain at the death of her husband Charles Newton Hodges, the said properties shall be equally divided among their heirs. That there are real and personal properties left by Charles Newton Hodges, which need to be administered and taken care of.

4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have not as yet been determined or ascertained, and there is necessity for the appointment of a general administrator to liquidate and distribute the residue of the estate to the heirs and legatees of both spouses. That in accordance with the provisions of Section 2 of Rule 75 of the Rules of Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the testate proceedings of the wife.

5. That the undersigned counsel, has perfect personal knowledge of the existence of the last will and testament of Charles Newton Hodges, with similar provisions as that contained in the last will and testament of Linnie Jane Hodges. However, said last will and testament of Charles Newton Hodges is kept inside the vault or iron safe in his office, and will be presented in due time before this honorable Court.

6. That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the estate of Charles Newton Hodges, to perform the duties required by law, to administer, collect, and take charge of the goods, chattels, rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie Jane Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of Court.

7. That there is delay in granting letters testamentary or of administration, because the last will and testament of deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the meantime, unless an administratrix (and,) at the same time, a Special Administratrix is appointed, the estate of both spouses are in danger of being lost, damaged or go to waste.

8. That the most trusted employee of both spouses Linnie Jane Hodges and C.N. Hodges, who had been employed for around thirty (30) years, in the person of Miss Avelina Magno, (should) be appointed Administratrix of the estate of Linnie Jane Hodges and at the same time Special Administratrix of the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of legal age, a resident of the Philippines, the most fit, competent, trustworthy and well-qualified person to serve the duties of Administratrix and Special Administratrix and is willing to act as such.

9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes reasonable.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, with powers and duties provided for by law. That the Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno.

(Annex "O", Petition.)

which respondent court readily acted on in its order of even date thus: .


For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for the Executor dated December 25, 1962, which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed.

Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00), and after having done so, let letters of Administration be issued to her." (Annex "P", Petition.)

On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges (who had) arrived from the United States of America to help in the administration of the estate of said deceased" was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only to be replaced as such co-special administrator on January 22, 1963 by Joe Hodges, who, according to the motion of the same attorney, is "the nephew of the deceased (who had) arrived from the United States with instructions from the other heirs of the deceased to administer the properties or estate of Charles Newton Hodges in the Philippines, (Pp. 47-50, id.)

Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of administration to the same Joe Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same date this latter motion was filed, the court issued the corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for.

At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to her husband "to have and to hold unto him, my said husband, during his natural lifetime", she, at the same time or in like manner, provided that "at the death of my said husband — I give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike —". Accordingly, it became incumbent upon

Hodges, as executor of his wife's will, to duly liquidate the conjugal partnership, half of which constituted her estate, in order that upon the eventuality of his death, "the rest, residue and remainder" thereof could be determined and correspondingly distributed or divided among her brothers and sisters. And it was precisely because no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate should be governed by the laws of the Philippines or those of Texas, of which State she was a national, and, what is more, as already stated, Hodges made official and sworn statements or manifestations indicating that as far as he was concerned no "property interests passed to him as surviving spouse — "except for purposes of administering the estate, paying debts, taxes and other legal charges" and it was the intention of the surviving husband of the deceased to distribute the remaining property and interests of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid", that the incidents and controversies now before Us for resolution arose. As may be observed, the situation that ensued upon the death of Hodges became rather unusual and so, quite understandably, the lower court's actuations presently under review are apparently wanting in consistency and seemingly lack proper orientation.

Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is of valuable assistance in clearing up the matter.

To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases, one with green cover and the other with a yellow cover, that at the outset, a sort of modus operandi had been agreed upon by the parties under which the respective administrators of the two estates were supposed to act conjointly, but since no copy of the said agreement can be found in the record before Us, We have no way of knowing when exactly such agreement was entered into and under what specific terms. And while reference is made to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus:

The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the charges contained in the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A. Magno, through her counsel, Atty. Rizal Quimpo, filed a written manifestation.


After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss Avelina A. Magno, the Court finds that everything that happened before September 3, 1964, which was resolved on September 8, 1964, to the satisfaction of parties, was simply due to a misunderstanding between the representative of the Philippine Commercial and Industrial Bank and Miss Magno and in order to restore the harmonious relations between the parties, the Court ordered the parties to remain in status quo as to their modus operandi before September 1, 1964, until after the Court can have a meeting with all the parties and their counsels on October 3, as formerly agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal Quimpo.

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by this Court until October 3, 1964.

SO ORDERED.

there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate and exclusive possession thereof and to place its own locks and keys for security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion that Administratrix Magno of the testate estate of Linnie Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds office and therefore PCIB is suffering great moral damage and prejudice as a result of said act. It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said office, to take immediate and exclusive possession thereof and place thereon its own locks and keys for security purposes; instructing the clerk of court or any available deputy to witness and supervise the opening of all doors and locks and taking possession of the PCIB.

A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled to close the office for the reason that the PCIB failed to comply with the order of this Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates should remain in status quo to their modus operandi as of September 1, 1964.

To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office of both estates, the Court aside from the reasons stated in the urgent motion and opposition heard the verbal arguments of Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratix Magno.

After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo City in the presence of the PCIB or its duly authorized representative and deputy clerk of court Albis of this branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office of said estates could operate for business.

Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby ordered:

(a) That all cash collections should be deposited in the joint account of the estates of Linnie Jane Hodges and estates of C.N. Hodges;

(b) That whatever cash collections that had been deposited in the account of either of the estates should be withdrawn and since then deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C.N. Hodges;

(c) That the PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of the Linnie Jane Hodges estate chargeable to the testate estate of Linnie Jane Hodges only;

(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records, documents and papers she may have in her possession in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner the accountant or any authorized representative of the estate of C.N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C.N. Hodges.

Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB or its duly authorized representative and deputy clerk Albis or his duly authorized representative, both estates or any of


the estates should not close it without previous consent and authority from this court.

SO ORDERED.

As may be noted, in this order, the respondent court required that all collections from the properties in the name of Hodges should be deposited in a joint account of the two estates, which indicates that seemingly the so-called modus operandi was no longer operative, but again there is nothing to show when this situation started.

Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that:

3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C.N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges and Messrs. William Brown and Ardell Young acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforementioned parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by the PCIB as administrator of the estate of C.N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one hundred percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned by C.N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changed its recognition of the afore-described basic demand by the PCIB as administrator of the estate of C.N. Hodges to one hundred percent (100%) of the assets claimed by both estates.

but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We are not informed as to what exactly are the terms of the same which could be relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on

Appeal, authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of her lawyers, etc., as follows:

Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo filed a Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the Agreement dated June 6, 1964 which Agreement is for the purpose of retaining their services to protect and defend the interest of the said Administratrix in these proceedings and the same has been signed by and bears the express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay the retailers fee of said lawyers, said fees made chargeable as expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed for in said Manifestation and Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys. Manglapus and Quimpo is premature and/or unnecessary; Attys. Quimpo and Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges should be closed and terminated (pp. 1679-1684, Vol, V, Sp. 1307).

Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied because no evidence has been presented in support thereof. Atty. Manglapus filed a reply to the opposition of counsel for the Administrator of the C. N. Hodges estate wherein it is claimed that expenses of administration include reasonable counsel or attorney's fees for services to the executor or administrator. As a matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of Ozaeta, Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm has been approved by the Court in its order dated March 31, 1964. If payment of the fees of the lawyers for the administratrix of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner the very agreement which provides for the payment of attorney's fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307).

Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the Manifestation and Urgent Motion alleging principally that the estates of


Linnie Jane Hodges and C. N. Hodges are not similarly situated for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the former for the reason that Linnie Jane Hodges predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).

Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo issued an order requiring the parties to submit memorandum in support of their respective contentions. It is prayed in this manifestation that the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated January 5, 1965 asking that after the consideration by the court of all allegations and arguments and pleadings of the PCIB in connection therewith (1) said manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated January 4, 1965 approving the motion dated June 10, 1964 of the attorneys for the administratrix of the estate of Linnie Jane Hodges and agreement annexed to said motion. The said order further states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or checks may be necessary for the above purpose and the administrator of the estate of C. N. Hodges is ordered to countersign the same. (pp. 6518-6523, Vol VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965 asking that the order of January 4, 1965 which was issued by Judge Querubin be declared null and void and to enjoin the clerk of court and the administratrix and administrator in these special proceedings from all proceedings and action to enforce or comply with the provision of the aforesaid order of January 4, 1965. In support of said manifestation and motion it is alleged that the order of January 4, 1965 is null and void because the said order was never delivered to the deputy clerk Albis of Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer of the late Judge Querubin in his office when said drawer was opened on January 13, 1965 after the death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606, Vol. VIII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965 asking that the order dated January 4, 1964 be reversed on the ground that:

1. Attorneys retained must render services to the estate not to the personal heir;

2. If services are rendered to both, fees should be pro-rated between them;

3. Attorneys retained should not represent conflicting interests; to the prejudice of the other heirs not represented by said attorneys;

4. Fees must be commensurate to the actual services rendered to the estate;

5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).

Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit dated July 15, 1965 asking that the manifestation and urgent motion dated June 10, 1964 filed by Attys. Manglapus and Quimpo and other incidents directly appertaining thereto be considered submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307).

Considering the arguments and reasons in support to the pleadings of both the Administratrix and the PCIB, and of Atty. Gellada, hereinbefore mentioned, the Court believes that the order of January 4, 1965 is null and void for the reason that the said order has not been filed with deputy clerk Albis of this court (Branch V) during the lifetime of Judge Querubin who signed the said order. However, the said manifestation and urgent motion dated June 10, 1964 is being treated and considered in this instant order. It is worthy to note that in the motion dated January 24, 1964 (Pp. 1149- 1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his associates and Atty. Gibbs and other lawyers in addition to the stipulated fees for actual services rendered. However, the fee agreement dated February 27, 1964, between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which provides for retainer fee of P4,000 monthly in addition to specific fees for actual appearances, reimbursement for expenditures and contingent fees has also been approved by the Court and said lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373, Vol. V, Sp. Proc. 1307).

WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.


The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the administratrix of the testate estate of Linnie Jane Hodges is granted and the agreement annexed thereto is hereby approved.

The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement the approval of the agreement annexed to the motion and the administrator of the estate of C. N. Hodges is directed to countersign the said check or checks as the case may be.

SO ORDERED.

thereby implying somehow that the court assumed the existence of independent but simultaneous administrations.

Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order, also on appeal herein:

Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T. Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813) dated July 22, 1965 and considering the allegations and reasons therein stated, the court believes that the deeds of sale should be signed jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale.

SO ORDERED. (p. 248, Green Record on Appeal.)

Notably this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges, involving properties registered in his name, should be co-signed by respondent Magno. 3 And this was not an isolated instance.

In her brief as appellee, respondent Magno states:

After the lower court had authorized appellee Avelina A. Magno to execute final deeds of sale pursuant to contracts to sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final deeds of sale (signed by appellee

Avelina A. Magno and the administrator of the estate of C. N. Hodges, first Joe Hodges, then Atty. Fernando Mirasol and later the appellant) were approved by the lower court upon petition of appellee Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court. Subsequently, the appellant, after it had taken over the bulk of the assets of the two estates, started presenting these motions itself. The first such attempt was a "Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto annexing two (2) final deeds of sale and two (2) cancellations of mortgages signed by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-President and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion was approved by the lower court on July 27, 1964. It was followed by another motion dated August 4, 1964 for the approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R. Paulino (CFI Record, Sp. Proc. No. 1307. Vol. V, pp. 1825-1828), which was again approved by the lower court on August 7, 1964. The gates having been opened, a flood ensued: the appellant subsequently filed similar motions for the approval of a multitude of deeds of sales and cancellations of mortgages signed by both the appellee Avelina A. Magno and the appellant.

A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as having presented for court approval deeds of sale of real properties signed by both appellee Avelina A. Magno and D. R. Paulino in the following numbers: (a) motion dated September 21, 1964 — 6 deeds of sale; (b) motion dated November 4, 1964 — 1 deed of sale; (c) motion dated December 1, 1964 — 4 deeds of sale; (d) motion dated February 3, 1965 — 8 deeds of sale; (f) motion dated May 7, 1965 — 9 deeds of sale. In view of the very extensive landholdings of the Hodges spouses and the many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the lower court has had to constitute special separate expedientes in Special Proceedings Nos. 1307 and 1672 to include mere motions for the approval of deeds of sale of the conjugal properties of the Hodges spouses.

As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read:

"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real property, and the prospective


buyers under said contracts have already paid the price and complied with the terms and conditions thereof;

"2. In the course of administration of both estates, mortgage debtors have already paid their debts secured by chattel mortgages in favor of the late C. N. Hodges, and are now entitled to release therefrom;

"3. There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor —

Fernando Cano, Bacolod City, Occ. NegrosFe Magbanua, Iloilo CityPolicarpio M. Pareno, La Paz, Iloilo CityRosario T. Libre, Jaro, Iloilo CityFederico B. Torres, Iloilo CityReynaldo T. Lataquin, La Paz, Iloilo CityAnatolio T. Viray, Iloilo CityBenjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of —

Pablo Manzano, Oton, IloiloRicardo M. Diana, Dao, San Jose, AntiqueSimplicio Tingson, Iloilo CityAmado Magbanua, Pototan, IloiloRoselia M. Baes, Bolo, Roxas CityWilliam Bayani, Rizal Estanzuela, Iloilo CityElpidio Villarete, Molo, Iloilo CityNorma T. Ruiz, Jaro, Iloilo City

"4. That the approval of the aforesaid documents will not reduce the assets of the estates so as to prevent any creditor from receiving his full debt or diminish his dividend."

And the prayer of this motion is indeed very revealing:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this honorable court approve the aforesaid deeds of sale and cancellations of mortgages." (Pp. 113-117, Appellee's Brief.)

None of these assertions is denied in Petitioner's reply brief.

Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the Green Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the parties

with whom Hodges had contracts that are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus:

Considering that in both cases there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto, the Court believes that payment to both the administrator of the testate estate of C. N. Hodges and the administratrix of the testate estate of Linnie Jane Hodges or to either one of the two estates is proper and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.

SO ORDERED.

(Pp. 334-335, Green Record on Appeal.)

On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record on Appeal, the respondent court approved payments made by her of overtime pay to some employees of the court who had helped in gathering and preparing copies of parts of the records in both estates as follows:

Considering that the expenses subject of the motion to approve payment of overtime pay dated December 10, 1964, are reasonable and are believed by this Court to be a proper charge of administration chargeable to the testate estate of the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to be charged against the testate estate of the late Linnie Jane Hodges. The administrator of the testate estate of the late Charles Newton Hodges is hereby ordered to countersign the check or checks necessary to pay the said overtime pay as shown by the bills marked Annex "A", "B" and "C" of the motion.

SO ORDERED.

(Pp. 221-222, Green Record on Appeal.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to "contracts to sell" executed by Hodges, irrespective of whether they were executed by him before or after the death of his wife. The orders of this nature which are also on appeal herein are the following:


1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7, 1965.

2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on September 13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on time.

3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on August 14, 1961, after the death of his wife.

4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on February 21, 1958, after the death of his wife.

5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on February 10, 1959, after the death of his wife.

6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966,

respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death of his wife.

9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time.

10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time.

11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of sale executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the death of his wife.

12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966, respectively, pursuant to separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959, after her death.

In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner alone and without the concurrence of respondent Magno, and such approvals have not been the subject of any appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus:

The points of fact and law pertaining to the two abovecited assignments of error have already been discussed previously. In the first abovecited error, the order alluded to was general, and as already explained before, it was, as admitted by the lower court itself, superseded by the particular orders approving specific final deeds of sale executed by the appellee, Avelina A. Magno, which are subject of this appeal, as well as the particular orders approving specific final deeds of sale executed by the appellant, Philippine Commercial and


Industrial Bank, which were never appealed by the appellee, Avelina A. Magno, nor by any party for that matter, and which are now therefore final.

Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed:

URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his undersigned attorneys in the above-entitled proceedings, and to this Honorable Court respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.

(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307).

(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).

(4) On December 14, 1957 this Honorable Court, on the basis of the following allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:

"That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges."

(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executory, for the reasons stated in his motion dated December 11, 1957 which the court considers well taken, all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges

are hereby APPROVED. The said executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter."

(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)

(5) On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among other things:

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court."

(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)

(7) On May 2, 1961 this Honorable court approved the "Annual Statement of Account By The Executor for the Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:

That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein Executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.

(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)

(8) On December 25, 1962, C.N. Hodges died.

(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P. Gellada filed only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno


"Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed."

(p. 100. Rec. Sp. Proc. 1307)

(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this Honorable Court's aforesaid Order of December 25, 1962

"With full authority to take possession of all the property of said deceased in any province or provinces in which it may be situated and to perform all other acts necessary for the preservation of said property, said Administratrix and/or Special Administratrix having filed a bond satisfactory to the Court."

(p. 102, Rec. Sp. Proc. 1307)

(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963 issued Letters of Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges.

(p. 43, Rec. Sp. Proc. 1307)

(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307) issued the following order:

"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de propiedades cubiertas por contratos para vender, firmados, en vida, por el finado Charles Newton Hodges, cada vez que el precio estipulado en cada contrato este totalmente pagado. Se autoriza igualmente a la misma a firmar escrituras de cancelacion de hipoteca tanto de bienes reales como personales cada vez que la consideracion de cada hipoteca este totalmente pagada.

"Cada una de dichas escrituras que se otorguen debe ser sometida para la aprobacion de este Juzgado."

(p. 117, Sp. Proc. 1307).

[Par 1 (c), Reply to Motion For Removal of Joe Hodges]

(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges, alleges:

3. — That since January, 1963, both estates of Linnie Jane Hodges and Charles Newton Hodges have been receiving in full, payments for those "contracts to sell" entered into by C. N. Hodges during his lifetime, and the purchasers have been demanding the execution of definite deeds of sale in their favor.

4. — That hereto attached are thirteen (13) copies deeds of sale executed by the Administratrix and by the co-administrator (Fernando P. Mirasol) of the estate of Linnie Jane Hodges and Charles Newton Hodges respectively, in compliance with the terms and conditions of the respective "contracts to sell" executed by the parties thereto."

(14) The properties involved in the aforesaid motion of September 16, 1963 are all registered in the name of the deceased C. N. Hodges.

(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper in Iloilo thusly:

For Sale

Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.

All Real Estate or Personal Property will be sold on First Come First Served Basis.

Avelina A. MagnoAdministratrix

(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of money to sundry persons.

(17) Joe Hodges through the undersigned attorneys manifested during the hearings before this Honorable Court on September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines because of the aforesaid


election by C. N. Hodges wherein he claimed and took possession as sole owner of all of said assets during the administration of the estate of Linnie Jane Hodges on the ground that he was the sole devisee and legatee under her Last Will and Testament.

(18) Avelina A. Magno has submitted no inventory and accounting of her administration as Administratrix of the estate of Linnie Jane Hodges and Special Administratrix of the estate of C. N. Hodges. However, from manifestations made by Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will claim that at least fifty per cent (50%) of the conjugal assets of the deceased spouses and the rents, emoluments and income therefrom belong to the Higdon family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc. 1307).

WHEREFORE, premises considered, movant respectfully prays that this Honorable Court, after due hearing, order:

(1) Avelina A. Magno to submit an inventory and accounting of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them;

(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A. Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly authorized representative, such as the undersigned attorneys) as the Co-administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C. N. Hodges:

(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.

(4) Such other relief as this Honorable Court may deem just and equitable in the premises. (Annex "T", Petition.)

Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and Fernando P. Mirasol were replaced by herein petitioner Philippine

Commercial and Industrial Bank as sole administrator, pursuant to an agreement of all the heirs of Hodges approved by the court, and because the above motion of October 5, 1963 had not yet been heard due to the absence from the country of Atty. Gibbs, petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR HEARING AND RESOLVE "URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME THEREFROM OF OCTOBER 5, 1963.

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings No. 1672, through its undersigned counsel, and to this Honorable Court respectfully alleges that:

1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N. Hodges filed, through the undersigned attorneys, an "Urgent Motion For An Accounting and Delivery To Administrator of the Estate of C. N. Hodges of all Of The Assets Of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N. Hodges Existing as Of May, 23, 1957 Plus All Of The Rents, Emoluments and Income Therefrom" (pp. 536-542, CFI Rec. S. P. No. 1672).

2. On January 24, 1964 this Honorable Court, on the basis of an amicable agreement entered into on January 23, 1964 by the two co-administrators of the estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No. 1672), resolved the dispute over who should act as administrator of the estate of C. N. Hodges by appointing the PCIB as administrator of the estate of C. N. Hodges (pp. 905-906, CFI Rec. S. P. No. 1672) and issuing letters of administration to the PCIB.

3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie Jane Hodges and various legal counsel representing the aforenamed parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed that certain sums of money were to be paid in settlement of


different claims against the two estates and that the assets (to the extent they existed)of both estates would be administrated jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion, namely, the PCIB's claim to exclusive possession and ownership of one-hundred percent (10017,) (or, in the alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changes its recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion of October 5, 1963.

5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this Honorable Court ordered the indefinite postponement of the hearing of the Motion of October 5, 1963.

6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able to properly carry out its duties and obligations as administrator of the estate of C. N. Hodges because of the following acts, among others, of Avelina A. Magno and those who claim to act for her as administratrix of the estate of Linnie Jane Hodges:

(a) Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets in the Philippines of both estates including those claimed by the estate of C. N. Hodges as evidenced in part by her locking the premises at 206-208 Guanco Street, Iloilo City on August 31, 1964 and refusing to reopen same until ordered to do so by this Honorable Court on September 7, 1964.

(b) Avelina A. Magno illegally acts as though she alone may decide how the assets of the estate of C.N. Hodges should be administered, who the PCIB shall employ and how much they may be paid as evidenced in party by her refusal to sign checks issued by the PCIB payable to the undersigned counsel pursuant to their fee agreement approved by this Honorable Court in its order dated March 31, 1964.

(c) Avelina A. Magno illegally gives access to and turns over possession of the records and assets of the estate of C.N. Hodges to the attorney-in-fact of the Higdon Family, Mr. James L. Sullivan, as evidenced in part by the cashing of his personal checks.

(d) Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn to pay expenses of the estate of C. N. Hodges as evidenced in part by the check drawn to reimburse the PCIB's advance of P48,445.50 to pay the 1964 income taxes reported due and payable by the estate of C.N. Hodges.

7. Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and February 1, 1964, and the mandate contained in its Letters of Administration issued on January 24, 1964 to the PCIB, it has

"full authority to take possession of all the property of the deceased C. N. Hodges

"and to perform all other acts necessary for the preservation of said property." (p. 914, CFI Rec., S.P. No. 1672.)

8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate exclusive possession and control of all of the properties, accounts receivables, court cases, bank accounts and other assets, including the documentary records evidencing same, which existed in the Philippines on the date of C. N. Hodges' death, December 25, 1962, and were in his possession and registered in his name alone. The PCIB knows of no assets in the Philippines registered in the name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane Hodges on December 25, 1962. All of the assets of which the PCIB has knowledge are either registered in the name of C. N. Hodges, alone or were derived therefrom since his death on December 25, 1962.

9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all of the rights of the previously duly appointed administrators of the estate of C. N. Hodges, to wit:

(a) On December 25, 1962, date of C. N. Hodges' death, this Honorable Court appointed Miss Avelina A. Magno simultaneously as:

(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on May 28, 1957 was appointed Special Administrator (p. 13. CFI Rec. S.P.


No. 1307) and on July 1, 1957 Executor of the estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).

(ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI Rec., S.P. No. 1307).

(b) On December 29, 1962 this Honorable Court appointed Harold K. Davies as co-special administrator of the estate of C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec., S. P. No. 1307).

(c) On January 22, 1963, with the conformity of Avelina A. Magno, Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed on January 22, 1963 by this Honorable Court as special co-administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec. S.P. No. 1672) along with Miss Magno who at that time was still acting as special co-administratrix of the estate of C. N. Hodges.

(d) On February 22, 1963, without objection on the part of Avelina A. Magno, this Honorable Court appointed Joe Hodges and Fernando P. Mirasol as co-administrators of the estate of C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of December 25, 1962, took possession of all Philippine Assets now claimed by the two estates. Legally, Miss Magno could take possession of the assets registered in the name of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N. Hodges. With the appointment by this Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-administrators of the estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the full and exclusive possession of all of the assets of the estate of C.N. Hodges. With the appointment on January 24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became the only party entitled to the sole and exclusive possession of all of the assets of the estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable Court approved same, to wit:

(a) The accounting of Harold K. Davies dated January 18, 1963 (pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its face the:

(i) Conformity of Avelina A. Magno acting as "Administratrix of the Estate of Linnie Jane Hodges and Special Administratrix of the Estate of C. N. Hodges";

(ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs of C.N. Hodges; and

(iii) Conformity of William Brown, a Texas lawyer acting for the Higdon family who claim to be the only heirs of Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).

Note: This accounting was approved by this Honorable Court on January 22, 1963 (p. 34, CFI Rec., S. P. No. 1672).

(b) The accounting of Joe Hodges and Fernando P. Mirasol as of January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307).

Note: This accounting was approved by this Honorable Court on March 3, 1964.

(c) The PCIB and its undersigned lawyers are aware of no report or accounting submitted by Avelina A. Magno of her acts as administratrix of the estate of Linnie Jane Hodges or special administratrix of the estate of C.N. Hodges, unless it is the accounting of Harold K. Davies as special co-administrator of the estate of C.N. Hodges dated January 18, 1963 to which Miss Magno manifested her conformity (supra).

12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00

"for her services as administratrix of the estate of Linnie Jane Hodges"

and in addition she agreed to be employed, starting February 1, 1964, at

"a monthly salary of P500.00 for her services as an employee of both estates."

24 ems.

13. Under the aforesaid agreement of January 24, 1964 and the orders of this Honorable Court of same date, the PCIB as administrator of the estate of C. N. Hodges is entitled to the exclusive possession of all records, properties and assets in the name of C. N. Hodges as of the date of his death on December 25, 1962 which were in the possession of the deceased C. N. Hodges on that date and which then passed to the possession of Miss Magno in her capacity as Special


Co-Administratrix of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as co-administrators of the estate of C. N. Hodges.

14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss Magno as an employee of the estate of C. N. Hodges effective August 31, 1964. On September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and denied the PCIB access thereto. Upon the Urgent Motion of the PCIB dated September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the PCIB access thereto no later than September 8, 1964.

15. The PCIB pursuant to the aforesaid orders of this Honorable Court is again in physical possession of all of the assets of the estate of C. N. Hodges. However, the PCIB is not in exclusive control of the aforesaid records, properties and assets because Miss Magno continues to assert the claims hereinabove outlined in paragraph 6, continues to use her own locks to the doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know the combinations to the doors of the vault and safes situated within the premises at 206-208 Guanco Street despite the fact that said combinations were known to only C. N. Hodges during his lifetime.

16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane Hodges were assessed and paid on the basis that C. N. Hodges is the sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in the Philippines. Avelina A. Magno and her legal counsel at no time have questioned the validity of the aforesaid assessment and the payment of the corresponding Philippine death taxes.

17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive possession and control of all of the records, properties and assets of the estate of C. N. Hodges.

18. Such assets as may have existed of the estate of Linnie Jane Hodges were ordered by this Honorable Court in special Proceedings No. 1307 to be turned over and delivered to C. N. Hodges alone. He in fact took possession of them before his death and asserted and exercised the right of exclusive ownership over the said assets as the sole beneficiary of the estate of Linnie Jane Hodges.

WHEREFORE, premises considered, the PCIB respectfully petitions that this Honorable court:

(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date with notice to all interested parties;

(2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N. Hodges of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them;

(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession;

(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina A. Magno and her representatives to stop interferring with the administration of the estate of C. N. Hodges by the PCIB and its duly authorized representatives;

(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street, Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal as such by the PCIB effective August 31, 1964;

(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly representing Miss Magno from entering the premises at 206-208 Guanco Street, Iloilo City or any other properties of C. N. Hodges without the express permission of the PCIB;

(7) Order such other relief as this Honorable Court finds just and equitable in the premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this Honorable Court respectfully alleges that:

1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges, American citizens originally from the State of Texas, U.S.A., acquired and


accumulated considerable assets and properties in the Philippines and in the States of Texas and Oklahoma, United States of America. All said properties constituted their conjugal estate.

2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----), conclusively found and categorically ruled that said spouses had lived and worked for more than 50 years in Iloilo City and had, therefore, acquired a domicile of choice in said city, which they retained until the time of their respective deaths.

3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last Will and Testament, a copy of which is hereto attached as Annex "A". The bequests in said will pertinent to the present issue are the second, third, and fourth provisions, which we quote in full hereunder.

SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my husband, Charles Newton Hodges, to have and to hold unto him, my said husband during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right to make any changes in the physical properties of said estate by sale of any part thereof which he think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, as above provided. He shall have the right to sub-divide any farmland and sell lots therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all

of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon."

4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and Testament, a copy of which is hereto attached as Annex "B ". In said Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his beneficiary using the identical language she used in the second and third provisos of her Will, supra.

5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her husband by more than five (5) years. At the time of her death, she had no forced or compulsory heir, except her husband, C. N. Hodges. She was survived also by various brothers and sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the HIGDONS.

6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N. Hodges as executor of her estate without bond. (CFI Record, Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp. Proc. No. 1307, p. 30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession, the amount of successional rights, and the intrinsic of its testamentary provisions, should be governed by Philippine laws because:

(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to govern her Will;

(b) Article 16 of the Civil Code provides that "the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", shall prevail. However, the Conflict of Law of Texas, which is the "national law" of the testatrix, Linnie Jane Hodges, provide that the domiciliary law (Philippine law — see paragraph 2, supra) should govern the testamentary dispositions and successional rights over movables (personal properties), and the law of the situs of the property (also Philippine law as to properties located in the Philippines) with regards immovable (real properties). Thus applying the "Renvoi Doctrine", as approved and applied by our Supreme Court in the case of "In The Matter Of The Testate Estate of Eduard E. Christensen", G.R. No.


L-16749, promulgated January 31, 1963, Philippine law should apply to the Will of Linnie Jane Hodges and to the successional rights to her estate insofar as her movable and immovable assets in the Philippines are concerned. We shall not, at this stage, discuss what law should govern the assets of Linnie Jane Hodges located in Oklahoma and Texas, because the only assets in issue in this motion are those within the jurisdiction of this motion Court in the two above-captioned Special Proceedings.

8. Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon dissolution, be divided equally between them. Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half (1/2) of the entirety of the assets of the Hodges spouses constituting their conjugal estate pertained automatically to Charles Newton Hodges, not by way of inheritance, but in his own right as partner in the conjugal partnership. The other one-half (1/2) portion of the conjugal estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate capable of inheritance by her heirs.

9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under a clear and specific provision of her Will, be enhanced or increased by income, earnings, rents, or emoluments accruing after her death on May 23, 1957. Linnie Jane Hodges' Will provides that "all rents, emoluments and income from said estate shall belong to him (C. N. Hodges) and he is further authorized to use any part of the principal of said estate as he may need or desire." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly, therefore, the estate of Linnie Jane Hodges, capable of inheritance by her heirs, consisted exclusively of no more than one-half (1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957.

10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a deceased leaving no ascendants or descendants is entitled, as a matter of right and by way of irrevocable legitime, to at least one-half (1/2) of the estate of the deceased, and no testamentary disposition by the deceased can legally and validly affect this right of the surviving spouse. In fact, her husband is entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership share and 1/4 or 25% by way of

inheritance and legitime) plus all "rents, emoluments and income" accruing to said conjugal estate from the moment of Linnie Jane Hodges' death (see paragraph 9, supra).

11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her sole and exclusive heir with full authority to do what he pleased, as exclusive heir and owner of all the assets constituting her estate, except only with regards certain properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without relying on our laws of succession and legitime, which we have cited above, C. N. Hodges, by specific testamentary designation of his wife, was entitled to the entirely to his wife's estate in the Philippines.

12. Article 777 of the New Civil Code provides that "the rights of the successor are transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately upon her death on May 23, 1957. For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph of how the conjugal estate of the spouses Hodges should be divided in accordance with Philippine law and the Will of Linnie Jane Hodges.

13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges, appropriated to himself the entirety of her estate. He operated all the assets, engaged in business and performed all acts in connection with the entirety of the conjugal estate, in his own name alone, just as he had been operating, engaging and doing while the late Linnie Jane Hodges was still alive. Upon his death on December 25, 1962, therefore, all said conjugal assets were in his sole possession and control, and registered in his name alone, not as executor, but as exclusive owner of all said assets.

14. All these acts of C. N. Hodges were authorized and sanctioned expressly and impliedly by various orders of this Honorable Court, as follows:

(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is allowed or authorized to continue the business in which he was engaged, and to perform acts which he had been doing while the deceased was living." (CFI Record, Sp. Proc. No. 1307, p. 11.)

(b) On December 14, 1957, this Honorable Court, on the basis of the following fact, alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:


That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)

24 ems

(c) On April 21, 1959, this Honorable Court approved the verified inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other things,

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by the Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 77-78; emphasis supplied.)

(d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged, among other things.

"That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 81-82; emphasis supplied.)

(e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of Account By The

Executor For the Year 1960" submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:

"That no person interested in the Philippines be given notice, ofthe time and place of examining the herein account, as herein executor is the only devisee or legatee of the deceased Linnie Jane Hodges, in accordance with the last will and testament ofthe deceased, already probated by this Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis supplied.)

15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only by law, but in accordance with the dispositions of her will, there was, in fact, no need to liquidate the conjugal estate of the spouses. The entirely of said conjugal estate pertained to him exclusively, therefore this Honorable Court sanctioned and authorized, as above-stated, C. N. Hodges to manage, operate and control all the conjugal assets as owner.

16. By expressly authorizing C. N. Hodges to act as he did in connection with the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and distributed her estate to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will. Thus, although the "estate of Linnie Jane Hodges" still exists as a legal and juridical personality, it had no assets or properties located in the Philippines registered in its name whatsoever at the time of the death of C. N. Hodges on December 25, 1962.

17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows:

"At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon."

Because of the facts hereinabove set out there is no "rest, residue and remainder", at least to the extent of the Philippine assets, which remains to vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is valid and binding against the estate of C. N. Hodges.

18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane Hodges' Will is without


merit because said provision is void and invalid at least as to the Philippine assets. It should not, in anyway, affect the rights of the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges acquired by way of inheritance from his wife Linnie Jane Hodges upon her death.

(a) In spite of the above-mentioned provision in the Will of Linnie Jane Hodges, C. N. Hodges acquired, not merely a usufructuary right, but absolute title and ownership to her estate. In a recent case involving a very similar testamentary provision, the Supreme Court held that the heir first designated acquired full ownership of the property bequeathed by the will, not mere usufructuary rights. (Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876, February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly provide that no charge, condition or substitution whatsoever upon the legitime can be imposed by a testator. Thus, under the provisions of Articles 900, 995 and 1001 of the New Civil Code, the legitime of a surviving spouse is 1/2 of the estate of the deceased spouse. Consequently, the above-mentioned provision in the Will of Linnie Jane Hodges is clearly invalid insofar as the legitime of C. N. Hodges was concerned, which consisted of 1/2 of the 1/2 portion of the conjugal estate, or 1/4 of the entire conjugal estate of the deceased.

(c) There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles 857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution (Article 859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these. The substitution provided for by paragraph four of the Will of Linnie Jane Hodges is not fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as the first heir designated, to preserve the properties for the substitute heirs. (Consolacion Florentino de Crisologo et al. vs. Manuel Singson, G. R. No. L-13876.) At most, it is a vulgar or simple substitution. However, in order that a vulgar or simple substitution can be valid, three alternative conditions must be present, namely, that the first designated heir (1) should die before the testator; or (2) should not wish to accept the inheritance; or (3) should be incapacitated to do so. None of these conditions apply to C. N. Hodges, and, therefore, the substitution provided for by the above-quoted provision of the Will is not authorized by the Code, and, therefore, it is void. Manresa, commenting on these kisses of substitution, meaningfully stated that: "... cuando el testador instituyeun primer heredero, y por fallecimiento de este nombra otro u otros, ha de

entenderse que estas segundas designaciones solo han de llegar a tener efectividad en el caso de que el primer instituido muera antes que el testador, fuera o no esta su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other words, when another heir is designated to inherit upon the death of a first heir, the second designation can have effect only in case the first instituted heir dies before the testator, whether or not that was the true intention of said testator. Since C. N. Hodges did not die before Linnie Jane Hodges, the provision for substitution contained in Linnie Jane Hodges' Willis void.

(d) In view of the invalidity of the provision for substitution in the Will, C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges estate is irrevocable and final.

19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared and was registered in him exclusively as owner. Thus, the presumption is that all said assets constituted his estate. Therefore —

(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which can not be affected by any testamentary disposition), their remedy, if any, is to file their claim against the estate of C. N. Hodges, which should be entitled at the present time to full custody and control of all the conjugal estate of the spouses.

(b) The present proceedings, in which two estates exist under separate administration, where the administratrix of the Linnie Jane Hodges estate exercises an officious right to object and intervene in matters affecting exclusively the C. N. Hodges estate, is anomalous.

WHEREFORE, it is most respectfully prayed that after trial and reception of evidence, this Honorable Court declare:

1. That the estate of Linnie Jane Hodges was and is composed exclusively of one-half (1/2) share in the conjugal estate of the spouses Hodges, computed as of the date of her death on May 23, 1957;

2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his share as partner in the conjugal partnership;

3. That all "rents, emoluments and income" of the conjugal estate accruing after Linnie Jane Hodges' death pertains to C. N. Hodges;


4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges;

5. That, therefore, the entire conjugal estate of the spouses located in the Philippines, plus all the "rents, emoluments and income" above-mentioned, now constitutes the estate of C. N. Hodges, capable of distribution to his heirs upon termination of Special Proceedings No. 1672;

6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and exclusive custody, control and management of all said properties; and

7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well as the HIGDONS, has no right to intervene or participate in the administration of the C. N. Hodges estate.

PCIB further prays for such and other relief as may be deemed just and equitable in the premises."

(Record, pp. 265-277)

Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as follows:

COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through undersigned counsel, unto this Honorable Court most respectfully states and manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were American citizens who died at the City of Iloilo after having amassed and accumulated extensive properties in the Philippines;

2. That on November 22, 1952, Linnie Jane Hodges executed a last will and testament (the original of this will now forms part of the records of these proceedings as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp. 17-18);

3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the time survived by her husband, Charles Newton Hodges, and several relatives named in her last will and testament;

4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard, this Honorable Court issued an order admitting to probate the last will and

testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);

5. That the required notice to creditors and to all others who may have any claims against the decedent, Linnie Jane Hodges has already been printed, published and posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the reglamentary period for filing such claims has long ago lapsed and expired without any claims having been asserted against the estate of Linnie Jane Hodges, approved by the Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to probate contains an institution of heirs in the following words:

"SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated or located, to my beloved husband, Charles Newton Hodges to have and to hold unto him, my said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and, he is hereby given the right to make any changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:


Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived."

7. That under the provisions of the last will and testament already above-quoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her husband, Charles Newton Hodges, and a vested remainder-estate or the naked title over the same estate to her relatives named therein;

8. That after the death of Linnie Jane Hodges and after the admission to probate of her last will and testament, but during the lifetime of Charles Newton Hodges, the said Charles Newton Hodges with full and complete knowledge of the life-estate or usufruct conferred upon him by the will since he was then acting as Administrator of the estate and later as Executor of the will of Linnie Jane Hodges, unequivocably and clearly through oral and written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges;

9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges pursuant to her last will and testament, are her named brothers and sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon and David Higdon, the latter two being the wife and son respectively of the deceased Roy Higdon, Sadie Rascoe Era Boman and Nimroy Higdon, all of legal ages, American citizens, with residence at the State of Texas, United States of America;

10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the co-owner (together with her husband Charles Newton Hodges) of an undivided one-half interest in their conjugal properties existing as of that date, May 23, 1957, which properties are now being administered sometimes jointly and sometimes separately by the Administratrix of the estate of Linnie Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of which are under the control and supervision of this Honorable Court;

11. That because there was no separation or segregation of the interests of husband and wife in the combined conjugal estate, as there has been no such separation or segregation up to the present, both interests have continually earned exactly the same

amount of "rents, emoluments and income", the entire estate having been continually devoted to the business of the spouses as if they were alive;

12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate was earning "rents, emoluments and income" until her death on May 23, 1957, when it ceased to be saddled with any more charges or expenditures which are purely personal to her in nature, and her estate kept on earning such "rents, emoluments and income" by virtue of their having been expressly renounced, disclaimed and repudiated by Charles Newton Hodges to whom they were bequeathed for life under the last will and testament of Linnie Jane Hodges;

13. That, on the other hand, the one-half interest of Charles Newton Hodges in the combined conjugal estate existing as of May 23, 1957, while it may have earned exactly the same amount of "rents, emoluments and income" as that of the share pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures, and other dispositions which are purely personal to him in nature, until the death of Charles Newton Hodges himself on December 25, 1962;

14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as compared to the portion to which the estate of Charles Newton Hodges may be entitled, which portions can be exactly determined by the following manner:

a. An inventory must be made of the assets of the combined conjugal estate as they existed on the death of Linnie Jane Hodges on May 23, 1957 — one-half of these assets belong to the estate of Linnie Jane Hodges;

b. An accounting must be made of the "rents, emoluments and income" of all these assets — again one-half of these belong to the estate of Linnie Jane Hodges;

c. Adjustments must be made, after making a deduction of charges, disbursements and other dispositions made by Charles Newton Hodges personally and for his own personal account from May 23, 1957 up to December 25, 1962, as well as other charges, disbursements and other dispositions made for him and in his behalf since December 25, 1962 up to the present;

15. That there remains no other matter for disposition now insofar as the estate of Linnie Jane Hodges is concerned but to complete the liquidation of


her estate, segregate them from the conjugal estate, and distribute them to her heirs pursuant to her last will and testament.

WHEREFORE, premises considered, it is most respectfully moved and prayed that this Honorable Court, after a hearing on the factual matters raised by this motion, issue an order:

a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole heirs under the last will and testament of Linnie Jane Hodges and as the only persons entitled to her estate;

b. Determining the exact value of the estate of Linnie Jane Hodges in accordance with the system enunciated in paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined conjugal estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for distribution to the heirs to whom they properly belong and appertain.

(Green Record on Appeal, pp. 382-391)

whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing before, petitioner withdrew the said motion and in addition to opposing the above motion of respondent Magno, filed a motion on April 22, 1966 alleging in part that:

1. That it has received from the counsel for the administratrix of the supposed estate of Linnie Jane Hodges a notice to set her "Motion for Official Declaration of Heirs of the Estate of Linnie Jane Hodges";

2. That before the aforesaid motion could be heard, there are matters pending before this Honorable Court, such as:

a. The examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges "through ... written declarations and sworn public statements, renounced, disclaimed and repudiated life-estate and usufruct over the estate of Linnie Jane Hodges';

b. That "Urgent Motion for An Accounting and Delivery to the Estate of C. N. Hodges of All the Assets of the Conjugal Partnership of the Deceased Linnie Jane

Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All the Rents, Emoluments and Income Therefrom";

c. Various motions to resolve the aforesaid motion;

d. Manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the Estate of Linnie Jane Hodges;

which are all prejudicial, and which involve no issues of fact, all facts involved therein being matters of record, and therefore require only the resolution of questions of law;

3. That whatever claims any alleged heirs or other persons may have could be very easily threshed out in the Testate Estate of Charles Newton Hodges;

4. That the maintenance of two separate estate proceedings and two administrators only results in confusion and is unduly burdensome upon the Testate Estate of Charles Newton Hodges, particularly because the bond filed by Avelina Magno is grossly insufficient to answer for the funds and property which she has inofficiously collected and held, as well as those which she continues to inofficiously collect and hold;

5. That it is a matter of record that such state of affairs affects and inconveniences not only the estate but also third-parties dealing with it;" (Annex "V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion of September 14, 1964, Annex U, prayed that:

1. Immediately order Avelina Magno to account for and deliver to the administrator of the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom;

2. Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator Philippine Commercial & Industrial Bank;

3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;

4. Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved.(Prayer, Annex "V" of Petition.)


On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the foregoing motion, holding thus:

O R D E R

On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of administrator PCIB praying that (1) Immediately order Avelina Magno to account for and deliver to the administrator of the estate of C. N. Hodges all assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; (2) Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed; and (4) Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved.

This motion is predicated on the fact that there are matters pending before this court such as (a) the examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges thru written declaration and sworn public statements renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane Hodges (b) the urgent motion for accounting and delivery to the estate of C. N. Hodges of all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to resolve the aforesaid motion; and (d) manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the estate of Linnie Jane Hodges.

These matters, according to the instant motion, are all pre-judicial involving no issues of facts and only require the resolution of question of law; that in the motion of October 5, 1963 it is alleged that in a motion dated December 11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges is not only part owner of the properties left as conjugal but also the successor to all the properties left by the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in consonance with the wishes contained in the last will and testament of Linnie Jane Hodges.

That on April 21, 1959 this Court approved the inventory and accounting submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959

stating therein that executor C. N. Hodges is the only devisee or legatee of Linnie Jane Hodges in accordance with the last will and testament already probated by the Court.

That on July 13, 1960 the Court approved the annual statement of accounts submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21, 1960 wherein it is stated that the executor, C. N. Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of accounts submitted by executor, C. N. Hodges for the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is stated that executor Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges;

That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in the Philippines; that administratrix Magno has executed illegal acts to the prejudice of the testate estate of C. N. Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix Magno has been filed asking that the motion be denied for lack of merit and that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges be set for presentation and reception of evidence.

It is alleged in the aforesaid opposition that the examination of documents which are in the possession of administratrix Magno can be made prior to the hearing of the motion for the official declaration of heirs of the estate of Linnie Jane Hodges, during said hearing.

That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other motion) dated September 14, 1964 have been consolidated for the purpose of presentation and reception of evidence with the hearing on the determination of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the motion for the official declaration of heirs of the estate of Linnie Jane Hodges is the one that constitutes a prejudicial question to the motions dated October 5 and September 14, 1964 because if said motion is found meritorious and granted by the Court, the PCIB's motions of October 5, 1963 and September 14, 1964 will become moot and academic since they are premised on the assumption and claim that the only heir of Linnie Jane Hodges was C. N. Hodges.

That the PCIB and counsel are estopped from further questioning the determination of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as


early as January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in the administration proceedings over the estate of Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the estate of C. N. Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek deferment of the hearing and consideration of the motion for official declaration of heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for administratrix Magno to account for and deliver to the PCIB all assets of the conjugal partnership of the deceased spouses which has come to her possession plus all rents and income.

A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19, 1966 has been filed alleging that the motion dated December 11, 1957 only sought the approval of all conveyances made by C. N. Hodges and requested the Court authority for all subsequent conveyances that will be executed by C. N. Hodges; that the order dated December 14, 1957 only approved the conveyances made by C. N. Hodges; that C. N. Hodges represented by counsel never made any claim in the estate of Linnie Jane Hodges and never filed a motion to declare himself as the heir of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the death of Linnie Jane Hodges; that it is further alleged in the rejoinder that there can be no order of adjudication of the estate unless there has been a prior express declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has been made.

Considering the allegations and arguments in the motion and of the PCIB as well as those in the opposition and rejoinder of administratrix Magno, the Court finds the opposition and rejoinder to be well taken for the reason that so far there has been no official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no disposition of her estate.

WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.(Annex "W", Petition)

In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter alia that:

It cannot be over-stressed that the motion of December 11, 1957 was based on the fact that:

a. Under the last will and testament of the deceased, Linnie Jane Hodges, the late Charles Newton Hodges was the sole heir instituted insofar as her properties in the Philippines are concerned;

b. Said last will and testament vested upon the said late Charles Newton Hodges rights over said properties which, in sum, spell ownership, absolute and in fee simple;

c. Said late Charles Newton Hodges was, therefore, "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.

Likewise, it cannot be over-stressed that the aforesaid motion was granted by this Honorable Court "for the reasons stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales, conveyances, leases, and mortgages executed by" the late Charles Newton Hodges, but also all "the subsequent sales, conveyances, leases, and mortgages ..." be approved and authorized. This Honorable Court, in its order of December 14, 1957, "for the reasons stated" in the aforesaid motion, granted the same, and not only approved all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but also authorized "all subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges. (Annex "X", Petition)

and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him, as sole universal heir of all the properties of the estate of his wife, in the order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that "the court believes that there is no justification why the order of October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of respondent Magno "for official declaration of heirs of the estate of Linnie Jane Hodges", already referred to above, was set for hearing.

In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were issued in two separate testate estate proceedings, Nos. 1307 and 1672, in the court below).


Together with such petition, there are now pending before Us for resolution herein, appeals from the following:

1. The order of December 19, 1964 authorizing payment by respondent Magno of overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (pp. 227, id.) and February 15, 1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration thereof.

2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by petitioner to be co-signed by respondent Magno, as well as the order of October 27, 1965 (pp. 276-277) denying reconsideration.

3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all collections in a joint account and the same order of February 15, 1966 mentioned in No. 1 above which included the denial of the reconsideration of this order of October 27, 1965.

4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of attorney's fees, fees of the respondent administratrix, etc. and the order of February 16, 1966 denying reconsideration thereof.

5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western Institute of Technology to make payments to either one or both of the administrators of the two estates as well as the order of March 7, 1966 (p. 462, id.) denying reconsideration.

6. The various orders hereinabove earlier enumerated approving deeds of sale executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to 37 of this opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal) denying reconsideration of said approval.

7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion for reconsideration was filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal, directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the certificates of title covering the lands

involved in the approved sales, as to which no motion for reconsideration was filed either.

Strictly speaking, and considering that the above orders deal with different matters, just as they affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals before Us, for which reason, petitioner has to pay also thirty-one (31) more docket fees.

It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions and arguments under all of them covering also the fundamental issues raised in respect to the petition for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these cases together. 4

The assignments of error read thus:

I to IV

THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

V to VIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.

IX to XII

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A PROBATE COURT.

XIII to XV


THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XVI to XVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.

XIX to XXI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS A PROBATE COURT.

XXII to XXV

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXVI to XXIX

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S. GUZMAN PURSUANT TO CONTRACTS TO SPELL WHICH WERE CANCELLED AND RESCINDED.

XXX to XXXIV

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE LORENZO CARLES, JOSE PABLICO,

ALFREDO CATEDRAL AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE COURT.

XXXV to XXXVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXXVII to XXXVIII

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY WERE IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P10,680.00 and P4,428.90, RESPECTIVELY.

XXXIX to XL

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS ADMINISTRATOR, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO.

XLI to XLIII

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XLIV to XLVI

THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM


WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER COMPLIED WITH.

XLVII to XLIX

THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF THE SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE COURT.

L

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

LI

THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50.

LII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.

LIII to LXI

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR

S. GUZMAN, FLRENIA BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND GRACIANO L. LUCERO.

LXII

THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.

LXIII

THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965.

LXIV

THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF CONTAINED THEREIN.

LXV

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.

LXVI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT.

LXVII

LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY IT AND THE


DECEASED, CHARLES NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR.

LXVIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXIX

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.

LXX

THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND THEIR LAWYERS.

LXXI

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES.

LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.

LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXIV

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES.

LXXV

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES.

LXXVI

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXVII

THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.

LXXVIII

THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's Brief.)

To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno removed as administratrix, with the proposed appointment of Benito J. Lopez in her place, and that respondent court did actually order such proposed replacement, but the Court declared the said order of respondent court violative of its injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed


administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for disregarding the Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court, informing said court that in addition to the fact that 22% of the share of C. N. Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the Hodges estate.

RESOLUTION OF ISSUES IN THE CERTIORARI ANDPROHIBITION CASES

I

As to the Alleged Tardinessof the Present Appeals

The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve around practically the same main issues and that it is admitted that some of them have been timely taken, and, moreover, their final results hereinbelow to be stated and explained make it of no consequence whether or not the orders concerned have become final by the lapsing of the respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any of said appeals.

II

The Propriety Here of Certiorari andProhibition instead of Appeal

The other preliminary point of the same respondent is alleged impropriety of the special civil action of certiorari and prohibition in view of the existence of the remedy of appeal which it claims is proven by the very appeals now before Us. Such contention fails to take into account that there is a common thread among the basic issues involved in all these thirty-three appeals which, unless resolved in one single proceeding, will inevitably cause

the proliferation of more or less similar or closely related incidents and consequent eventual appeals. If for this consideration alone, and without taking account anymore of the unnecessary additional effort, expense and time which would be involved in as many individual appeals as the number of such incidents, it is logical and proper to hold, as We do hold, that the remedy of appeal is not adequate in the present cases. In determining whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not enough that the remedy of appeal exists or is possible. It is indispensable that taking all the relevant circumstances of the given case, appeal would better serve the interests of justice. Obviously, the longer delay, augmented expense and trouble and unnecessary repetition of the same work attendant to the present multiple appeals, which, after all, deal with practically the same basic issues that can be more expeditiously resolved or determined in a single special civil action, make the remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the common basic issues raised in all of them, despite the conceded availability of appeal. Besides, the settling of such common fundamental issues would naturally minimize the areas of conflict between the parties and render more simple the determination of the secondary issues in each of them. Accordingly, respondent Magno's objection to the present remedy of certiorari and prohibition must be overruled.

We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.

III

On Whether or Not There is Still Any Part of the Testate Estate Mrs. Hodges that may be Adjudicated to her brothersand sisters as her estate, of which respondent Magno is theunquestioned Administratrix in special Proceedings 1307.

In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely abused its discretion in further recognizing after December 14, 1957 the existence of the Testate Estate of Linnie Jane Hodges and in sanctioning purported acts of administration therein of respondent Magno. Main ground for such posture is that by the aforequoted order of respondent court of said date, Hodges was already allowed to assert and exercise all his rights as universal


heir of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be done in Special Proceedings 1307 except to formally close it. In other words, the contention of PCIB is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive heir of his wife and the consequent formal unqualified adjudication to him of all her estate remain to be done to completely close Special Proceedings 1307, hence respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then.

After carefully going over the record, We feel constrained to hold that such pose is patently untenable from whatever angle it is examined.

To start with, We cannot find anywhere in respondent Order of December 14, 1957 the sense being read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The declaration of heirs and distribution by the probate court of the estate of a decedent is its most important function, and this Court is not disposed to encourage judges of probate proceedings to be less than definite, plain and specific in making orders in such regard, if for no other reason than that all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and legatees, should know with certainty what are and when their respective rights and obligations ensuing from the inheritance or in relation thereto would begin or cease, as the case may be, thereby avoiding precisely the legal complications and consequent litigations similar to those that have developed unnecessarily in the present cases. While it is true that in instances wherein all the parties interested in the estate of a deceased person have already actually distributed among themselves their respective shares therein to the satisfaction of everyone concerned and no rights of creditors or third parties are adversely affected, it would naturally be almost ministerial for the court to issue the final order of declaration and distribution, still it is inconceivable that the special proceeding instituted for the purpose may be considered terminated, the respective rights of all the parties concerned be deemed definitely settled, and the executor or administrator thereof be regarded as automatically discharged and relieved already of all functions and responsibilities without the corresponding definite orders of the probate court to such effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:

SECTION 1. When order for distribution of residue made. — When the debts, funeral charges, and expenses of administration, the allowance to the widow and inheritance tax, if any, chargeable to the estate in

accordance with law have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court.

... it is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to the widow, and inheritance tax shall have been effected that the court should make a declaration of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief)

xxx xxx xxx

Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule 90) what brings an intestate (or testate) proceeding to a close is the order of distribution directing delivery of the residue to the persons entitled thereto after paying the indebtedness, if any, left by the deceased. (Santiesteban vs. Santiesteban, 68 Phil. 367, 370.)


In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication of the estate of Mrs. Hodges had already been complied with when the order of December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings leading to the issuance of said order, constituting barely of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot see in the order of December 14, 1957, so much relied upon by the petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general advance authorization to enable said "Executor — to execute subsequent sales, conveyances, leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to the order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the motion of December 11, 1957 on which the court predicated the order in question did not pray for any such adjudication at all. What is more, although said motion did allege that "herein Executor (Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines — during his lifetime", thereby indicating that what said motion contemplated was nothing more than either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which were to be operative only during his lifetime or the use of his own share of the conjugal estate, pending the termination of the proceedings. In other words, the authority referred to in said motions and orders is in the nature of that contemplated either in Section 2 of Rule 109 which permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will before final adjudication or distribution when the rights of third parties would not be adversely affected thereby or in the established practice of allowing the surviving spouse to dispose of his own share of he conjugal estate, pending its final liquidation, when it appears that no creditors of the conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more inclined to believe

that Hodges meant to refer to the former. In any event, We are fully persuaded that the quoted allegations of said motions read together cannot be construed as a repudiation of the rights unequivocally established in the will in favor of Mrs. Hodges' brothers and sisters to whatever have not been disposed of by him up to his death.

Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved the motion of appellee Western Institute of Technology by its order We have quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965, already quoted in full on pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were really convinced that the order of December 14, 1957 was already the order of adjudication and distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for determination and adjudication of what should correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn motion.

It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband and gave him what amounts to full powers of dominion over the same during his lifetime, she imposed at the same time the condition that whatever should remain thereof upon his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's estate as he might possibly dispose of during his lifetime; hence, even assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner, such unilateral act could not have affected or diminished in any degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon his death, for surely, no one can rightly contend that the testamentary provision in question allowed him to so adjudicate any part of the estate to himself as to prejudice them. In other words, irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial court's orders granting said motions, even in the terms in which they have been worded, could not have had the effect of an absolute and


unconditional adjudication unto Hodges of the whole estate of his wife. None of them could have deprived his brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that no one appeared to oppose the motions in question may only be attributed, firstly, to the failure of Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even if they had been notified, they could not have taken said motions to be for the final distribution and adjudication of the estate, but merely for him to be able, pending such final distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's estate in accordance with the bequest in his favor, which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do not believe that the trial court could have acted in the sense pretended by petitioner, not only because of the clear language of the will but also because none of the interested parties had been duly notified of the motion and hearing thereof. Stated differently, if the orders of May 27, 1957 and December 4, 1957 were really intended to be read in the sense contended by petitioner, We would have no hesitancy in declaring them null and void.

Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with the orders of May 27 and December 14, 1957, the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as said orders amounted to the order of adjudication and distribution ordained by Section 1 of Rule 90. But the parallel attempted to be drawn between that case and the present one does not hold. There the trial court had in fact issued a clear, distinct and express order of adjudication and distribution more than twenty years before the other heirs of the deceased filed their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of the lower court in that respect read as follows:

En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos antes de que estos presten la fianza correspondiente y de acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido nombrados comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un valor igual al de los bienes que correspondan a cada heredero segun el testamento. Creo que no es obice para la terminacion del expediente el hecho de que la administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley, estan

exentos de esta formalidad os administradores que son legatarios del residuo o remanente de los bienes y hayan prestado fianza para responder de las gestiones de su cargo, y aparece en el testamento que la administradora Alejandra Austria reune dicha condicion.

POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado Antonio Ventenilla son su esposa Alejandra Austria, Maria Ventenilla, hermana del testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas, Catalino y Froilan, hermanos del testador, declarando, ademas que la heredera Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus coherederos, conforme esta mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los gastos de la ultima enfermedad y funerales del testador, de la donacion hecha por el testador a favor de la Escuela a Publica del Municipio de Mangatarem, y de las misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza mencionada al principio de este auto, se haga la entrega y adjudicacion de los bienes, conforme se dispone en el testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que verificada la adjudicacion, se dara por terminada la administracion, revelandole toda responsabilidad a la administradora, y cancelando su fianza.

ASI SE ORDENA.

Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement of the estate of a deceased person cannot be but perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the circumstances attendant to its issuance do not suggest that such was the intention of the court, for nothing could have been more violative of the will of Mrs. Hodges.

Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein executor (being) the only devisee or legatee of the deceased, in accordance with the last will and testament already probated," there is


"no (other) person interested in the Philippines of the time and place of examining herein account to be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard to the contingent interests of her brothers and sisters, is to impute bad faith to him, an imputation which is not legally permissible, much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give him such a right. Factually, there are enough circumstances extant in the records of these cases indicating that he had no such intention to ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and even promised that "proper accounting will be had — in all these transactions" which he had submitted for approval and authorization by the court, thereby implying that he was aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her brief as appellee:

Under date of April 14, 1959, C. N. Hodges filed his first "Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (p. 91, Appellee's Brief.)

Under date of July 21, 1960, C. N. Hodges filed his second "Annual Statement of Account by the Executor" of the estate of Linnie Jane Hodges. In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an "individual income tax return" for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92, id.)

Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement of Account by the Executor for the year 1960" of the estate of Linnie Jane Hodges. In the "Statement of Net Worth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an "individual evenly between him and the estate income tax return" for calendar year 1960 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 92-93, id.)

In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The order of the court admitting the will to probate unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted to straighten the records "in order (that) the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges".

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the conjugal partnership up to the time of his death, more than five years after that of his wife. He never considered the whole estate as a single one belonging exclusively to himself. The only conclusion one can gather from this is that he could have been preparing the basis for the eventual transmission of his wife's estate, or, at least, so much thereof as he would not have been able to dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire, as intimated in his tax return in the United States to be more extensively referred to anon. And assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We might say here that We are inclined to the view that under the peculiar provisions of his wife's will, and for purposes of the applicable inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon the eventuality of his death, and whatever adjustment might be warranted should there be any such remainder then is a matter that


could well be taken care of by the internal revenue authorities in due time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and December 11, 1957 and the aforementioned statements of account was the very same one who also subsequently signed and filed the motion of December 26, 1962 for the appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real properties that may remain at the death of her husband, Charles Newton Hodges, the said properties shall be equally divided among their heirs." And it appearing that said attorney was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which is made in the above quotation from respondent Magno's brief, are over the oath of Hodges himself, who verified the motion. Said allegations read:

1. — That the Hon. Court issued orders dated June 29, 1957, ordering the probate of the will.

2. — That in said order of the Hon. Court, the relatives of the deceased Linnie Jane Hodges were enumerated. However, in the petition as well as in the testimony of Executor during the hearing, the name Roy Higdon was mentioned, but deceased. It was unintentionally omitted the heirs of said Roy Higdon who are his wife Aline Higdon and son David Higdon, all of age, and residents of Quinlan, Texas, U.S.A.

3. — That to straighten the records, and in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane Hodges, it is requested of the Hon. Court to insert the names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon in the said order of the Hon. Court dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's Answer — Record, p. 260)

As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the testamentary dispositions of his wife.

In connection with this point of Hodges' intent, We note that there are documents, copies of which are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn declarations recognizing the right of his co-heirs, such as the alleged tax return he filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation, Annex 5. In said Schedule M, Hodges appears to have answered the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the provisions made in his or her favor by the will and (11) dower, curtesy or a statutory interest? (X) Yes ( ) No

2d. Does the surviving spouse contemplate renouncing the will and electing to take dower, curtesy, or a statutory interest? (X) Yes ( ) No

3. According to the information and belief of the person or persons filing the return, is any action described under question 1 designed or contemplated? ( ) Yes (X) No (Annex 4, Answer — Record, p. 263)

and to have further stated under the item, "Description of property interests passing to surviving spouse" the following:

None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and interests of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid. (Annex 4, Answer — Record, p. 263)

In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:

I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I renounced and disclaimed any and all right to receive the rents, emoluments and income from said estate, as shown by the statement contained in Schedule M at page 29 of said return, a copy of which schedule is attached to this affidavit and made a part hereof.

The purpose of this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in Schedule M of said return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments and income from the estate of


my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957. (Annex 5, Answer — Record, p. 264)

Although it appears that said documents were not duly presented as evidence in the court below, and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot close our eyes to their existence in the record nor fail to note that their tenor jibes with Our conclusion discussed above from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these documents, considering they are supposed to be copies of their originals found in the official files of the governments of the United States and of the Philippines, serve to lessen any possible apprehension that Our conclusion from the other evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without basis in fact.

Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be declared her sole heir and that her whole estate be adjudicated to him without so much as just annotating the contingent interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it seems to us more factual and fairer to assume that Hodges was well aware of his position as executor of the will of his wife and, as such, had in mind the following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:

Upon the death of Bernarda in September, 1908, said lands continued to be conjugal property in the hands of the defendant Lasam. It is provided in article 1418 of the Civil Code that upon the dissolution of the conjugal partnership, an inventory shall immediately be made and this court in construing this provision in connection with section 685 of the Code of Civil Procedure (prior to its amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in the event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the partnership without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41 Phil., 713.)

In the last mentioned case this court quoted with approval the case of Leatherwood vs. Arnold (66 Texas,

414, 416, 417), in which that court discussed the powers of the surviving spouse in the administration of the community property. Attention was called to the fact that the surviving husband, in the management of the conjugal property after the death of the wife, was a trustee of unique character who is liable for any fraud committed by him with relation to the property while he is charged with its administration. In the liquidation of the conjugal partnership, he had wide powers (as the law stood prior to Act No. 3176) and the high degree of trust reposed in him stands out more clearly in view of the fact that he was the owner of a half interest in his own right of the conjugal estate which he was charged to administer. He could therefore no more acquire a title by prescription against those for whom he was administering the conjugal estate than could a guardian against his ward or a judicial administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil Procedure, with relation to prescription, provides that "this chapter shall not apply ... in the case of a continuing and subsisting trust." The surviving husband in the administration and liquidation of the conjugal estate occupies the position of a trustee of the highest order and is not permitted by the law to hold that estate or any portion thereof adversely to those for whose benefit the law imposes upon him the duty of administration and liquidation. No liquidation was ever made by Lasam — hence, the conjugal property which came into his possession on the death of his wife in September, 1908, still remains conjugal property, a continuing and subsisting trust. He should have made a liquidation immediately (desde luego). He cannot now be permitted to take advantage of his own wrong. One of the conditions of title by prescription (section 41, Code of Civil Procedure) is possession "under a claim of title exclusive of any other right". For a trustee to make such a claim would be a manifest fraud.

And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters.

PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a wholesale and general manner, would necessarily render the said orders void for being violative of the provisions of Rule 89 governing the manner in which such dispositions may be made and how the authority therefor and approval thereof by the probate court may be secured. If We sustained such a view, the result would only be that the said orders should be declared ineffective either way they are understood, considering We have already seen it is legally impossible to consider them as adjudicatory. As a matter


of fact, however, what surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such point of view, the supposed irregularity would involve no more than some non-jurisdictional technicalities of procedure, which have for their evident fundamental purpose the protection of parties interested in the estate, such as the heirs, its creditors, particularly the government on account of the taxes due it; and since it is apparent here that none of such parties are objecting to said orders or would be prejudiced by the unobservance by the trial court of the procedure pointed out by PCIB, We find no legal inconvenience in nor impediment to Our giving sanction to the blanket approval and authority contained in said orders. This solution is definitely preferable in law and in equity, for to view said orders in the sense suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and, withal, will give peace of mind and stability of rights to the innocent parties who relied on them in good faith, in the light of the peculiar pertinent provisions of the will of said decedent.

Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto attached and marked as "Annex A"." Although, regrettably, no copy of said Annex A appears in the records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that the same consists of considerable real and other personal kinds of properties. And since, according to her will, her husband was to be the sole owner thereof during his lifetime, with full power and authority to dispose of any of them, provided that should there be any remainder upon his death, such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the indications are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of. It is Our conclusion, therefore, that properties do exist which constitute such estate, hence Special Proceedings 1307 should not yet be closed.

Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said proceeding. There is no showing that she has ever been legally removed as such, the attempt to replace her with Mr. Benito Lopez without authority from the Court having been expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing that it is not questioning said respondent's status as such

administratrix. Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is concerned.

It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the same were thus commingled pro indiviso and, consequently, the properties pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should administer everything, and all that respondent Magno can do for the time being is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly segregated and delivered to her for her own administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in the inventory of an administrator of the estate of a decedent, (here that of Hodges) and who normally has no right to take part in the proceedings pending the establishment of his right or title; for which as a rule it is required that an ordinary action should be filed, since the probate court is without jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the estate, on the other.

We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot be compared with the claim of a third party the basis of which is alien to the pending probate proceedings. In the present cases what gave rise to the claim of PCIB of exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges in the community properties, were the orders of the trial court issued in the course of the very settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of the issue of title between the parties is something that the court itself has done in the exercise of its probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the properties herein involved pertain exclusively to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within the competence of the court to issue the root orders, why should it not be within its authority to declare their true significance and intent, to the end that the parties may know whether or not the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative of Hodges, in


his favor, to the exclusion of the other heirs of his wife instituted in her will?

At this point, it bears emphasis again that the main cause of all the present problems confronting the courts and the parties in these cases was the failure of Hodges to secure, as executor of his wife's estate, from May, 1957 up to the time of his death in December, 1962, a period of more than five years, the final adjudication of her estate and the closure of the proceedings. The record is bare of any showing that he ever exerted any effort towards the early settlement of said estate. While, on the one hand, there are enough indications, as already discuss that he had intentions of leaving intact her share of the conjugal properties so that it may pass wholly to his co-heirs upon his death, pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs in the other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having these considerations in mind, it would be giving a premium for such procrastination and rather unfair to his co-heirs, if the administrator of his estate were to be given exclusive administration of all the properties in question, which would necessarily include the function of promptly liquidating the conjugal partnership, thereby identifying and segregating without unnecessary loss of time which properties should be considered as constituting the estate of Mrs. Hodges, the remainder of which her brothers and sisters are supposed to inherit equally among themselves.

To be sure, an administrator is not supposed to represent the interests of any particular party and his acts are deemed to be objectively for the protection of the rights of everybody concerned with the estate of the decedent, and from this point of view, it maybe said that even if PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6 of Rule 78 fixing the priority among those to whom letters of administration should be granted that the criterion in the selection of the administrator is not his impartiality alone but, more importantly, the extent of his interest in the estate, so much so that the one assumed to have greater interest is preferred to another who has less. Taking both of these considerations into account, inasmuch as, according to Hodges' own inventory submitted by him as Executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein, it is but logical that both estates should be administered jointly by representatives of both, pending their

segregation from each other. Particularly is such an arrangement warranted because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly provides that "The executor of an executor shall not, as such, administer the estate of the first testator." It goes without saying that this provision refers also to the administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either." Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said sentence allows or permits that the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. After all, the former rule referring to the administrator of the husband's estate in respect to such liquidation was done away with by Act 3176, the pertinent provisions of which are now embodied in the rule just cited.

Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the executor of the latter's will who had, as such, failed for more than five years to see to it that the same was terminated earliest, which was not difficult to do, since from ought that appears in the record, there were no serious obstacles on the way, the estate not being indebted and there being no immediate heirs other than Hodges himself. Such dilatory or indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of any remainder of Mrs. Hodges' share in the community properties, and who are now faced with the pose of PCIB that there is no such remainder. Had Hodges secured as early as possible the settlement of his wife's estate, this problem would not arisen. All things considered, We are fully convinced that the interests of justice will be better served by not permitting or allowing PCIB or any administrator of the estate of Hodges exclusive administration of all the properties in question. We are of the considered opinion and so hold that what


would be just and proper is for both administrators of the two estates to act conjointly until after said estates have been segregated from each other.

At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not be given effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a fideicommissary substitution under Article 863 thereof. There is no vulgar substitution therein because there is no provision for either (1) predecease of the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the inheritance, as required by Article 859; and neither is there a fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone else. But from these premises, it is not correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in question are therefore inoperative and invalid.

The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only when another heir is appointed in a will "so that he may enter into inheritance in default of the heir originally instituted," (Article 857, id.) and, in the present case, no such possible default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not dispose of from his inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. It is partially resolutory, since it bequeaths unto Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute dominion over them 6 only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would automatically become operative upon the

occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also during his lifetime only, even as there was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody other than himself. The Court sees no legal impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the legitime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.)

But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil Code 7 should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under said Article 16, construed in relation to the pertinent laws of Texas and the principle of renvoi, what should be applied here should be the rules of succession under the Civil Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth of the said conjugal properties, the other fourth being, as already explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition (Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she never changed nor intended to change her original residence of birth in Texas, United States of America, and contends that, anyway, regardless of the question of her residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof. Respondent Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents touching on the point already mentioned earlier, the genuineness and legal significance of which petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting claims of the parties were determined in these


proceedings. The Court regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by the parties in the court below nor their discussion, in their respective briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave importance as they are, appear to Us to be adequate enough to enable Us to render an intelligent comprehensive and just resolution. For one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of documents relied upon by respondent Magno is disputed. And there are a number of still other conceivable related issues which the parties may wish to raise but which it is not proper to mention here. In Justice, therefore, to all the parties concerned, these and all other relevant matters should first be threshed out fully in the trial court in the proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in accordance with her duly probated will.

To be more explicit, all that We can and do decide in connection with the petition for certiorari and prohibition are: (1) that regardless of which corresponding laws are applied, whether of the Philippines or of Texas, and taking for granted either of the respective contentions of the parties as to provisions of the latter, 8 and regardless also of whether or not it can be proven by competent evidence that Hodges renounced his inheritance in any degree, it is easily and definitely discernible from the inventory submitted by Hodges himself, as Executor of his wife's estate, that there are properties which should constitute the estate of Mrs. Hodges and ought to be disposed of or distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the pertinent laws of Texas applicable to the situation herein is basically one of fact, and, considering that the sole difference in the positions of the parties as to the effect of said laws has reference to the supposed legitime of Hodges — it being the stand of PCIB that Hodges had such a legitime whereas Magno claims the negative - it is now beyond controversy for all future purposes of these proceedings that whatever be the provisions actually of the laws of Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the laws of Texas, should only be one-fourth of the conjugal estate, such contention constitutes an admission of fact, and consequently, it would be in estoppel in any further proceedings in these cases to claim that said estate could be less, irrespective of what might be proven later to be actually the provisions of the

applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges cannot be closed at this stage and should proceed to its logical conclusion, there having been no proper and legal adjudication or distribution yet of the estate therein involved; and (4) that respondent Magno remains and continues to be the Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code, and in the light of what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact, even our finding above about the existence of properties constituting the estate of Mrs. Hodges rests largely on a general appraisal of the size and extent of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as in their pleadings included in the records on appeal, and it should accordingly yield, as to which exactly those properties are, to the more concrete and specific evidence which the parties are supposed to present in support of their respective positions in regard to the foregoing main legal and factual issues. In the interest of justice, the parties should be allowed to present such further evidence in relation to all these issues in a joint hearing of the two probate proceedings herein involved. After all, the court a quo has not yet passed squarely on these issues, and it is best for all concerned that it should do so in the first instance.

Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-fourth of the conjugal partnership properties, it may be mentioned here that during the deliberations, the point was raised as to whether or not said holding might be inconsistent with Our other ruling here also that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with respect to the order of succession and to the amount of successional rights" that may be willed by a testator which, under Article 16 of the Civil Code, are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should be returned to the court a quo, so that the parties may prove what said law provides, it is premature for Us to make any specific ruling now on either the validity of the testamentary dispositions herein involved or the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the considered view that, at this stage and in the state of the records before Us, the feared inconsistency is more


apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges could in any event be less than that We have fixed above.

It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the rule that foreign laws may not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said laws are already within the actual knowledge of the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held:

It is the theory of the petitioner that the alleged will was executed in Elkins West Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite to the contrary, the parties herein have presented opposing versions in their respective pleadings and memoranda regarding the matter. And even if We took into account that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding succession in the laws of Texas, the disparity in the material dates of that case and the present ones would not permit Us to indulge in

the hazardous conjecture that said provisions have not been amended or changed in the meantime.

On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:

Upon the other point — as to whether the will was executed in conformity with the statutes of the State of Illinois — we note that it does not affirmatively appear from the transcription of the testimony adduced in the trial court that any witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly executed by examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. That section authorizes the courts here to take judicial notice, among other things, of the acts of the legislative department of the United States. These words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold that our courts can, under this provision, take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader language, used in the same section, where it is said that our courts may take judicial notice of matters of public knowledge "similar" to those therein enumerated. The proper rule we think is to require proof of the statutes of the States of the American Union whenever their provisions are determinative of the issues in any action litigated in the Philippine courts.

Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found, and, secondly, because the assignment of error and argument for the appellant in this court raises no question based on such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could not be set aside, even upon application made within six months under section 113 of the Code of Civil Procedure, unless it should be made to appear affirmatively that the conjecture was wrong. The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The affidavits by which the petition is accompanied contain no reference to the subject, and we are cited to no authority in the


appellant's brief which might tend to raise a doubt as to the correctness of the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment.

It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, the parties in a given case do not have any controversy or are more or less in agreement, the Court may take it for granted for the purposes of the particular case before it that the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise would be the competent evidence on the point. Thus, in the instant cases wherein it results from the respective contentions of both parties that even if the pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We have fixed above, the absence of evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any consequence, unless the purpose is to show that it could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is just as We have determined it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically:

Inasmuch as Article 16 of the Civil Code provides that "intestate and testamentary successions both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found", while the law of Texas (the Hodges spouses being nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the domiciliary law (in this case Philippine law) governs the testamentary dispositions and successional rights over movables or personal properties, while the law of the situs (in this case also Philippine law with respect to all Hodges properties located in the Philippines), governs with respect to immovable properties, and applying therefore the 'renvoi doctrine' as enunciated and applied by this Honorable Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary dispositions contained in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with

respect to movables, as well as to immovables situated in the Philippines.

In its main brief dated February 26, 1968, PCIB asserts:

The law governing successional rights.

As recited above, there is no question that the deceased, Linnie Jane Hodges, was an American citizen. There is also no question that she was a national of the State of Texas, U.S.A. Again, there is likewise no question that she had her domicile of choice in the City of Iloilo, Philippines, as this has already been pronounced by the above-cited orders of the lower court, pronouncements which are by now res adjudicata (par. [a], See. 49, Rule 39, Rules of Court; In re Estate of Johnson, 39 Phil. 156).

Article 16 of the Civil Code provides:

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

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

Thus the aforecited provision of the Civil Code points towards the national law of the deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession "both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions ...". But the law of Texas, in its conflicts of law rules, provides that the domiciliary law governs the testamentary dispositions and successional rights over movables or personal property, while the law of the situs governs with respect to immovable property. Such that with respect to both movable property, as well as immovable property situated in the Philippines, the law of Texas points to the law of the Philippines.

Applying, therefore, the so-called "renvoi doctrine", as enunciated and applied by this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as immovables situated in the Philippines.


The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or community property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon the death of the latter, is to be divided into two, one-half pertaining to each of the spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the conjugal partnership property immediately pertained to Charles Newton Hodges as his own share, and not by virtue of any successional rights. There can be no question about this.

Again, Philippine law, or more specifically, Article 900 of the Civil Code provides:

If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half.

If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph.

This legitime of the surviving spouse cannot be burdened by a fideicommisary substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art, 872, Civil code). It is clear, therefore, that in addition to one-half of the conjugal partnership property as his own conjugal share, Charles Newton Hodges was also immediately entitled to one-half of the half conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property, as his legitime.

One-fourth of the conjugal property therefore remains at issue.

In the summary of its arguments in its memorandum dated April 30, 1968, the following appears:

Briefly, the position advanced by the petitioner is:

a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20, petition). This is now a matter of res adjudicata (p. 20, petition).

b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law governs the successional

rights over the properties left by the deceased, Linnie Jane Hodges (pp. 20-21, petition).

c. That under Philippine as well as Texas law, one-half of the Hodges properties pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not questioned by the respondents.

d. That under Philippine law, the deceased, Charles Newton Hodges, automatically inherited one-half of the remaining one-half of the Hodges properties as his legitime (p. 21, petition).

e. That the remaining 25% of the Hodges properties was inherited by the deceased, Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition). Upon the death of Charles Newton Hodges, the substitution 'provision of the will of the deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 23-25, petition).

f. That the deceased, Charles Newton Hodges, asserted his sole ownership of the Hodges properties and the probate court sanctioned such assertion (pp. 25-29, petition). He in fact assumed such ownership and such was the status of the properties as of the time of his death (pp. 29-34, petition).

Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option.

On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal properties.

It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in that the Philippine laws on succession should control. On that basis, as We have already explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering that We have found that there is no legal impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and, further, that the contention of PCIB that the same constitutes an inoperative testamentary substitution is untenable. As will be recalled, PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions, namely: (1) that the provision in question in Mrs. Hodges' testament violates the rules on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to her


husband the whole free portion of her estate to the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and memoranda does PCIB maintain that the application of the laws of Texas would result in the other heirs of Mrs. Hodges not inheriting anything under her will. And since PCIB's representations in regard to the laws of Texas virtually constitute admissions of fact which the other parties and the Court are being made to rely and act upon, PCIB is "not permitted to contradict them or subsequently take a position contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018).

Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges.

In the course of the deliberations, it was brought out by some members of the Court that to avoid or, at least, minimize further protracted legal controversies between the respective heirs of the Hodges spouses, it is imperative to elucidate on the possible consequences of dispositions made by Hodges after the death of his wife from the mass of the unpartitioned estates without any express indication in the pertinent documents as to whether his intention is to dispose of part of his inheritance from his wife or part of his own share of the conjugal estate as well as of those made by PCIB after the death of Hodges. After a long discussion, the consensus arrived at was as follows: (1) any such dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or foundations, shall be considered as intended to be of properties constituting part of Hodges' inheritance from his wife, it appearing from the tenor of his motions of May 27 and December 11, 1957 that in asking for general authority to make sales or other disposals of properties under the jurisdiction of the court, which include his own share of the conjugal estate, he was not invoking particularly his right over his own share, but rather his right to dispose of any part of his inheritance pursuant to the will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered as merely the products of "physical changes" of the properties of her estate which the will expressly authorizes Hodges to make, provided that whatever of said products should remain with the estate at the time of the death of Hodges should

go to her brothers and sisters; (3) the dispositions made by PCIB after the death of Hodges must naturally be deemed as covering only the properties belonging to his estate considering that being only the administrator of the estate of Hodges, PCIB could not have disposed of properties belonging to the estate of his wife. Neither could such dispositions be considered as involving conjugal properties, for the simple reason that the conjugal partnership automatically ceased when Mrs. Hodges died, and by the peculiar provision of her will, under discussion, the remainder of her share descended also automatically upon the death of Hodges to her brothers and sisters, thus outside of the scope of PCIB's administration. Accordingly, these construction of the will of Mrs. Hodges should be adhered to by the trial court in its final order of adjudication and distribution and/or partition of the two estates in question.

THE APPEALS

A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had already adjudicated unto himself all the properties constituting his wife's share of the conjugal partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said date, no longer any estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the various assailed orders sanctioning her actuations as such are not in accordance with law. Such being the case, with the foregoing resolution holding such posture to be untenable in fact and in law and that it is in the best interest of justice that for the time being the two estates should be administered conjointly by the respective administrators of the two estates, it should follow that said assignments of error have lost their fundamental reasons for being. There are certain matters, however, relating peculiarly to the respective orders in question, if commonly among some of them, which need further clarification. For instance, some of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect to many of said orders, PCIB further claims that either the matters involved were not properly within the probate jurisdiction of the trial court or that the procedure followed was not in accordance with the rules. Hence, the necessity of dealing separately with the merits of each of the appeals.

Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to the failure of Hodges and the lower court to liquidate the conjugal partnership, to recognize appellee Magno as Administratrix of the Testate Estate of Mrs. Hodges which is still unsegregated from that of Hodges is not to


say, without any qualification, that she was therefore authorized to do and perform all her acts complained of in these appeals, sanctioned though they might have been by the trial court. As a matter of fact, it is such commingling pro-indiviso of the two estates that should deprive appellee of freedom to act independently from PCIB, as administrator of the estate of Hodges, just as, for the same reason, the latter should not have authority to act independently from her. And considering that the lower court failed to adhere consistently to this basic point of view, by allowing the two administrators to act independently of each other, in the various instances already noted in the narration of facts above, the Court has to look into the attendant circumstances of each of the appealed orders to be able to determine whether any of them has to be set aside or they may all be legally maintained notwithstanding the failure of the court a quo to observe the pertinent procedural technicalities, to the end only that graver injury to the substantive rights of the parties concerned and unnecessary and undesirable proliferation of incidents in the subject proceedings may be forestalled. In other words, We have to determine, whether or not, in the light of the unusual circumstances extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox approach, so as to cause the least disturbance in rights already being exercised by numerous innocent third parties, even if to do so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result later from PCIB's continuing to administer all the community properties, notwithstanding the certainty of the existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the meantime with a relative degree of regularity, that the Court ordered in the resolution of September 8, 1972 the modification of the injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which respondent Magno was completely barred from any participation in the administration of the properties herein involved. In the September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should proceed jointly and that the respective administrators therein "act conjointly — none of them to act singly and independently of each other for any purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or administering all the said properties to the exclusion of the administratrix of Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not irreparable, damage or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this date, more than a year after said resolution, the same has not been given due regard, as

may be gleaned from the fact that recently, respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have all been denied soon after they were filed. 9

Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and then proceed to the more complicated ones in that order, without regard to the numerical sequence of the assignments of error in appellant's brief or to the order of the discussion thereof by counsel.

Assignments of error numbersLXXII, LXXVII and LXXVIII.

These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of sale (therein referred to involving properties in the name of Hodges) should be signed jointly by the PCIB, as Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had been deposited in the account of either of the estates should be withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; ... (d) (that) Administratrix Magno — allow the PCIB to inspect whatever records, documents and papers she may have in her possession, in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized representative of the estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the motion for reconsideration of the order of October 27, 1965 last referred to. (pp. 455-456, id.)


As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8, 1967, and, more importantly, with what We have said the trial court should have always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the arrangement We are ordering, by this decision, to be followed. Stated differently, since the questioned orders provide for joint action by the two administrators, and that is precisely what We are holding out to have been done and should be done until the two estates are separated from each other, the said orders must be affirmed. Accordingly the foregoing assignments of error must be, as they are hereby overruled.

Assignments of error Numbers LXVIIIto LXXI and LXXIII to LXXVI.

The orders complained of under these assignments of error commonly deal with expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her administration thereof, albeit additionally, assignments of error Numbers LXIX to LXXI put into question the payment of attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to the heirs of Mrs. Hodges.

More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six employees of the court and three other persons for services in copying the court records to enable the lawyers of the administration to be fully informed of all the incidents in the proceedings. The reimbursement was approved as proper legal expenses of administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-456, id.) On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the trial court's order of November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend their interests (of the Parties of the First Part) in certain cases now pending litigation in the Court of First Instance of Iloilo —, more specifically in Special Proceedings 1307 and 1672 —" (pp. 126-129, id.) and directing Administratrix Magno "to issue and sign whatever check or checks maybe needed to implement the approval of the agreement annexed to the motion" as well as the "administrator of the estate of

C. N. Hodges — to countersign the said check or checks as the case maybe." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16, 1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's order of October 27, 1965, already referred to above, insofar as it orders that "PCIB should counter sign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.)

Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence what were authorized were in effect expenditures from the estate of Hodges. As We have already demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way the remaining issues between the parties in these cases are ultimately resolved, 10 the final result will surely be that there are properties constituting the estate of Mrs. Hodges of which Magno is the current administratrix. It follows, therefore, that said appellee had the right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she has not yet collected and is not collecting amounts as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the authority to enter into contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And as regards to the reasonableness of the amount therein stipulated, We see no reason to disturb the discretion exercised by the probate court in determining the same. We have gone over the agreement, and considering the obvious size of the estate in question and the nature of the issues between the parties as well as the professional standing of counsel, We cannot say that the fees agreed upon require the exercise by the Court of its inherent power to reduce it.

PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment under it, insofar as counsels' services would redound to the benefit of the heirs, would be in the nature of advances to such heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail.

Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that


juridically and factually the interests involved in her estate are distinct and different from those involved in her estate of Hodges and vice versa. Insofar as the matters related exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger and it is without personality to question the actuations of the administratrix thereof regarding matters not affecting the estate of Hodges. Actually, considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension that when the two estates are segregated from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice any portion that would correspond to Hodges' estate.

And as regards the other heirs of Mrs. Hodges who ought to be the ones who should have a say on the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they appear to have been duly represented in the agreement itself by their attorney-in-fact, James L. Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as ordered by the trial court, all the expenses in question, including the attorney's fees, may be paid without awaiting the determination and segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that at this stage of the controversy among the parties herein, the vital issue refers to the existence or non-existence of the estate of Mrs. Hodges. In this respect, the interest of respondent Magno, as the appointed administratrix of the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable from the interest of the brothers and sisters of Mrs. Hodges. Thus, it should not be wondered why both Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement should be more convenient and economical to both. The possibility of conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather insubstantial. Besides, should any substantial conflict of interest between them arise in the future, the same would be a matter that the probate court can very well take care of in the course of the independent proceedings in Case No. 1307 after the corresponding segregation of the two subject estates. We cannot perceive any cogent reason why, at this stage, the estate and the heirs of Mrs. Hodges cannot be represented by a common counsel.

Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes

premature partial distribution of the estate of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of Hodges have any interest. In any event, since, as far as the records show, the estate has no creditors and the corresponding estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges, have already been paid, 11 no prejudice can caused to anyone by the comparatively small amount of attorney's fees in question. And in this connection, it may be added that, although strictly speaking, the attorney's fees of the counsel of an administrator is in the first instance his personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in the situation on hand, the attorney-in-fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or not the sanction given to said fees by the probate court is proper.

For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI should be as they are hereby overruled.

Assignments of error I to IV,XIII to XV, XXII to XXV, XXXVto XXX VI, XLI to XLIII and L.

These assignments of error deal with the approval by the trial court of various deeds of sale of real properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of corresponding supposed written "Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and December 25, 1962, the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the, contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores executed on February 5, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman, executed on September 13, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Florenia Barrido, executed on February 21, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Purificacion Coronado, executed on August 14, 1961; the contract to sell


between the deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Melquiades Batisanan, executed on June 9, 1959; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Belcezar Causing, executed on February 10, 1959 and the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No. 13815."

Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was as absolute owner of the properties respectively covered by said sales that he executed the aforementioned contracts to sell, and consequently, upon his death, the implementation of said contracts may be undertaken only by the administrator of his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is invoked with particular reference to five other sales, in which the respective "contracts to sell" in favor of these appellees were executed by Hodges before the death of his wife, namely, those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa Premaylon.

Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it is quite obvious that PCIB's contention cannot be sustained. As already explained earlier, 1 1* all proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife should be deemed as continuing to be parts of her estate and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense that should there be no showing that such proceeds, whether in cash or property have been subsequently conveyed or assigned subsequently by Hodges to any third party by acts inter vivos with the result that they could not thereby belong to him anymore at the time of his death, they automatically became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions which are exactly of this nature. Consequently, the payments made by the appellees should be considered as payments to the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the will.

The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his wife, present

a different situation. At first blush, it would appear that as to them, PCIB's position has some degree of plausibility. Considering, however, that the adoption of PCIB's theory would necessarily have tremendous repercussions and would bring about considerable disturbance of property rights that have somehow accrued already in favor of innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal situation involving them by overlooking the possible technicalities in the way, the non-observance of which would not, after all, detract materially from what should substantially correspond to each and all of the parties concerned.

To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they should not be made to suffer any prejudice on account of judicial controversies not of their own making. What is more, the transactions they rely on were submitted by them to the probate court for approval, and from already known and recorded actuations of said court then, they had reason to believe that it had authority to act on their motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to act in her capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All the sales in question were executed by Magno in 1966 already, but before that, the court had previously authorized or otherwise sanctioned expressly many of her act as administratrix involving expenditures from the estate made by her either conjointly with or independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in previous orders of the court. Accordingly, unless the impugned orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same would finally be held to be only one-fourth of the conjugal properties of the spouses as of the time of her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on May 12, 1958. In none of its numerous, varied and voluminous pleadings, motions and manifestations has PCIB claimed any possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the questioned deeds of sale executed by appellee Magno may be treated as among those corresponding to the estate of Mrs. Hodges, which would have been actually under her control and administration had Hodges complied with his duty to liquidate the conjugal


partnership. Viewing the situation in that manner, the only ones who could stand to be prejudiced by the appealed orders referred to in the assignment of errors under discussion and who could, therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges, definitely not PCIB.

It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he had acted as executor of the will of his wife, he did not have to submit those contracts to the court nor follow the provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living", (Order of May 27) which according to the motion on which the court acted was "of buying and selling personal and real properties", and "to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be said that he had authority to do so by virtue of these blanket orders, and PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the terms of the order itself for its main contention in these cases. On the other hand, if, as PCIB contends, he acted as heir-adjudicatee, the authority given to him by the aforementioned orders would still suffice.

As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in question were based were executed by Hodges before or after the death of his wife. In a word, We hold, for the reasons already stated, that the properties covered by the deeds being assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity attending the actuations of the trial court may be invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the defects pointed out not being strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance of rights already created in favor of innocent third parties, it is best that the impugned orders are not disturbed.

In view of these considerations, We do not find sufficient merit in the assignments of error under discussion.

Assignments of error V to VIII,XVI to XVIII, XXVI to XXIX, XXXVII

to XXXVIII, XLIV to XLVI and LI.

All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees, appellees herein, of the terms and conditions embodied in the deeds of sale referred to in the assignments of error just discussed. It is claimed that some of them never made full payments in accordance with the respective contracts to sell, while in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo Catedral and Salvador S. Guzman, the contracts with them had already been unilaterally cancelled by PCIB pursuant to automatic rescission clauses contained in them, in view of the failure of said buyers to pay arrearages long overdue. But PCIB's posture is again premised on its assumption that the properties covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have already held above that, it being evident that a considerable portion of the conjugal properties, much more than the properties covered by said deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid unnecessary legal complications, it can be assumed that said properties form part of such estate. From this point of view, it is apparent again that the questions, whether or not it was proper for appellee Magno to have disregarded the cancellations made by PCIB, thereby reviving the rights of the respective buyers-appellees, and, whether or not the rules governing new dispositions of properties of the estate were strictly followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges as the persons designated to inherit the same, or perhaps the government because of the still unpaid inheritance taxes. But, again, since there is no pretense that any objections were raised by said parties or that they would necessarily be prejudiced, the contentions of PCIB under the instant assignments of error hardly merit any consideration.

Assignments of error IX to XII, XIXto XXI, XXX to XXIV, XXXIX to XL,XLVII to XLIX, LII and LIII to LXI.

PCIB raises under these assignments of error two issues which according to it are fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already cancelled by it in the performance of its functions as administrator of the estate of Hodges, the trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court "arrogated unto itself, while acting as a probate court, the power to determine the contending claims of third parties against the estate of Hodges over real property," since it has in effect determined whether or not all the terms and conditions of the respective contracts to sell executed by


Hodges in favor of the buyers-appellees concerned were complied with by the latter. What is worse, in the view of PCIB, is that the court has taken the word of the appellee Magno, "a total stranger to his estate as determinative of the issue".

Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the sales in their favor that is decisive. Since We have already held that the properties covered by the contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real parties in interest having the right to oppose the consummation of the impugned sales are not objecting, and that they are the ones who are precisely urging that said sales be sanctioned, the assignments of error under discussion have no basis and must accordingly be as they are hereby overruled.

With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to surrender the respective owner's duplicate certificates of title over the properties covered by the sales in question and otherwise directing the Register of Deeds of Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the buyers-appellees, suffice it to say that in the light of the above discussion, the trial court was within its rights to so require and direct, PCIB having refused to give way, by withholding said owners' duplicate certificates, of the corresponding registration of the transfers duly and legally approved by the court.

Assignments of error LXII to LXVII

All these assignments of error commonly deal with the appeal against orders favoring appellee Western Institute of Technology. As will be recalled, said institute is one of the buyers of real property covered by a contract to sell executed by Hodges prior to the death of his wife. As of October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it received under date of October 4, 1965 and October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee Magno, in their respective capacities as administrators of the distinct estates of the Hodges spouses, albeit, while in the case of PCIB it made known that "no other arrangement can be accepted except by paying all your past due account", on the other hand, Magno merely said she would "appreciate very much if you can make some remittance

to bring this account up-to-date and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging that it was ready and willing to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid amount with the court pending resolution of the conflicting claims of the administrators." Acting on this motion, on November 23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion, holding that payment to both or either of the two administrators is "proper and legal", and so "movant — can pay to both estates or either of them", considering that "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto."

The arguments under the instant assignments of error revolve around said order. From the procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion, that said motion was heard, considered and resolved on November 23, 1965, whereas the date set for its hearing was November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to the substantive aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of the probate court and that the order authorized payment to a person other than the administrator of the estate of Hodges with whom the Institute had contracted.

The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear proof to the contrary, that the lower court had acted regularly by seeing to it that appellant was duly notified. On the other hand, there is nothing irregular in the court's having resolved the motion three days after the date set for hearing the same. Moreover, the record reveals that appellants' motion for reconsideration wherein it raised the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not convinced that the relief granted is not within the general intent of the Institute's motion.

Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere reiterations of contentions We have already resolved above adversely to appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the propriety of not disturbing the lower court's orders sanctioning the sales questioned in all these appeal s by PCIB, that it is only when one of the parties to a contract to convey property executed by a deceased person raises substantial objections to its being implemented by the


executor or administrator of the decedent's estate that Section 8 of Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate action outside of the probate court; but where, as in the cases of the sales herein involved, the interested parties are in agreement that the conveyance be made, it is properly within the jurisdiction of the probate court to give its sanction thereto pursuant to the provisions of the rule just mentioned. And with respect to the supposed automatic rescission clauses contained in the contracts to sell executed by Hodges in favor of herein appellees, the effect of said clauses depend on the true nature of the said contracts, despite the nomenclature appearing therein, which is not controlling, for if they amount to actual contracts of sale instead of being mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) the pactum commissorium or the automatic rescission provision would not operate, as a matter of public policy, unless there has been a previous notarial or judicial demand by the seller (10 Manresa 263, 2nd ed.) neither of which have been shown to have been made in connection with the transactions herein involved.

Consequently, We find no merit in the assignments of errorNumber LXII to LXVII.

S U M M A R Y

Considering the fact that this decision is unusually extensive and that the issues herein taken up and resolved are rather numerous and varied, what with appellant making seventy-eight assignments of error affecting no less than thirty separate orders of the court a quo, if only to facilitate proper understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of the whole situation be made together with our conclusions in regard to its various factual and legal aspects. .

The instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their respective wills which were executed on different occasions, each one of them provided mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after funeral and administration expenses, taxes and debts) of my estate, both real and personal, wherever situated or located, to my beloved (spouse) to have and to hold unto (him/her) — during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them survived the other, the remainder of what he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter.

Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special administrator of her estate, and in a separate order of the same date, he was "allowed or authorized to continue the business in which he was engaged, (buying and selling personal and real properties) and to perform acts which he had been doing while the deceased was living." Subsequently, on December 14, 1957, after Mrs. Hodges' will had been probated and Hodges had been appointed and had qualified as Executor thereof, upon his motion in which he asserted that he was "not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, ... all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter."

Annually thereafter, Hodges submitted to the court the corresponding statements of account of his administration, with the particularity that in all his motions, he always made it point to urge the that "no person interested in the Philippines of the time and place of examining the herein accounts be given notice as herein executor is the only devisee or legatee of the deceased in accordance with the last will and testament already probated by the Honorable Court." All said accounts approved as prayed for.

Nothing else appears to have been done either by the court a quo or Hodges until December 25, 1962. Importantly to be the provision in the will of Mrs. Hodges that her share of the conjugal partnership was to be inherited by her husband "to have and to hold unto him, my said husband, during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike", which provision naturally made it imperative that the conjugal partnership be promptly liquidated, in order that the "rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily known and identified, no such liquidation was ever undertaken. The record gives no indication of the reason for such omission, although relatedly, it appears therein:


1. That in his annual statement submitted to the court of the net worth of C. N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the combined income of the conjugal partnership and then merely divided the same equally between himself and the estate of the deceased wife, and, more importantly, he also, as consistently, filed corresponding separate income tax returns for each calendar year for each resulting half of such combined income, thus reporting that the estate of Mrs. Hodges had its own income distinct from his own.

2. That when the court a quo happened to inadvertently omit in its order probating the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon then already deceased, Hodges lost no time in asking for the proper correction "in order that the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really interested in the estate of the deceased Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly stated that "deceased Linnie Jane Hodges died leaving no descendants or ascendants except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the decedent", thereby indicating that he was not excluding his wife's brothers and sisters from the inheritance.

4. That Hodges allegedly made statements and manifestations to the United States inheritance tax authorities indicating that he had renounced his inheritance from his wife in favor of her other heirs, which attitude he is supposed to have reiterated or ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in which he even purportedly stated that his reason for so disclaiming and renouncing his rights under his wife's will was to "absolve (him) or (his) estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges", his wife, since her death.

On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although,

soon enough, on December 29, 1962, a certain Harold K. Davies was appointed as her Co-Special Administrator, and when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-Administrator of said estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB alone.

At the outset, the two probate proceedings appear to have been proceeding jointly, with each administrator acting together with the other, under a sort of modus operandi. PCIB used to secure at the beginning the conformity to and signature of Magno in transactions it wanted to enter into and submitted the same to the court for approval as their joint acts. So did Magno do likewise. Somehow, however, differences seem to have arisen, for which reason, each of them began acting later on separately and independently of each other, with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted and paid handsomely, conducted the business of the estate independently of Magno and otherwise acted as if all the properties appearing in the name of Charles Newton Hodges belonged solely and only to his estate, to the exclusion of the brothers and sisters of Mrs. Hodges, without considering whether or not in fact any of said properties corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On the other hand, Magno made her own expenditures, hired her own lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealth with some of the properties, appearing in the name of Hodges, on the assumption that they actually correspond to the estate of Mrs. Hodges. All of these independent and separate actuations of the two administrators were invariably approved by the trial court upon submission. Eventually, the differences reached a point wherein Magno, who was more cognizant than anyone else about the ins and outs of the businesses and properties of the deceased spouses because of her long and intimate association with them, made it difficult for PCIB to perform normally its functions as administrator separately from her. Thus, legal complications arose and the present judicial controversies came about.

Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval by the court a quo of the annual statements of account of Hodges, PCIB holds to the view that the estate of Mrs. Hodges has already been in effect closed with the virtual adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any estate to administer and the brothers and sisters of Mrs. Hodges have no


interests whatsoever in the estate left by Hodges. Mainly upon such theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the lower court's orders allowing respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as detailed earlier above, be set aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers and sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch as the purported substitution is not, in its view, in accordance with the pertinent provisions of the Civil Code, it is ineffective and may not be enforced. It is further contended that, in any event, inasmuch as the Hodges spouses were both residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of her share of the conjugal partnership, notwithstanding the fact that she was citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code. Initially, We issued a preliminary injunction against Magno and allowed PCIB to act alone.

At the same time PCIB has appealed several separate orders of the trial court approving individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for specified fees and incurring expenses of administration for different purposes and executing deeds of sale in favor of her co-appellees covering properties which are still registered in the name of Hodges, purportedly pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional and procedural grounds directly or indirectly predicated on the principal theory of appellant that all the properties of the two estates belong already to the estate of Hodges exclusively.

On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and contends that they were no more than the court's general sanction of past and future acts of Hodges as executor of the will of his wife in due course of administration. As to the point regarding substitution, her position is that what was given by Mrs. Hodges to her husband under the provision in question was a lifetime usufruct of her share of the conjugal partnership, with the naked ownership passing directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code, she claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs. Hodges cannot be less than her share or

one-half of the conjugal partnership properties. She further maintains that, in any event, Hodges had as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole estate passed directly to her brothers and sisters effective at the latest upon the death of Hodges.

In this decision, for the reasons discussed above, and upon the issues just summarized, We overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount to an adjudication to Hodges of the estate of his wife, and We recognize the present existence of the estate of Mrs. Hodges, as consisting of properties, which, while registered in that name of Hodges, do actually correspond to the remainder of the share of Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of her will, any portion of said share still existing and undisposed of by her husband at the time of his death should go to her brothers and sisters share and share alike. Factually, We find that the proven circumstances relevant to the said orders do not warrant the conclusion that the court intended to make thereby such alleged final adjudication. Legally, We hold that the tenor of said orders furnish no basis for such a conclusion, and what is more, at the time said orders were issued, the proceedings had not yet reached the point when a final distribution and adjudication could be made. Moreover, the interested parties were not duly notified that such disposition of the estate would be done. At best, therefore, said orders merely allowed Hodges to dispose of portions of his inheritance in advance of final adjudication, which is implicitly permitted under Section 2 of Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs. Hodges had no creditors and all pertinent taxes have been paid.

More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges inherited by her brothers and sisters consists of one-fourth of the community estate of the spouses at the time of her death, minus whatever Hodges had gratuitously disposed of therefrom during the period from, May 23, 1957, when she died, to December 25, 1962, when he died provided, that with regard to remunerative dispositions made by him during the same period, the proceeds thereof, whether in cash or property, should be deemed as continuing to be part of his wife's estate, unless it can be shown that he had subsequently disposed of them gratuitously.

At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what would be


the estate of Mrs. Hodges under them is basically one of fact, and considering the respective positions of the parties in regard to said factual issue, it can already be deemed as settled for the purposes of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers and sisters by virtue of her will may not be less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the view that under the laws of Texas, there is such a legitime of one-fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In other words, hereafter, whatever might ultimately appear, at the subsequent proceedings, to be actually the laws of Texas on the matter would no longer be of any consequence, since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as contended by it now, for admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create estoppel.

In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on the other hand, Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition, however, that the latter would have complete rights of dominion over the whole estate during his lifetime and what would go to the former would be only the remainder thereof at the time of Hodges' death. In other words, whereas they are not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary substitution are absent; the provision in question is a simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the suspensive condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law.

We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more than just stated, but this would depend on (1) whether upon the proper application of the principle of renvoi in relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that Hodges had no legitime as contended by Magno, and (2) whether or not it can be held that Hodges had legally and effectively renounced his inheritance from his wife. Under the circumstances presently obtaining and in the state of the record of

these cases, as of now, the Court is not in a position to make a final ruling, whether of fact or of law, on any of these two issues, and We, therefore, reserve said issues for further proceedings and resolution in the first instance by the court a quo, as hereinabove indicated. We reiterate, however, that pending such further proceedings, as matters stand at this stage, Our considered opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could not have anyway legally adjudicated or caused to be adjudicated to himself her whole share of their conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the uncontested administratrix, cannot be less than one-fourth of the conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have been gratuitously disposed of therefrom, by Hodges in favor of third persons since then, for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the ones ultimately applicable, such one-fourth share would be her free disposable portion, taking into account already the legitime of her husband under Article 900 of the Civil Code.

The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among her brothers and sisters and that respondent Magno is the legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be denied. The Court feels however, that pending the liquidation of the conjugal partnership and the determination of the specific properties constituting her estate, the two administrators should act conjointly as ordered in the Court's resolution of September 8, 1972 and as further clarified in the dispositive portion of its decision.

Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious that, with Our holding that there is such an estate of Mrs. Hodges, and for the reasons stated in the body of this opinion, the said orders should be affirmed. This We do on the assumption We find justified by the evidence of record, and seemingly agreed to by appellant PCIB, that the size and value of the properties that should correspond to the estate of Mrs. Hodges far exceed the total of the attorney's fees and administration expenses in question.


With respect to the appeals from the orders approving transactions made by appellee Magno, as administratrix, covering properties registered in the name of Hodges, the details of which are related earlier above, a distinction must be made between those predicated on contracts to sell executed by Hodges before the death of his wife, on the one hand, and those premised on contracts to sell entered into by him after her death. As regards the latter, We hold that inasmuch as the payments made by appellees constitute proceeds of sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May 27 and December 14, 1957, said payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on the assumption that the size and value of the properties to correspond to the estate of Mrs. Hodges would exceed the total value of all the properties covered by the impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs. Hodges. And there being no showing that thus viewing the situation, there would be prejudice to anyone, including the government, the Court also holds that, disregarding procedural technicalities in favor of a pragmatic and practical approach as discussed above, the assailed orders should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural and jurisdictional issues raised by it. And inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the government has objected to any of the orders under appeal, even as to these parties, there exists no reason for said orders to be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had already

gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from said estate; in consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership of the deceased spouses and the determination and segregation from each other of their respective estates, provided, that upon the finality of this judgment, the trial court should immediately proceed to the partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator 12; and this arrangement shall be maintained until the final resolution of the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said resolution.

Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal docket fees, but this decision shall nevertheless become final as to each of the parties herein after fifteen (15) days from


the respective notices to them hereof in accordance with the rules.

Costs against petitioner-appellant PCIB.

G.R. No. L-56249 May 29, 1987

IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED REV. FATHER TEODORO ARANAS,

RAMONA B. VDA. DE ARANAS, ADELIA B. ARANAS-FERNANDEZ, HEIRS OF THE LATE RODULFO B.

ARANAS, ETC., ET AL., petitioners,vs.

VICENTE B. ARANAS AND HON. LUIS B. MANTA, respondents.

This is a petition for certiorari which seeks to declare the orders of respondent Judge dated July 16, 1980 and September 23, 1980 as an exercise of a gross abuse of discretion amounting to lack of jurisdiction, by ruling that the properties under Group C of the testate estate of the late Fr.Teodoro Aranas are subject to remunerative legacies.

The antecedent facts of the case are as follows:

Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953. He had executed on June 6, 1946 his Last Will and Testament which was admitted to probate on August 31, 1956. In said Last Will and Testament, Fr. Teodoro Aranas stipulated the following:

A. The return to Aniceto Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Aniceto Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents.

B. The return to Carmelo Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Carmelo Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents.

C. The special administration of the remainder of the estate of the testator by Vicente Aranas, a faithful and serviceable nephew and designating him also as recipient of 1/2 of the produce of said properties after deducting the expenses for the administration and the other 1/2 of the produce to be given to the Catholic Church for the eternal repose of the testator's soul. Said pertinent provision 1 reads as follows:

Fourth. It is my will that the lands I had bought from other persons should be converged and placed under a "special administrator." The special administrator of these lands, for his office, should receive one half of all the produce from which shall be deducted the expenses for the administration, and the other half of the produce should be received by the Roman Catholic Church and should be spent for my soul, Vicente B. Aranas (Tingting), because he is a faithful and serviceable nephew, should be the first special administrator of said properties, without bond, until his death or until he should not want to hold the said office anymore. Anyone of the sons of my brother Carmelo Aranas can hold the said office of special administrator, and none other than they. Their father, my brother Carmelo Aranas shall be the one to decide who among them shall hold the said office, but upon the death of my said brother Carmelo Aranas, his said sons will have power to select the one among them ourselves. The special administration is perpetual.

The lower court in its Order 2 dated November 17, 1977 ruled, upon petitioners' (in Sp. Proc. No. 303) "Motion for the Declaration of Heirs and Partition; and for Removal of the Administrator (Vicente Aranas) and/or for his Permission to Resign, and appointment of His Successor" that the "perpetual inalienability and administration of the portion of the estate of the late Rev. Fr. Teodoro Aranas, administered by Vicente Aranas, is nun and void after twenty years from January 19, 1954 ... " and declared in the same order the heirs of the late Fr. Teodoro Aranas. It also declared that "the removal of Vicente Aranas will, therefore, not serve the ends of justice and for the best interest of all the heirs, particularly with respect to the portion of the estate taken by the heirs of Aniceto Aranas, represented by the petitioners herein and the rest of the heirs of Carmelo, represented by the intervenors, coheirs of Administrator Vicente Aranas." 3

However, the abovesaid Order was subsequently set aside upon the "Urgent Motion for Reconsideration and to Declare Testate and Intestate Heirs of the late Fr. Teodoro Aranas," filed by the administrator Vicente Aranas on the allegation that said order was violative of due process and without legal and factual basis because only the issue for the removal of the administrator was heard and not the matter of the declaration of heirs. Thus, the lower court declared in its Order, 4 dated July 16, 1980 that the Order dated November 17, 1977 is "set aside and in the interest of justice, reopened in order that other heirs, successors-in-interest of Felino Aranas, 5 could likewise assert their claims, as in the case of the heirs of Aniceto Aranas and Carmelo Aranas." 6


Their Motion for Reconsideration having been denied by the lower court in its order dated September 23, 1980, petitioners now come before Us by certiorari raising the issue that the lower court erred in setting aside its order dated November 17, 1977 and in not applying the provisions on Usufruct of the New Civil Code with respect to the properties referred to as Group "C" in the Last Will and Testament.

The court ruled in its questioned order that this particular group of properties (Group "C") is subject to the following:

1. Remunerative legacy by way of usufruct of the net proceeds of 1/2 of the estate after deducting expenses for administration in favor of Vicente Aranas, during his lifetime and shall continue an administrator of the estate, and, who, upon his death or refusal to continue such usufruct, may be succeeded by any of the brothers of the administrator as selected by their father, Carmelo Aranas, if still alive or one selected by his sons if, he, Carmelo, is dead; Pursuant to the Will. (Article 562, 563, 564 and 603 of the New Civil Code).

2. Legacy in favor of the Roman Catholic Church, particularly the Archbishop diocese of Cagayan de Oro City Represented by the Reverend Archbishop Patrick H. Cronin over one-half of the proceeds of the properties under Group "C." (Article 603, New Civil Code) and to last for a period of Fifty years from the effective date of the legacy, Article 605, New Civil Code). (Annex "L-14," p. 87, Rollo)

Assailing the aforementioned ruling, petitioners rely heavily on the doctrine laid down in Art. 870 of the New Civil Code to wit:

Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.

A cursory reading of the English translation of the Last Will and Testament shows that it was the sincere intention and desire of the testator to reward his nephew Vicente Aranas for his faithful and unselfish services by allowing him to enjoy one-half of the fruits of the testator's third group of properties until Vicente's death and/or refusal to act as administrator in which case, the administration shall pass to anyone chosen by Carmelo Aranas among his sons and upon Carmelo's death, his sons will have the power to select one among themselves. Vicente Aranas therefore as a usufructuary has the right to enjoy the property of his uncle with all the benefits which result from the normal enjoyment (or exploitation) of another's property, with the obligation to return, at the designated time, either the same thing, or

in special cases its equivalent. This right of Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as there is a limitation namely his death or his refusal. Likewise his designation as administrator of these properties is limited by his refusal and/or death and therefore it does not run counter to Art. 870 of the Civil Code relied upon by the petitioners. Be it noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising from the usufruct. Neither are the naked owners (the other heirs) of the properties, the usufruct of which has been given to Vicente Aranas prohibited from disposing of said naked ownership without prejudice of course to Vicente's continuing usufruct. To void the designation of Vicente Aranas as usufructuary and/or administrator is to defeat the desire and the dying wish of the testator to reward him for his faithful and unselfish services rendered during the time when said testator was seriously ill or bed-ridden. The proviso must be respected and be given effect until the death or until the refusal to act as such of the instituted usufructuary/administrator, after which period, the property can be properly disposed of, subject to the limitations provided in Art. 863 of the Civil Code concerning a fideicommissary substitution, said Article says:

A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

It is contended by petitioners that the ruling made by respondent court dated November 17, 1977 was already final and not subject to correction as what was set aside and to be reheard was only regarding the determination of additional heirs. Such contention is not worthy of credence. Respondents in their Memorandum allege and it is not disputed by petitioners that the order of November 17, 1977 has not yet become final because it was received only on January 12, 1978 by the counsel for respondent Vicente Aranas and the Motion for Reconsideration and to declare testamentary and intestate heirs dated January 17, 1978 was filed by the said respondent within the reglementary period. Besides the validity or invalidity of the usufructuary dispositions would affect the determination of heirs.

As to petitioners' allegation that the order of July 16, 1980 is without basis, the record shows that during the hearing of the urgent motion for reconsideration and to declare testamentary and intestate heirs, it was proven


conclusively by the said respondent Vicente B. Aranas that he was instituted as a remunerative legatee per mandate of the Last Will and Testament by way of usufructuary. Likewise the right of the Roman Catholic Church as the other usufructuary legatee for the duration of the statutory lifetime of a corporation, that is, 50 years from the date of the effectivity of said legacy, was also established. 7

WHEREFORE, the instant petition is hereby dismissed.

SO ORDERED.

(Note: Palacios vs R. Ramirez and Ramirez vs. Ramirez are the same case)

Art. 8700 – Dispositions declaring all or part of the estate inalienable for more than twenty years are

void

Aranas vs. Aranas

Art. 871 – Institution

March 31, 1917

G.R. No. 11386EMILIO NATIVIDAD, administrator of the estate of

the deceased Tiburcio Salvador y Reyes, petitioner-appellant,

vs.BASILIA GABINO, respondent-appellee.

This is an appeal, filed by the administrator of the estate of the decedent Tiburcio Salvador y Reyes, from the order of August 21, 1915, by which the judge of the Court of First Instance of Manila, interpreting the true wishes of the testator, expressed the opinion that the ownership and dominion of the property mentioned in clause 6 of the will should be awarded to Basilia Gabino, subject to the reservation made in behalf of Lorenzo Salvador and Emilio Natividad. Therefore the trial court ordered an amendment made to the fourth basis for the proposed partition of the decedent's estate, presented by the testamentary executor, and, as soon as such be made, a day set for the hearing and approval of the proposed amended partition.

The testator Salvador y Reyes contracted a valid and legal marriage with Anselma Nicasio, who died in 1868, leaving a daughter named Higinia who married Clemente Natividad. Higinia Salvador died in 1913, survived by two children Emilio and Purificacion, both

surnamed Natividad y Salvador. Tiburcio Salvador disposed of all his property in the manner recorded in the will executed in legal form on November 9, 1914, instituting as sole heirs his grandchildren Emilio and Purificacion, both surnamed Natividad y Salvador. In the sixth clause of this will the testator left to Basilia Gabino the legacy mentioned therein. Literally, this clause is as follows:

I bequeath to Doña Basilia Gabino the ownership and dominion of the urban property, consisting of a house and lot situated on Calle Lavezares of the said district of San Nicolas and designated by No. 520, and in addition eleven meters by two meters of the lot designated by No. 419, situated on Calle Madrid. This portion shall be taken from that part of the lot which is adjacent to the rear of said property No. 520. If the said legatee should die, Lorenzo Salvador shall be obliged to deliver this house, together with the lot on which it stands, to my grandson Emilio Natividad, upon payment by the latter to the former of the sum of four thousand pesos (P4,000), Philippine currency.

The executor of the estate of the decedent is the decedent's own heir, Emilio Natividad, who in due season and by counsel presented to the court for its approval a proposed partition of the property pertaining to the estate, setting forth in the fourth basis the following relative to the legacy made to Basilia Gabino:

Summarizing the statements made in respect to this matter, we are of the opinion that the sixth clause expresses in itself a right of usufruct, in favor of Doña Basilia Gabino, of the house at No. 520 Calle Lavezares, and a general legacy in favor of Lorenzo Salvador of the sum of P4,000 whenever Basilia should die; but that the ownership of the property upon which this right and legacy are established belongs to the heir Emilio Natividad who, by the express will of the testator, had been made liable for these encumbrances.

By a writing of August 5, 1915, counsel for the legatee Basilia Gabino opposed the approval of the proposed partition with regard to the adjudication to the legatee of the usufruct only of the property at No. 520 Calle Lavezares, claiming that said legatee ought to be recognized as entitled to the dominion and ownership of the same. For this and the other reasons set forth, her counsel requested that the testamentary executor be ordered to amend the fourth basis of the proposed partition in order that ownership and dominion, instead of usufruct only, of said property be adjudicated to the objector-legatee, Basilia Gabino.

After proper legal steps had been taken and the written briefs of the parties and the schedule of the proposed


partition filed by the testamentary executor had been examined, the trial judge issued the order aforementioned. Appeal was taken by counsel for the executor to this court, and a transcript of the record of the proceedings below was forwarded to the clerk of this court.

The only question raised by this appeal and submitted to us for decision is: What construction must be given to the above-quoted sixth clause of the will executed by Tiburcio Salvador?

A person is entirely free to make his will in such manner as may best please him, provided the testamentary provisions conform to law and meet its requirements. He may impose conditions, either with respect to the institution of heirs or to the designation of legatees, and, when the conditions imposed upon the former or the latter do not fall within the provisions of those articles of the Civil Code touching heirs and legatees, they shall be governed by the rules therein prescribed for conditional obligations, (Civ. Code, arts. 790 and 791.)

In the sixth clause of the will executed by the decedent Tiburcio Salvador y Reyes, he bequeathed to Basilia Gabino the ownership and dominion of the property therein specified as to its location and other circumstances, on condition that if the legatee should die Lorenzo Salvador would be obliged, upon the payment of P4,000 by the testator's grandson and heir Emilio Natividad, to hand over this property to the latter.

The condition imposed by the testator in the double legacy mentioned depends upon the happening of the event constituting the condition, to wit, the death of the legatee Basilia Gabino, a perfectly legal condition according to article 1114 of the Civil code, as it is not impossible of performance and is not contrary to law or public morals, as provided in article 1116 of said code.

The moment the legatee Gabino dies the other legatee, Lorenzo Salvador, is obliged to deliver the property to the heir Emilio Natividad who, in his turn and in exchange, must pay the legatee Salvador the sum of P4,000, thereby fulfilling the double legacy contained in the said sixth clause of the will, the first of these legacies being the voluntary reservation to Basilia Gabino of the ownership of the said house, and the second, the conditional legacy of P4,000 to Lorenzo Salvador.

Making use of his right, the testator provided in his will that the dominion, that is, the ownership and possession of his house situated on Calle Lavezares, No. 520 together with a part of the lot at No. 419, should be delivered as a legacy, provided that if the legatee should die, this property instead of passing to the successor,

would revert to the testator's grandson and heir, provided that he in turn would pay to Lorenzo Salvador the sum of P4,000. It cannot be understood that the legacy conveyed only the usufruct of the property because the plain and literal meaning of the words employed by the testator in the said clause sixth clearly shows beyond all doubt the express wished of the testator who, establishing a voluntary reservation of the ulterior and final disposition of the bequeathed property, ordered that the legatee's right of dominion should end at her death, and that on this occurrence his wish was that the ownership of the property should pass to Emilio Natividad, provided the latter in turn delivered said P4,000 to Lorenzo Salvador who appears to be the son of the legatee Gabino.

If the provisions of article 675 of the Civil Code are to be complied with, it cannot be understood that the testator meant to bequeath to Basilia Gabino the mere usufruct of the property, inasmuch as, by unmistakable language employed in the said sixth clause, he bequeathed her the ownership or dominion of the said property — language which expresses without the slightest doubt his wishes which should be complied with literally, because it is constant rule or jurisprudence that in matters of last wills and testaments the testator's will is the law.

It is true that the legatee could not make any disposal of the bequeathed real property to be effective after her death, nor could the property be acquired from her by her heir through testate or intestate succession; but if we take into account that the institution of donations and legacies depends on the full free will of the testator, and that if the testator intended no more than that Basilia Gabino should enjoy the ownership of the property during her lifetime, this testamentary provisions is not contrary to law or to public morals, inasmuch as the testator thereby intended that the property should revert to its lawful heir, the latter being obliged to make a monetary compensation to Lorenzo Salvador who appears to be the successor of the legatee Gabino.

For the foregoing reasons, considering that the order appealed from is in accordance with law and that the several features of the sole assignment of error made thereto are without merit, the said order of August 21, 1915, must be affirmed, with the costs against the appellant. So ordered.

Art. 873 – Impossible or Illegal Conditions

November 1, 1927

G.R. No. 22595


Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.ANDRE BRIMO, opponent-appellant.

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the

scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed.

Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says:

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following:


Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law.

All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs.

So ordered.

Art. 874 – Prohibition to Marry

December 19, 1907

G.R. No. 3891ELENA MORENTE, petitioner-appellant,

vs.GUMERSINDO DE LA SANTA, respondent-appellee.

The will of Consuelo Morente contains the following clauses:

1. I hereby order that all real estate which may belong to me shall pass to my husband, Gumersindo de la Santa.

2. That my said husband shall not leave my brothers after my death, and that he shall not marry anyone;

should my said husband have children by anyone, he shall not convey any portion of the property left by me, except the one-third part thereof and the two remaining thirds shall be and remain for my brother Vicente or his children should he have any.

3. After my death I direct my husband to dwell in the camarin in which the bakery is located, which is one of the properties belonging to me.

Her husband, Gumersindo de la Santa, married again within four months of the death of the testatrix. Elena Morente, a sister of the deceased, filed a petition in the proceeding relating to the probate of the will of Consuelo Morente pending in the Court of First Instance of the Province of Tayabas in which she alleged the second marriage of Gumersindo de la Santa and asked that the legacy to him above-mentioned be annulled. Objection was made in the court below by the husband to the procedure followed by the petitioner. The court below, however, held that the proceeding was proper and from that holding the husband did not appeal. From the judgment of the court below, the petitioner, Elena Morente, appealed.

In its judgment the court denied the petition. It was said, however, in the decision, as we understand it, that the husband having married, he had the right to the use of all the property during his life and that at his death two-thirds thereof would pass to Vicente, a brother of the testatrix, and one-third thereof could be disposed of by the husband. The construction given to the will by the court below is not accepted by the appellant. She claims that by the mere act of marriage the husband at once lost all rights acquired by the will. It is neither alleged nor proven that any children have been born to the husband since the death of the testatrix.

Article 790 of the Civil Code provides that testamentary provisions may be made conditional and article 793 provides that a prohibition against another marriage may in certain cases be validly imposed upon the widow or widower. But the question in this case is, Did the testatrix intend to impose a condition upon the absolute gift which is contained in the first clauses of the will? It is to be observed that by the second clause she directs that her husband shall not leave her sisters. It is provided in the third clause that he must continue to live in a certain building. It is provided in the second clause that he shall not marry again. To no one of these orders is attached the condition that if he fails to comply with them he shall lose the legacy given to him by the first clause of the will. It is nowhere expressly said that if he does leave the testatrix's sisters, or does not continue to dwell in the building mentioned in the will he shall forfeit the property given him in the first clause; nor is it


anywhere expressly said that if he marries again he shall incur such a loss. But it is expressly provided that if one event does happen the disposition of the property contained in the first clause of the will shall be changed. It is said that if he has children by anyone, two-thirds of that property shall pass to Vicente, the brother of the testatrix.

We are bound to construe the will with reference to all the clauses contained therein, and with reference to such surrounding circumstances as duly appear in the case, and after such consideration we can not say that it was the intention of the testatrix that if her husband married again he should forfeit the legacy above mentioned. In other words, there being no express condition attached to that legacy in reference to the second marriage, we can not say that any condition can be implied from the context of the will. In the case of Chiong Joc-Soy vs. Jaime Vano (8 Phil. Rep., 119), we held that the legacy contained in the will therein mentioned was not conditional. It is true that case arose under article 797 of the Civil Code, which perhaps is not strictly applicable to this case, but we think that it may be argued from what is said in article 797 that, in order to make a testamentary provision conditional, such condition must fairly appear from the language used in the will.

Whether the children mentioned in the second clause of the will are natural children or legitimate children we do not decide, for no such question is before us, the contingency mentioned in that part of the clause not having arisen, and we limit ourselves to saying merely that by the subsequent marriage of the husband he did not forfeit the legacy given to him by the first part of the will. That was the only question before the court below. the judgment of that court, denying the petition, is accordingly affirmed, with the costs of this instance against the appellant. So ordered.

Art. 882 – Modal Institution

Art. 883 – When without the fault of the heir, an institution cannot take efffect

[G.R. No. 113725. June 29, 2000]

JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA MARLENA[2]

COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

This is a petition for review of the decision of the Court of Appeals,[3] dated December 23, 1993, in CA-G.R. No.

CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall


have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister."[4]

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs

export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).


That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1991-92."[5]

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice.

SO ORDERED."[6]

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar

annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."[7]

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred


to as "near descendants" without a definite identity or reference as to who are the "near descendants" and therefore, under Articles 843[8] and 845[9] of the New Civil Code, the substitution should be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent[10] and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs.[11] Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the

case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be noncompliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution,[12] or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution.[13] The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation.[14] In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir.[15] In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution."[16] Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr.


Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir.[17] In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir.[18] A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.[19] On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend.[20] To some extent, it is similar to a resolutory condition.[21]

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is

likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional.[22]

Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made.[23] Such construction as will sustain and uphold the Will in all its parts must be adopted.[24]

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest.


Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death.[25] Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs

SO ORDERED.

Art. 884 - Conditional Obligations

G.R. No. L-27531 December 24, 1927

In re estate of the deceased Victoriana Saavedra. MACARIO MACROHON ONG HAM, administrator-

appellant,vs.

JUAN SAAVEDRA, ET AL., opponents-appellees.

Macario Macrohon Ong Ham, widower and executor of the joint last will and testament of Victoriana Saavedra and himself, presented said will for probate, which was ordered by the Court of First Instance of Zamboanga in its decree of February 21, 1924.

This executor submitted a scheme of partition and distribution of the property in accordance with the terms of the joint will, to which Juan Saavedra and others filed an opposition. The executor rejoined insisting upon the approval of the scheme and asking that the opposition of Juan Saavedra and others be overruled.

On March 25, 1926, the parties submitted a statement of facts, which reads as follows:

1. That Victoriana Saavedra died in the municipality and Province of Zamboanga, P. I., without descendants or ascendants, being at that time married to Macario Macrohon Ong Ham, both of them having executed a joint will, which joint will has been duly admitted to probate in this court.

2. That the only near relations of the said Victoriana Saavedra, with the right to inherit her estate are her brothers Juan and Segundo Saavedra; her nephews and nieces, Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano Saavedra, Froilan Saavedra, Josefa Saavedra, Encarnacion Carpio and Macra Carpio, in case that the said Victoriana Saavedra died intestate, or did not dispose of her property in said will.

3. That aside from the estate mentioned in the said last will and testament, duly probated by this Honorable Court, there exist another parcel of land, acquired by Ong Ham the year 1920, by purchase from Ong Tah, and adjudicated to the said Ong Ham in Expediente No. 6 (Cadastral).

Lot No. 3057, with the improvements thereon in favor of the persons named below in the following proportions: Ong Ham, aged 65 years, married to Victoriana Saavedra, 19/20 parts; Crispulo Macoto Cruz, of legal age, 1/40 part; and Juan Mocoto, 1/40 part.

4. That the interest parties in this proceeding herewith submit to this Honorable Court the rights of the respective parties in this estate, in accordance with the terms of this joint last will and testament of the spouses, Macario Macrohon Ong Ham, and of Victoriana Saavedra, deceased.

5. That the parties representing Macario Macrohon Ong Ham admit that he sold lots Nos. 34 and 35, of Expediente No. 8196, for the sum of P1,900, believing in good faith that he could sell the same for his personal uses.

6. That the party representing Juan Saavedra, and the other relations heretofore named hereby withdraw their opposition which they have presented to the final account of the surviving spouse, Macario Macrohon Ong Ham, and conform to the same, and ask that the Court approve the said final account.

The will referred to in the statement of facts above quoted reads as follows:


That we, Macario Macrohon Ong Ham Victoriana Saavedra, both residing at San Roque, municipality and Province of Zamboanga, Philippine Islands, and both of about 70 years of age, realizing that we have but a few more years to live, and each of us being in the full enjoyment of his intellectual faculties and not acting by virtue of threats, force or undue influence, individually and conjointly do hereby make public, declare, and execute this, our last will and testament, in the following terms:

We hereby declare that we are husband and wife; that we have had no issue, nor have we adopted children.

We hereby likewise declare that Macario Macrohon Ong Ham is a native of China, having resided in Zamboanga, Philippine Islands for over 40 years, and that Victoriana Saavedra is a native of the Philippine Islands.

We furthermore declare that Macario Macrohon Ong Ham has two nephews at present residing in Zamboanga, Philippine Islands, whom he has always treated as his own sons, following the custom of Amoy, China, whose names and ages respectively as follows:

Ong Ka Chiew, residing at San Roque, Zambaoanga, P. I., about 20 years of age, single, and Ong Ka Jian, also residing at San Roque, Zamboanga, P.I., about 18 years of age, single.

We also declare that there are actually registered in our names, as conjugal property, the following parcels of land located in Zamboanga, P. I., to wit:

Lot No. 838 — A, proceeding 7880, certificate No. 1257Lot No. 825, proceeding 7880, certificate No. 1783Lot No. 832, proceeding 7880, same certificateLot No. 330, proceeding 7880, certificate No. 4027Lot No. 1, proceeding 7880, same certificateLot No. 199, proceeding 7880, certificate No. 736Lot No. 329, proceeding 7880, certificate No. 858Lot No. 838 — C, proceeding 7880, certificate No. 1259Lot No. 831 — B, proceeding 7880, certificate No. 1256Lot No. 817, proceeding 7880, certificate No. 1247Lot No. 768, proceeding 7880, certificate No. 1105Lot No. 35, proceeding 8196, certificate No. 1257Lot No. 65 — A, proceeding 8196, certificate No. 3688Lot No. 834, proceeding 7880, certificate No. 4025Lot No. 96, proceeding 8196, certificate No. 4025Lot No. 57 — A, proceeding 8196, certificate No. 4871Lot No. 222, proceeding 7880, certificate No. 861Lot No. 34, proceeding 8196, certificate No. 4858Lot No. 137 — C, proceeding 8196, certificate No. 2223

We do hereby agree jointly and individually, that our properties above described by disposed of in the following manner:lawphi1.net

In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra, we hereby order that the properties hereinafter described be jointly given to Ong Ka Chiew and Ong Ka Jian , and should either of the two die before Macario Macrohon Ong Ham, we order that all the said properties be given to the survivor, which properties are described as follows:

Lot No. 838 — C, proceeding 7880, certificate No. 1259Lot No. 831 — B, proceeding 7880, certificate No. 1256Lot No. 825, proceeding 7880, certificate No. 1783Lot No. 832, proceeding 7880, same certificateLot No. 330, proceeding 7880, certificate No. 4027Lot No. 1, proceeding 7880, same certificateLot No. 199, proceeding 7880, certificate No. 736Lot No. 329, proceeding 7880, certificate No. 858Lot No. 35, proceeding 8196, certificate No. 1257Lot No. 65 — A, proceeding 8196, certificate No. 3688Lot No. 834, proceeding 7880, certificate No. 4025Lot No. 96, proceeding 8196, same certificateLot No. 57 — A, proceeding 8196, certificate No. 4871Lot No. 222, proceeding 7880, certificate No. 861Lot No. 34, proceeding 8196, certificate 4858Lot No. 137 — C, proceeding 8196, certificate No. 2223

In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham, the lands and properties described below shall belong exclusively to Victoriana Saavedra, to wit:

Lot No. 838 — A, proceeding 7880, certificate No. 1257Lot No. 817, proceeding 7880, certificate No. 1247Lot No. 768, proceeding 7880, certificate No. 1105

Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order that lot No. 817-A, proceeding No. 7880, certificate No. 1247, be adjudicated to Segunda Saavedra, widow, sister of Victoriana Saavedra, free of all liens and encumbrances.

We further order that all our debts and just obligations, including the expenses of our last illness and funerals, be paid by Ong Ka Chiew and Ong Ka Jian.

If any of the legatees named herein should question or in any way attempt to alter the disposition of any of our several properties, such legatee is to lose and shall no longer receive the benefits and rights herein specified.

We individually and cojointly declare that the contents of this document have been read aloud to us in our dialect and that we understand said contents, this document


having been read in the presence of each of us and in the presence of the witnesses whose names are mentioned further on and who have signed the present instrument together with ourselves.

In witness whereof, we sign this our last will and testament at Zamboanga, Zamboanga, Philippine Islands, on this second (2) day of January, 1923.

We, Ong Peh, Ong Chua, and T. Arquiza, do hereby certify that the foregoing document consisting of five (5) sheets including the present, was on the date above-mentioned, signed by the testators Macario Macrohon Ong Ham and Victoriana Saavedra on all its sheets, in our presence at their request, in their presence, and in the presence of each other we have signed our names as witnesses on all the sheets of said will.

The lower court solving the question raised by the parties in their agreement of facts, held that the one-half of the property described in the will, all of lot No. 3057, cadastral case No. 6; one-half of the cash balance of the final account to be rendered by the executor, and half of the proceeds of the sale of lots No. 34 and 35 of Proceeding No. 8196, belong to Macario Macrohon Ong Ham; and as it appears from the will quoted, as well as from the agreement dated March 25, 1926, that Victoriana Saavedra left no legitimate ascendants or descendants at the time of her death Macario Macrohon Ong Ham, her widower, is, according to the provisions of articles 837 of the Civil Code, entitled to the usufruct of one-half of the estate of the said Victoriana Saavedra, consisting of one-half of the property described in the will, excluding lots No. 817 and 768 of proceeding No. 7880, given to Segunda Saavedra with the consent of Macario Macrohon Ong Ham; of one-half of the cash balance of the executor's final account, and of half of the proceeds of the sale of lots Nos. 34 and 35 in proceeding No. 8196, and said estate is adjudicated as follows: one-half of the same belongs in usufruct to the widower Macario Macrohon Ong Ham, and the naked ownership of this half as well as the full ownership of the other half is adjudicated to Victoriana Saavedra's heirs, named in the said agreement dated March 25, 1926, in the following manner: sixteenths of the naked ownership of the one-half in usufruct and sixteenths of the other half in full ownership, to Juan Saavedra; sixteenths of the naked ownership of the one-half in usufruct ands sixteenths of the other half in full ownership, to Segunda Saavedra; and, sixteenths of the naked ownership of the one-half in usufruct and sixteenths of the other half in full ownership to Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano Saavedra, Froilan Saavedra and Josefa Saavedra, children of Mateo Saavedra, deceased brother of Victoriana Saavedra, in equal parts; and to Encarnacion Carpio and Macra

Carpio, daughters of Petrona Saavedra, deceased sister of Victoriana Saavedra, sixteenths of the naked ownership of the one-half in usufruct and sixteenths of the other half in full ownership, in equal parts.

As regards lots Nos. 817 and 768 of proceeding No. 7880, given to Segunda Saavedra, the court adjudicates the same to the said Segunda Saavedra, in accordance with the clauses on lines 99-111 of the will.

Finally, the court orders that the executor, after paying the inheritance tax, distribute among Victoriana Saavedra's heirs named in the agreement of March 25, 1926, the part belonging to each of them as hereinabove stated, and after this delivery is made and the inheritance tax, if any, is paid, this proceeding is to be considered closed ipso facto.

Counsel for the executor appealed from this decision and assigns in his brief the following alleged errors as committed by the lower court:

I. In holding in its auto, of November 26, 1926, that the deceased, Victoriana Saavedra, died partially intestate, and did not dispose of all her property by the joint last will and testament executed by herself and her husband, Macario Macrohon Ong Ham, and in not finding that under the terms of the aforesaid joint will the legatees, Ong Ka Chiew and Ong Ka Jian, named therein, were entitled to receive her estate and participation in the sixteen parcels of land devised under the said joint will, by the said spouses.

II. In holding that the brother and the sister of Victoriana Saavedra, by name, Juan Saavedra and Segundo Saavedra; her nephews and nieces, by name, Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano Saavedra, Froilan Saavedra, Josefa Saavedra, Encarnacion Carpio and Macra Carpio, her next of kin were entitled to receive any part of her estate and participation in the said sixteen parcels of land, devised to the above named legatees, Ong Ka Chiew and Ong Ka Jian, under the terms of the said joint last will and testament.

The parts of the will pertinent to the questions raised by the appellant are:

We do agree jointly and individually that our properties above described be disposed of in the following manner:

In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra, we hereby order that the properties hereinafter described given to Ong Ka Chiew and Ong Ka Jian jointly, and should either of the two die before Macario Macrohon Ong Ham, we order that all


the said properties be given to the survivor, which properties are described as follows:

(Here follows a description of 16 of the 19 lots that are also described in the will as conjugal property of the testator and testatrix.)

In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham, the lands and properties described below shall belong exclusively to Victoriana Saavedra, to wit:

Lot No. 838 — A, proceeding 7880, certificate No. 1257Lot No. 817, proceeding 7880, certificate No. 1247Lot No. 768, proceeding 7880, certificate No. 1105

Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order that lot No. 817 — A, proceeding No. 7880, certificate No. 1247, be adjudicated to Segunda Saavedra, widow, sister of Victoriana Saavedra, free of all liens and encumbrances.

We also order that lot No. 768, proceeding No. 7880, certificate No. 1105, be adjudicated to Segunda Saavedra and her heirs, on condition that she devote the products of the same to having masses said for the repose of the soul of Victoriana Saavedra.

In case of the death of either of us, we order that the surviving spouse be appointed executor of this our last will and testament.

Appellant alleges that the trial court erred in holding that Victoriana Saavedra died partly intestate. Article 658 of the Civil Code provides:

ART. 658. Succession is effected either by the will of man expressed by the testament or, in the absence of a testament, by operation of law.

The first is called testamentary, the second legal succession.

It may also be effected partly by the will of man and partly by operation of law.

According to this, there are three ways in which succession may be effected: by the will of man, by the law, or by both at the same time. In the first case the succession is called testamentary, because it is based on the last will and testament, which is the orderly manifestation of the testator's will; in the second, it is called legal, because it takes effect by operation of the law; and the third is called mixed, because it partakes of the character of both testamentary and legal succession.

Commenting on the third mode of effecting succession, Mr. Manresa says: "The rule of indivisibility and incompatibility was transferred to our laws from pure Romanism, and it remained in them until the XV Century, when the law of the Ordenamiento previously cited repealed the maxim nemo pro parte testatus pro parte intestatus decedere protest. This same repeal is confirmed in paragraph 3 of the article under consideration (658), which prescribes that it may also be effected partly by the will of man and partly by operation of law, and in articles 764 and 912 above cited which call the legal heirs to the enjoyment of the part of the inheritance not disposed of by the testator in his will." (Vol. 5, 1921 ed., pp. 326, 327.)

This is a refutation of the appellant's argument that no one who has executed a will can die partly intestate. That the rule of indivisibility of the testator's will invoked by the appellant does not hold good in this jurisdiction, is shown, moreover, by articles 764 and 912 of the Civil Code. According to the first of these articles, a will is valid even though it does not contain any institution of an heir, or if such institution does not include the entire estate, and even though the person instituted does not accept the inheritance or is disqualified to inherit; according to the second, one of the ways in which legal succession may take place is when the will does not institute an heir to all or part of the property, or does not dispose of all that belongs to the testator, in which case legal succession shall take place only with respect to the property which the testator has not disposed of.

Assuming that the joint will in question is valid, it follows that the deceased Victoriana Saavedra specified therein that parcels 187 and 768 in proceeding No. 7880 be delivered as a legacy to her sister Segunda Saavedra, the first parcel free of all liens and encumbrances, and the second on the condition that the legatee devote the products of the same to having masses said for the repose to the testatrix's soul. As to the remaining sixteen parcels, the testatrix disposed of her part in them conditionally, that is to say, in case her husband Macario Macrohon Ong Ham died before she died, said parcels were to be awarded to her husband's nephews, or to either of them in case one should have died before the said Macario Macrohon Ong Ham. The condition imposed in the will as precedent to the vesting in the alleged legatees Ong Ka Chiew and Ong Ka Jian of the right to the legacy, not having been complied with, the trial court found that the part of said property belonging to the testatriz should be partitioned among the persons called on to succeed her under the law. We are of the opinion that this finding is in accordance with the law, since, under article 791 of the Civil Code, conditions imposed upon heirs and legatees shall be governed by the rules established for conditional obligations in all


matters not provided for by this section (articles 790 to 805). And, in accordance with article 1114 of the Code, in conditional obligations the acquisition of rights, as well as the extinction or loss of those already acquired, shall depend upon the occurrence of the event constituting the condition.

Another error assigned by the appellant consist in the trial court not having found that, under the terms of the joint will, the legatees Ong Ka Chiew and Ong Ka Jian were entitled to receive the testatrix's share in the sixteen parcels of land mentioned in said will.

The part of the will invoked by the appellant, states:

In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra, we hereby order that the properties hereinafter described given to Ong Ka Chiew and Ong Ka Jian jointly, and should either of the two die before Macario Macrohon Ong Ham, we order that all the said properties be given to the survivor.

The trial court, in interpreting this paragraph of the will in regard to legatees Ong Ka Chiew and Ong Ka Jian, reached the right conclusion, and rightly, in our opinion, that it provides for the substitution of legatees in case either of them should die before Macario Macrohon Ong Ham; and that the acquisition by these legatees of any right to the property described in the will depended on the condition that Macario Macrohon Ong Ham died before Victoriana Saavedra.

The appellant also assigns as error the holding of the trial court that the opponents, the brother, sister, nephews, and nieces of the testatrix, were entitled to receive her share in the said sixteen parcels of land, given to the legatees, Ong Ka Chiew and Ong Ka Jian, under the terms of the said joint will. Such a contention is untenable. As we have said, the acquisition of right by the alleged legatees depends on the occurrence of the event constituting the condition, that is, the death of Macario Macrohon Ong Ham prior to that of his wife; and this condition not having been complied with, the said Ong Ka Chiew and Ong Ka Jian have not acquired any right, and therefore the testatrix's estate is to be divided among her heirs in accordance with the law.

To the sixteen parcels of land to which reference is her made, that is, those given to the nephews of the testator, should be added lot No. 838--A, proceeding No. 7880, certificate 1257, which the testatrix had reserved to herself (together with lots 817 and 768), in case she survived her husband Macario Macrohon Ong Ham.

One-half of these seventeen parcels of land belong to the widower, Macario Macrohon Ong Ham, and the trial

court shall order the division of the other half, that is, the estate of the deceased Victoriana Saavedra, being one-half of the conjugal property, between the widower and the opponents, as provided for in articles 945, 948 and 953 of the Civil Code. With this modification, the order appealed from is affirmed in all other respects. So ordered.

Art. 887 – Compulsory Heirs

January 31, 1987Rosales vs. Rosales

In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law.

It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales, a resident of Cebu City, died intestate. She was survived by her husband Fortunate T. Rosales and their two (2) children Magna Rosales Acebes and Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate of the dismissed has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).

On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the estate of the deceased in the Court of First Instance of Cebu. The case was docketed as Special Proceedings No. 3204-R. Thereafter, the trial court appointed Magna Rosales Acebes administratrix of the said estate.

In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring the following in individuals the legal heirs of the deceased and prescribing their respective share of the estate ?

Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.

This declaration was reiterated by the trial court in its Order I dated February 4, 1975.

These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales.


Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court denied her plea. Hence this petition.

In sum, the petitioner poses two (2) questions for Our resolution petition. First ? is a widow (surviving spouse) an intestate heir of her mother-in-law? Second ? are the Orders of the trial court which excluded the widow from getting a share of the estate in question final as against the said widow?

Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either by his own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of representation provided for in Article 981 of the same law. The relevant provisions of the Civil Code are:

Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.

Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation.

Art. 982. The grandchildren and other descendants shag inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.

Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child.

There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from her mother-in- law either by her own right or by the right of representation. The provisions of the Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the deceased all the more confirms Our observation. If the legislature intended to make the surviving spouse an

intestate heir of the parent-in-law, it would have so provided in the Code.

Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the Civil Code which provides that:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.

Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law. We had occasion to make this observation in Lachenal v. Salas, 4 to Wit:

We hold that the title to the fishing boat should be determined in Civil Case No. 3597 (not in the intestate proceeding) because it affects the lessee thereof, Lope L. Leoncio, the decedent's son-in-law, who, although married to his daughter or compulsory heir, is nevertheless a third person with respect to his estate. ... (Emphasis supplied).

By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate of the


deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation as provided by Article 981 of the Code.

The essence and nature of the right of representation is explained by Articles 970 and 971 of the Civil Code, viz ?

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (Emphasis supplied.)

Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his blood relationship. He does not succeed his father, Carterio Rosales (the person represented) who predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-in-law.

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father, Carterio Rosales.

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the second question posed by the petitioner.

Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir of his or her parent-in-law.

WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs against the petitioner. Let this case be remanded to the trial-court for further proceedings.

SO ORDERED.

January 31, 1972

G.R. No. L-30977CARMEN LAPUZ SY, represented by her substitute

MACARIO LAPUZ, petitioner-appellant,vs.

EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits.

In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.

Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a


vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death.

On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.

After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute - for the lower court did not act on the motion for substitution) stated the principal issue to be as follows:

When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings?

The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim"

(Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as a pre-condition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? .

An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself - actio personalis moritur cum persona.

... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4 .

Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717;


Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).

A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .

Art. 106. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; .

(2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of article 176;

(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian;

(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law.

From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted...

The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court:

SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration..

A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant.

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an


absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.

ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs

January 30, 1943

G.R. No. 48430FLORENTINA PISALBON, ET AL., plaintiffs-

appellants,vs.

PLACIDA BEJEC, defendant-appellee.

OZAETA, J.:

Hipolito Manuel, who dies on April 26, 1926, left two widows and a homestead. The widows are Floretina Pisalbon and Placida Bejec, whom he married on June 23, 1903, and November 9, 1914, respectively. The homestead is lot No. 754 of the Umingan cadastre, with an area of 13.85 hectares and described in original certificate of title No. 1749 of the register of deeds of Pangasinan. In his homestead application which was filed on September 3, 1917, and approved by the Director of Lands on August 23, 1918, Hipolito Manuel named Placida Bejec as his lawful wife; and in fact he and she were the ones who cleared and worked in the land from the date the homestead application was filed until the death of Hipolito Manuel on April 26, 1926. Thereafter Placida Bejec continued in the possession of the land, ignorant of the existence of Florentina Pisalbon and of the latter's previous marriage to Hipolito Manuel until Florentina Pisalbon began to assert an adverse claim to the homestead in question. In view of the conflicting claims of the two widows, the Director of Lands, on August 23, 1934, ordered that the homestead patent be issued in favor of the heirs of Hipolito Manuel, and accordingly the register of deeds of Pangasinan subsequently issued original certificate of title No. 1749 in favor of the heirs of Hipolito Manuel.

As already intimated, Placida Bejec had no knowledge of the undissolved marriage between Hipolito Manuel and Florentina Pisalbon; but she admits that neither did Florentina Pisalbon know of the marriage of Hipolito Manuel and Placida Bejec until after his death. No child was born to the second marriage, but a daughter was born to the first, namely, Margarita Manuel, one of the original plaintiffs herein, who died on August 17, 1939, during the pendency of this action, leaving two children named Cristeta and Esmedia Ancheta.

This action was instituted on June 28, 1938, by Florentina Pisalbon and her daughter Margarita Manuel, the latter assisted by her husband Pedro Ancheta, against Placida Bejec to recover from her the ownership and possession of the homestead above mentioned. Upon a stipulation of facts the substance of which has been set forth above, the trial court held that in view of the fact that Placida Bejec together with Hipolito Manuel cleared and worked the land in question, and considering that homesteads are granted to actual occupants of the public land, she is entitled to the homestead both in law and in equity, and dismissed plaintiffs' action with costs against the plaintiffs.

In their appeal the plaintiffs invoke the doctrine laid down by this Court in Lao and Lao vs. Dee Tim (45 Phil,. 739), and pray "that the decision of the lower court be reversed and another entered in lieu thereof declaring that the plaintiffs-appellants are entitled to and own one half (½) pro indiviso of the land described in homestead patent title No. 1749 issued by the registered of deeds of Pangasinan in the name of the heirs of Hipolito Manuel . . ."

We note at the outset that the finality of the order of the Director of Lands directing the issuance of the homestead patent in favor of the heirs of Hipolito Manuel has not been pleaded and invoked by the plaintiffs in their complaint; neither was said order offered in evidence during the trial. It was only mentioned in the stipulation of facts to show how the title came to be issued in the name of the heirs of Hipolito Manuel. Plaintiffs based their claim to the homestead in question upon the following allegations of their complaint:

3. That the plaintiffs Florentina Pisalbon and Margarita Manuel acquired the above-described property thru inheritance from the deceased Hipolito Manuel, who died intestate in the municipality of San Manuel, Province of Pangasinan, on April 26, 1926, leaving the property in question as his hereditary estate and the said Margarita Manuel and Florentina Pisalbon as his sole and exclusive heirs, they being his legitimate daughter and lawful wife respectively.


4. That upon the death of the said Hipolito Manuel, the defendant Placida Bejec took possession of the property in question against the will and express opposition of the herein plaintiffs, resulting in their damage and prejudice.

But in the light of the facts stipulated during the trial, the plaintiffs have modified their claim to conform to the doctrine laid down in Lao and Lao vs. Dee Tim, supra, thus recognizing the right of the defendant to one half of the land in question. On the other hand the defendant asserts exclusive ownership of the entire homestead under section 103 of Act No. 2874, on the theory that she is a lawful widow of the deceased. We shall therefore decide the case upon the issue thus formulated.

Section 103 of Act No. 2874, which was in force at the time the application and the final proof covering the homestead in question were filed, provides in substance that if the applicant shall die before the issuance of the patent or while he still has obligations pending towards the Government, he shall be succeeded in his rights and obligations, with respect to the land applied for, by his widow or, in her default, by his heirs in law.[[1]] At the time the homestead applicant Hipolito Manuel dies in 1926, he had submitted the final proof and paid all the necessary homestead fees, and all that remained was the ministerial act of issuing the title, which accordingly was ordered issued by the Director of Lands not to either of the two widows but to the heirs of Hipolito Manuel.

But regardless of the validity or invalidity of the marriage between Hipolito Manuel and the defendant Placida Bejec, we are of the opinion and so hold that the latter is entitled to one half of the homestead in question as a co-applicant and co-owner and that, consequently, only the other half thereof passed to the heirs of Hipolito Manuel upon his death. Although the homestead application was made in the name of Hipolito Manuel alone, who represented himself as being married to Placida Bejec, the land in question was occupied, cleared, and worked by both Hipolito Manuel and Placida Bejec. It was thru their joint efforts and industry that the requisites of the Public Land Act for the acquisition of title to a homestead were complied with. Therefore, independently of their marriage, they must be considered as co-owners of the homestead.

In Lao and Lao vs. Dee Tim, supra, a Chinese named Yap Siong married Dee Tim in China in 1893 and Maria Lao in the Philippines in 1903. Neither of the two wives knew of the existence of the other marriage until after the husband's death. This Court, applying the Laws of the Partidas, held that where two women innocently and in good faith are legally united in holy matrimony to the same man, their children born will be regarded as

legitimate children and each family will be entitled to one half of the estate of the husband upon the distribution of his estate. Under that doctrine, the half of the homestead in question corresponding to Hipolito Manuel belongs to his heirs, Cristeta Ancheta and Esmedia Ancheta, the children of his now deceased legitimate daughter Margarita Manuel, subject to the usufruct of the two widows over one third thereof. (Article 834, Civil Code.) The right to usufruct of the defendant Placida Bejec may equitably be considered compensated by the legitimate claim of the plaintiffs for one-half share in the products of the homestead in question from June 28, 1938, the date of the filing of the complaint.

Wherefore, with revocation of the judgment of the trial court, let another judgment be entered ordering that lot No. 754 of the cadastral survey of Umingan, Pangasinan, covered by homestead title No. 1749 of said province, be divided into two equal parts, the cost of the partition, the preparation of the corresponding plant, and the issuance of new certificates of title to be borne equally by the plaintiffs and the defendant. Once the subdivision plan and technical description are approved by the Director of Lands, a new certificate of title shall be issued for one half of said lot in favor of Placida Bejec, and another certificate for the other half in favor of Cristeta Ancheta and Esmedia Pisalbon over one third of the portion corresponding to the Ancheta children. From the time this judgment becomes final and pending the partition herein ordered, the defendant shall account for and deliver to the plaintiffs one half of the net produce of said lot No. 754. No pronouncement as to costs in either instance. So ordered..

G.R. No. 138774 March 8, 2001

REGINA FRANCISCO AND ZENAIDA PASCUAL, petitioners,

vs.AIDA FRANCISCO-ALFONSO, respondent.

May a legitimate daughter be deprived of her share in the estate of her deceased father by a simulated contract transferring the property of her father to his illegitimate children?

The case before the Court is an appeal via certiorari from the decision of the Court of Appeals1 declaring void the deed of sale of two parcels of land conveyed to petitioners who are illegitimate children of the deceased to the exclusion of respondent, his sole legitimate daughter.

The facts2 are:


Respondent Aida Francisco-Alfonso (hereafter Aida) is the only daughter of spouses Gregorio Francisco and Cirila de la Cruz, who are now both deceased.

Petitioners, on the other hand, are daughters of the late Gregorio Francisco with his common law wife Julia Mendoza, with whom he begot seven (7) children.

Gregorio Francisco (hereafter Gregorio) owned two parcels of residential land, situated in Barangay Lolomboy, Bocaue, Bulacan, covered by TCT Nos. T-32740 and T-117160. When Gregorio was confined in a hospital in 1990, he confided to his daughter Aida that the certificates of title of his property were in the possession of Regina Francisco and Zenaida Pascual.

After Gregorio died on July 20, 1990,3 Aida inquired about the certificates of title from her half sisters. They informed her that Gregorio had sold the land to them on August 15, 1983. After verification, Aida learned that there was indeed a deed of absolute sale in favor of Regina Francisco and Zenaida Pascual. Thus, on August 15, 1983, Gregorio executed a "Kasulatan sa Ganap na Bilihan, whereby for P25,000.00, he sold the two parcels of land to Regina Francisco and Zenaida Pascual. By virtue of the sale, the Register of Deeds of Bulacan issued TCT No. T-59.585 to Regina Francisco and TCT T-59.586 to Zenaida Pascual.4

On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a complaint against petitioners for annulment of sale with damages.5 She alleged that the signature of her late father, Gregorio Francisco, on the Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery.

In their joint answer to the complaint, petitioners denied the alleged forgery or simulation of the deed of sale. After due proceedings, on July 21, 1994, the trial court rendered a decision dismissing the complaint. The dispositive portion reads:

"WHEREFORE, on the basis of the evidence adduced and the law applicable thereon, the Court hereby renders judgment:

"a) sustaining the validity of the "Kasulatan Sa Ganap Na Bilihan" (Exh."G") executed on 15 August 1993 by the late Gregorio Francisco in favor of the defendants;

"b) affirming the validity of the Transfer Certificates of Title No. T-59.585 (Exh. "I") issued to defendant Regina Francisco and No. T-59.386 (Exh. "H") issued to defendant Zenaida Pascual; and

"c) dismissing the complaint as well as the defendants' counterclaim for damages and attorney's fees for lack of merit." 6

In time7, respondent Alfonso appealed to the Court of Appeals.8

After due proceedings, on April 30, 1999, the Court of Appeals promulgated its decision reversing that of the trial court, the dispositive portion of which reads:

"WHEREFORE, the Decision dated July 21, 1994 of the court a quo is REVERSED and SET ASIDE and another rendered as follows:

"1. The Kasulatan Sa Ganap na Bilihan dated August 15, 1983 (Exhibit "G") is declared null and void from the beginning and TCT Nos. T-59.585 (M) and T-59-586 (M), both of the Registry of Deeds of Bulacan (Meycauayan Branch) in the names of Regina Francisco and Zenaida Pascual, respectively, are annulled and cancelled;

"2. The Register of Deeds of Bulacan (Meycauayan Branch) is ordered to cancel the aforementioned TCT Nos. T-59.585 (M) and T-59.586 (M) and to reinstate Transfer Certificates of Title Nos. T-132740 and T-117160 both in the name of Gregorio Francisco.

"3. Defendants-appellees Regina Francisco and Zenaida Pascual jointly and solidarily are ordered to pay plaintiff-appellant Alfonso the amount of P5,000.00 as moral damages, P5,000.00 as exemplary damages and P5,000.00 as attorney's fees.

"4. The counterclaim of defendants-appellees is dismissed for lack of merit.

"Costs of suit against said defendants-appellees." 9

Hence, this petition.10

The main issue raised is whether the Supreme Court may review the factual findings of the appellate court. The jurisdiction of this Court in cases brought before it from the Court of Appeals under Rule 45 of the Revised Rules of Court is limited to review of pure errors of law. It is not the function of this Court to analyze or weigh evidence all over again, unless there is a showing that the findings of the lower court are totally devoid of support or are glaringly erroneous as to constitute grave abuse of discretion.11

The findings of fact of the Court of Appeals supported by substantial evidence are conclusive and binding on the parties and are not reviewable by this Court,12 unless


the case falls under any of the recognized exceptions to the rule.13

Petitioner has failed to prove that the case falls within the exceptions.14

We affirm the decision of the Court of Appeals because:

First: The kasulatan was simulated. There was no consideration for the contract of sale. Felicitas de la Cruz, a family friend of the Franciscos, testified that Zenaida Pascual and Regina Francisco did not have any source of income in 1983, when they bought the property, until the time when Felicitas testified in 1991.15

As proof of income, however, Zenaida Pascual testified that she was engaged in operating a canteen, working as cashier in Mayon Night Club as well as buying and selling RTW (Ready to Wear) items in August of 1983 and prior thereto.

Zenaida alleged that she paid her father the amount of P10,000.00. She did not withdraw money from her bank account at the Rural Bank of Meycauayan, Bulacan, to pay for the property. She had personal savings other than those deposited in the bank. Her gross earnings from the RTW for three years was P9,000.00, and she earned P50.00 a night at the club.16

Regina Francisco, on the other hand, was a market vendor, selling nilugaw, earning a net income of P300.00 a day in 1983. She bought the property from the deceased for P15,000.00.17 She had no other source of income.

We find it incredible that engaging in buy and sell could raise the amount of P10,000.00, or that earnings in selling goto could save enough to pay P15,000.00, in cash for the land.

The testimonies of petitioners were incredible considering their inconsistent statements as to whether there was consideration for the sale and also as to whether the property was bought below or above its supposed market value. They could not even present a single witness to the kasulatan that would prove receipt of the purchase price.

Since there was no cause or consideration for the sale, the same was a simulation and hence, null and void.18

Second: Even if the kasulatan was not simulated, it still violated the Civil Code19 provisions insofar as the transaction affected respondent's legitime. The sale was executed in 1983, when the applicable law was the Civil Code, not the Family Code.

Obviously, the sale was Gregorio's way to transfer the property to his illegitimate daughters20 at the expense of his legitimate daughter. The sale was executed to prevent respondent Alfonso from claiming her legitime and rightful share in said property. Before his death, Gregorio had a change of heart and informed his daughter about the titles to the property.

According to Article 888, Civil Code:

"The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.

"The latter may freely dispose of the remaining half subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided."

Gregorio Francisco did not own any other property. If indeed the parcels of land involved were the only property left by their father, the sale in fact would deprive respondent of her share in her father's estate. By law, she is entitled to half of the estate of her father as his only legitimate child.21

The legal heirs of the late Gregorio Francisco must be determined in proper testate or intestate proceedings for settlement of the estate. His compulsory heir can not be deprived of her share in the estate save by disinheritance as prescribed by law.22

WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G. R. CV No. 48545 is AFFIRMED, in toto.

No costs.

SO ORDERED.

Art. 888 – Legitime of legitimate children and descendants

[G.R. No. 94918. September 2, 1992.]

DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE

LEON and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF APPEALS, VALENTE RAYMUNDO,

VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA BANTA, Respondents.


1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN, DIFFERENT AND ADVERSE FROM THEIR MOTHER. — The legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.

The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5) parcels of land co-owned by petitioners and registered in the name of petitioner’s deceased father. Marcelo Suarez, whose estate has not been partitioned or liquidated, after the said properties were levied and publicly sold en masse to private respondents to satisfy the personal judgment debt of Teofista Suarez, the surviving spouse of Marcelo Suarez, mother of herein petitioners.chanrobles law library

The undisputed facts of the case are as follows:chanrob1es virtual 1aw library

Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or partitioned. In 1977, petitioners’ widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount of about P70,000 as damages. 1

The judgment against petitioner’s mother and Rizal Realty Corporation having become final and executory, five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of P94,170.000. Private respondents were then issued a certificate of sale which was subsequently registered or August 1, 1983.

On June 21, 1984 before the expiration of the redemption period, petitioners filed a reinvindicatory action 2 against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No.

51203, for the annulment of the auction sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being strangers to the case decided against their mother, they cannot be held liable therefor and that the five (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution.

On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale 3 over the properties.

On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of land are co-owned by them and further informing the Court the filing and pendency of an action to annul the auction sale (Civil Case No. 51203), which motion however, was denied.chanrobles.com:cralaw:red

On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third parties the levied parcels of land based on the finding that the auctioned lands are co-owned by petitioners.

On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss for failure on the part of the petitioners to prosecute, however, such motion was later denied by Branch 155, Regional Trial Court, Pasig.

On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding petitioner’s pending motion for the issuance of alias summons to be served upon the other defendants in the said case. A motion for reconsideration was filed but was later denied.

On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from removing or alienating improvements thereon; and to surrender to private respondents the owner’s duplicate copy of the torrens title and other pertinent documents.

Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739.


On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the Order 5 dated September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal and directed the issuance of alias summons.chanrobles law library : red

Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25, 1985, 7 May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further ordering respondent Judge to dismiss Civil Case No. 51203. The appellate court rendered its decision on July 27, 1990, 10 the dispositive portion of which reads:jgc:chanrobles.com.ph

"WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled, further respondent Judge is ordered to dismiss Civil Case No. 51203." 11

Hence, this appeal.

Even without touching on the incidents and issues raised by both petitioner and private respondents and the developments subsequent to the filing of the complaint, We cannot but notice the glaring error committed by the trial court.

It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land should have been the subject of the auction sale.

The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case.

"The rights to the succession are transmitted from the moment of the death of the decedent."cralaw virtua1aw library

Article 888 further provides:chanrobles.com.ph : virtual law library

"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided."cralaw virtua1aw library

Article 892 par. 2 likewise provides:jgc:chanrobles.com.ph

"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants."cralaw virtua1aw library

Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.

The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.

WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion.chanrobles law library

SO ORDERED.

G.R. No. 138774 March 8, 2001

REGINA FRANCISCO AND ZENAIDA PASCUAL, petitioners,

vs.AIDA FRANCISCO-ALFONSO, respondent.

May a legitimate daughter be deprived of her share in the estate of her deceased father by a simulated contract transferring the property of her father to his illegitimate children?

The case before the Court is an appeal via certiorari from the decision of the Court of Appeals1 declaring void the deed of sale of two parcels of land conveyed to petitioners who are illegitimate children of the deceased


to the exclusion of respondent, his sole legitimate daughter.

The facts2 are:

Respondent Aida Francisco-Alfonso (hereafter Aida) is the only daughter of spouses Gregorio Francisco and Cirila de la Cruz, who are now both deceased.

Petitioners, on the other hand, are daughters of the late Gregorio Francisco with his common law wife Julia Mendoza, with whom he begot seven (7) children.

Gregorio Francisco (hereafter Gregorio) owned two parcels of residential land, situated in Barangay Lolomboy, Bocaue, Bulacan, covered by TCT Nos. T-32740 and T-117160. When Gregorio was confined in a hospital in 1990, he confided to his daughter Aida that the certificates of title of his property were in the possession of Regina Francisco and Zenaida Pascual.

After Gregorio died on July 20, 1990,3 Aida inquired about the certificates of title from her half sisters. They informed her that Gregorio had sold the land to them on August 15, 1983. After verification, Aida learned that there was indeed a deed of absolute sale in favor of Regina Francisco and Zenaida Pascual. Thus, on August 15, 1983, Gregorio executed a "Kasulatan sa Ganap na Bilihan, whereby for P25,000.00, he sold the two parcels of land to Regina Francisco and Zenaida Pascual. By virtue of the sale, the Register of Deeds of Bulacan issued TCT No. T-59.585 to Regina Francisco and TCT T-59.586 to Zenaida Pascual.4

On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a complaint against petitioners for annulment of sale with damages.5 She alleged that the signature of her late father, Gregorio Francisco, on the Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery.

In their joint answer to the complaint, petitioners denied the alleged forgery or simulation of the deed of sale. After due proceedings, on July 21, 1994, the trial court rendered a decision dismissing the complaint. The dispositive portion reads:

"WHEREFORE, on the basis of the evidence adduced and the law applicable thereon, the Court hereby renders judgment:

"a) sustaining the validity of the "Kasulatan Sa Ganap Na Bilihan" (Exh."G") executed on 15 August 1993 by the late Gregorio Francisco in favor of the defendants;

"b) affirming the validity of the Transfer Certificates of Title No. T-59.585 (Exh. "I") issued to defendant Regina

Francisco and No. T-59.386 (Exh. "H") issued to defendant Zenaida Pascual; and

"c) dismissing the complaint as well as the defendants' counterclaim for damages and attorney's fees for lack of merit." 6

In time7, respondent Alfonso appealed to the Court of Appeals.8

After due proceedings, on April 30, 1999, the Court of Appeals promulgated its decision reversing that of the trial court, the dispositive portion of which reads:

"WHEREFORE, the Decision dated July 21, 1994 of the court a quo is REVERSED and SET ASIDE and another rendered as follows:

"1. The Kasulatan Sa Ganap na Bilihan dated August 15, 1983 (Exhibit "G") is declared null and void from the beginning and TCT Nos. T-59.585 (M) and T-59-586 (M), both of the Registry of Deeds of Bulacan (Meycauayan Branch) in the names of Regina Francisco and Zenaida Pascual, respectively, are annulled and cancelled;

"2. The Register of Deeds of Bulacan (Meycauayan Branch) is ordered to cancel the aforementioned TCT Nos. T-59.585 (M) and T-59.586 (M) and to reinstate Transfer Certificates of Title Nos. T-132740 and T-117160 both in the name of Gregorio Francisco.

"3. Defendants-appellees Regina Francisco and Zenaida Pascual jointly and solidarily are ordered to pay plaintiff-appellant Alfonso the amount of P5,000.00 as moral damages, P5,000.00 as exemplary damages and P5,000.00 as attorney's fees.

"4. The counterclaim of defendants-appellees is dismissed for lack of merit.

"Costs of suit against said defendants-appellees." 9

Hence, this petition.10

The main issue raised is whether the Supreme Court may review the factual findings of the appellate court. The jurisdiction of this Court in cases brought before it from the Court of Appeals under Rule 45 of the Revised Rules of Court is limited to review of pure errors of law. It is not the function of this Court to analyze or weigh evidence all over again, unless there is a showing that the findings of the lower court are totally devoid of support or are glaringly erroneous as to constitute grave abuse of discretion.11


The findings of fact of the Court of Appeals supported by substantial evidence are conclusive and binding on the parties and are not reviewable by this Court,12 unless the case falls under any of the recognized exceptions to the rule.13

Petitioner has failed to prove that the case falls within the exceptions.14

We affirm the decision of the Court of Appeals because:

First: The kasulatan was simulated. There was no consideration for the contract of sale. Felicitas de la Cruz, a family friend of the Franciscos, testified that Zenaida Pascual and Regina Francisco did not have any source of income in 1983, when they bought the property, until the time when Felicitas testified in 1991.15

As proof of income, however, Zenaida Pascual testified that she was engaged in operating a canteen, working as cashier in Mayon Night Club as well as buying and selling RTW (Ready to Wear) items in August of 1983 and prior thereto.

Zenaida alleged that she paid her father the amount of P10,000.00. She did not withdraw money from her bank account at the Rural Bank of Meycauayan, Bulacan, to pay for the property. She had personal savings other than those deposited in the bank. Her gross earnings from the RTW for three years was P9,000.00, and she earned P50.00 a night at the club.16

Regina Francisco, on the other hand, was a market vendor, selling nilugaw, earning a net income of P300.00 a day in 1983. She bought the property from the deceased for P15,000.00.17 She had no other source of income.

We find it incredible that engaging in buy and sell could raise the amount of P10,000.00, or that earnings in selling goto could save enough to pay P15,000.00, in cash for the land.

The testimonies of petitioners were incredible considering their inconsistent statements as to whether there was consideration for the sale and also as to whether the property was bought below or above its supposed market value. They could not even present a single witness to the kasulatan that would prove receipt of the purchase price.

Since there was no cause or consideration for the sale, the same was a simulation and hence, null and void.18

Second: Even if the kasulatan was not simulated, it still violated the Civil Code19 provisions insofar as the

transaction affected respondent's legitime. The sale was executed in 1983, when the applicable law was the Civil Code, not the Family Code.

Obviously, the sale was Gregorio's way to transfer the property to his illegitimate daughters20 at the expense of his legitimate daughter. The sale was executed to prevent respondent Alfonso from claiming her legitime and rightful share in said property. Before his death, Gregorio had a change of heart and informed his daughter about the titles to the property.

According to Article 888, Civil Code:

"The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.

"The latter may freely dispose of the remaining half subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided."

Gregorio Francisco did not own any other property. If indeed the parcels of land involved were the only property left by their father, the sale in fact would deprive respondent of her share in her father's estate. By law, she is entitled to half of the estate of her father as his only legitimate child.21

The legal heirs of the late Gregorio Francisco must be determined in proper testate or intestate proceedings for settlement of the estate. His compulsory heir can not be deprived of her share in the estate save by disinheritance as prescribed by law.22

WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G. R. CV No. 48545 is AFFIRMED, in toto.

No costs.

SO ORDERED.

Art. 891 – Reserva Troncal

G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner,vs.

THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA,

respondents.


This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:

a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards, donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;'

b) Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff;

c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorney's fees plus costs.

SO ORDERED. (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr.

He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born.

Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.

Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24

titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to Esteban, Sr.

On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26,1977 without having set up the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:

4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).


After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo).

Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and damages.

On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva.

On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration.

In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the following legal issues:

1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanueva's share of the

estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court;

2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud;

3. whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and

4. whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it.

I. The question of jurisdiction—

After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record).

It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).

The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The pertinent portions of the order are quoted below:

2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these


proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977.

During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime.

x x x x x x x x x

2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City.

The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record)

In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate.

In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother:

The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the

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

A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)

A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)

partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Emphasis supplied)

In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the


plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. (p. 378).

However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice.

The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say the least, for these matters he within the exclusive competence of the probate court.

II. The question of extrinsic fraud—

Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time.

Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party

was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)

A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a prevailing litigant 'outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. ... The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:

1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged:

6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied)

Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do.

2. The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonia's original petition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977


(Exh 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of October 27, 1978:

... . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir. ... .

Considering that this proceeding is one in rem and had been duly published as required by law, despite which the present movant only came to court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record)

The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial.

The rule is stated in 49 Corpus Juris Secundum 8030 as follows:

Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20)

Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud.

Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

It should be remembered that a petition for administration of a decedent's estate may be filed by any

"interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own.

III. On the question of reserva troncal—

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows:

ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

The persons involved in reserva troncal are:

1. The person obliged to reserve is the reservor (reservista)—the ascendant who inherits by operation of law property from his descendants.

2. The persons for whom the property is reserved are the reservees (reservatarios)—relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came.

3. The propositus—the descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.

Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide:


ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo)

IV. The question of Concordia's one-half share—

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:

4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied)

she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well.

Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine

National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).

The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but only one-half, of her share to the foundation (p. 323, Record).

The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and Exchange Commission under Reg. No. 0100027 for the following principal purposes:

1. To provide for the establishment and/or setting up of scholarships for such deserving students as the Board of Trustees of the Foundation may decide of at least one scholar each to study at West Visayas State College, and the University of the Philippines in the Visayas both located in Iloilo City.

2. To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student who has the religious vocation to become a priest.

3. To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields of educational endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after its benevolent benefactors as a token of gratitude for their contributions.

4. To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate partially or totally said needs.

5. To maintain and provide the necessary activities for the proper care of the Solivio-Javellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of appreciation for the contribution of the estate of the late Esteban S. Javellana which has made this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his mother, Gregorian masses or their equivalents will be offered every February and October, and Requiem masses


every February 25th and October llth, their death anniversaries, as part of this provision.

6. To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to invest and reinvest the funds, collect the income thereof and pay or apply only the income or such part thereof as shall be determined by the Trustees for such endeavors as may be necessary to carry out the objectives of the Foundation.

7. To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner permitted by law, in real and personal property of every kind and description or any interest herein.

8. To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes herein enumerated or which shall at any time appear conducive to the protection or benefit of the corporation, including the exercise of the powers, authorities and attributes concerned upon the corporation organized under the laws of the Philippines in general, and upon domestic corporation of like nature in particular. (pp. 9-10, Rollo)

As alleged without contradiction in the petition' for review:

The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award for teaching for being the most outstanding student teacher.

The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the Foundation. The School has been selected as the Pilot Barangay High School for Region VI.

The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award.

Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center at the West Visayas State University for teachers' and students' use, and has

likewise contributed to religious civic and cultural fund-raising drives, amongst other's. (p. 10, Rollo)

Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers.

WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein.

SO ORDERED.

DIONISIA PADURA ET AL, PETITIONERS-APPELLEES

V.MELANIA BALDOVINO, ET AL, OPPOSITORS-

APPELLANTSGR NO L-11960 DECEMBER 27, 1958

(This is a case digest since the full text is unreported 104 Phil 1056)

SV: Fortunato Padura without any heirs, hence the four parcels of land he received from his father were transmitted to her mother. After her mother died, Fortunato’s nephews and nieces from his full sister and half-brother took possession of the property. The court ruled that these nephews and nieces will have equal shares over the property.

SC: Rule on Reserva troncal should be applied, meaning the relatives of Fortunato up to the third degree will get the reservable property after his mother dies. The children of such relatives (the reservatarios) can receive the property by way of right of representation. But after applying the rule, the reservatarios and their relationship will be considered in determining their shares. The rules on ordinary intestate succession would be followed after the reservatarios have been determined.


1. Agustin Padura married twice. His first wife was Gervacio Landig with whom he had one child named Manuel Padura. His second wife was Benita Garing with whom he had 2 children named Fortunato and Candelaria Padura

2. He died leaving a last will and testament duly probated wherein he bequeathed his properties among his children, Manuel, CAndelaria and Fortunato, and his surviving spouse Benita (2nd wife). Fortunato was adjudicated 4 parcels of land

a. Fortunato died unmarried and without having executed a will; and not having any issue, the 4 parcels of land were inherited exclusively by Benita. Benita applied for an later was issued a Torrens Certificate of Title in her name, BUT subject to the condition that the properties were reservable in favor of relatives within the 3rd degree belonging to the line from which the property came (Fortunato)

b. Candelaria (Fortunato’s “full” sister) died leaving as her heirs her 4 legitimate children (the appellants) Melania, Anicia and Pablo all surnamed Baldovino

c. Manuel (Fortunato’s half brother) also died. His heirs were his legitimate children (the appellees) Dionisia, Felisa, Flora, Cornelio, Francisco, Juana and Severino, all surnamed Padura

3. Benita Garing (the reservista) died. The children of Candelaria and Fortunato took possession of the 4 parcels of land (the reservable properties).

a. CFI Laguna issued a resolution declaring the legitimate children of Manuel and Candelaria are the rightful reserves and as such entitled to the 4 parcels of land

4. The Baldovinos filed this present petition wherein they seek to have the properties partitioned suh that one-half of the same be adjudicated to them, the other half to the Paduras on the basis that they inherited by right of representation from their respective parents, the original reserves.

5. The Paduras opposed, arguing that they should all (all 11 of them) be deemed inheriting in their own right hence, they should have equal shares.

6. TC rendered judgment declaring them all reservees without distinction and have equal shares over the properties as co-owners, pro indiviso.

ISSUE: should the properties be apportioned among the nephews of the whole blood and nephews of the hald-

blood equally? Or should the nephews of the whole blood take a share twice as large as that of the nephews of the half-blood? The nephews of the whole blood get twice the share.

• The Baldovinos contend that notwithstanding the rule on Reservable character of the property under Art. 891, the reservatarios nephews of the whole blood are entitled to a share twice as large as that of the others pursuant to Arts. 1006 , 1008 on intestate succession.

• The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by their relatives of the inheriting ascendant (reservista)

o Article 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (871)

o The motives for such rule were explained by D. Manuel Alonso Martinez in his book “El Codigo Civil en sus relaciones con Las Legislaciones Forales”

Summary of not so good translation: consider this sample case: father dies leaving his wife and lone son as heirs. Wife remarries and had children with 2nd husband. Lone son dies and his mother (wife) inherits whatever he got from the father. In case the wife dies, the relatives of the lone son are prejudiced since the wife’s children from the second marriage will inherit the properties of the lone son as opposed to his uncle (father’s brother)

The code commission chose to give more importance to lineal succession than the presumed affection of the deceased.

The commission settled with the suggestion of Manresa, among others, to reserve the property in case the ascendants inherit in favor of relatives up to the third degree. No reason was given why 3rd degree.

Aside from the sample case, another reason why this rule was adopted was to make it the law more democratic (Democracy was becoming a trend when the civil code was being made by the Spaniards, so fetch).

• The purpose of the reserva is accomplished once the property has devolved to the specified relatives of the line of origin. After that, Art. 891 has nothing to do with the relations between one reservatario and another of the same degree. Their shares should be foverned by


the ordinary rules of intestate succession. Upon the death of the ascendant reservista, the reservable property should pass, not to all reservatarios as a class, but only to those nearest in degree to the descendant (prepositus), excluding those reseravatarios more remote in degree.

o The right of representation cannot be alleged when the one claiming the same as a reservatario of the property is not among those relatives within the third degree belonging to the line from which the property came. Relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such

o But there is right of representation on the part of reservatarios who are within the third degree mentioned by law as in the case of nephews of the deceased person from whom the reservable property came

• Proximity of degree and right of representation are basic principles of intestate succession so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half-blood.

o In determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should likewise be operative.

• Reserva Troncal merely determines the group pof relatives to whom the property should be returned. Within the group, the individual right to the property should be decided by applicable rules of ordinary intestate succession (since art. 891 is silent on the matter).

• Reserva Troncal is an exceptional case and its application should be limited to what is strictly needed to accomplish the purpose of the law

• Even during the lifetime of the reservista, the reservatarios could compel the annotation of their right (over the property) in the registry of property. The reservable property is no part of the estate of the reservista, who may not dispose them by will so long as there are reservatarios existing. The reservatarios are in fact inheriting from the descendant prepositus from whom the reservista inherited the property.

• If the nephews of whole and half-blood inherited the prepositus directly, the whole bloods would receive a double share compared to those of the half-blood. Why then should the half-bloods inherit equally just because of the delay in the transmission of the property (when it was with the reservista)? The hereditary portions should not change

• Philippine (and Spanish Jurisprudence) agrees with this despite the contrary opinions of authors such as Sanchez Roman and Mucius Scaevola.

Appealed order REVERSED and SET ASIDE. Whole blood nephews will get twice the share of those who are nephews of Half-blood.

G.R. No. L-12957CONSTANCIO SIENES, ET AL., plaintiffs-appellants,

vs.FIDEL ESPARCIA, ET AL., defendants-appellees.

Appellants commenced this action below to secure judgment (1) declaring null and void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the costs of suit. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale was made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered together with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the property as owners.

After trial upon the issues thus joined, the lower court rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have no valid title


thereto; and (3) that the reservable property in question is part of and must be reverted to the estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea Gutang as of December 13, 1951. No pronouncement as to the costs.

From the above decision the Sienes spouse interposed the present appeal, their principal contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in annulling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee, was entitled to inherit said land.

There is no dispute as to the following facts:

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death — the date of which does not clearly appear of record — were left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco. As a result of the cadastral proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was issued in the name of Francisco. Because Francisco was a minor at the time, his mother administered the property for him, declared it in her name for taxation purposes (Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1 & C-2). When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole heir, executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among other things, for and in consideration of the sum of P800.00 she sold the property in question to appellants. When thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original Certificate of Title No. 10275 — which was in their possession — the latter refused, thus giving rise to the filing of the corresponding motion in the cadastral record No. 507. The same, however, was denied (Exhs. 8 & 9).

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco, and who as such had declared the property in their name, on January 1, 1951 executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and thereafter secured the issuance in

their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-A).

As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10).

In connection with reservable property, the weight of opinion is that the reserve creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). This Court has held in connection with this matter that the reservista has the legal title and dominion to the reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservists, the rights acquired by the transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279).

The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any person entitled to the reservable property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by law in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may


alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's death. While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees — the Esparcia spouses did — not appeal therefrom.

WHEREFORE, the appealed decision — as above modified — is affirmed, with costs, and without prejudice to whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance of the property in question.

G.R. No. 6878 September 13, 1913

MARCELINA EDROSO, petitioner-appellant,vs.

PABLO and BASILIO SABLAN, opponents-appellees.

The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue and by this decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership.

Two legitimate brothers of Victoriano Sablan — that is, two uncles german of Pedro Sablan — appeared in the case to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.)

The Court of Land Registration denied the registration and the application appealed through a bill of exceptions.

Registration was denied because the trial court held that the parcels of land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the land which are the subject matter of the application are required by law to be reserved — a contention we regard as indefensible.

Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between him and his brothers. These are admitted facts.

A very definite conclusions of law is that the hereditary title is one without a valuable consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of blood relationship.

The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another ascendant, or from a brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line whence the property proceeded. (Civil Code, art. 811.)

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired without a valuable consideration — that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature property required by law to be reserved is therefore in accordance with the law.


But the appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to reserved.

The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the opponents speak; hence, prescription of the right of action; and finally, opponents' renunciation of their right, admitting that it existed and that they had it" (p. 49).

However that be, it is not superflous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code:

In the absence of legitimate children and descendants of the deceased, his ascendants shall from him, to the exclusion of collaterals.

The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrate any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the Civil Code have therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant.

The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what is established in article 836. (Civil Code, art. 809.)

In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law could full to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says.

No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either of them became her inheritance through the free disposal of her son.

Proof testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also presumed to be acquired by operation of law — that is, by intestate succession. Otherwise, proof to offset this presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish and not by operation of law.

Nor is the third assignments of error admissible — that the trial court failed to sustain the renunciation of the right required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers at the trial:

The day after my brother-in-law Pablo Sablan dies and was buried, his brother came to my house and said that those rice lands were mine, because we had already talked about making delivery of them. (p. 91).

The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the lands belong to the appellant and must be delivered to her it cannot be deduced that he renounced the right required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to her.

The fourth assignments of error set up the defense of prescription of the right of action. The appellant alleges prescription of the opponent's right of action for requiring fulfillment of the obligation they attribute to her recording in the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is created by law, it prescribed in the time fixed in No. 2 of section 43 of Act No. 190. She adds: "Prescription of the right alleged to the reserved by force of law has not been invoked." (Eight allegation.)


The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are entitled to the guaranty of that right for seeking that guaranty, for those who are entitled to that right the Mortgage Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of the record).

The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the required by law to be reserved; but because that right of action has prescribed, that property has not been divested of its character of property required by law to be reserved; that it has such character by virtue of article 8112 of the Civil Code, which went into effect in the Philippine in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which did not yet form part of the positive legislation of the country; that although the Mortgage Law has been in effect in the country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to reinforce the same merely by granting the right of action to the persons in whose favor the right is reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of the accessory does not mean loss of the principal. (Fifth and sixth allegations.)

The existence of the right required by law to be reserved in the two parcels of land in question being indisputable, even though it be admitted that the right of action which the Mortgage Law grants as a guaranty of final enforcement of such right has prescribed, the only thing to be determined by this appeal is the question raised in

the first assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry newly established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as the have slipped into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the rights required to be reserved in Spanish-Philippine law, a brief disgression on the most essential points may not be out of place here.

The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law states:

The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in those regions the renovation of the law on real property, and consequently of agrarian credit.

The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day.

Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968 thereof, where it says:

Besides the reservation imposed by article 811, the widow or widower contracting a seconds marriage shall be obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she may have required from the deceased spouse by will, by intestate succession, by gift, or other transfer without a valuable consideration."

The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 189, do not contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the right in favor of the children of the first marriage when their father or mother contracts a second marriage. Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of November 8, 1894, has been reiterated:

That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be reserved in the property refer especially to the spouses who contract second or later marriages, they do not thereby cease to be applicable to the right establishes in


article 811, because, aside from the legal reason, which is the same in both cases, such must be the construction from the important and conclusive circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either testate or intestate, and because article 968, which heads the section that deals in general with property required by law to be reserved, makes reference to the provisions in article 811; and it would consequently be contradictory to the principle of the law and of the common nature of said provisions not to hold them applicable to that right.

Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already declared, the guaranties that the Code fixes in article 977 and 978 for the rights required by law to the reserved to which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists and because of the general nature of the provisions of the chapter in which they are found."

From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a right required to be reserved by article 811, the persons entitled to such right would have been able to institute, against the ascendant who must make the reservation, proceedings for the assurance and guaranty that article 977 and 978 grant to the children of a first marriage against their father or mother who has married again. The proceedings for assurance, under article 977; are: Inventory of the property subject to the right reserved, annotation in the property registry of such right reserved in the real property and appraisal of the personal property; and the guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of said law, which is an advantage over the law of Spain, to wit, article 199, which read thus:

The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be require by the person who should legally represent them. In either case the right of the persons in whose favor the property must be reserved will be secured by the same requisites as set forth in the preceding article (relative to the right reserved by article 968 of the Civil Code),

applying to the person obligated to reserve the right the provisions with respect to the father.

In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article 168 reads as thus:

Legal mortgage is established:

1. . . .

2. In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be reserved, upon the property of the person obliged to reserve it.

This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should by noted that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for the exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the person who must make the reservation.

Article 191 of the reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the foregoing article refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article 199, to the person obligated to reserve the right the provisions with respect to the father."

Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the interested parties may require the institution of such proceedings, if they are of age; and in any other case, their legal representatives."

Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the right must be reserved, but really the commencement thereof, enables them to exercise it at any time, since no limits is set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an allegation of


prescription against the exercise of such right of action cannot be sustained.

Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the proceedings that should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action cannot take place, because such right of action does not exist with reference to instituting proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in the present case, to intervene in the registration proceedings with the claim set up by the two opponents for recording therein the right reserved in either parcel of land.

Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its decision:

Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common. (B. of E., p. 20.)

It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person who has in himself all these rights has the absolute or complete ownership of the thing; otherwise, the person who has the right to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights or using an enjoying, and then he is said not to have the fee simple — that is, the rights of disposal and recovery, which pertain to another who, after the usufruct expires, will come into full ownership.

The question set up in the first assignment of error of the appellant's brief is this:

What are the rights in the property of the person who holds it subject to the reservation of article 811 of the Civil Code?

There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the person in whose favor the reservation is made. If that were so, the person holding the property could not apply for registration of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be admissible, although it appears to be supported by decisions of the supreme court of Spain

of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof.

Another writer says: "This opinion only looks at two salient points — the usufruct and the fee simple; the remaining features of the arrangement are not perceived, but become obscure in the presence of that deceptive emphasis which only brings out two things: that the person holding the property will enjoy it and that he must keep what he enjoys for other persons." (Manresa, VII, 189.)

In another place he says: "We do not believe that the third opinion can now be maintained — that is, that the surviving spouse (the person obliged by article 968 to make the reservation) can be regarded as a mere usufructuary and the descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.)

The ascendants who inherits from a descendants, whether by the latter's wish or by operation of law, requires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership belong to him exclusively — use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third degree who belong to the line whence the property proceeded, then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition in of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have any support in the law, as it does not have, according to the opinion that he has been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference between the case where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case, there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property (except that he may dispose of the right of usufruct in accordance with the provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form


prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the ascendants who holds the property required by article 811 to be reserved, and the father of mother required by article 986 to reserve the right, can dispose of the property they might itself, the former from his descendant and the latter from his of her child in first marriage, and recover it from anyone who may unjustly detain it, while the persons in whose favor the right is required to be reserved in either case cannot perform any act whatsoever of disposal or of recovery.

Article 975 states explicitly that the father or mother required by article 9687 to reserve the right may dispose of the property itself:

Alienation of the property required by law to be reserved which may be made by the surviving spouse after contracting a second marriage shall be valid only if at his or her death no legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the Mortgage of Law.

It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage survive."

If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The law says that the alienation subsists (to subject is to continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says:

The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate it, provided always that he preserve the right of the parties interested in said conditions by expressly reserving that right in the registration.

In such case, the child or legitimate descendants of the first marriage in whose favor the right is reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right should outlive all the person in whose favor the right is reserved and then there would be no reason for the condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved would disappear, and the alienation would not only be valid but also in very way absolutely effective. Consequently, the

alienation is valid when the right required by law to be reserved to the children is respected; while the effects of the alienation depend upon a condition, because it will or will not become definite, it will continue to exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968, wherein the legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that the ascendants must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and obligations during the existence of the right required by law to be reserved," in these words:

During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the article of the Code referring to use and usufruct.

But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the property, he can dispose of it in the manner provided in article 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the attitude of the legislator on this subject, and the relatives with the third degree ought not to be more privileged in the right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.)

Another commentator corroborates the foregoing in every way. He says:

The ascendants acquires that property with a condition subsequent, to wit, whether or not there exists at the time of his death relatives within the third degree of the


descendants from whom they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendants. If they do not exist, the ascendants can freely dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendants may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give what does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will complete ownership, in fee simple, because the condition and the usufruct have been terminated by the death of the usufructuary. (Morell, Estudios sobre bienes reservable, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do.

On the other hand, the relatives within the third degree in whose favor of the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of the fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendants of whom they are relatives within the third degree, that it to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their rights has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act would

be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as may even become absolute should that person die."

Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendants from whom he got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." (Decision of December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made of the property the law requires to be reserved, in the present case, that which the appellant has made of the two parcels of land in question to a third party, because the conditional alienation that is permitted her is equivalent to an alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it, although under a condition, the whole question is reduced to the following terms:


Cannot the heir of the property required by law to reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose favor the reservation must be made degree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides?

It is well known that the vendee under pacto de retracto acquires all the rights of the vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed — that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says:

Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold, with the obligation to comply with article 1518, and whatever more may have been agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged — that is to say, the latter with the consent of his creditor and the former with the consent of the vendor. He may alienate the thing bought when the acquirer knows by well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purpose of the law would be defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more power and conclusive; ubi eadem ratio, eadem legis dispositivo.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the applicants, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special findings as to costs.

G.R. No. 13386SEGUNDA MARIA NIEVA with her husband ANGEL

ALCALA, plaintiffs-appellants,vs.

MANUELA ALCALA and JOSE DEOCAMPO, defendants-appellees.

This is an appeal from a judgment of the Court of First Instance of the Province of Tayabas, absolving the defendants from all liability under the plaintiff's complaint, without any finding as to costs.

Juliana Nieva, the alleged natural mother of the plaintiff Segunda Maria Nieva, married Francisco Deocampo. Of said marriage Alfeo Deocampo was born.

Julian Nieva died intestate on April 19, 1889, and her said son, Alfeo Deocampo, inherited from her, ab intestate, the parcels of land described in Paragraphs V and X of the complaint.

Alfeo Deocampo died intestate and without issue on July 7, 1890. Thereupon the two parcels of land above-mentioned passed to his father, Francisco Deocampo, by intestate succession. Thereafter Francisco Deocampo married the herein defendant Manuela Alcala, of which marriage was born Jose Deocampo, the other defendant herein.

Francisco Deocampo died on August 15, 1914, whereupon his widow and son, the defendants herein, took possession of the parcels of land in question, under the claim that the said son, the defendant Jose Deocampoo (a minor) had inherited the same, ab intestate, from his deceased father.

On September 30, 1915, the plaintiff herein, claiming to be an acknowledged natural daughter of the said Juliana Nieva, instituted the present action for the purposes of recovering from the defendants the parcels of land in question, particularly described in Paragraphs V and X of the complaint, invoking the provisions of article 811 of the Civil Code.

The lower court held that, even granting, without deciding, that the plaintiff was an acknowledged natural daughter of Juliana Nieva, she was not entitled to the property here in question because, in its opinion, an illegitimate relative has no right to the reserva troncal under the provisions of article 811 of the Civil Code.

The first question presented by this appeal is, whether or not the plaintiff is an acknowledged natural daughter of the deceased Juliana Nieva. It appears from the record that the said Juliana Nieva, while unmarried, gave birth


to the plaintiff on March 29, 1882, and that the plaintiff was duly baptized as her natural daughter, of unknown father (Exhibit C, baptismal certificate); that the said Juliana Nieva nourished and reared her said child, the plaintiff herein; that the plaintiff lived with her said mother until the latter was married to Francisco Deocampo; that the said mother treated the plaintiff, and exhibited her publicly, as a legitimate daughter. (See testimony of Antero Gala, pp. 5-6; Prudencio de la Cuesta, pp. 16-17; and Mamerto Palabrica, pp. 26-27, sten. notes.)

The foregoing facts, which are not controverted, are analogous to the facts in the case of Llorente vs. Rodriguez (3 Phil., 697, 699). Under the decision of this court in that case we are of the opinion and so decide, without rediscussing here the law and legal principles involved, that the plaintiff Segunda Maria Nieva is an acknowledged natural daughter of Juliana Nieva. (See also In re estate of Enriquez and Reyes, 29 Phil., 167.)

The other and more important question presented by this appeal is, whether or not an illegitimate relative within the third degree is entitled to the reserva troncal provided for by article 811 of the Civil Code. That article reads as follows:

Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came.

The property here in question was inherited, by operation by law, by Francisco Deocampo from his son Alfeo Deocampo, who, in turn, had inherited it, in the same manner, from his mother Juliana Nieva, the natural mother of the plaintiff. The plaintiff is the natural sister of Alfeo Deocampo, and she belongs to the same line from which the property in question came. Was Francisco Deocampo obliged by law to reserve said property for the benefit of the plaintiff, an illegitimate relative within the third degree of Alfeo Deocampo? If he was, then, upon his death, the plaintiff, and not his son the defendant Jose Deocampo, was entitled to the said property; if he was not, the plaintiff's action must fail.

There can be no question whatever but that, under said article 811 of the Civil Code, the plaintiff would be entitled to the property in question if she were a legitimate daughter of Julian Nieva. (Edroso vs. Sablan, 25 Phil., 295.) But in said article 811 the legislator uses the generic terms "ascendant," "descendant," and "relatives," without specifying whether or not they have to be legitimate. Does the legislator, then, refer to

legitimate as well as to illegitimate relatives? Counsel for the appellant, in a lengthy and carefully prepared brief, attempts to maintain the affirmative.

This question, so far as our investigation shows, has not been decided before by any court or tribunal. However, eminent commentators on the Spanish Civil Code, who have devoted their lives to the study and solution of the intricate and difficult problems that may arise under the provisions of that Code, have dealt with the very question now before us, and are unanimous in the opinion that the provision of article 811 of the Civil Code apply only to legitimate relative. One of such commentators, undoubtedly the best known of them all, is Manresa. We believe we can do no better than to adopt his reasons and conclusions, in deciding the question before us. In determining the persons who are obliged to reserve under article 811, he says:

Is every ascendant, whether legitimate or not, obliged to reserve? Should the natural father or grandfather reserve the properties proceeding from the mother or other natural ascendant? Article 811 does not distinguish; it speaks of the ascendant, without attaching the qualification of legitimate, and, on the other hand, the same reason that exists for applying the provision to the natural family exists for applying it to the legitimate family. Nevertheless, the article in referring to the ascendant in an indeterminate manner shows that it imposes the obligation to reserve only upon the legitimate ascendant.

Let us overlook for the moment the question whether the Code recognizes or does not recognize the existence of the natural family, or whether it admits only the bond established by acknowledgement between the father or mother who acknowledges and the acknowledged children. However it may be, it may be stated as an indisputable truth, that in said Code, the legitimate relationship forms the general rule and the natural relationship the exception; which is the reason why, as may be easily seen, the law in many articles speaks only of children or parents, of ascendants or descendants, and in them reference is of course made of those who are legitimate; and when it desires to make a provision applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not say child, but natural child; it does not speak of ascendants, brothers or parents in the abstract, but of natural ascendants, natural brothers or natural parents. (See, for example, articles 294, 302, 809, 810, 846, 935, to 938, 944 and 945 and 946 to 955.)

Articles 809 and 810 themselves speak only of ascendants. Can it in any way be maintained that they refer to legitimate as well as to natural ascendants?


They evidently establish the legitime of the legitimate ascendants included as forced heirs in number 2 of article 807. And article 811, - and as we will see also article 812, - continues to treat of this same legitime. The right of the natural parents and children in the testamentary succession in wholly included in the eighth section and is limited to the parents, other ascendants of such class being excluded in articles 807, No. 3, and 846. Therefore, the place which article 811 occupies in the Code of proof that it refers only to legitimate ascendants. And if there were any doubt, it disappears upon considering the text of article 938, which states that the provisions of article 811 applies to intestate succession, which is just established in favor of the legitimate direct ascending line, the text of articles 939 to 945, which treat of intestate succession of natural parents, as well as that of articles 840 to 847, treating of their testamentary succession, which do not allude directly or indirectly to that provision.

Lastly, the principle which underlies the exception which article 811 creates in the right to succeed neither admits of any other interpretation. Whether the provision is due to the desire that the properties should not pass, by reason of new marriage, out of the family to which they belonged, or is directly derived from the system of the so-called "reserva troncal," and whether the idea of reservation or that of lineal rights (troncalidad) predominate the patrimony which is intended to be preserved is that of the legitimate family. Only to legitimate ascendants and descendants do article 968 et seq. of the Code refer, arising as they do from the danger of second or subsequent marriage; only to legitimate parents do the special laws of Navarra, Aragon, Vizcaya and Catalu?a concede the right to succeed with respect to lineal properties (bienes troncales); only to the legitimate ascendants does article 811 impose the duty to reserve.

The convenience of amplifying the precept to natural parents and ascendants may be raised just as the question whether it would be preferable to suppress it altogether may be raised; but in the realm of the statute law there is no remedy but to admit that article 811, the interpretation of which should on the other hand be strict was drafted by the legislator with respect only to legitimate ascendants. (Manresa, Codigo Civil, vol. 6, 3d ed., pp. 249-250.)

The same jurist, in determining the persons in whose favor the reservation is established, says:

Persons in whose favor the reservation is established. - This is one of the most delicate points in the interpretation of article 811. According to this article, the reservation is established in favor of the parents who are

within the third degree and belong to the line from which the properties came.

It treats of blood, relationship, which is applicable to questions on succession, according to articles 915 to 920. It could not be otherwise, because relationship by affinity is established between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is just what this article intends to prevent.

It also treats of legitimate relationship. The person obliged to reserve it a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to legitimate parents the right to succeed the natural child and viceversa, from which it must be deduced that natural parents neither have the right to inhering from legitimate ones; the law in the article cited established a barrier between the two families; properties of the legitimate family shall never pass by operation of law to the natural family. (Ibid. pp. 251-252.)

Scævola, after a very extended discussion of this same subject, arrives at the same conclusion as Manresa. "La reserva del articulo 811 es privilegio de la familia legitima. (The reservation in article 811 is a privilege of the legitimate family.)" (See Scævola, Codigo Civil, Vol. 14, pp. 211-224, 3401-305.)

Article 943, above referred to by Manresa, provides as follows:

A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives so inherit from the natural or legitimated child.

To hold that the appellant is entitled to the property left by her natural brother, Alfeo Deocampo, by operation of law, would be a fragrant violate of the express provision of the foregoing article (943).

For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, without any finding as to costs. So ordered.


G.R. No. L-34395 May 19, 1981

BEATRIZ L. GONZALES, petitioner,vs.

COURT OF FIRST INSTANCE OF MANILA (BRANCH V), respondents.

Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance of Manila, dismissing her complaint for partition, accounting, reconveyance and damages and holding, as not subject to reserve troncal, the properties which her mother Filomena Races inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows:

Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila] on June 17, 1933. He was survived by his widow, Filomena Races, and their seven children: four daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito, Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were represented by Benito F. Legarda.

Filomena Legarda y Races died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Races Vda. de Legarda.

Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following: 1äwphï1.ñët

(a) Savings deposit in the National City Bank of New York with a credit balance of P3,699.63.

(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular Life Assurance Company and the Manila Times.

(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and 57512 of the Manila registry of deeds.

1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds;

1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of the registry of deeds of Baguio;

1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of deeds; 1/7th of the lots and improvements at 181 San Rafael describe in TCT Nos. 50495 and 48161 of the Manila registry of deeds;

1/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets);

l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds (Streets and Estero):

2/21st of the property described in TCT No. 13458 of tile registry of deeds of T0ayabas.

These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Races succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other six children.

Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document reads: 1äwphï1.ñët

A mis hijos :

Dispongo que se reparta a todos mis nietos hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la Destileria La Rosario' recientemente comprada a los hermanos Values Legarda.

De los bienes de mi hija Filomena se deducira un tote de terreno que yo he 0donada a las Hijas de Jesus, en Guipit

La case No. 181 San Rafael, la cede a mi hijo Mandu solo la casa; proque ella esta construida sobre terreno de los hermanos Legarda Races. 1äwphï1.ñët

(Sgd.) FILOMENA ROCES LEGARDA

6 Marzo 1953


During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz.

Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena Races Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzales, CA-G.R. No. 43480-R, July 30,1976.

In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda.

Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil. 1085).

As already stated, the lower court dismissed the action of Mrs. Gonzales. ln this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in question as reservable properties under article 891 of the Civil Code.

On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred in not holding that Mrs. Legarda acquired the estate of her daughter Filomena] Legarda in exchange for her conjugal and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs. Gonzales waived her right to the reservable properties and that her claim is barred by estoppel, laches and prescription.

The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzales' petition for review is a closed matter. This Court in its resolution of

December 16, 1971 denied respondents' motion to dismiss and gave due course to the petition for review.

In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject to reserva troncal that is the only legal issue to be resolved in this appeal.

The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed by this Court.

The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Races Vda. de Legarda could dispose of them in his will in favor of her grandchildren to the exclusion of her six children.

Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter Filomena to the reservees within the third degree and to bypass the reservees in the second degree or should that inheritance automatically go to the reservees in the second degree, the six children of Mrs. Legarda?

As will hereinafter be shown that is not a novel issue or a question of first impression. lt was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in the Florentino case and other pertinent rulings, it may be useful to make a brief discourse on the nature of reserve troncal, also called lineal, familiar, extraordinaria o semi-troncal.

Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserve troncal which together with the reserva viudal and reversion legal, was abolished by the Code Commission to prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy, and is incompatible with the socialization of ownership.

The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover, the reserves, insofar as they penalize legitimate relationship, is considered unjust and inequitable.


However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserve troncal, a legal institution which, according to Manresa and Castan Tobenas has provoked questions and doubts that are difficult to resolve.

Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which reads: 1äwphï1.ñët

ART. 811. El ascendiente que heredare de su descendiente bienes que este hubiese adquirido por titulo lucrative de otro ascendiente, o de un hermano, se halla obligado a reservas los que hubiere adquirido por ministerio de la ley en favor de los parientes que eaten dentro del tercer grade y pertenezcan a la linea de donde los bienes proceden

ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

In reserve troncal (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came.

So, three transmissions are involved: (I) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserve) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third transmissions of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Tobenas Derecho Civil, Part l, 1960, 6th Ed., pp. 198-9).

If there are only two transmissions there is no reserve. Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited

by his half-sister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino, l l l Phil. 872).

The persons involved in reserve troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus (prepositus) who received the property, (3) the reservor (reservista) the other ascendant who obtained the property from the (prepositus) by operation of law and (4) the reserves (reservatario) who is within the third degree from the prepositus and who belongs to the (line o tronco) from which the property came and for whom the property should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392).

The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos extrañas por el azar de los enlaces y muertes prematuras or impeder que, por un azar de la vide personas extranas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella (6 Castan Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura vs. Baldovino, 104 Phil. 1065).

An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that case, Pedro Sablan inherited two parcels of land from his father Victorians. Pedro died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from him the two parcels of land.

It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive her, should be noted in the title.

In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land was inherited by her daughter, Juliana Mañalac. When Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto Mañalac who owned the other one-half portion.


Anacleto died intestate in 1942, survived by his second wife and their six children. lt was held that the said one-half portion was reservable property in the hands of Anacleto Mañalac and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and materna aunts of Juliana Mañalac, who belonged to the line from which said one-half portion came (Aglibot vs. Mañalac 114 Phil. 964).

Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784.

The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent. He is called the prepositus (Cabardo vs. Villanueva. 44 Phil. 186, 190).

In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. ln his hands, the property was reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480).

Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065).

Reserva troncal contemplates legitimate relationship. illegitimate relationship and relationship by affinity are excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donacion and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 195 l, p. 360).

The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (Sienes vs. E Esparcia l l l Phil. 349, 353).

The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480: Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacta de retro sale or to a fideicomiso conditional.

The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. lf there are no reservees at the time of the reservor's death, the transferee's title would become absolute. (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil. 120).

On the other hand, the reserves has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. lt would become absolute should the reservor predecease the reserves.

The reserves cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944).

There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96).

And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reserves


survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353). 1äwphï1.ñët

The reservatario receives the property as a conditional heir of the descendant (prepositus) said property merely reverting to the line of origin from which it had temporarily and accidentally stayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservists, the latter must be deemed to have enjoyed no more than a than interest in the reservable property. (J. J. B. L. Reyes in Cane vs. Director of Lands, 105 Phil. l5.)

Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while the (reservista) is alive (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista lt is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of them (it) by will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237).

The latter, therefore, do not inherit from the reservista but from the descendant (prepositus) of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista. (Sanchez Roman, Vol. VI Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).

Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cane vs. Director of Lands, 105 Phil. l5.)

In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda.

So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the

exclusion of the reservees in the second degree, her three daughters and three sons. As indicated at the outset, that issue is already res judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor.

Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein.

To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed.

We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled: 1äwphï1.ñët

Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest (prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of a reservatario (reserves).

ln the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III death in 1891, his properties were inherited by his mother, Severina, who died in 1908. ln her will, she instituted her daughter Mercedes as heiress to all her


properties, including those coming from her deceased husband through their son, Apolonio III.

The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable properties, which Severina de Leon had inherited from Apolonio III which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this Court.

It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not be inherited from her by her daughter Mercedes alone.

As there were seven reservees, Mercedes was entitled, as a reserves, to one-seventh of the properties. The other six sevenths portions were adjudicated to the other six reservees.

Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of the Florentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reserves to whom the reservable property should be awarded.

The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to reserve is irrelevant and sans binding force in the light of the ruling in the Florentino case.

It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda and who belong to the paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family from securing, by some special accident

of life, property that would otherwise have remained therein".

That same contention was advanced in the Florentino case where the reservor willed the reservable properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the half-blood of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be given to all the seven reservees or nearest relatives of the prepositus within the third degree.

This Court noted that, while it is true that by giving the reservable property to only one reserves it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property (pp. 894-5).

Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said properties, by operation of Article 891, should go to Mrs. Legarda's six children as reservees within the second degree from Filomena Legarda.

It should be repeated that the reservees do not inherit from the reservor but from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor (Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).

The trial court said that the disputed properties lost their reservable character due to the non-existence of third-degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree relatives who pertain to both" the Legarda and Races lines.

That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will. The said


properties did not form part of Mrs. Legarda's estate. (Cane vs. Director of Lands, 105 Phil. l, 4).

WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents.

SO ORDERED.

G.R. No. 14856ENCARNACION FLORENTINO, ET AL., plaintiffs-

appellants,vs.

MERCEDES FLORENTINO, ET AL., defendants-appellees.

On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and Antonino of the surname Florentino; for Miguel Florentino, guardian ad litem of the minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad, and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of the minors Jose and Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and her husband, alleging as follows:

That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine children called, Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he had two children, Mercedes and

Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890.

That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan, Maria and Isabel died single, without leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita Florentino, now deceased, and her husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the deceased Apolonio Isabelo Florentino.

That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumos Apolonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages.

That, in the partition of the said testator's estate, there was given to Apolonio Florentino III, his posthumos son, the property marked with the letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces of gold, of silver and of table service, livestock, palay, some personal property and other objects mentioned in the complaint.

That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino; that, as such heir, said daughter took possession of all the property left at the death of her mother, Severina Faz de Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon inherited from her deceased son, the posthumos Apolonio, as reservable property; that, as a reservist, the heir of the said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits of the reservable property described therein, either by direct participation or by representation, in the manner mentioned in paragraph 9 of the complaint.


That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding part of the reservable property; that without any justifiable motive the defendants have refused and do refuse to deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for the lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at four pesos per bundle; that thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twenty-eight pesos and fifty-eight centavos, in addition to three hundred and eight pesos and fifty-eight centavos for the value of the fruits not gathered, of one thousand pesos (P1,000) for the unjustifiable retention of the aforementioned reservable property and for the expenses of this suit. Wherefore they pray it be declared that all the foregoing property is reservable property; that the plaintiffs had and do have a right to the same, in the quantity and proportion mentioned in the aforementioned paragraph 9 of the complaint; that the defendants Mercedes Florentino and her husband be ordered to deliver to the plaintiffs their share of the property in question, of the palay and of the corn above mentioned, or their value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos (P1,000) together with the costs of this instance.

To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the obligation of the widow Severina Faz de Leon to reserve the property she inherited from her deceased son Apolonio Florentino y de Leon who, in turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did not remarry after the death of this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968 and the following articles, but that established in article 811 of the Civil Code; that the object of the provisions of the aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the owner thereof; that if the property inherited by the widow Severina Faz de Leon from her deceased son Apolonio Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the hands of the defendant, Mercedes Florentino y Encarnacion, a daughter of the common ancestor's second marriage (said Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at the death of the posthumos son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his legitimate heirs as an ascendant, into the hands of strangers; that said property having been inherited by Mercedes Florentino y

Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the present case because, when the defendant Mercedes, by operation law, entered into and succeeded to, the possession, of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the possession of her mother, lost the character of reservable property - there being a legitimate daughter of Severina Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law whereby said property may not passed into the possession of strangers are void, inasmuch as the said widow had no obligation to reserve same, as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that, in the present case, there is no property reserved for the plaintiffs since there is a forced heiress, entitled to the property left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is secondary to the duty of respecting the legitime; that in the instant case, the widow Severina Faz de Leon was in duty bound to respect the legitime of her daughter Mercedes the defendant; that her obligation to reserve the property could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of these statements the decision of the supreme court of Spain of January 4, 1911; that, finally, the application of article 811 of the Civil Code in favor of the plaintiffs would presuppose the exclusion of the defendant from here right to succeed exclusively to all the property, rights and actions left by her legitimate mother, although the said defendant has a better right than the plaintiffs; and that there would be injustice if the property claimed be adjudicated to the plaintiffs, as well as violation of section 5 of the Jones Law which invalidates any law depriving any person of an equal protection. Wherefore they prayed that the demurrer be sustained, with costs against the plaintiffs.

After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and condemned the plaintiffs to pay the costs.

Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was overruled; the plaintiffs expected thereto and filed the corresponding bill of exceptions which was allowed, certified and forwarded to the clerk of this court.

On appeal the trial judge sustained the demurrer of the defendants to the complaint of the plaintiffs, but, instead of ordering the latter to amend their complaint within the period prescribed by the rules - undoubtedly believing that the plaintiffs could not alter nor change the facts constituting the cause of action, and that, as both parties were agreed as to the facts alleged in the complaint as


well as in the demurrer, every question reduced itself to one of the law, already submitted to the decision of the court - the said judge, disregarding the ordinary procedure established by law, decided the case by absolving the defendants from the complaint and by condemning the plaintiffs to pay the costs of the instance.

There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs, confined themselves to filing a demurrer based on the ground that the facts alleged in the complaint do not constitute a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the cause, instead of dismissing the same, because undoubtedly he believed, in view of the controversy between the parties, that the arguments adduced to support the demurrer would be the same which the defendants would allege in their answer - those dealing with a mere question of law which the courts would have to decide - and that, the demurrer having been sustained, if the plaintiffs should insist - they could do no less - upon alleging the same facts as those set out in their complaint and if another demurrer were afterwards set up, he would be obliged to dismiss said complaint with costs against the plaintiffs - in spite of being undoubtedly convinced in the instant case that the plaintiffs absolutely lack the right to bring the action stated in their complaint.

Being of the opinion that the emendation of the indicated defects is not necessary - as in this case what has been done does not prejudice the parties - the appellate court will now proceed to decide the suit according to its merits, as found in the record and to the legal provisions applicable to the question of law in controversy so that unnecessary delay and greater expense may be avoided, inasmuch as, even if all the ordinary proceedings be followed, the suit would be subsequently decided in the manner and terms that it is now decided in the opinion thoughtfully and conscientiously formed for its determination.

In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and if so, whether in accordance with the provision of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had the obligation to preserve and reserve same for the relatives, within the

third degree, of her aforementioned deceased son Apolonio III.

The above mentioned article reads:

Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came.

During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his father). At the death of Apolonio Isabelo Florentino under a will, his eleven children succeeded to the inheritance he left, one of whom, the posthumos son Apolonio III, was given, as his share, the aforementioned property enumerated in the complaint. In 1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited the property he left and who on dying, November 18, 1908, instituted by will as her sole heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left by her father, same constituting the inheritance. Included in said inheritance is the property, specified in by the posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino, and which, at the death of the said posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his legitimate mother and ascendant, Severina Faz de Leon.

The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came.

According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the


obligation to reserve and preserve same for certain designated persons who, on the death of the said ascendants reservists, (taking into consideration the nature of the line from which such property came) acquire the ownership of said property in fact and by operation of law in the same manner as forced heirs (because they are also such) - said property reverts to said line as long as the aforementioned persons who, from the death of the ascendant-reservists, acquire in fact the right of reservatarios (person for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came.

Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the legitimate owner of his own property which is not reservable property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree to the line from which such property came.

Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation

on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code.

In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have the right to represent their aforementioned father, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother; and that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father Pedro Florentino one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that this decision does not deal with them.

There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage - Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his half-brothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled as reservatarios to the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II.

In spite of the provisions of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that


said article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her brother, Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the property of the deceased Apolonio III never did come into existence because there is a forced heiress who is entitled to such property.

The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would be permitting the reservable right to reduce and impair the forced legitimate which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911.

The principal question submitted to the court for decision consists mainly in determining whether they property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon.

The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever, from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the Code, with the object that the same should not fall into the possession of persons other than those comprehended within the order of person other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property was in fact clothed with the character and condition of reservable property when

Severina Faz de Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino.

Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista) in which case said reservable property losses such character.

With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to the reservatarios, one of whom is her own daughter, Mercedes Florentino.

It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or forms parts of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could not inherit all by operation of law and in accordance with the order of legitimate succession, because the other relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable property.

For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawful or just reason which serves as real foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in question. As


these relatives are at present living, claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated property.

The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received from the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother, the said Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the deceased Apolonio III, is evidently erroneous for the reason that, as has been already stated, the reservable property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her death nor of the legitimate of the heiress Mercedes. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did same lose the character of reservable property, held before the reservatarios received same.

It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in question, same did not pass into the hands of strangers. But it is likewise true that the said Mercedes is not the only reservataria. And there is no reason founded upon law and upon the principle of justice why the other reservatarios, the other brothers and nephews, relatives within the third degree in accordance with the precept of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain to them.

From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968 and consequently of the Civil Code is not applicable in the instant case.

Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot be reduced or impaired and said article is expressly respected in this decision.

However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any legal foundation, that the reservable property belonged to, and was under the absolute dominion of, the reservista, there being relatives within the third degree of the person from whom same came; that said property, upon passing into the hands of the forced heiress of the deceased reservista, formed part of the legitime of the

former; and that the said forced heiress, in addition to being a reservataria, had an exclusive right to receive all of said property and to deprive the other reservatarios, her relatives within the third degree of certain portions thereof.

Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected, it is not proper to grant the first for there is no evidence of any damage which can give rise to the obligation of refunding same. As to the second, the delivery of the fruits produced by the land forming the principal part of the reservable property, the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the same, from January 17, 1918, the date the complaint was filed; and the remaining seventh part should go to the defendant Mercedes.

For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the complaint is denied, without special findings as to the costs of both instances. So ordered.

G.R. No. 23770MAGIN RIOSA, plaintiff-appellant,

vs.PABLO ROCHA, MARCELINA CASAS, MARIA

CORRAL and CONSOLACION R. DE CALLEJA, defendants-appellees.

Maria Corral was united in marriage with the deceased Mariano Riosa, it being her first and only marriage and during which time she bore him three children named Santiago, Jose and Severina. The latter died during infancy and the other two survived their father, Mariano Riosa. Santiago Riosa, no deceased, married Francisca Villanueva, who bore him two children named Magin and Consolacion Riosa. Jose Riosa, also deceased, married Marcelina Casas and they had one child who died before


the father, the latter therefore leaving no issue. Mariano Riosa left a will dividing his property between his two children, Santiago and Jose Riosa, giving the latter the eleven parcels of land described in the complaint. Upon the death of Jose Riosa he left a will in which he named his wife, Marcelina Casas, as his only heir.

On May 16, 1917, the will of Jose Riosa was filed for probate. Notwithstanding the fact that Marcelina Casas was the only heir named in the will, on account of the preterition of Maria Corral who, being the mother of Jose Riosa, was his legitimate heir, I Marcelina Casas and Maria Corral, on the same date of the filing of the will for probate, entered into a contract by which they divided between themselves the property left by Jose Riosa, the eleven parcels of land described in the complaint being assigned to Maria Corral.

On October 26, 1920, Maria Corral sold parcels Nos. 1, 2, 3, 4, 5, 6, 10 and 11 to Marcelina Casas for the sum of P20,000 in a public instrument which was recorded in the registry of deeds on November 6, 1920. On November 3, 1920, Marcelina Casas sold these eight parcels of land to Pablo Rocha for the sum of P60,000 in a public document which was recorded in the registry of deeds on November 6, 1920. On September 24, 1921, Pablo Rocha returned parcels No. 1, 2, 3, 4, and 6 to Maria Corral stating in the deed executed for the purpose that these parcels of land had been erroneously included in the sale made by Maria Corral to Marcelina Casas.

The Court of first Instance denied the probate of the will of Jose Riosa, but on appeal this court reversed the decision of the lower court and allowed the will to probate.[[1]] The legal proceedings for the probate of the will and the settlement of the testate estate of Jose Riosa were followed; and, at the time of the partition, Maria Corral and Marcelina Casas submitted to the court the contract of extrajudicial partition which they had entered into on May 16, 1917, and which was approved by the court, by order of November 12, 1920, as though it had been made within the said testamentary proceedings.

From the foregoing is appears that the eleven parcels of land described in the complaint were acquired by Jose Riosa, by lucrative title, from his father Mariano Riosa and that after the death of Jose Riosa, by operation of law, they passed to his mother Maria Corral. By virtue of article 811 of the Civil Code these eleven parcels of land are reservable property. It results, furthermore, that parcels 1, 2, 3, 4, 5, 6, 7, 8 and 9 still belong in fee simple to Maria Corral, and that parcels 10 and 11 were successively sold by Maria Corral to Marcelina Casas and by the latter to Pablo Rocha. Lastly, it appears that

Magin and Consolacion Riosa are the nearest relatives within the third degree of the line from which this property came.

This action was brought by Magin Riosa, for whom the property should have been reserved, against Maria Corral, whose duty it was to reserve it, and against Marcelina Casas and Pablo Rocha as purchasers of parcels 10 and 11. Consolacion Riosa de Calleja who was also bound to make the reservation was included as a defendant as she refused to join as plaintiff.

The complaint prays that the property therein described be declared reservable property and that the plaintiffs Jose and Consolacion Riosa be declared reservees; that this reservation be noted in the registry of deeds; that the sale of parcels 10 and 11 to Marcelina Casas and Pablo Rocha be declared valid only in so far as it saves the right of reservation in favor of the plaintiff Magin Riosa and of the defendant Consolacion Riosa, and that this right of reservation be also noted on the deeds of sale executed in favor of Marcelina Casas and Pablo Rocha; that Maria Corral, Marcelina Casas and Pablo Rocha give a bond of P50,000, with good and sufficient sureties, in favor of the reservees as surety for the conservation and maintenance of the improvements existing on the said reservable property. The dispositive part of the court's decision reads as follows:

For the foregoing reasons it is held:

1. That the eleven parcels of land described in paragraph 6 of the complaint have the character of reservable property; 2. That the defendant Maria Corral, being compelled to make the reservation, must reserve them in favor of the plaintiff Magin Riosa and the defendant Consolacion Riosa de Calleja in case that either of these should survive her; 3. That Magin Riosa and Consolacion Riosa de Calleja have the right, in case that Maria Corral should die before them, to receive the said parcels or their equivalent.

In virtue whereof, the defendant Maria Corral is ordered: 1. To acknowledge the right of Magin Riosa and Consolacion Riosa de Calleja to the reservation of the said parcels of lands described in the complaint, which she shall expressly record in the registration of said lands in the office of the register of deeds of this province; 2. To insure the delivery of said parcels of lands, or their equivalent, to Magin Riosa and Consolacion Riosa de Calleja, should either of them survive her, either by a mortgage thereon or by a bond in the amount of P30,000, without express pronouncement as to costs.

The other defendants are absolved from the complaint.


Inasmuch as the reservation from its inception imposes obligations upon the reservor (reservista) and creates rights in favor of the reservation (reservatarios) it is of the utmost importance to determine the time when the land acquired the character of reservable property.

It will be remembered that on May 16, 1917, Maria Corral and Marcelina Casas entered into a contract of extrajudicial partition of the property left by Jose Riosa, in which they assigned to Maria Corral, as her legitime, the parcels of land here in question, and at the same time petitioned for the probate of the will of Jose Riosa and instituted the testamentary proceeding. In support of the legality of the extrajudicial partition between Maria Corral and Marcelina Casas the provision of section 596 of the Code of Civil Procedure is invoked, which authorizes the heirs of a person dying without a will to make a partition without the intervention of the courts whenever the heirs are all of age and the deceased has left no debts. But this legal provisions refers expressly to intestate estates and, of course, excludes testate estates like the one now before us.

When the deceased has left a will the partition of his property must be made in accordance therewith. According to section 625 of the same Code no will can pass property until it is probated. And even after being probated it cannot pass any property if its provisions impair the legitime fixed by law in favor of certain heirs. Therefore, the probate of the will and the validity of the testamentary provisions must be passed upon by the court.

For the reasons stated, and without making any express finding as to the efficacy of the extrajudicial partition made by Maria Corral and Marcelina Casas, we hold that for the purposes of the reservation and the rights and obligations arising thereunder in connection with the favored relatives, the property cannot be considered as having passed to Maria Corral but from the date when the said partition was approved by the court, that is, on November 12, 1920. In the case of Pavia vs. De la Rosa (8 Phil., 70), this court laid down the same doctrine in the following language:

The provisions of Act No. 190 (Code of Civil Procedure) have annulled the provisions of article 1003 and others of the Civil Code with regard to the pure or simple acceptance of the inheritance of a deceased person or that made with benefit of inventory and the consequences thereof.

x x x x x x x x x

The heir legally succeeds the deceased from whom he derives his right and title, but only after the liquidation of the estate, the payment of the debts of same, and the adjudication of the residue of the estate of the deceased, and in the meantime the only person in charge by law to attend to all claims against the estate of the deceased debtor is the executor or administrator appointed by a competent court.

As has been indicated, parcels 10 and 11 described in the complaint were first sold by Maria Corral to Marcelina Casas who later sold them to Pablo Rocha. In this appeal it is urged that Marcelina Casas and Pablo Rocha, who were absolved by the court below, be ordered to acknowledge the reservation as to parcels 10 and 11, acquired by them, and to have the said reservation noted on their titles. This argument, of course, is useless as to Marcelina Casas for the reason that she transferred all her rights to Pablo Rocha.

It has been held by jurisprudence that the provisions of the law referred to in article 868 tending to assure the efficacy of the reservation by the surviving spouse are applicable to the reservation known as "reserva troncal," referred to in article 811, which is the reservation now under consideration.

In accordance with article 977, Maria Corral, reservor, is obliged to have the reservation noted in the registry of deeds in accordance with the provisions of the Mortgage Law which fixes the period of ninety days for accomplishing it (article 199, in relation with article 191, of the Mortgage Law). According to article 203 of the General Regulation for the application of the Mortgage Law, this time must be computed from the acceptance of the inheritance. But as this portion of the Civil Code, regarding the acceptance of the inheritance, has been repealed, the time, as has been indicated, must be computed from the adjudication of the property by the court to the heirs, in line with the decision of this court hereinabove quoted. After the expiration of this period the reservees may demand compliance with this obligation.

If Maria Corral had not transferred parcels 10 and 11 to another there would be no doubt that she could be compelled to cause the reservable character of this property to be noted in the registry of deeds. This land having been sold to Marcelina Casas who, in turn, sold it to Pablo Rocha the question arises whether the latter can be compelled to have this reservation noted on his title. This acquisition by Pablo Rocha took place when it was the duty of Maria Corral to make the notation of the reservation in the registry and at the time when the reservees had no right to compel Maria Corral to make such notation, because this acquisition was made before


the expiration of the period of ninety days from November 12, 1920, the date of the adjudication by the court, after which the right of the reservees to commence an action for the fulfillment of the obligation arose. But the land first passed to Marcelina Casas and later to Pablo Rocha together with the obligation that the law imposes upon Maria Corral. They could not have acquired a better title than that held by Maria Corral and if the latter's title was limited by the reservation and the obligation to note it in the registry of deeds, this same limitation is attached to the right acquired by Marcelina Casas and Pablo Rocha.

In the transmission of reservable property the law imposes the reservation as a resolutory condition for the benefit of the reservees (article 975, Civil Code). The fact that the resolvable character of the property was not recorded in the registry of deed at the time that it was acquired by Marcelina Casas and Pablo Rocha cannot affect the right of the reservees, for the reason that the transfers were made at the time when it was the obligation of the reservor to note only such reservation and the reservees did not them have any right to compel her to fulfill such an obligation.

Marcelina Casas, as well as Pablo Rocha, Knew of the reservable character of the property when they bought it. They had knowledge of the provisions of the last will and testament of Mariano Riosa by virtue of which these parcels were transferred to Jose Riosa. Pablo Rocha was one of the legatees in the will. Marcelina Casas was the one who entered into the contract of partition with Maria Corral, whereby these parcels were adjudicated to the latter, as a legitimate heir of Jose Riosa. Pablo Rocha was the very person who drafted the contracts of sale of these parcels of land by Maria Corral to Marcelina Casas and by the latter to himself. These facts, together with the relationship existing between Maria Corral and Marcelina Casas and Pablo Rocha, the former a daughter-in-law and the latter a nephew of Maria Corral, amply support the conclusion that both of them knew that these parcels of land had been inherited by Maria Corral, as her legitime from her son Jose Riosa who had inherited them, by will, from his father Mariano Riosa, and were reservable property. Wherefore, the duty of Maria Corral of recording the reservable character of lots 10 and 11 has been transferred to Pablo Rocha and the reservees have an action against him to compel him to comply with this obligation.

The appellant also claims that the obligation imposed upon Maria Corral of insuring the return of these parcels of land, or their value, to the reservees by means of a mortgage or a bond in the amount of P30,000, also applies to Pablo Rocha. The law does not require that the reservor give this security, the recording of the

reservation in the registry of deeds being sufficient (art. 977 of the Civil Code). There is no ground for this requirement inasmuch as, the notation once is made, the property will answer for the efficacy of the reservation. This security for the value of the property is required by law (art. 978, paragraph 4, of the Civil Code) in the case of a reservation by the surviving spouse when the property has been sold before acquiring the reservable character (art 968 of the Civil Code), but is not applicable to reservation known as reserva troncal (art 811 of the Civil Code). In the case of Dizon and Dizon vs. Galang (page 601, ante), this court held that:

* * * As already intimated, the provisions of the law tending to give efficacy to a reservation by the widowed spouse mentioned in article 968 are applicable to the reserva troncal provided for in article 811. But as these two reservations vary in some respects, these rules may be applied to the reserva troncal only in so far as the latter is similar to a reservation by the widowed spouse. In the reserva troncal the property goes to the reservor as reservable property and it remains so until the reservation takes place or is extinguished. In a reservation by the widowed spouse there are two distinct stages, one when the property goes to the widower without being reservable, and the other when the widower contracts a second marriage, whereupon the property, which theretofore has been in his possession free of any encumbrance, becomes reservable. These two stages also affect differently the transfer that may be made of the property. If the property is sold during the first stage, before becoming reservable, it is absolutely free and is transferred to the purchaser unencumbered. But if the sale is made during the second stage, that is, when the duty to reserve has arisen, the property goes to the purchaser subject to the reservation, without prejudice to the provisions of the Mortgage Law. This is the reason why the law provides that should the property be sold before it becomes reservable, or before the widower contracts another marriage, he will be compelled to secure the value of the property by a mortgage upon contracting a new marriage, so that the reservation may not lose its efficacy and that the rights of those for whom the reservation is made may be assured. This mortgage is not required by law when the sale is made after the reservation will follow the property, without prejudice to the contrary provisions of the Mortgage Law and the rights of innocent purchasers, there being no need to secure the value of the property since it is liable for the efficacy of the reservation by a widowed spouse to secure the value of the property sold by the widower, before becoming reservable are not applicable to the reserva troncal where the property goes to the ascendant already reservable in character. A sale in the case of reserva troncal might be analogous to a sale made by the widower after contacting a second


marriage in the case of a reservation by the widowed spouse.

Since Maria Corral did not appeal, we cannot modify the appealed judgment in so far as it is unfavorable to her. As she has been ordered to record in the registry the reservable character of the other parcels of land, the subject of this action, the questions raised by the appellant as to her are decided.

The judgment appealed from is modified and Pablo Rocha is ordered to record in the registry of deeds the reservable character of parcels 10 11, the subject of this complaint, without special pronouncement as to costs. So ordered.

G.R. No. L-22066 December 2, 1924

FRANCISCA MAGHIRANG and SERGIA GUTIERREZ, plaintiffs-appellants,

vs.ATILANO BALCITA, ET AL., defendants-appellees.

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

G.R. No. L-22067 December 2, 1924

GREGORIO EMPALMADO, petitioner-appellee,vs.

SERGIA GUTIERREZ, opponent-appellant.

By the appeal in civil cause No. 2643 of the Court of First Instance of Laguna, Sergia Gutierrez seeks to reverse a decision of said court, whereby two parcels of land were declared to be the exclusive property of Gregorio Empalmado and of Esteban Reyes, respectively, free from the claim of Sergia Gutierrez that said lots are held by said defendants subject to a contingent reservable interest in her favor. Connected with the action above mentioned is the proceeding in the second appeal, wherein the trial court declared that the first of the two lots in controversy should be registered in the name of Gregorio Empalmado, free from the same claim. Because of the intimate relation between the action instituted in behalf of the appellant, Sergia Gutierrez, as reservee, and the registration proceeding in which she is opponent, the two causes were heard together in the trial court and will be here disposed of in a single opinion.

The basis of the claim put forth by the plaintiff Gutierrez is the same as to both parcels, but the facts constituting the respective defenses of the two defendants are different. It will therefore be convenient to state first the

points pertaining to the two parcels in common and then such as pertain especially to the controversy over each.

It appears that the original owner of both parcels was one Bonifacio Gutierrez, who died about the year 1902, after having been thrice married. The first wife left no children, but the second wife left a daughter, Zoila Gutierrez, who intermarried with Atilano Balcita, one of the defendants herein. To this pair was born a daughter, Gertrudis Balcita. Zoila Gutierrez predeceased her father; and upon the death of the latter, the two parcels of land with which we are concerned passed by inheritance directly from Bonifacio to his granddaughter Gertrudis, then a mere child. Gertrudis Balcita herself died on December 9, 1912, at the age of 16, leaving no heir except her father, Atilano Balcita. The plaintiff, Sergia Gutierrez, is a daughter of Bonifacio Gutierrez by his third wife, one Francisca Maghirang. Sergia was therefore the aunt of Gertrudis Balcita, on her mother's side, and as reservee under article 811 of the Civil Code she should succeed to the title of the two parcels which Atilano Balcita inherited, or should have inherited, from Gertrudis, provided all the conditions necessary to the assertion of the reservation right are fulfilled.

GUTIERREZ VS. EMPALMADO

Parcel A. — In the year 1905 Atilano Balcita sold the parcel A to one Vicente Almario. As the land belonged to Gertrudis, a lawsuit was instituted in her behalf in 1912 with a view to recovering it. The litigation was compromised by the reconveyance of the land by Almario to Gertrudis and the payment to him of P1,200, which was the amount that he had paid for the property. The money necessary to effect this compromise had to be borrowed by Gertrudis, or those representing her; and although the point is subject to discussion, the preponderance of the testimony is to the effect that the money was obtained from Gregorio Empalmado under an agreement by which Gertrudis Balcita undertook to convey the land to him for the sum of P2,100. The document, Exhibit B, constituting the evidence of this agreement is dated November 28, 1912. In addition to the signature of Gertrudis Balcita, which is questioned, it bears the signature of Atilano Balcita and two subscribing witnesses. Gertrudis Balcita died of dysentery on December 9, 1912, and on December 12 thereafter her father, Atilano Balcita, executed the document Exhibit C, whereby he conveyed, or purported to convey, the same parcel to Gregorio Empalmado, it being recited that he had inherited the land from his daughter Gertrudis. Gregorio Empalmado immediately entered into possession, and he has subsequently maintained possession under claim of ownership.


For the plaintiff, Gutierrez, it is insisted that the document, Exhibit b, is not authentic and that the name of Gertrudis Balcita subscribed thereto is a forgery. The trial judge was of the opinion that the due execution of this instrument had been proved by a preponderance of the evidence; and although the question is debatable, and the point not altogether free from doubt, we are of the opinion that the trial court's conclusion on this point should be affirmed. The two subscribing witnesses both say that they saw the girl sign the document upon the date stated therein, and this is corroborated not only by the testimony of Gregorio Empalmado, who was present at the execution of the instrument, but also by Atilano Balcita himself. The only testimony to the contrary is that of Sergia Gutierrez, who says that the girl was too sick for some time prior to her death to admit the possibility of her having signed the instrument. It is true that the questioned signature appears somewhat suspicious, but we have not sufficient data upon which to pronounce it a forgery, considered as a mere question of penmanship. Certainly, the instrument expresses the agreement that would naturally have been drawn upon under the proven circumstances which gave rise to the transaction.

Upon the foregoing state of facts the trial judge found as a matter of law that the title to parcel A passed out of Gertrudis Balcita and became vested in Gregorio Empalmado before her death; and although Gertrudis was then a minor, the conveyance was only voidable and not void. Moreover, as his Honor pointed out, the contract was evidently advantageous to the minor because she thereby obtained the money necessary to get the property back from Vicente Almario, with the consequent saving of P900.

These conclusions of the trial court seem to us well founded, and the result is that, as to this parcel, the inchoate reservable right asserted by Sergia Gutierrez never came into existence. In this view the conveyance executed by Atilano Balcita a few days after the death of his daughter Gertrudis operated as a mere quit-claim from him, as title had already vested in Empalmado under the prior agreement with her.

No error was therefore committed by the trial judge in dismissing the complaint in case No. 2643 in so far as it affects parcel A and the right of the defendant Empalmado thereto; nor did his Honor err in ordering the registration of the same parcel in the name of Empalmado and his wife Felipa Brion, regardless of the opposition of the plaintiff Gutierrez.

GUTIERREZ VS. REYES

Parcel B. — As already stated, this parcel comes from the same source as the parcel A, that is, from the estate

of Bonifacio Gutierrez. With respect to this parcel it appears that on May 28, 1906, Atilano Balcita, being then in possession and asserting a claim of ownership, sold the same by a contract of sale with pacto de retro for the sum of P200 to the defendant Esteban Reyes. In the document constituting the evidence of this sale Atilano Balcita falsely declared that he was owner by virtud of having inherited the property from his parents and that he had been in quiet and pacific possession for fifteen years. Esteban Reyes was a purchaser for value and bought in belief that the land really belonged to his vendor. The period for repurchase under this contract was ten years, which passed in 1916 without redemption having been effected. It is not clear whether the purchaser under this contract entered into possession during the time stipulated for redemption or not; but it is agreed that, with this exception, the defendant Reyes had, until the institution of this action on May 10, 1918, exercised actual and adverse possession, to the exclusion of all other persons.lawphi1.net

Upon the facts above stated the trial judge gave Reyes the benefit of prescription under the ten years statute (sec. 41, Code of Civ. Proc.) and held that the right of Sergia Gutierrez, as reservee, had been thereby destroyed.

We are of the opinion that the conclusion thus reached is erroneous. We may accept the legal proposition that occupancy by Esteban Reyes, pursuant to the contract of sale with pacto de retro by which he acquired the property, and prior to the expiration of the period for redemption, may be considered an adverse possession as against everybody having a prescriptible interest, notwithstanding the existence of the stipulation for repurchase. As was said by this court in Santos vs. Heirs of Crisostomo and Tiongson (41 Phil., 342, 352), the insertion of a stipulation for repurchase by the vendor in a contract of sale does not necessarily create a right inconsistent with the right of ownership in the purchaser. Such a stipulation is in the nature of an option, and the possible exercise of its rests upon contingency. It creates no subsisting right whatever in the property, and so far from being inconsistent with the idea of full ownership in the purchaser, it really rests upon the assumption of ownership in him.

But it must be borne in mind that the true owner of this property was Gertrudis Balcita, a minor, and the period of limitation did not begin to run against her or any person claiming in her right until the date of her death, which was December 9, 1912. It must furthermore be remembered that the plaintiff does not claim in the character of an ordinary successor to the rights of Gertrudis Balcita; her claim is based upon a positive provision of law, which could no operate in any wise until


the death of Gertrudis Balcita, when the reservable character first attached to the property in question. From this it is obvious that the right of the plaintiff — which even yet is of a purely contingent nature — could not be affected by anything that had occurred prior to the death of Gertrudis Balcita; and as this action was begun in May, 1918, the ten-year period necessary to confer a complete prescriptive title had not then elapsed.

What has been said makes it unnecessary to express any opinion upon he more recondite question whether Sergia Gutierrez really has a prescriptive interest in the parcel B, but we may observe that the position of the reservee under the Spanish law is very much like that of the ordinary remainderman at common law, who is entitled to take after the termination of a particular life estate; and it is generally accepted doctrine in common law jurisdictions that if the life tenant loses his life estate by adverse possession the interest of the remainderman is not thereby destroyed. (17 R. C. L., 982; 21 C. J., 972, 975, 1013.) The reason for the rule is said to be that, during the existence of the life estate, the remainderman has no right to possession and consequently cannot bring an action to recover it. (21 C. J., 974.) As was said by the Supreme Court of Ohio in Webster vs. Pittsburg, etc., Railroad Co. (15 L. R. A. [N. S.], 1154), "No possession can be deemed adverse to a party who has not at the time the right of entry and possession."

From what has been said it is apparent that the judgment must be affirmed in so far as concerns the registration of parcel A in expediente No. 409, G. L. R. O., record No. 14769, and in so far as relates to the dismissal of the complaint against Gregorio Empalmado in case No. 2643; but the judgment in the same case must be reversed in so far as relates to parcel B, now in the possession of Esteban Reyes, and it is hereby declared that said parcel is reservable property and upon the death of Atilano Balcita will pass to Sergia Gutierrez, if she be then living. Let a certified copy of this pronouncement be filed with the register of deeds of the Province of Laguna for record pursuant to the provisions of Act No. 2837 of the Philippine Legislature. So ordered, without special pronouncement as to costs.

G.R. No. 10580TEODORO DE LOS REYES, plaintiff-appellee,

vs.MAXIMINO PATERNO, administrator of the estate of

Tomas G. del Rosario deceased, defendant-appellant.

This action was commenced in the Court of First Instance of the city of Manila on the 7th of February,

1914. The purpose of the action on the part of the plaintiff was to be declared the owner of one-half of two lots or parcels of land located in the district of Santa Cruz in the city of Manila, to require the defendant to render an account of the administration of said lots or parcels of land, and to obtain a judgment in favor of the plaintiff and against the defendant for whatever amount said rendition of accounts shows the plaintiff was entitled to.

To the petition the defendant filed a general and special answer. In his general answer he denied each and all of the material allegations alleged in the complaint. In his special defense he alleged that the said Tomas G. Del Rosario, at the time of his death, was the sole and only owner of said lots or parcels of land.

Upon the issue thus presented and after hearing the evidence adduced during the trial of the cause, the court a quo rendered a judgment in which he ordered the defendant to deliver to the plaintiff one-half of one of said parcels of land, together with the one-half of the rent which it produced or might produce until the delivery of the same, and to pay to the plaintiff the sum of P8,000 and the half of the rent which the other piece of property may have produced or may produce up to the time of the death of the deceased, Tomas G. del Rosario.

From that conclusion the defendant appealed to this court and made several assignments of error the most important of which, and the one which is our judgment shows that the lower court committed an error in its conclusions, is assignment No. 5. Said assignment is that the lower court "erred in not holding that the decree of the Court of Land Registration, copied in plaintiff's Exhibit C, is res judicata against the plaintiff; and that the two certificates of title of the properties that are the subject matter of the complaint, issued in behalf of Tomas G. de Rosario by virtue of said decree, are conclusive and decisive proof against the plaintiff."

If it is true that during the lifetime of Tomas G. del Rosario he obtained a Torrens title for the lots or parcels of land in question, and if that judgment or decree of the Court of Land Registration became final, or if more than one year had elapsed after the decree then his title is unimpeachable and can not be annulled or set aside, even for fraud.

As was noted above, the present action was commenced on the 7th of February, 1914. During the trial of the cause the defendant presented as proof Exhibit C. An examination of Exhibit C shows the following facts:


First. That the said Tomas G. del Rosario presented a petition in the Court of Land Registration on the 24th of April, 1909, for the registration under the Torrens system of two parcels of land. There is no dispute that the two parcels of land described in said petition for registration are exactly the same parcels of land in litigation in the present action.

Second. Said Exhibit C further shows that on the 21st of September, 1909, the judge of the Court of Land Registration, after considering the petition, rendered the following decree, ordering said parcels of land to be registered in the name of Tomas G. del Rosario, in accordance with the provisions of Act No. 496:

Two properties are described in the application, both urban; the first is a parcel of land situated on Calle Curtidor, district of Santa Cruz, city of Manila, and includes the building thereon constructed of strong materials; and the other is a piece of land on Calle Asuncion, district of San Nicolas, city of Manila, which includes the building, also of strong materials, thereon.

The applicant has presented documentary and parol evidence, the former consisting of the documents, all of which are public, on file in this case, and the latter, of the testimony of witnesses. From the said documents and from the certified copy issued by the register of deeds of Manila on July 17, 1907, of the entry made in the old property registry, it is deduced that these properties have been the subject of successive and legal conveyances since the year 1879, until they were acquired by the applicant in August and September, 1891, by purchase, during his conjugal partnership, now dissolved, with his wife, Juana Reyes y Reyes, and that the ownership of both properties was recorded in the said property registry in the name of the aforementioned Tomas G. del Rosario, as the representative of the said partnership.

Upon the death of Juana Reyes y Reyes, who died intestate, Concepcion Crispina Dorotea Severina del Rosario y Reyes, a daughter of the marriage of the deceased with the applicant, Tomas G. del Rosario, was declared to be the sold heir of decedent by the Court of First Instance of the district of Quiapo in a decree of February 20, 1892.

On June 3, 1900, the said Concepcion del Rosario y Reyes also died, at the age of nine years, according to the death certificate Exhibit F, and was succeeded in all her rights and actions, and in respect to one-half of the property, by the said applicant, Tomas G. del Rosario, who was already the owner of the other half of the property.

After general notice of default, the adjudication and registration of the property in question is decreed (10 a. m.) in the name of the applicant, Tomas G. del Rosario.

Let a translation be made of the stenographic notes taken of the testimony of the witnesses, and attached to the record of the proceedings.

In the margin of the entries of registration, which, on folio 34 of volume 4 of the section of Quiapo, and 9 of the register, property No. 131, registration No. 3, and folio 115 of volume 7 of the section of Binondo, property No. 314, appears in the names of Tomas G. del Rosario y Tongco and his daughter, Concepcion Crispina Dorotea Severina del Rosario y Reyes, let record be made by the register of deeds of the city of Manila, that the properties to which said entries refer have been adjudicated to Tomas G. del Rosario, in accordance with Act No. 496.

MANILA, September 21, 1909.

From the 21st of September, 1909, until the 7th of February, 1914, much more than one year elapsed. The title, therefore, of Tomas G. del Rosario was absolute and complete. The failure of the plaintiff, if he ever had any interest or title in said land, to appear and oppose the registration of the same in the name of Tomas G. del Rosario or to question the registration in his name during a period of one year after the certificate of title had been issued, operates to exclude him forever from questioning the title granted under the Torrens system. (Sec. 38, Act No. 496; Cuyugan and Lim Tuico vs. Sy Quia, 24 Phil. Rep., 567; Maloles vs. Director of Lands, 25 Phil. Rep., 548.)

The plaintiff having lost his right to claim any interest in the lots or parcels of land in question, by virtue of his (a) failure to present any opposition to the registration of the same under the Torrens system in favor of Tomas G. del Rosario, or (b) to question the validity of such registration within a period of one year thereafter he has forever lost his right therein, if he ever had any.

Therefore the judgment of the lower court is hereby reversed and the defendant is absolved from all liability under the complaint, and without any finding as to costs, it is so ordered.


G.R. No. L-9234INTESTATE ESTATE OF THE LATE ELI RODRIGUEZ.SAMSON RODRIGUEZ, ET AL., movants-appellants,

vs.RUPERTA A. VDA. DE RODRIGUEZ, administratix-

appellee,

RUPERTA A VDA. DE RODRIGUEZ, administratix-appellant,

vs.SAMSON RODRIGUEZ, ET AL., movants-appellees.

In his lifetime the late Fortunate Rodriguez executed a will instituting as heirs entitled to his estate, the following: Josefina and Nicanora, natural children; Samson, Juanita, Inicerio and Gregorio, legitimate children by his first wife Julia Quillos; and Eli Rodriguez, legitimate son by his second wife Ruperta A. Vda. de Rodriguez. After his death sometime in 1924, proceedings for the administration and settlement of his estate was instituted in the Court of First Instance of Occidental Negros (Special Proceedings No. 2758). On 24 March 1924 the heirs executed an agreement of partition and submitted it to the probate court for approval. After approval, the heirs took possession of their respective shares.

The real estate awarded to Eli Rodriguez are the following: (1) 1/15 share in Lots Nos. 846, 848 and 965; (2) Lot No. 847; and (3) Lot No. 951, all of the Cadastral Survey of La Carlota. These parcels of land are planted to sugar cane and the produce milled at the Central Azucarera de La Carlota. Upon the enactment of Act No. 4166, known as the Sugar Limitation Law, on 4 December 1934, a quota of 596.26 piculs of sugar, divided into export, consumer, and emergency reserve, manufactured from the sugar cane grown therein, was allocated to the said parcels of land.

On 19 May 1942 Eli Rodriguez died intestate, single and without issue in O'Donnel concentration camp, Capas, Tarlac. On 28 December 1945 his mother Ruperta A. Vda. de Rodriguez commenced proceedings in the Court of First Instance of Occidental Negros for the administration and settlement of the deceased and prayed that after hearing she be appointed administratrix of the estate of the deceased; that she be exempted from filing a bond; and that she be declared the sole heir of the deceased (Special Proceedings No. 220). On 23 September 1954 Samson Rodriguez, Juanita Rodriguez, Inicerio Rodriguez, Gregorio Rodriguez and Josefina Rodriguez, half-brothers and half-sisters of the

deceased, and Jesus Segura, son of Nicanora Rodriguez, another half-sister of the deceased, filed a motion in the probate court praying that the parcels of land inherited by the administratrix from her late son Eli Rodriguez be held subject to a reserva troncal in their favor under and pursuant to the provisions of article 891 of the new Civil Code (811 of the old), and that the administratrix be directed to register or cause to be recorded on the back of the transfer certificates of title to be issued in her name by the Registrar of Deeds in and for the province of Occidental Negros for the said parcels of land, their right to such reserva troncal. After hearing, on 27 November 1954 the probate court held that Josefina Rodriguez, a natural sister of the deceased, and Jesus Segura, the son of the late Nicanora Rodriguez, another natural sister, are not entitled to a reserva troncal, but that the rest of the movants are entitled to have their right to a reserva troncal recorded on the transfer certificates of title to be issued to the administratrix for the parcels of land inherited by her from her late son Eli Rodriguez; and that the sugar quota of 596.26 piculs allocated to the parcels of land is not subject to such reserva troncal and ordered the administratix —

. . . to record in the Registry of Deeds of Negros Occidental, the reservable character of lots Nos. 847, 951, 11, 965 and 7 of the la Carlota Cadastre (the last three lots correspond previously to 1/15 pro indiviso of Lots 846, 965 and 848 of the La Carlota Cadastre) in favor of Samson, Juanita, Inicerio and Gregorio, all surnamed Rodriguez.

Motions for reconsideration filed on 22 December 1954 and 22 February 1955 were denied on 14 February 1955 and 10 March 1955, respectively.

The movants appeal from that part of the order denying their petition to include in the reservation the sugar quota allotment of 596.26 piculs that may be manufactured from the sugar cane grown in the parcels of land inherited by the administratrix from her late son. The movants Josefina Rodriguez and Jesus Segura did not appeal. The administratrix appeals from that part of the order directing her to register or cause to be recorded the right of Samson, Juanita, Inicerio and Gregorio, all surnamed Rodriguez, to a reserva troncal on the transfer certificates of title to be issued to the administratrix by the Rigistrar of Deeds of the province of Occidental Negros for the parcels of land inherited by her from her late son Eli Rodriguez.

Article 891 of the new Civil Code (811 of the old), provides:


The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property is he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

Commenting on this article Manresa says:

Los bienes pasan en primer termino al ascendiente legitimario: este los reserva, los guarda disfruta durante su vida, y a su muerte van a parar a la linea a que pertenecieron si hay parientes dentro del tercer grado en esa linea, y caso de no haberlos en ese moimento, la reserve desaprece, los bienesquedan libres y se sigue el orden natural de la sucesion. En cambgio los parientes han de respetar ese usufructo, y tienen una esperanza a esos bienes,que solo ven realizada los que vivan en la epoca del fallecimiento del ascendiente.

De aqui se deduce que el ascendiente es algo mas que un simple usufructuario; su derecho es analogo al del poseedor de bienes sujetos a una condicion resolutoria. Hay, en efecto, un hecho futuro e incierto del que depende laadquisicion definitiva o la extincion del derecho por el ascendiente o porsus herederos, asi como la adquisicion o la extencion del derecho de losparientes. Quedaran o no parientes lineales, dentro del tercer grado, a lamuerte del ascendiente obligado a reserva? Tal es la cuestion. Quedan? Adquieren los bienes, que son perdidos para los herederos del ascendiente,porque la condicion se ha cumplido. No quedan? El hecho incierto no se harealizado, y se hace definitivo y firme el derecho del ascendiente o de susherederos. Y no se crea que siempre habra que esperar a la muerte del ascendiente: habra casos en los cuales despues de nacida la reserva, eseascendiente presenciara la muerte de la misma, por desparecer los parientesque a ella pudieran tener derecho, y no ser posible que lleguen a existirotros. (Comentrios al Codigo Civil Español, Vol. 6 pp. 252-253, 6th Ed.)

Properties reservable under the aforequoted article are those that the propositus acquired by gratuitos title from another ascenda, or brother or sister. Although in 1924, at the time the late Eli Rodriguez inherited by will the parcels of land from his late father Fortunato, the sugar quota allotment was not yet in existence, still such sugar quota allotment, in the language of the law,[[1]] is "an improvement attaching to the land. . . ." If there be no land planted to sugar cane there would be no sugar quota allotment. The fact that "Mill companies and plantation owners may sale, transfer, or assign their allotments received under the terms of this Act,"[[2]] is another compelling reason which leads us to regard the

sugar quota allotment as part of the land to be reserved for the reservees, because if the sugar quota allotment be sold by the reservor, the land subject to reserva troncal would greatly depreciate in value to the prejudice and detriment of the right of the reservees.

In support of her appeal, counsel for the administratrix quotes in his brief a passage from Manresa thus —

Que en cuanto al hermano, desde luego es aplicable el precepto a los hermanosde doble vinculo. Pero si los bienes proceden de un medio hermano, no tendria, luego (lugar) la reserva. (Manresa Vol. 6 page 256) Pp. 6-7, brief for the administratrix appellant.

This is not correct. The correct passage is —

En cuanto al hermano, desde luego es aplicable el precepto a los hermanos de doble vinculo. Pero si los bienes proceden de un medio hermano, no tendralugar la reserva? No hay duda alguna: hermanos son unos y otros, y con esa sola denominacion se comprenden los medio hermanos en los articulos 143, 144,294, 770, 952, 953 y 954. Legitimos son tambien todos, y sin una disposicion expresa de la ley no pueden ser excluidos. El doble vinculo determina cierta preferencia en materia de tutelas y sucesiones; mas al efecto de buscar la procedencia de log bienes en el art. 811, basta que se trate de hermanos, seande doble vinculo, uterinos o consanguineos. Hay sobre todo una razon decisiva,como veremos despues; en ultimo termino, la reserva se establece en favor delos parientes que pertenezcan a la linea del hermano de quien los bienesproceden, y puesto que se trata de lineas, el doble vinculo es indiferente.(Comentarios al Codigo Civil Español, Vol. 6, p. 257, 6th Ed.)

Debe ser el parentesco de doble vinculo? Scaevola afirma que, por ser la reserva del articulo 811 puramente lineal, no es licito distinguir entre pariente de vinculo entero o de medio vinculo, y cita en apoto de su opinion la sentencia de 29 de diciember de 1897, en la que se declaro la reserva a favor de uno medio hermano. (Manresa, Comentarios al Codigo Civil Español, Vol. 6, pp. 328-329, 7th Ed.)

The provisions of article 891 of the new Civil Code (811 of the old) do not exclude the half brothers and sisters from the benefit provided for therein, as long as they are of the line from which the property to be reserved came.

The order appealed from is modified by including the sugar quota allotment of the parcels of land in the reservation to be recorded on the transfer certificates of the title to be issued to and in the name of Ruperta A. Vda. de Rodriguez, without pronouncement as to costs.


G.R. No. L-29901 August 31, 1977

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners,

vs.THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA DE LA TORRE, in her capacity as Administratrix of the

Intestate Estate of Consolacion de la Torre, respondents.

Petition for review of the decision of the respondent Court which dismissed the complaint of petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de la Torre, Administratrix of the Intestate Estate of Consolacion de la Torre"

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la Torre with whom he had a child by the name of Juanita Frias Chua. Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated January 15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of Lot No. 399 and the sum of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua; and P1,550.00 in favor of Ignacio Frias, Chua, his sons of the first marriage. By virtue of said adjudication, Transfer Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was issued by the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as owners pro-indiviso of Lot No. 399.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After his death, his mother Consolacion de la Torre succeeded to his pro-indivisio share of Lot No. 399. In a week's time or on March 6, 1952, Consolacion de la Torre executed a declaration of heirship adjudicating in her favor the pro-indiviso share of her son Juanito as a result of which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then on March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in the descending or ascending line except her brother and sisters.

In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A, the petitioners herein, Ignacio Frias Chua, of the first marriage and dominador and Remedios Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua, also of the first marriage filed the complaint a quo 3 (subseqently segregated as a distinct suit and docketed as Civil Case No. 7839-A) on May 11, 1966 before the respondent Court of First Instance of Negros Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias but which passed to Consolacion de la Torre upon the latter's death, be declaredas a reservable property for the reason that the lot in questionn was subject to reserval troncal pursuant to Article 981 of the New Civil Code, Private respondent as administratrix of the estate of individually the complaint of petitioners 4

On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of petitioner. Hence this instant.

The pertinent provision of reserva troncal under the New Civil Code provides:

ART. 891. The ascendant who inheritts from his descendant any property which the latter may have acquired by gratuitous title from another ascendat, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and belong to the line from which said property came.

Persuant to the foregoing provision, in order that a property may be impressed with a reservable character the following requisites must exist, to wit: (1) that the property was acquired by a descendant from an asscendant or from a brother or sister by gratuitous title; (2) that said descendant died without an issue; (3) that the property is inherited by another ascendant by operation of law; and (4) that there are relatives within the third degree belonging to the line from which said property came. 5 In the case before Us, all of the foregoing requisites are present. Thus, as borne out by the records, Juanoito Frias Chua of the second marriage died intestate in 1952; he died withour leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre died, Juannnito Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador Chua and Remidios Chua, the suppose legitimate children of the deceased Lorenzo Frias Chua, who are the petitioners herein.

The crux of the problem in instant petition is focused on the first requisit of reserva troncal — whether the


property in question was acquired by Juanito Frias Chua from his father Jose Frias Chua, gratuitously or not. In resolving this point, the respondent Court said:

It appears from Exh. "3", which is part of Exh. "D", that the property in question was not acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a consideration, namely, that the legatees were to pay the interest and cost and other fees resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the lot in question is not subject tot a reserva troncal, under Art. 891 of the New Civil Code, and as such the plaintiff's complaint must fail.

We are not prepared to sustain the respondent Court's conclusion that the lot in question is not subject to a reserva troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not whether the property transmitted be or be not subject to any prior charges; what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or does nothing in return; or, as ably put by an eminent Filipino commentator, 6 "the essential thing is that the person who transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation." It is evident from the record that the transmission of the property in question to Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of a hereditary succession and therefore gratuitous. It is true that there is the order (Exh. "D") of the probate Court in Intestate Proceeding No. 4816 which estates in express terms;

2. — Se adjudicada pro el presente a favor de Consolacion de la Torre, viuda, mayor de edad, y de su hiju, Juanito Frias Chua, menor de edad, todos residente de San Enrique, Negros Occidental, I.F.,como herederos del finado Jose Frias Chua Choo, estas propiadades:

14483

La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota, Negros Occidental, de 191.954 metros cuadddrados y cubierto por el Certificado de Titulo No. 11759, en partes equales pro-indiviso; por con la obligscion de pagar a las Standard Oil Co. of New York la deuda de P3971.20, sus intereses, costas y demas gastos resultantes del asunto civil No. 5300de este jusgado

But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias Chua in his last will and testament but by an order of the court in the Testate Proceeding No.4816 dated January 15, 1931. As long as the transmission of the property to the heirs is free from any condition imposed by the deceased himself and the property is given out of pure generosity, itg is gratuitous. it does not matter if later the court orders one of the heirs, in this case Juanito Frias Chua, to pay the Standare oil co. of New York the amount of P3,971.20. This does not change the gratuitous nature of the transmission of the property to him. This being the case the lot in question is subject to reserva troncal under Art, 891 of the New Civil Code.

It is contented that the distribution of the shares of the estate of Jose Frias Chua to the respondent heirs or legatees was agreed upon by the heirs in their project of partition based on the last will and testament of Jose Frias Chua. But petitioners claim that the supposed Last Will and Testament of Jose Frias Chua was never probated. The fact that the will was not probated was admitted in paragraph 6 of the respondents' answer. 7 There is nothing mentioned in the decision of the trial court in Civil Case No. 7839 A which is the subject of the present appeal nor in the order of January 15, 1931 of the trial court in the Testate Estate Proceeding No. 4816 nor in the private respondent's brief, that the Last Will and Testament of Jose Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if the Last Will and Testament has in fact been probated there would have been no need for the testamentary heirs to prepare a project of partition among themselves. The very will itself could be made the basis for the adjudication of the estate as in fact they did in their project of partition with Juanito Frias Chua getting one-half of Lot 399 by inheritance as a sone of the deceased Jose Frias Chua by the latter's second marriage.

According to the record, Juanito Frias Chua died on February 27, 1952 without any issue. After his death his mother Consolation de la Torre succeeded to his one-half pro-indiviso share of Lot 399. This was, however, subject to the condition that the property was reservable in character under Art. 891 of the Civil Code in favor of relatives within the third degree of Jose Frias Chua from whom the property came. These relatives are the petitioner herein.

It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399 which originally belonged to Juanito Frias Chua has already prescribed when it was filed on May 11, 1966. We do not believe so. It must be remembered that the petitioners herein are claiming


as reservees did not arise until the time the reservor, Consolacion de la Torre, died in March 1966. When the petitioners therefore filed their complaint to recover the one-half (1/2) portion of Lot 399, they were very much in time to do so.

IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners Ignacio Frias Chua, Dominador Chua and Remedios Chua are declared owners of 1/2 undivided portion of Lot 399; and the Register of Deeds of Negros Occidental is hereby ordered to cancel. Transfer Certificate of Title No. 31796 covering Lot No. 399 issued in the name of Consolacion de la Torre and to issue a new Certificate of Title in the names of Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and Dominador Chua and Remedios Chua, 1/4 undivided portion, of said lot. Without pronouncement as to costs.

SO ORDERED.

G.R. No. L-14530LEONA AGLIBOT, ET AL., plaintiffs-appellees,

vs.ANDREA ACAY MAÑALAC, ET AL., defendants-

appellants.

Leona and Evarista Aglibot commenced the present action (Civil Case No. 1482) in the Court of First Instance of Zambales on July 31, 1952 to recover from Andrea Acay Mañalac and her children — Ramona, Gregorio, Felix, Angela, Juanita and Purisima, all surnamed Mañalac — the ownership and possession of a parcel of land situated in barrio Namanaan, Municipality of San Antonio, Zambales, more particularly described in paragraph 2 of their complaint, and damages.

Briefly stated, the allegations of the complaint are that the Aglibots inherited the property subject matter thereof from their deceased niece Juliana Mañalac; that upon the death of Anacleto Mañalac, father of Juliana, the defendants took possession of said property, claimed it as their own and had since then appropriated for themselves all the palay annually harvested therefrom amounting to 30 cavanes; that nothwithstanding demands made upon said defendants by the Aglibots, they had refused to surrender the property to the latter.

In their answer, after denying some material averments of the complaint, appellants alleged substantially the following as affirmative defense: that the land in question was purchased from Esteban Garcia by the spouses Anacleto Mañalac and Maria Aglibot for P1,000.00; that

when Maria Aglibot died, only P300.00 of this amount had been paid; that the remaining P700.00 was paid to the vendor during the marriage of Anacleto Mañalac and appellant Andrea Acay; that Juliana Mañalac, the only daughter of Anacleto and his first wife, died in 1920, while Anacleto died in 1942; that upon his death, his widow, Andrea Acay, and their children acquired the property in question as his sole legal heirs. Their answer likewise claimed the sum of P1,000.00 as attorney's fees by way of counterclaim. After due trial, upon the issue thus joined, the lower court rendered judgement as follows:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment declaring the plaintiffs owners pro-indiviso of one half (1/2) of the land covered by Original Certificate No. 10 described in paragraph 2 of the amended complaint, ordering the defendants to deliver to the plaintiffs the possession of the said one-half (1/2) of the property covered by said title; ordering the defendants jointly and severally to deliver to the plaintiffs 15 cavanes of palay yearly as the share of the plaintiffs from the produce of the land or its equivalent value at P10.00 a cavan from the date of the filing of the complaint until the said one-half (1/2) portion of the property described in Original Certificate No. 10 is delivered to the plaintiffs and ordering the defendants to pay the costs.

From the above judgment Andrea Acay and her children took the present appeal.

The evidence shows that, originally, the land in question belonged to the conjugal partnership of the spouses Anacleto Mañalac and Maria Aglibot, and was covered by Original Certificate of Title No. 10 of the Register of Deeds of Zambales in the name of Anacleto Mañalac, married to Maria Aglibot; that said spouses had an only child named Juliana Mañalac; that Maria Aglibot died on October 2, 1906; that on April 25, 1910, Anacleto Mañalac married appellant Andrea Acay with whom he had six children (the other appellants herein); that Juliana Mañalac died intestate on October 22, 1920, leaving no other relatives except her father, Anacleto Mañalac, and her half brothers and sisters already mentioned; that upon the death of Anacleto on June 2, 1942, his widow, Andrea Acay, and her six children took possession of the parcel of land in controversy and since then have refused to surrender the ownership and possession thereof to the appellees; that the land produces thirty cavanes of palay yearly.

On May 18, 1951, appellees Leona and Evarista Aglibot filed a verified petition in the Court of First Instance of Zambales for the summary partition or distribution of the properties left by the deceased Juliana Mañalac among


her rightful heirs (Special Proceeding No. 594). The court, after proper proceedings, issued an order dated October 30, 1951, the dispositive part of which reads as follows:

Wherefore, the Court declares that the applicant Leona Aglibot and Evarista Aglibot are the only heirs within the third degree of Juliana Mañalac, and belonging to the same line from which these properties originally belonged, that is, from Maria Aglibot, being the sisters of the latter; that the value of these properties does not exceed six thousand pesos (P6,000); and that each of the applicants is entitled to receive and enter into possession of one-half of the first five parcels and one-fourth of the last two, after paying such debts of the estate if there be any — and the proportionate expenses of this special proceedings, subject to the provisions of Rule 74 of the Rules of Court. (Page 10, Rec. on App.)

After securing the decision abovequoted appellees made the unsuccessful demands upon appellants for the surrender of the property in question to them, and subsequently filed the present action.

The main question to be resolved now is: Who is entitled to the land which Anacleto Mañalac inherited from his daughter, Juliana, as between appellees(sisters of Maria Aglibot, first wife of Anacleto Mañalac), on the one hand, and appellants (Anacleto's second wife and their children), on the other?

It is clear from the facts of the case that the land in question is reservable property in accordance with the provisions of Article 811 of the Spanish Civil Code (Art. 891 of the New Civil Code). Both parties now admit that the entire parcel covered by Original Certificate of Title No. 10 belonged to the conjugal partnership of the spouses Anacleto Mañalac and Maria Aglibot; that upon the death of the latter on October 2, 1906, their only daughter, Juliana Mañalac, inherited one-half of the property, the other pertaining to her father as his share in the conjugal partnership; that upon the death of Juliana Mañalac on October 2, 1920 without leaving any descendant, her father inherited her one-half portion of said property. In accordance with law, therefore, Anacleto Mañalac was obliged to reserve the portion he had thus inherited from his daughter, for the benefit of appellees, Leona and Evarista Aglibot, aunts of Juliana on the maternal side and who are, therefore, her relative within the third degree belonging to the line from which said property came.

Appellants' contention that the major portion of the purchase price of the land in question was paid to the original owner, Esteban Garcia, after the death of Maria Aglibot is rendered clearly untenable not only by the lack

of sufficient evidence to this effect but also by the very significant circumstance that the property was titled in the name of Anacleto Mañalac "married to Maria Aglibot" — circumstance that strongly indicates that said spouses had acquired full ownership thereof during the lifetime of Maria Aglibot.

A Secondary question raised by appellants is to the effect that the lower court erred in ordering them, jointly and severally, to deliver to appellees fifteen cavanes of palay yearly or pay their equivalent value of P10.00 a cavan, from the date of the filing of the complaint. Considering the belief of appellants that the property in controversy formed part of the estate of Anacleto Mañalac and that upon the latter's death ownership thereof was transmitted to all his heirs, subject to the usufructuary rights of the surviving spouse, Maria Acay, their contention — not sufficiently rebutted — that only the latter enjoyed possession of the property since her husband's death and received the annual share pertaining to the landlord seems to be reasonable and logical. She should be the only one, therefore, sentenced to pay the fifteen cavanes of palay yearly from the date of the filing of the complaint.

The remaining contention of appellants that the lower court should have ordered appellees to refund to them 50% of the annual realty tax paid on the property cannot be sustained, this matter having been raised by them for the first time on appeal.

WHEREFORE, modified as above indicated, the decision appealed from is affirmed, with costs.

G.R. No. L-10701MARIA CANO, applicant-appellee,

vs.DIRECTOR OF LANDS, EUSTAQUIA GUERRERO, ET

AL., oppositors-appellants.JOSE FERNANDEZ, ET AL., oppositors-appellants.

In an amended decision dated October 9, 1951, issued in Land Registration Case No. 12, G.L.R.O. Rec. No.


2835, the Court of First Instance of Sorsogon decreed the registration of Lots Nos. 1798 and 1799 of the Juban (Sorsogon) Cadastre, under the following terms and conditions:

In view of the foregoing, and it appearing that the notices have been duly published and posted as required by law, and that the title of the applicant to the above-mentioned two parcels of land is registrable in law, it is hereby adjudged and decreed, and with reaffirmation of the order of general default, that the two parcels of land described in plan SWO-24152, known as Lots Nos. 1798 and 1799 of the Cadastral Survey of Juban, with their improvements, be registered in the name of Maria Cano, Filipina, 71 years of age, widow and resident of Juban, province of Sorsogon, with the understanding that Lot No. 1799 shall be subject to the right of reservation in favor of Eustaquia Guerrero pursuant to Article 891 of the Civil code. After this decision shall have become final for lack of appeal therefrom within the 30-day period from its promulgation, let the corresponding decree issue.

So ordered. (Rec. App. pp. 18-19)

The decision having become final, the decree and the Certificate of Title (No. 0-20) were issued in the name of Maria Cano, subject to reserva troncal in favor of Eustaquia Guerrero. In October 1955, counsel for the reserve (reservatorio) Guerrero filed a motion with the Cadastral Court, alleging the death of the original registered owner and reservista, Maria Cano, on September 8, 1955, and praying that the original Certificate of Title be ordered cancelled and a new one issued in favor of movant Eustaquia Guerrero; and that the Sheriff be ordered to place her in possession of the property. The motion was opposed by Jose and Teotimo Fernandez, sons of the reservista Maria Cano, who contended that the application and operation of the reserva troncal should be ventilated in an ordinary contentious proceeding, and that the Registration Court did not have jurisdiction to grant the motion.

In view of the recorded reserva in favor of the appellee, as expressly noted in the final decree of registration, the lower court granted the petition for the issuance of a new certificate, for the reason that the death of the reservista vested the ownership of the property in the petitioner as the sole reservatorio troncal.

The oppositors, heirs of the reservista Maria Cano, duly appealed from the order, insisting that the ownership of the reservatorio can not be decreed in a mere proceeding under sec. 112 of Act 496, but requires a judicial administration proceedings, wherein the rights of appellee, as the reservatorio entitled to the reservable

property, are to be declared. In this connection, appellants argue that the reversion in favor of the reservatorio requires the declaration of the existence of the following facts:

(1) The property was received by a descendant by gratuitous title from an ascendant or from a brother or sister;

(2) Said descendant dies without issue;

(3) The property is inherited by another ascendant by operation of law; and

(4) The existence of relatives within the third degree belonging the line from which said property came. (Appellants' Brief, p. 8)

We find the appeal untenable. The requisites enumerated by appellants have already been declared to exist by the decree of registration wherein the rights of the appellee as reservatario troncal were expressly recognized:

From the above-quoted agreed stipulation of facts, it is evident that Lot No. 1799 was acquired by the Appellant Maria Cano by inheritance from her deceased daughter, Lourdes Guerrero who, in turn, inherited the same from her father Evaristo Guerrero and, hence, falls squarely under the provisions of Article 891 of the Civil Code; and that each and everyone of the private oppositors are within the third degree of consaguinity of the decedent Evaristo Guerrero, and who belonging to the same line from which the property came.

It appears however, from the agreed stipulation of facts that with the exception of Eustaquia Guerrero, who is the only living daughter of the decedent Evaristo Guerrero, by his former marriage, all the other oppositors are grandchildren of the said Evaristo Guerrero by his former marriages. Eustaquia Guerrero, being the nearest of kin, excludes all the other private oppositors, whose decree of relationship to the decedent is remoter (Article 962, Civil Code; Director of Lands vs. Aguas, 62 Phil., 279). (Rec. App. pp. 16-17)

This decree having become final, all persons (appellees included) are bared thereby from contesting the existence of the constituent elements of the reserva. The only requisites for the passing of the title from the reservista to the appellee are: (1) the death of the reservista; and (2) the fact that the reservatario has survived the reservista. Both facts are admitted, and their existence is nowhere questioned.


The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario will succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the reservista's estate; the reservatario receives the property as a conditional heir of the descendant ( prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the latter must be deemed to have enjoined no more than a life interest in the reservable property.

It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the prepositus (the appellee in this case) becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of the reservista, and does not even answer for the debts of the latter. Hence, its acquisition by the reservatario may be entered in the property records without necessity of estate proceedings, since the basic requisites therefor appear of record. It is equally well settled that the reservable property can not be transmitted by a reservista to her or his own successors mortis causa,(like appellants herein) so long as a reservatario within the third degree from the prepositus and belonging to the line whence the property came, is in existence when the reservista dies.

Of course, where the registration decree merely specifies the reservable character of the property, without determining the identity of the reservatario (as in the case of Director of Lands vs. Aguas, 63 Phil., 279) or where several reservatarios dispute the property among themselves, further proceedings would be unavoidable. But this is not the case. The rights of the reservataria Eustaquia Guerrero have been expressly recognized, and it is nowhere claimed that there are other reservatarios of equal or nearer degree. It is thus apparent that the heirs of the reservista are merely endeavoring to prolong their enjoyment of the reservable property to the detriment of the party lawfully entitled thereto.

We find no error in the order appealed from and therefore, the same is affirmed with costs against appellants in both instances. So ordered.

G.R. No. L-28032 September 24, 1986

FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and JANUARIO PAPA, plaintiffs-

appellees,vs.

DALISAY TONGKO CAMACHO, PRIMO TONGKO and GODOFREDO CAMACHO, defendants-appellants.

This case, which involves the application of Article 891 of the Civil Code on reserva troncal, was submitted for judgment in the lower court by all the parties on the following "Stipulation of Facts and Partial Compromise":

1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the plaintiffs, Francisco Tioco de Papa, Manuel Tioco and Nicolas Tioco, are legitimate relatives, plaintiffs being said defendant's grandaunt and granduncles.

2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho have as a common ancestor the late Balbino Tioco (who had a sister by the name of Romana Tioco), father of plaintiffs and great grandfather of defendant. The family relationship of the parties is as shown in the chart attached hereto as Annex 'A' and made an integral part of this stipulation.

3. They stipulate that Romana Tioco during her lifetime gratuitously donated four (4) parcels of land to her niece Toribia Tioco (legitimate sister of plaintiffs), which parcels of land are presently covered by Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila, copies of which are attached to this stipulation as Annexes 'B', 'B-l', and 'B-2'.

4. They stipulate that Toribia Tioco died intestate in l9l5, survived by her husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D, Tongko-Camacho) and leaving the afore-mentioned four (4) parcels of land as the inheritance of her said two children in equal pro-indiviso shares.

5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his legitimate children by his wife Marciana Felix (among them plaintiffs) and legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition of his estate, three (3) parcels of land now covered by Transfer Certificates of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of which are attached hereto as Annexes 'C' and 'C-l', were adjudicated as the inheritance of the late Toribia Tioco, but as she had predeceased her father, Balbino Tioco, the said three (3) parcels of land devolved upon her two legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso shares.


6. They stipulate that in 1937, Faustino Dizon died intestate, single and without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7) parcels of land above-mentioned to his father, Eustacio Dizon, as his sole intestate heir, who received the said property subject to a reserva troncal which was subsequently annotated on the Transfer Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C-l'.

7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her rights and interests in the parcels of land abovementioned were inherited by her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to the usufructuary right of her surviving husband, defendant Primo Tongko.

8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate, survived his only legitimate descendant, defendant Dalisay D. Tongko-Camacho.

9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns one-half (1/2) of all the seven (7) parcels of land abovementioned as her inheritance from her mother, Trinidad Dizon-Tongko.

10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice, the other half of the said seven (7) parcels of land abovementioned by virtue of the reserva troncal imposed thereon upon the death of Faustino Dizon and under the laws on intestate succession; but the plaintiffs, also upon legal advice, oppose her said claim because they claim three-fourths (3/4) of the one-half pro-indiviso interest in said parcel of land, which interest was inherited by Eustacio Dizon from Faustino Dizon, or three-eights (3/8) of the said parcels of land, by virtue of their being also third degree relatives of Faustino Dizon.

11. The parties hereby agree to submit for judicial determination in this case the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled to the whole of the seven (7) parcels of land in question, or whether the plaintiffs, as third degree relatives of Faustino Dizon are reservatarios (together with said defendant) of the one-half pro-indiviso share therein which was inherited by Eustacio Dizon from his son Faustino Dizon, and entitled to three-fourths (3/4) of said one-half pro-indiviso share, or three eights (3/8) of said seven (7) parcels of land, and, therefore, to three-eights (3/8) of the rentals collected and to be collected by defendant Dalisay P. Tongko Camacho from the tenants of said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals.

12. In view of the fact that the parties are close blood relatives and have acted upon legal advice in pursuing their respective claims, and in order to restore and preserve harmony in their family relations, they hereby waive all their claims against each other for damages (other than legal interest on plaintiffs' sore in the rentals which this Honorable Court may deem proper to award), attorney's fees and expenses of litigation which shall be borne by the respective parties. 1

On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco, Manuel Tioco and Nicolas Tioco, as well as the defendant Dalisay Tongko-Camacho, entitled, as reservatarios, to one-half of the seven parcels of land in dispute, in equal proportions, rendering judgment as follows:

... . Resolving, therefore, the legal question submitted by the parties, the court holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco are entitled to three-fourths (3/4) of one-half (1/2) pro-indiviso shares or three-eights (3/8) of the seven (7) parcels of land involved in this action. Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals collected and to be collected by the defendant Dalisay D. Tioco-Camacho from the tenants of the said parcels of land, minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals.

IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived all their claims against each other for damages including attorney's fees and expenses of litigation other than the legal interests on plaintiffs' share in the rentals, the court renders judgment adjudging the plaintiffs entitled to three-eights (3/8) of the seven (7) parcels of land described in Transfer Certificate of Title Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the Registry of Deeds of Manila. The defendant Dalisay D. Tioco-Camacho is hereby ordered to make an accounting of all rents received by her on the properties involved in this action for the purpose of determining the legal interests which should be paid to the plaintiffs on their shares in the rentals of the property in question.

SO ORDERED. 2

Not satisfied, the defendant appealed to this Court.

The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower Court, all relatives of the praepositus within the third degree in the appropriate line succeed without distinction to the reservable property upon the death of the reservista, as seems to be implicit in Art. 891 of the Civil Code, which reads:


Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (811),

or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and should be determined by, the rules on intestate succession.

That question has already been answered in Padura vs. Baldovino, 3 where the reservatario was survived by eleven nephews and nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil Code. Said the Court:

The issue in this appeal may be formulated as follows: In a case of reserva troncal, where the only reservatarios (reservees) surviving the reservista, and belonging to the fine of origin, are nephews of the descendant (prepositus), but some are nephews of the half blood and the others are nephews of the whole blood, should the reserved properties be apportioned among them equally, or should the nephews of the whole blood take a share twice as large as that of the nephews of the half blood?

xxx xxx xxx

The case is one of first impression and has divided the Spanish commentators on the subject. After mature reflection, we have concluded that the position of the appellants is correct. The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant (reservista).

xxx xxx xxx

The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of the line of origin. But from this time on, there is no further occasion for its application. In the relations between one reservatario and another of the same degree there is no

call for applying Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be governed by the ordinary rules of intestate succession. In this spirit the jurisprudence of this Court and that of Spain has resolved that upon the death of the ascendant reservista, the reservable property should pass, not to all the reservatarios as a class but only to those nearest in degree to the descendant (prepositus), excluding those reservatarios of more remote degree (Florentino vs. Florentino, 40 Phil. 489-490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905). And within the third degree of relationship from the descendant (prepositus), the right of representation operates in favor of nephews (Florentino vs. Florentino, supra).

Following the order prescribed by law in legitimate succession when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatarios over the property which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are within the third degree of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios, since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. ... . (Florentino vs. Florentino, 40 Phil. 480, 489-490) (Emphasis supplied) See also Nieva and Alcala vs. Alcala and de Ocampo, 41 Phil. 915)

Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule of double share for immediate collaterals of the whole blood should be likewise operative.


In other words, the reserva troncal merely determines the group of relatives reservatarios to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify otherwise. This conclusion is strengthened by the circumstance that the reserva being an exceptional case, its application should be limited to what is strictly needed to accomplish the purpose of the law. As expressed by Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250):

... creandose un verdadero estado excepcional del derecho, no debe ampliarse, sino mas bien restringirse, el alcance del precepto, manteniendo la excepcion mientras fuere necesaria y estuviese realmente contenida en la disposicion, y aplicando las reglas generales y fundamentales del Codigo en materia de sucesi6n, en aquehos extremes no resueltos de un modo expreso, y que quedan fuera de la propia esfera de accion de la reserva que se crea.

The restrictive interpretation is the more imperative in view of the new Civil Code's hostility to successional reservas and reversions, as exemplified by the suppression of the reserva viudal and the reversion legal of the Code of 1889 (Art. 812 and 968-980).

Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter. To this effect is Abellana vs. Ferraris 4 where Arts. 1001, 1004, 1005 and 1009 of the Civil Code were cited and applied:

Nevertheless, the trial court was correct when it held that, in case of intestacy nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the Philippines, that provide as follows:

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitle to one-half of the inheritance and the brothers and sisters or their children to the other half.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces who are the children of the

decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1009. Should there be neither brothers nor sisters, nor children of brothers and sisters, the other collateral relatives shall succeed to the estate.

Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This was also and more clearly the case under the Spanish Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows:

Art. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former, whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce shall succeed to the entire estate of the deceased.

Art. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a surviving spouse, the other collateral relatives shall succeed to the estate of deceased.

The latter shall succeed without distinction of lines or preference among them by reason of the whole blood.

It will be seen that under the preceding articles, brothers and sisters and nephews and nieces inherited ab intestato ahead of the surviving spouse, while other collaterals succeeded only after the widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred position of the latter vis a vis the other collaterals.

xxx xxx xxx

We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed. ...

This conclusion is fortified by the observation, also made in Padura, supra, that as to the reservable property, the reservatarios do not inherit from the reservista, but from the descendant praepositus:

... . It is likewise clear that the reservable property is no part of the estate of the reservista, who may not dispose of it by will, as long as there are reservatarios existing


(Arroyo vs. Gerona, 58 Phil. 237). The latter, therefore, do not inherit from the reservista, but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista. (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310) ... .

To the same effect is Cano vs, Director of Lands 5, where it was ruled that intestacy proceedings to determine the right of a reservatario are not necessary where the final decree of the land court ordering issuance of title in the name of the reservista over property subject to reserva troncal Identifies the reservatario and there are no other claimants to the latter's rights as such:

The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario win succeed in, or inherit, the reservable property from the reservista. This is not true. The reservatario is not the reservista's successor mortis causa nor is the reservable property part of the reservista's estate; the reservatario receives the property as a conditional heir of the descendant (prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the matter must be deemed to have enjoyed no more than a life interest in the reservable property.

It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the prepositus (the appellee in this case) becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of the reservista, and does not even answer for the debts of the latter. ... .

Had the reversionary property passed directly from the praepositus, there is no doubt that the plaintiffs-appellees would have been excluded by the defendant-appellant under the rules of intestate succession. There is no reason why a different result should obtain simply because "the transmission of the property was delayed by the interregnum of the reserva;" 6 i.e., the property took a "detour" through an ascendant-thereby giving rise to the reservation before its transmission to the reservatario.

Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-appellant Dalisay Tongko-Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees.

WHEREFORE, the appealed judgment of the lower Court is reversed and set aside and the complaint is dismissed, with costs against the plaintiffs-appellants.

SO ORDERED.

G.R. No. 68843-44 September 2, 1991

MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL COCONUT COOPERATIVE, INC.,

petitioners,vs.

THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO, DONATO, LUIS, ERASTO,

LUISA, JOSE and DOLORES, all surnamed BALANTAKBO, respondents.

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

The parties entered into a stipulation of facts in the court a quo, which is summarized as follows:

Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of properties subject of this case: 1) A one-third (1/3) interest, pro-indiviso in a parcel of land situated in Dita, Lilio (Liliw) Laguna and described in paragraph 7 of the complaint in Civil Case No. SC-956 from his father Jose, Sr., who died on January 28, 1945; and 2) A one-seventh (1/7) interest pro-indiviso in ten (10) parcels of registered lands described in paragraph 6 of the complaint in Civil Case No. SC-957 from his maternal grandmother, Luisa Bautista, who died on November 3, 1950.

On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother, Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real properties above-mentioned.

On November 3, 1952, Consuelo adjudicated unto herself the above described properties in an Affidavit entitled "Caudal Herederario del finado Raul Balantakbo" which provided, among others:

I. Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he tenido varios hijos, entre ellos si difunto hijo, llamado Raul Balantakbo.


II. Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de 1952, en la Ciudad de Pasay, durante su minolia de edad sin dejar testamento alguno.

III. Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno.

IV. Que soy la unica ascendiente superviviento de mi referido hijo Raul Balantakbo y por lo tanto su unica heredera formosa, legitima y universal.

V. Que el finado Raul Balantakbo murio sin dejar deuda alguna.

VI. Que el finado al morir dejo propiedades consistentes en bienes inmuebles situados en la Provincia de Laguna.

VII. Que dichas propriedades fueron a su vez adquiridas por el finado Raul Balantakbo per herencia de su difunto padre, Jose Balantakbo, y de su tia abuela Luisa Bautista.

xxx xxx xxx

(Rollo, p. 29)

On December 21, 1959, Consuelo Joaquin vda. de Balantakbo sold the property described in Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a deed attached as Annex "C" to the complaint. The same property was subsequently sold by Mariquita Sumaya to Villa Honorio Development Corporation, Inc., on December 30, 1963. On January 23, 1967, Villa Honorio Development Corporation transferred and assigned its rights over the property in favor of Agro-Industrial Coconut Cooperative, Inc. The documents evidencing these transfers were registered in the Registry of Deeds of Laguna and the corresponding certificates of titles were issued. The properties are presently in the name of Agro-Industrial Coconut Cooperative, Inc., 2/3 share and the remaining 1/3 share is in the name of Sancho Balantakbo.

Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties described in the complaint in Civil Case No. SC-957 to Villa Honorio Development Corporation, Inc. The latter in turn transferred and assigned all its rights to the properties in favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are presently in its possession.

The parties admit that the certificates of titles covering the above described properties do not contain any annotation of its reservable character.

On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died.

On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo, brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed Balantakbo, surviving children of deceased Jose Balantakbo, Jr., another brother of the first named Balantakbos, filed the above mentioned civil cases to recover the properties described in the respective complaints which they claimed were subject to a reserva troncal in their favor.

The court a quo found that the two (2) cases varied only in the identity of the subject matter of res involved, the transferees, the dates of the conveyances but involve the same legal question of reserva troncal. Hence, the consolidation of the two (2) cases.

After trial, the court a quo rendered a joint decision in favor of the Balantakbos, the dispositive portion of which reads:

WHEREFORE, in both Civil Cases Nos. SC-956 and SC-957, judgment is hereby rendered in favor of the plaintiffs and against the defendants, as follows:

1. Ordering the defendant Laguna Agro-Industrial Coconut Cooperative, Inc. to convey to the plaintiffs —

a) In Civil Case No. SC-956 — the one-third (1/3) interest and ownership, pro-indiviso, in and over the parcel of land described in paragraph three (3) sub-paragraph 1, of pages one (1) and two (2) of this decision;

b) In Civil Case No. SC-957 — the one-seventh (1/7) interest and ownership, pro-indiviso, in and over the ten (10) parcels of land described in paragraph three (3), sub-paragraph 2, of pages two (2) and three (3) of this decision;

c) The plaintiffs are to share equally in the real properties herein ordered to be conveyed to them by the defendants with plaintiffs Luisa, Jose and Dolores, all surnamed Balantakbo, receiving one-third (1/3) of the one share pertaining to the other plaintiffs who are their uncles:

2. Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to account for and pay to the plaintiffs the value of the produce from the properties herein ordered to be returned to the plaintiffs, said accounting and payment of income being for the period from January 3, 1968 until date of reconveyance of the properties herein ordered:


3. In each of Civil Cases Nos. SC-956 and SC-957, defendants are to pay plaintiffs —

a. One Thousand (P1,000.00) Pesos in litigation expenses.

b. Two Thousand (P2,000.00) Pesos in attorney's fees.

4. Defendants are to pay the costs in each of Civil Cases Nos. SC-956 and 957.

xxx xxx xxx

(p. 46, Rollo)

This decision was appealed to the appellate court which affirmed the decision of the court a quo in toto. The motion for reconsideration was denied (p. 65, Rollo) by the appellate court which found no cogent reason to reverse the decision.

This petition before Us was filed on November 12, 1984 with the petitioners assigning the following errors allegedly committed by the appellate court:

I. The trial court erred in not finding defendants an (sic) innocent purchaser for value and in good faith of the properties covered by certificates of title subject of litigation.

II. The trial court erred in finding it unnecessary to annotate the reservable interest of the reservee in the properties covered by certificates of title subject of litigation.

III. The trial court erred in finding that the cause of action of the plaintiffs (private respondents) has not yet prescribed.

IV. The trial court erred in awarding moral and actual damages in favor of the plaintiffs by virtue of the institution of Civil Cases Nos. 956 and 957.

Petitioners would want this Court to reverse the findings of the court a quo, which the appellate court affirmed, that they were not innocent purchasers for value. According to petitioners, before they agreed to buy the properties from the reservor (also called reservista), Consuelo Joaquin vda. de Balantakbo, they first sought the legal advice of their family consultant who found that there was no encumbrance nor any lien annotated on the certificate of title coveting the properties.

The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo, the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of self-adjudication of the estate of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father Jose, Sr., as regards the subject matter of Civil Case No. SC-956 and from his maternal grandmother, Luisa Bautista, as regards the subject matter of Civil Case No. SC-957. The court a quo further ruled that said affidavit was, in its form, declaration and substance, a recording with the Registry of Deeds of the reservable character of the properties. In Spanish language, the affidavit clearly stated that the affiant, Consuelo, was a lone-ascendant and heir to Raul Balantakbo, her son, who died leaving properties previously inherited from other ascendants and which properties were inventoried in the said affidavit.

It was admitted that the certificates of titles covering the properties in question show that they were free from any liens and encumbrances at the time of the sale. The fact remains however, that the affidavit of self-adjudication executed by Consuelo stating the source of the properties thereby showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole world in accordance with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A. 496) which provides:

Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. — Every conveyance, mortgage, lease, lien attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the Office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering.

Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713, cited in People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB v. CA, et al., G.R. Nos. L-48971 and L-40911, both dated January 22, 1980, 95 SCRA 380 and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held:

When a conveyance has been properly recorded such record is constructive notice of its contents and all interests, legal and equitable, included therein . . .

Under the rule of notice, it is presumed that the purchaser has examined every instrument of record affecting the title. Such presumption is irrebuttable. He is charged with notice of every fact shown by the record and is presumed to know every fact which an examination of the record would have disclosed. This


presumption cannot be overcome by proof of innocence or good faith. Otherwise, the very purpose and object of the law requiring a record would be destroyed. Such presumption cannot be defeated by proof of want of knowledge of what the record contains any more than one may be permitted to show that he was ignorant of the provisions of the law. The rule that all persons must take notice of the facts which the public record contains is a rule of law. The rule must be absolute, any variation would lead to endless confusion and useless litigation. . . .

In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry of a document in the day book without noting it on the certificate of title is not sufficient registration. However, that ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. CA, et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this jurisdiction.

That ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420, where a distinction was made between voluntary and involuntary registration, such as the registration of an attachment, levy upon execution, notice of lis pendens, and the like. In cases of involuntary registration, an entry thereof in the day book is a sufficient notice to all persons even if the owner's duplicate certificate of title is not presented to the register of deeds.

On the other hand, according to the said cases of Levin v. Bass, in case of voluntary registration of documents an innocent purchaser for value of registered land becomes the registered owner, and, in contemplation of law the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the owner's duplicate certificate of title covering the land sold and pays the registration fees, because what remains to be done lies not within his power to perform. The register of deeds is duty bound to perform it. (See Potenciano v. Dineros, 97 Phil. 196).

In this case, the affidavit of self adjudication executed by Consuelo vda. de Balantakbo which contained a statement that the property was inherited from a descendant, Raul, which has likewise inherited by the latter from another ascendant, was registered with the Registry of Property. The failure of the Register of Deeds to annotate the reservable character of the property in the certificate of title cannot be attributed to Consuelo.

Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable character of the properties before they bought the same from Consuelo. This matter appeared in the deed of sale (Exhibit "C") executed by Consuelo in favor of Mariquita Sumaya, the first vendee of the property litigated in Civil Case No. SC-956, as follows:

xxx xxx xxx

That, I (Consuelo, vendor) am the absolute and exclusive owner of the one-third (1/3) portion of the above described parcel of land by virtue of the Deed of Extra-judicial Partition executed by the Heirs of the deceased Jose Balantakbo dated December 10, 1945 and said portion in accordance with the partition above-mentioned was adjudicated to Raul Balantakbo, single, to (sic) whom I inherited after his death and this property is entirely free from any encumbrance of any nature or kind whatsoever, . . . (p. 42, Rollo)

It was admitted though that as regards the properties litigated in Civil Case SC-957, no such admission was made by Consuelo to put Villa Honorio Development on notice of the reservable character of the properties. The affidavit of self-adjudication executed by Consuelo and registered with the Registry would still be sufficient notice to bind them.

Moreover, the Court a quo found that the petitioners and private respondents were long time acquaintances; that the Villa Honorio Development Corporation and its successors, the Laguna Agro-Industrial Coconut Cooperative Inc., are family corporations of the Sumayas and that the petitioners knew all along that the properties litigated in this case were inherited by Raul Balantakbo from his father and from his maternal grandmother, and that Consuelo Vda. de Balantakbo inherited these properties from his son Raul.

The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo. Article 891 of the New Civil Code on reserva troncal provides:

Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Emphasis supplied)

We do not agree, however, with the disposition of the appellate court that there is no need to register the reservable character of the property, if only for the


protection of the reservees, against innocent third persons. This was suggested as early as the case of Director of Lands v. Aguas, G.R. No. 42737, August 11, 1936, 63 Phil. 279. The main issue submitted for resolution therein was whether the reservation established by Article 811 (now Art. 891 of the New Civil Code) of the Civil Code, for the benefit of the relatives within the third degree belonging to the line of the descendant from whom the ascendant reservor received the property, should be understood as made in favor of all the relatives within said degree and belonging to the line above-mentioned, without distinction legitimate, natural and illegitimate ones not having the legal status of natural children. However, in an obiter dictum this Court stated therein:

The reservable character of a property is but a resolutory condition of the ascendant reservor's right of ownership. If the condition is fulfilled, that is, if upon the ascendant reservor's death there are relatives having the status provided in Article 811 (Art. 891, New Civil Code), the property passes, in accordance with this special order of succession, to said relatives, or to the nearest of kin among them, which question not being pertinent to this case, need not now be determined. But if this condition is not fulfilled, the property is released and will be adjudicated in accordance with the regular order of succession. The fulfillment or non-fulfillment of the resolutory condition, the efficacy or cessation of the reservation, the acquisition of rights or loss of the vested ones, are phenomena which have nothing to do with whether the reservation has been noted or not in the certificate of title to the property. The purpose of the notation is nothing more than to afford to the persons entitled to the reservation, if any,due protection against any act of the reservor, which may make it ineffective . . . (p. 292, Ibid)

Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601, 603, this Court ruled that the reservable character of a property may be lost to innocent purchasers for value. Additionally, it was ruled therein that the obligation imposed on a widowed spouse to annotate the reservable character of a property subject of reserva viudal is applicable to reserva troncal. (See also Edrozo v. Sablan, G.R. No. 6878, September 13, 1913, 25 Phil. 295).

Since these parcels of land have been legally transferred to third persons, Vicente Galang has lost ownership thereof and cannot now register nor record in the Registry of Deeds their reservable character; neither can he effect the fee simple, which does not belong to him, to the damage of Juan Medina and Teodoro Jurado, who acquired the said land in good faith, free of all incumbrances. An attempt was made to prove that when

Juan Medina was advised not to buy the land he remarked, "Why did he (Vicente Galang) not inherit it from his son?" Aside from the fact that it is not clear whether this conservation took place in 1913 or 1914, that is, before or after the sale, it does not arise that he had any knowledge of the reservation. This did not arise from the fact alone that Vicente Galang had inherited the land from his son, but also from the fact that, by operation of law, the son had inherited it from his mother Rufina Dizon, which circumstance, so far as the record shows, Juan Medina had not been aware of. We do not decide, however, whether or not Juan Medina and Teodoro Jurado are obliged to acknowledge the reservation and to note the same in their deeds, for the reason that there was no prayer to this effect in the complaint and no question raised in regard thereto.

Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also.

The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned . . ." (emphasis supplied)

The properties involved in this case are already covered by a Torrens title and unless the registration of the limitation is effected (either actual or constructive), no third persons shall be prejudiced thereby.

The respondent appellate court did not err in finding that the cause of action of the private respondents did not prescribe yet. The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership or of fee simple over the reserved property during the lifetime of the reservor. Only when the reservor should die before the reservees will the latter acquire the reserved property, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree (See


Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89). The reserva is extinguished upon the death of the reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovery may prescribe in ten (10) years under the old Code of Civil Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under Article 1141 of the New Civil Code. The actions for recovery of the reserved property was brought by herein private respondents on March 4, 1970 or less than two (2) years from the death of the reservor. Therefore, private respondents' cause of action has not prescribed yet.

Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and two thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of the New Civil Code. Private respondents were compelled to go to court to recover what rightfully belongs to them.

ACCORDINGLY, the petition is DENIED. The questioned decision of the Intermediate Appellate Court is AFFIRMED, except for the modification on the necessity to annotate the reversable character of a property subject of reserva troncal.

SO ORDERED.

Art. 895 – Legitime of acknowledged natural children and natural children by legal fiction

G.R. No. 112483 October 8, 1999

ELOY IMPERIAL, petitioner,vs.

COURT OF APPEALS, REGIONAL TRIAL COURT OF LEGASPI CITY, CESAR VILLALON, JR., TERESA

VILLALON, ANTONIO VILLALON, AUGUSTO VILLALON, ROBERTO VILLALON, RICARDO

VILLALON and ESTHER VILLALON, respondents.

GONZAGA-REYES, J.:

Petitioner seeks to set aside the Decision of the Court of Appealsin C.A.-G.R. CV No. 31976 1, affirming the Decision of the Regional Trial Court of Legaspi City 2, which rendered inofficious the donation made by Leoncio Imperial in favor of herein petitioner, to the extent that it impairs the legitime of Victor Imperial, and ordering petitioner to convey to herein private respondents, heirs

of said Victor Imperial, that portion of the donated land proportionate to Victor Imperial's legitime.

Leoncio Imperial was the registered owner of a 32,837-square meter parcel of land covered by Original Certificate of Title No. 200, also known as Lot 45 of the Cadastral Survey of Albay. On July 7, 1951, Leoncio sold the said lot for P1.00 to his acknowledged natural son, petitioner herein, who then acquired title over the land and proceeded to subdivide it into several lots. Petitioner and private respondents admit that despite the contract's designation as one of "Absolute Sale", the transaction was in fact a donation.1âwphi1.nêt

On July 28, 1953, or barely two years after the donation, Leoncio filed a complaint for annulment of the said Deed of Absolute Sale, docketed as Civil Case No. 1177, in the then Court of First Instance of Albay, on the ground that he was deceived by petitioner herein into signing the said document. The dispute, however, was resolved through a compromise agreement, approved by the Court of First Instance of Albay on November 3, 1961 3, under which terms: (1) Leoncio recognized the legality and validity of the rights of petitioner to the land donated; and (2) petitioner agreed to sell a designated 1,000-square meter portion of the donated land, and to deposit the proceeds thereof in a bank, for the convenient disposal of Leoncio. In case of Leoncio's death, it was agreed that the balance of the deposit will be withdrawn by petitioner to defray burial costs.

On January 8, 1962, and pending execution of the above judgment, Leoncio died, leaving only two heirs — the herein petitioner, who is his acknowledged natural son, and an adopted son, Victor Imperial. On March 8, 1962, Victor was substituted in place of Leoncio in the above-mentioned case, and it was he who moved for execution of judgment. On March 15, 1962, the motion for execution was duly granted.

Fifteen years thereafter, or on July 26, 1977, Victor died single and without issue, survived only by his natural father, Ricardo Villalon, who was a lessee of a portion of the disputed land. Four years hence, or on September 25, 1981, Ricardo died, leaving as his only heirs his two children, Cesar and Teresa Villalon.

Five years thereafter, or sometime in 1986, Cesar and Teresa filed a complaint for annulment of the donation with the Regional Trial Court of Legazpi City, docketed as Civil Case No. 7646. Petitioner moved to dismiss on the ground of res judicata, by virtue of the compromise judgment rendered by the Court of First Instance of Albay. The trial court granted the motion to dismiss, but the Court of Appeals reversed the trial court's order and remanded the case for further proceedings.


On October 18, 1989, Cesar and Teresa filed an amended complaint in the same case, Civil Case No. 7646, for "Annulment of Documents, Reconveyance and Recovery of Possession" with the Regional Trial Court of Legazpi City, seeking the nullification of the Deed of Absolute Sale affecting the above property, on grounds of fraud, deceit and inofficiousness. In the amended complaint, it was alleged that petitioner caused Leoncio to execute the donation by taking undue advantage of the latter's physical weakness and mental unfitness, and that the conveyance of said property in favor of petitioner impaired the legitime of Victor Imperial, their natural brother and predecessor-in-interest. 4

In his Answer, petitioner: (1) alleged that Leoncio had conveyed sufficient property to Victor to cover his legitime, consisting of 563 hectares of agricultural land in Manito, Albay; (2) reiterated the defense of res judicata, and (3) raised the additional defenses of prescription and laches.

Plaintiff Cesar Villalon died on December 26, 1989, while the case was pending in the Regional Trial Court, and was substituted in this action by his sons, namely, Antonio, Roberto, Augusto, Ricardo and Cesar, Jr., all surnamed Villalon, and his widow, Esther H. Villalon.

The RTC held the donation to be inofficious and impairing the legitime of Victor, on the basis of its finding that at the time of Leoncio's death, he left no property other than the 32,837-square meter parcel of land which he had donated to petitioner. The RTC went on further to state that petitioner's allegation that other properties existed and were inherited by Victor was not substantiated by the evidence. 5

The legitime of Victor was determined by the trial court in this manner:

Considering that the property donated is 32,837 square meters, one half of that or 16,418 square meters becomes the free portion of Leoncio which could be absorbed in the donation to defendant. The other half, which is also 16,418 square meters is where the legitime of the adopted son Victor Imperial has to be taken.

The proportion of the legitime of the legitimate child (including the adopted child) in relation to the acknowledged natural child (defendant) is 10 is to 5[,] with the acknowledged natural child getting 1/2 of the legitime of the legitimate (adopted) child, in accordance with Art. 895 of the New Civil Code which provides:

The legitime of each of the acknowledged natural children and each of the natural children by legal fiction

shall consist of one-half of the legitime of each of the legitimate children or descendants.

From the 16,418 square meters left (after the free portion has been taken) plaintiffs are therefore entitled to 10,940 square meters while defendant gets 5,420 square meters. 6

The trial court likewise held that the applicable prescriptive period is 30 years under Article 1141 of the Civil Code 7, reckoned from March 15, 1962, when the writ of execution of the compromise judgment in Civil Case 1177 was issued, and that the original complaint having been filed in 1986, the action has not yet prescribed. In addition, the trial court regarded the defense of prescription as having been waived, this not being one of the issues agreed upon at pre-trial.

Thus, the dispositive portion of the RTC's Decision of December 13, 1990 reads:

WHEREFORE, premises considered, the Deed of Absolute Sale otherwise known as Doc. No. 8; Book No. 14; Page No. 1; Series of 1951 of the Notarial file of Pompeyo B. Calleja which is considered a donation, is hereby reduced proportionately insofar as it affected the legitime of the late Victor Imperial, which share is inherited by the plaintiffs herein, to the extent that plaintiffs are ordered to be given by defendant a portion of 10,940 square meters thereof.

In order to avoid further conflict, the 10,940 share to be given to plaintiffs should include the portion which they are presently occupying, by virtue of the extended lease to their father Ricardo Villalon, where the bungalow in question stands.

The remaining portion to be given to plaintiffs may come from any other portion that may be agreed upon by the parties, otherwise, this court will appoint a commissioner to undertake the partition.

The other 21,897 square meters should go to the defendant as part of his legitime and by virtue of the reduced donation.

No pronouncement as to damages as they were not sufficiently proved.

SO ORDERED. 8

The Court of Appeals affirmed the RTC Decision in toto.

Before us, petitioner questions the following findings of respondent court: (1) that there was no res judicata, there being no identity of parties and cause of action


between the instant case and Civil Case No. 1177; (2) that private respondents had a right to question the donation; (3) that private respondents' action is barred by prescription, laches and estoppel; and (4) that the donation was inofficious and should be reduced.

It is an indispensable requirement in res judicata that there be, between the first and second action, identity of parties, of subject matter and of cause of action. 9 A perusal of the records leads us to conclude that there is no identity of parties and of cause of action as between Civil Case No. 1177 and Civil Case No. 7646. Civil Case No. 1177 was instituted by Leoncio in his capacity as donor of the questioned donation. While it is true that upon his death, Victor was substituted as plaintiff of the action, such does not alter the fact that Victor's participation in the case was in representation of the interests of the original plaintiff, Leoncio. The purpose behind the rule on substitution of parties is to ensure that the deceased party would continue to be properly represented in the suit through the duly appointed legal representative of the estate 10, or his heir, as in this case, for which no court appointment is required. 11 Petitioner's argument, therefore, that there is substantial identity between Leoncio and private respondents, being heirs and successors-in-interest of Victor, is unavailing.

Moreover, Leoncio's cause of action as donor of the property was fraud, purportedly employed upon him by petitioner in the execution of the donation. While the same circumstances of fraud and deceit are alleged in private respondents' complaint, it also raises the additional ground of inofficiousness of donation.

Contrary to petitioner's contentions, inofficiousness of donation does not, and could not, form part of Leoncio's cause of action in Civil Case No. 1177. Inofficiousness as a cause of action may arise only upon the death of the donor, as the value of the donation will then be contrasted with the net value of the estate of the donor-deceased. 12

Consequently, while in Civil Case No. 1177, Leoncio sought the revocation in full of the donation on ground of fraud, the instant case actually has two alternative causes of action. First, for fraud and deceit, under the same circumstances as alleged in Leoncio's complaint, which seeks the annulment in full of the donation, and which the trial court correctly dismissed because the compromise agreement in Civil Case No. 1177 served as a ratification and waiver on the part of Leoncio of whatever defects in voluntariness and consent may have been attendant in the making of the donation. The second cause of action is the alleged inofficiousness of the donation, resulting in the impairment of Victor's legitime, which seeks the annulment, not of the entire

donation, but only of that portion diminishing the legitime. 13 It is on the basis of this second cause of action that private respondents prevailed in the lower courts.

Petitioner next questions the right of private respondents to contest the donation. Petitioner sources his argument from Article 772 of the Civil Code, thus:

Only those who at the time of the donor's death have a right to the legitime and their heirs and successors in interest may ask for the reduction of inofficious donations . . . .

As argued by petitioner, when Leoncio died on January 8, 1962, it was only Victor who was entitled to question the donation. However, instead of filing an action to contest the donation, Victor asked to be substituted as plaintiff in Civil Case No. 1177 and even moved for execution of the compromise judgment therein.

No renunciation of legitime may be presumed from the foregoing acts. It must be remembered that at the time of the substitution, the judgment approving the compromise agreement has already been rendered. Victor merely participated in the execution of the compromise judgment. He was not a party to the compromise agreement.

More importantly, our law on succession does not countenance tacit repudiation of inheritance. Rather, it requires an express act on the part of the heir. Thus, under Article 1051 of Civil Code:

The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings.

Thus, when Victor substituted Leoncio in Civil Case No. 1177 upon the latter's death, his act of moving for execution of the compromise judgment cannot be considered an act of renunciation of his legitime. He was, therefore, not precluded or estopped from subsequently seeking the reduction of the donation, under Article 772. Nor are Victor's heirs, upon his death, precluded from doing so, as their right to do so is expressly recognized under Article 772, and also in Article 1053:

If the heir should die without having accepted or repudiated the inheritance, his right shall be transmitted to his heirs.

Be that as it may, we find merit in petitioner's other assignment of errors. Having ascertained this action as


one for reduction of an inofficious donation, we cannot sustain the holding of both the trial court and the Court of Appeals that the applicable prescriptive period is thirty years, under Article 1141 of the Civil Code. The sense of both courts that this case is a "real action over an immovable" allots undue credence to private respondents' description of their complaint, as one for "Annulment of Documents, Reconveyance and Recovery of Possession of Property", which suggests the action to be, in part, a real action enforced by those with claim of title over the disputed land.1âwphi1.nêt

Unfortunately for private respondents, a claim for legitime does not amount to a claim of title. In the recent case of Vizconde vs. Court ofAppeals 14, we declared that what is brought to collation is not the donated property itself, but the value of the property at the time it was donated. The rationale for this is that the donation is a real alienation which conveys ownership upon its acceptance, hence, any increase in value or any deterioration or loss thereof is for the account of the heir or donee. 15

What, then, is the prescriptive period for an action for reduction of an inofficious donation? The Civil Code specifies the following instances of reduction or revocation of donations: (1) four years, in cases of subsequent birth, appearance, recognition or adoption of a child; 16 (2) four years, for non-compliance with conditions of the donation; 17 and (3) at any time during the lifetime of the donor and his relatives entitled to support, for failure of the donor to reserve property for his or their support. 18 Interestingly, donations as in the instant case, 19 the reduction of which hinges upon the allegation of impairment of legitime, are not controlled by a particular prescriptive period, for which reason we must resort to the ordinary rules of prescription.

Under Article 1144 of the Civil Code, actions upon an obligation created by law must be brought within ten years from the time the right of action accrues. Thus, the ten-year prescriptive period applies to the obligation to reduce inofficious donations, required under Article 771 of the Civil Code, to the extent that they impair the legitime of compulsory heirs.

From when shall the ten-year period be reckoned? The case of Mateo vs. Lagua, 29 SCRA 864, which involved the reduction for inofficiousness of a donation propter nuptias, recognized that the cause of action to enforce a legitime accrues upon the death of the donor-decedent. Clearly so, since it is only then that the net estate may be ascertained and on which basis, the legitimes may be determined.

It took private respondents 24 years since the death of Leoncio to initiate this case. The action, therefore, has long prescribed.

As for the trial court's holding that the defense of prescription had been waived, it not being one of the issues agreed upon at pre-trial, suffice it to say that while the terms of the pre-trial order bind the parties as to the matters to be taken up in trial, it would be the height of injustice for us to adhere to this technicality when the fact of prescription is manifest in the pleadings of the parties, as well as the findings of fact of the lower courts. 20

A perusal of the factual antecedents reveals that not only has prescription set in, private respondents are also guilty of estoppel by laches. It may be recalled that Leoncio died on January 8, 1962. Fifteen years later, Victor died, leaving as his sole heir Ricardo Villalon, who also died four years later. While Victor was alive, he gave no indication of any interest to contest the donation of his deceased father. As we have discussed earlier, the fact that he actively participated in Civil Case No. 1177 did not amount to a renunciation of his inheritance and does not preclude him from bringing an action to claim his legitime. These are matters that Victor could not possibly be unaware of, considering that he is a lawyer 21. Ricardo Villalon was even a lessee of a portion of the donated property, and could have instituted the action as sole heir of his natural son, or at the very least, raised the matter of legitime by way of counterclaim in an ejectment case 22 filed against him by petitioner in 1979. Neither does it help private respondents' cause that five years have elapsed since the death of Ricardo in 1981 before they filed their complaint with the RTC.

Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, warranting a presumption that the person has abandoned his right or declined to assert it. 23 We find the necessity for the application of the principle of estoppel by laches in this case, in order to avoid an injustice.

A final word on collation of donations. We observe that after finding the donation to be inofficious because Leoncio had no other property at the time of his death, the RTC computed the legitime of Victor based on the area of the donated property. Hence, in its dispositive portion, it awarded a portion of the property to private respondents as Victor's legitime. This was upheld by the Court of Appeals.


Our rules of succession require that before any conclusion as to the legal share due to a compulsory heir may be reached, the following steps must be taken: (1) the net estate of the decedent must be ascertained, by deducting all the payable obligations and charges from the value of the property owned by the deceased at the time of his death; (2) the value of all donations subject to collation would be added to it. 24

Thus, it is the value of the property at the time it is donated, and not the property itself, which is brought to collation. Consequently, even when the donation is found inofficious and reduced to the extent that it impaired Victor's legitime, private respondents will not receive a corresponding share in the property donated. Thus, in this case where the collatable property is an immovable, what may be received is: (1) an equivalent, as much as possible, in property of the same nature, class and quality; 25 (2) if such is impracticable, the equivalent value of the impaired legitime in cash or marketable securities; 26 or (3) in the absence of cash or securities in the estate, so much of such other property as may be necessary, to be sold in public auction. 27

We believe this worth mentioning, even as we grant the petition on grounds of prescription and laches.

ACCORDINGLY, the decision of the Court of Appeals in C.A. G.R. CV No. 31976, affirming in toto the decision of the Regional Trial Court in Civil Case No. 7646, is reversed and set aside. No costs.1âwphi1.nêt

SO ORDERED.

Art. 905 – Renunciation or compromise of future legitme

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

MARIA USON, plaintiff-appellee,vs.

MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND

FAUSTINO NEBREDA, Jr., defendants-appellants.

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

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

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

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

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

The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future inheritance cannot be the subject of a contract nor can it be renounced (1 Manresa, 123, sixth


edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).

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

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

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion, agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be valid it shall be made in a public document and must be accepted either in the same document or in a separate

one (Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged assignment or donation has no valid effect.

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

Art. 908 – Net hereditary estate; Formula

G.R. No. 9374FRANCISCO DEL VAL, ET AL., plaintiffs-appellants,

vs.ANDRES DEL VAL, defendant-appellee.

This is an appeal from a judgment of the Court of First Instance of the city of Manila dismissing the complaint with costs.

The pleadings set forth that the plaintiffs and defendant are brother and sisters; that they are the only heirs at law and next of kin of Gregorio Nacianceno del Val, who died in Manila on August 4, 1910, intestate; that an administrator was appointed for the estate of the deceased, and, after a partial administration, it was closed and the administrator discharged by order of the Court of First Instance dated December 9, 1911; that during the lifetime of the deceased he took out insurance on his life for the sum of P40,000 and made it payable to the defendant as sole beneficiary; that after his death the defendant collected the face of the policy; that of said policy he paid the sum of P18,365.20 to redeem certain real estate which the decedent had sold to third persons with a right to repurchase; that the redemption of said premises was made by the attorney of the defendant in the name of the plaintiff and the defendant as heirs of the deceased vendor; that the redemption of said premises they have had the use and benefit thereof; that during that time the plaintiffs paid no taxes and made no repairs.

It further appears from the pleadings that the defendant, on the death of the deceased, took possession of most of his personal property, which he still has in his possession, and that he has also the balance on said insurance policy amounting to P21,634.80.

Plaintiffs contend that the amount of the insurance policy belonged to the estate of the deceased and not to the


defendant personally; that, therefore, they are entitled to a partition not only of the real and personal property, but also of the P40,000 life insurance. The complaint prays a partition of all the property, both real and personal, left by the deceased; that the defendant account for P21,634.80, and that that sum be divided equally among the plaintiffs and defendant along with the other property of deceased.

The defendant denies the material allegations of the complaint and sets up as special defense and counterclaim that the redemption of the real estate sold by his father was made in the name of the plaintiffs and himself instead of in his name alone without his knowledge or consent; and that it was not his intention to use the proceeds of the insurance policy for the benefit of any person but himself, he alleging that he was and is the sole owner thereof and that it is his individual property. He, therefore, asks that he be declared the owner of the real estate redeemed by the payment of the P18,365.20, the owner of the remaining P21,634.80, the balance of the insurance policy, and that the plaintiff's account for the use and occupation of the premises so redeemed since the date of the redemption.

The learned trial court refused to give relief to either party and dismissed the action.

It says in its opinion: "This purports to be an action for partition, brought against an heir by his coheirs. The complaint, however, fails to comply with Code Civ., Pro. sec. 183, in that it does not 'contain an adequate description of the real property of which partition is demanded.' Because of this defect (which has not been called to our attention and was discovered only after the cause was submitted) it is more than doubtful whether any relief can be awarded under the complaint, except by agreement of all the parties."

This alleged defect of the complaint was made one of the two bases for the dismissal of the action.

We do not regard this as sufficient reason for dismissing the action. It is the doctrine of this court, set down in several decisions, Lizarraga Hermanos vs. Yap Tico, 24 Phil. Rep., 504, that, even though the complaint is defective to the extent of failing in allegations necessary to constitute a cause of action, if, on the trial of the cause, evidence is offered which establishes the cause of action which the complaint intended to allege, and such evidence is received without objection, the defect is thereby cured and cannot be made the ground of a subsequent objection. If, therefore, evidence was introduced on the trial in this case definitely and clearly describing the real estate sought to be partitioned, the defect in the complaint was cured in that regard and

should not have been used to dismiss the action. We do not stop to inquire whether such evidence was or was not introduced on the trial, inasmuch as this case must be turned for a new trial with opportunity to both parties to present such evidence as is necessary to establish their respective claims.

The court in its decision further says: "It will be noticed that the provision above quoted refers exclusively to real estate. . . . It is, in other words, an exclusive real property action, and the institution thereof gives the court no jurisdiction over chattels. . . . But no relief could possibly be granted in this action as to any property except the last (real estate), for the law contemplated that all the personal property of an estate be distributed before the administration is closed. Indeed, it is only in exceptional cases that the partition of the real estate is provided for, and this too is evidently intended to be effected as a part of the administration, but here the complaint alleges that the estate was finally closed on December 9, 1911, and we find upon referring to the record in that case that subsequent motion to reopen the same were denied; so that the matter of the personal property at least must be considered res judicata (for the final judgment in the administration proceedings must be treated as concluding not merely what was adjudicated, but what might have been). So far, therefore, as the personal property at least is concerned, plaintiffs' only remedy was an appeal from said order."

We do not believe that the law is correctly laid down in this quotation. The courts of the Islands have jurisdiction to divide personal property between the common owners thereof and that power is as full and complete as is the power to partition real property. If an actual partition of personal property cannot be made it will be sold under the direction of the court and the proceeds divided among the owners after the necessary expenses have been deducted.

The administration of the estate of the decedent consisted simply, so far as the record shows, in the payment of the debts. No division of the property, either real or personal, seems to have been made. On the contrary, the property appears, from the record, to have been turned over to the heirs in bulk. The failure to partition the real property may have been due either to the lack of request to the court by one or more of the heirs to do so, as the court has no authority to make a partition of the real estate without such request; or it may have been due to the fact that all the real property of decedent had been sold under pacto de retro and that, therefore, he was not the owner of any real estate at the time of his death. As to the personal property, it does not appear that it was disposed of in the manner provided by law. (Sec. 753, Code of Civil Procedure .) So far as this


action is concerned, however, it is sufficient for us to know that none of the property was actually divided among the heirs in the administration proceeding and that they remain coowners and tenants-in- common thereof at the present time. To maintain an action to partition real or personal property it is necessary to show only that it is owned in common.

The order finally closing the administration and discharging the administrator, referred to in the opinion of the trial court, has nothing to do with the division of either the real or the personal property. The heirs have the right to ask the probate court to turn over to them both the real and personal property without division; and where that request is unanimous it is the duty of the court to comply with it, and there is nothing in section 753 of the Code of Civil Procedure which prohibits it. In such case an order finally settling the estate and discharging the administrator would not bar a subsequent action to require a division of either the real or personal property. If, on the other hand, an order had been made in the administration proceedings dividing the personal or the real property, or both, among the heirs, then it is quite possible that, to a subsequent action brought by one of the heirs for a partition of the real or personal property, or both, there could have been interposed a plea of res judicata based on such order. As the matter now stands, however, there is no ground on which to base such a plea. Moreover, no such plea has been made and no evidence offered to support it.

With the finding of the trial court that the proceeds of the life-insurance policy belong exclusively to the defendant as his individual and separate property, we agree. That the proceeds of an insurance policy belong exclusively to the beneficiary and not to the estate of the person whose life was insured, and that such proceeds are the separate and individual property of the beneficiary, and not of the heirs of the person whose life was insured, is the doctrine in America. We believe that the same doctrine obtains in these Islands by virtue of section 428 of the Code of Commerce, which reads:

The amount which the underwriter must deliver to the person insured, in fulfillment of the contract, shall be the property of the latter, even against the claims of the legitimate heirs or creditors of any kind whatsoever of the person who effected the insurance in favor of the former.

It is claimed by the attorney for the plaintiffs that the section just quoted is subordinate to the provisions of the Civil Code as found in article 1035. This article reads:

An heir by force of law surviving with others of the same character to a succession must bring into the hereditary

estate the property or securities he may have received from the deceased during the life of the same, by way of dowry, gift, or for any good consideration, in order to compute it in fixing the legal portions and in the account of the division.

Counsel also claim that the proceeds of the insurance policy were a donation or gift made by the father during his lifetime to the defendant and that, as such, its ultimate destination is determined by those provisions of the Civil Code which relate to donations, especially article 819. This article provides that "gifts made to children which are not betterments shall be considered as part of their legal portion."

We cannot agree with these contentions. The contract of life insurance is a special contract and the destination of the proceeds thereof is determined by special laws which deal exclusively with that subject. The Civil Code has no provisions which relate directly and specifically to life- insurance contracts or to the destination of life insurance proceeds. That subject is regulated exclusively by the Code of Commerce which provides for the terms of the contract, the relations of the parties and the destination of the proceeds of the policy.

The proceeds of the life-insurance policy being the exclusive property of the defendant and he having used a portion thereof in the repurchase of the real estate sold by the decedent prior to his death with right to repurchase, and such repurchase having been made and the conveyance taken in the names of all of the heirs instead of the defendant alone, plaintiffs claim that the property belongs to the heirs in common and not to the defendant alone.

We are not inclined to agree with this contention unless the fact appear or be shown that the defendant acted as he did with the intention that the other heirs should enjoy with him the ownership of the estate — in other words, that he proposed, in effect, to make a gift of the real estate to the other heirs. If it is established by the evidence that that was his intention and that the real estate was delivered to the plaintiffs with that understanding, then it is probable that their contention is correct and that they are entitled to share equally with the defendant therein. If, however, it appears from the evidence in the case that the conveyances were taken in the name of the plaintiffs without his knowledge or consent, or that it was not his intention to make a gift to them of the real estate, then it belongs to him. If that facts are as stated, he has two remedies. The one is to compel the plaintiffs to reconvey to him and the other is to let the title stand with them and to recover from them the sum he paid on their behalf.


For the complete and proper determination of the questions at issue in this case, we are of the opinion that the cause should be returned to the trial court with instructions to permit the parties to frame such issues as will permit the settlement of all the questions involved and to introduce such evidence as may be necessary for the full determination of the issues framed. Upon such issues and evidence taken thereunder the court will decide the questions involved according to the evidence, subordinating his conclusions of law to the rules laid down in this opinion.

We do not wish to be understood as having decided in this opinion any question of fact which will arise on the trial and be there in controversy. The trial court is left free to find the facts as the evidence requires. To the facts as so found he will apply the law as herein laid down.

The judgment appealed from is set aside and the cause returned to the Court of First Instance whence it came for the purpose hereinabove stated. So ordered.

Art. 909 – Donations to children shall be charged to legitime

G.R. No. 128102 March 7, 2000

AZNAR BROTHERS REALTY COMPANY, petitioner,vs.

COURT OF APPEALS, LUIS AYING, DEMETRIO SIDA, FELOMINO AUGUSTO, FEDERICO ABING, and

ROMEO AUGUSTO, respondents.

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court seeking to reverse and set aside the 26 March 1996 Decision1 of the Court of Appeals declaring the private respondents the rightful possessors de facto of the subject lot and permanently enjoining Sheriff Juan Gato or his representative from effecting the demolition of private respondents' houses.

Culled from the evidence proffered by petitioner Aznar Brothers Realty Co. (hereafter AZNAR), it appears that Lot No. 4399 containing an area of 34,325 square meters located at Brgy. Mactan, Lapu-Lapu City, was acquired by AZNAR from the heirs of Crisanta Maloloy-on by virtue of an Extrajudicial Partition of Real Estate with Deed of Absolute Sale dated 3 March 1964. This deed was registered with the Register of Deeds of Lapu-Lapu City on 6 March 1964 as shown on the face thereof. After the sale, petitioner AZNAR declared this property under its name for taxation purposes and regularly paid the taxes thereon. Herein private

respondents were allegedly allowed to occupy portions of Lot No. 4399 by mere tolerance provided that they leave the land in the event that the company would use the property for its purposes. Later, AZNAR entered into a joint venture with Sta. Lucia Realty Development Corporation for the development of the subject lot into a multi-million peso housing subdivision and beach resort. When its demands for the private respondents to vacate the land failed, AZNAR filed with the Municipal Trial Court (MTCC) of Lapu-Lapu City a case for unlawful detainer and damages, which was docketed as Civil Case No. R-1027.

On the other hand, the private respondents alleged that they are the successors and descendants of the eight children of the late Crisanta Maloloy-on, whose names appear as the registered owners in the Original Certificate of Title No. RC-2856. They had been residing and occupying the subject portion of the land in the concept of owner since the time of their parents and grandparents, except for Teodorica Andales who was not a resident in said premises. Private respondents claimed that the Extrajudicial Partition of Real Estate with Deed of Absolute Sale is void ab initio for being simulated and fraudulent, and they came to know of the fraud only when AZNAR entered into the land in the last quarter of 1991 and destroyed its vegetation. They then filed with the Regional Trial Court (RTC) of Lapu-Lapu City a complaint seeking to declare the subject document null and void. This case was docketed as Civil Case No. 2930-L.

On 1 February 1994, the MTCC rendered a decision ordering the private respondents to (a) vacate the land in question upon the finality of the judgment; and (b) pay P8,000 as attorney's fees and P2,000 as litigation expenses, plus costs.2

The MTCC delved into the issue of ownership in order to resolve the issue of possession. It found that petitioner AZNAR acquired ownership of Lot No. 4399 by virtue of the Extrajudicial Partition of Real Estate with Deed of Absolute Sale executed by the Heirs of Crisanta Maloloy-on on 3 March 1964, which was registered with the Register of Deeds of Lapu-Lapu City on 6 March 1964 as appearing on the face thereof. Private respondents' allegation that two of the signatories were not heirs of the registered owners; that some of the signatories were already dead at the date of the execution of the deed; and that many heirs were not parties to the extrajudicial partition is a form of a negative pregnant, which had the effect of admitting that the vendors, except those mentioned in the specific denial, were heirs and had the legal right to sell the subject land to petitioner. The fact that some or most heirs had not signed the deed did not make the


document null and void ab initio but only annullable, unless the action had already prescribed. Since the private respondents occupied the land merely by tolerance, they could be judicially ejected therefrom. That the Deed has not been annotated on OCT RO-2856 is of no moment, since said title was reconstituted only on 25 August 1988, while the subject Deed was executed on 3 March 1964. Lastly, the reconstituted title has not as yet been transferred to a purchaser for value.

Aggrieved by the decision of the MTCC, private respondents appealed to the RTC.

During the pendency of the appeal, or on 8 March 1994, the RTC, upon Aznar's ex parte motion, issued an order granting the issuance of a writ of execution pursuant to Section 8, Rule 70 of the Revised Rules of Court in view of the failure of private respondents to put up a supersedeas bond. A week later, a writ of execution was issued. The sheriff then served upon private respondents the said writ of execution together with a notice to vacate. On 11 April 1994, the sheriff padlocked their houses, but later in the day, private respondents re-entered their houses. Thus, on 6 May 1994, AZNAR filed an omnibus motion for the issuance of a writ of demolition, which private respondents opposed. This motion was set for hearing three times, but the parties opted to submit a consolidated memorandum and agreed to submit the same for resolution.3

On 22 July 1994, the RTC affirmed the decision of the MTCC and ordered the issuance of a writ of demolition directing the sheriff to demolish private respondents' houses and other improvements which might be found on the subject premises. 4

On 29 July 1994, a writ of demolition was issued, and notices of demolition were served upon private respondents. Per Sheriff's Report,5 private respondents' houses were demolished on 3 August 1994, except for two houses which were moved outside the premises in question upon the plea of the owners thereof.

On appeal by the private respondents, the Court of Appeals reversed and set aside the decision of the RTC; declared the private respondents as the rightful possessors de facto of the land in question; and permanently enjoined Sheriff Juan Gato or whoever was acting in his stead from effectuating the demolition of the houses of the private respondents.

In arriving at its challenged decision, the Court of Appeals noted that at the time AZNAR entered the property, the private respondents had already been in possession thereof peacefully, continuously, adversely and notoriously since time immemorial. There was no

evidence that petitioner was ever in possession of the property. Its claim of ownership was based only on an Extrajudicial Partition with Deed of Absolute Sale, which private respondents, however, claimed to be null and void for being simulated and fraudulently obtained. The Court of Appeals further held that where not all the known heirs had participated in the extrajudicial agreement of partition, the instrument would be null and void and therefore could not be registered.6 Moreover, AZNAR was estopped to assert ownership of the property in question, since it had admitted in a pleading in the reconstitution proceedings that the property had never been conveyed by the decreed owners. Additionally, from 1988 up to the filing of the ejectment case on 4 August 1993, AZNAR never registered the extrajudicial partition despite opportunities to do so. Its allegation that private respondents occupied the property by mere tolerance was not proved. Pursuant to the ruling in Vda. de Legazpi v. Avendano, 7 the fact that the right of the private respondents was so seriously placed in issue and the execution of the decision in the ejectment case would have meant demolition of private respondents' houses constituted an equitable reason to suspend the enforcement of the writ of execution and order of demolition.

AZNAR then elevated the case to this Court, via this petition for review on certiorari, contending that respondent Court of Appeals erred in

1. . . . reversing the judgments of the Municipal Trial Court and the Regional Trial Court of Lapu-Lapu City despite the finality of the judgments and the full implementation thereof;

2. . . . invoking lack of prior physical possession over the land in question by the petitioner as one ground in its Decision sought to be reviewed;

3. . . . holding that the Extrajudicial Partition with Deed of Absolute Sale was null and void;

4. . . . holding that petitioner was in estoppel in pais when it made the allegation that the property was not sold or encumbered in its petition for reconstitution of title;

5. . . . applying the ruling in the case of Vda. de Legazpi vs. Avendano (79 SCRA 135 [1977]).

We shall jointly discuss the first and fifth assigned errors for being interrelated with each other.

In its first assigned error, petitioner argues that the decision of the MTCC of Lapu-Lapu City had become final and immediately executory in view of the


undisputed failure of the private respondents to post a supersedeas bond as required by Section 8, Rule 70 of the Revised Rules of Court.

We do not agree. Since the private respondents had seasonably filed an appeal with the RTC of Lapu-Lapu City, the judgment of the MTCC of Lapu-Lapu City did not become final. And for reasons hereunder stated, the perfection of the appeal was enough to stay the execution of the MTCC decision.

Under the former Section 8, Rule 70 of the Rules of Court,8 if the judgment of the municipal trial court in an ejectment case is adverse to the defendant, execution shall issue immediately. To stay the immediate execution of the judgment, the defendant must (1) perfect his appeal; (2) file a supersedeas bond to answer for the rents, damages, and costs accruing down to the time of the judgment appealed from; and (3) periodically deposit the rentals falling due during the pendency of the appeal. 9

As a rule, the filing of a supersedeas bond is mandatory and if not filed, the plaintiff is entitled as a matter of right to the immediate execution of the judgment. An exception is where the trial court did not make any findings with respect to any amount in arrears, damages or costs against the defendant, 10 in which case no bond is necessary to stay the execution of the judgment. Thus, in Once v. Gonzales, 11 this Court ruled that the order of execution premised on the failure to file a supersedeas bond was groundless and void because no such bond was necessary there being no back rentals adjudged in the appealed judgment.

Similarly, in the instant case, there was no need for the private respondents to file a supersedeas bond because the judgment of the MTCC did not award rentals in arrears or damages. The attorney's fees of P8,000 and the litigation expenses of P2,000 awarded in favor of the petitioner need not be covered by a bond, as these are not the damages contemplated in Section 8 of Rule 70 of the Rules of Court. The damages referred to therein are the reasonable compensation for the use and occupation of the property which are generally measured by its fair rental value and cannot refer to other damages which are foreign to the enjoyment or material possession of the property. 12 Neither were the private respondents obliged to deposit the rentals falling due during the pendency of the appeal in order to secure a stay of execution because the appealed judgment did not fix the reasonable rental or compensation for the use of the premises. 13 Hence, it was error for the RTC to order the execution of the judgment of the MTCC.

At any rate, pursuant to Section 21 of the Revised Rules of Summary Procedure, the decision of the RTC affirming the decision of the MTCC has become immediately executory, without prejudice to the appeal before the Court of Appeals. The said Section repealed Section 10 of the Rules of Court allowing during the pendency of the appeal with the Court of Appeals a stay of execution of the RTC judgment with respect to the restoration of possession where the defendant makes a periodic deposit of rentals. Thus, immediate execution of the judgment becomes a ministerial duty of the court. No new writ of execution was, however, issued. Nevertheless, the writ of demolition thereafter issued was sufficient to constitute a writ of execution, as it substantially complied with the form and contents of a writ of execution as provided for under Section 8 of Rule 39 of the Rules of Court. Moreover, private respondents were duly notified and heard on the omnibus motion for the issuance of the writ of demolition and were given five days to remove their houses. 14

Invoking Legaspi v. Avendaño, 15 the Court of Appeals held that there was an equitable reason to suspend the enforcement of the writ of execution and order of demolition until after the final determination of the civil case for the nullification of the Extrajudicial Partition with Deed of Absolute Sale.

In Legaspi, this Court held:

Where the action . . . is one of illegal detainer . . . and the right of the plaintiff to recover the premises is seriously placed in issue in a proper judicial proceeding, it is more equitable and just and less productive of confusion and disturbance of physical possession, with all its concomitant inconvenience and expense [f]or the court in which the issue of legal possession, whether involving ownership or not, is brought to restrain, should a petition for preliminary injunction be filed with it, the effects of any order or decision in the unlawful detainer case in order to await the final judgment in the more substantive case involving legal possession or ownership.

In the instant case, private respondents' petition for review with prayer for the immediate issuance of a temporary restraining order (TRO) or preliminary injunction was mailed on 2 August 1994 but was received by the Court of Appeals only on 30 August 1994. Meanwhile, on 3 August 1994, the writ of demolition was implemented, resulting in the demolition of private respondents' houses. Hence, any relevant issue arising from the issuance or enforcement of the writ had been rendered moot and academic. Injunction would not lie anymore, as the acts sought to have been


enjoined had already become a fait accompli or an accomplished or consummated act.

Now on the applicability to unlawful detainer cases of the requirement of prior physical possession of the disputed property. Contrary to the ruling of the Court of Appeals, prior physical possession by the plaintiff of the subject property is not an indispensable requirement in unlawful detainer cases, although it is indispensable in an action for forcible entry. 16 The lack of prior physical possession on the part of AZNAR is therefore of no moment, as its cause of action in the unlawful detainer case is precisely to terminate private respondents' possession of the property in question. 17

We now come to the issue of the validity of the Extrajudicial Partition with Deed of Absolute Sale.

In an action for ejectment, the only issue involved is possession de facto. However, when the issue of possession cannot be decided without resolving the issue of ownership, the court may receive evidence upon the question of title to the property but solely for the purpose of determining the issue of possession. 18

In the instant case, private respondents have set up the defense of ownership and questioned the title of AZNAR to the subject lot, alleging that the Extrajudicial Partition with Deed of Absolute Sale upon which petitioner bases its title is null and void for being simulated and fraudulently made.

First, private respondents claim that not all the known heirs of Crisanta Maloloy-on participated in the extrajudicial partition, and that two persons who participated and were made parties thereto were not heirs of Crisanta. This claim, even if true, would not warrant rescission of the deed. Under Article 1104 of the Civil Code, "[a] partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him." In the present case, no evidence of bad faith or fraud is extant from the records. As to the two parties to the deed who were allegedly not heirs, Article 1105 is in point; it provides: "A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person." In other words, the participation of non-heirs does not render the partition void in its entirety but only to the extent corresponding to them.

Private respondents also allege that some of the persons who were made parties to the deed were already dead, while others were still minors. Moreover,

the names of some parties thereto were misspelled, and others who knew how to read and write their names were made to appear to have affixed only their thumbmark in the questioned document. Likewise, the signatures of those who were made parties were forged.

The foregoing are bare allegations with no leg to stand on. No birth or death certificates were presented before the MTCC to support the allegations that some of the parties to the deed were minors and others were already dead at the time of the execution of the deed. What private respondents adduced as evidence was merely a family tree, which was at most self-serving. It was only when the case was on appeal with the RTC that the private respondents presented as Annex "B" of their Memorandum and Appeal Brief a photocopy of the certificate of death of Francisco Aying, 19 son of Crisanta Maloloy-on, who reportedly died on 7 March 1963. This certificate was allegedly issued on 17 January 1992 by the Parish Priest of Virgen de Regla Parish, Lapu-Lapu City. The fact remains, however, that this photocopy was not certified to be a true copy.

It is worthy to note that the Extrajudicial Partition with Deed of Absolute Sale is a notarized document.1âwphi1 As such, it has in its favor the presumption of regularity, and it carries the evidentiary weight conferred upon it with respect to its due execution. 20 It is admissible in evidence without further proof of authenticity 21 and is entitled to full faith and credit upon its face. 22 He who denies its due execution has the burden of proving that contrary to the recital in the Acknowledgment he never appeared before the notary public and acknowledged the deed to be his voluntary act. 23 It must also be stressed that whoever alleges forgery has the burden of proving the same. Forgery cannot be presumed but should be proved by clear and convincing evidence. 24 Private respondents failed to discharge this burden of proof; hence, the presumption in favor of the questioned deed stands.

Private respondents contend that there was violation of the Notarial Law because the lawyer who prepared and notarized the document was AZNAR's representative in the execution of the said document. Under Section 22 of the Spanish Notarial Law of 1889, a notary public could not authenticate a contract which contained provisions in his favor or to which any of the parties interested is a relative of his within the fourth civil degree or second degree of affinity; otherwise, pursuant to Section 28 thereof, the document would not have any effect. This rule on notarial disqualification no longer holds true with the enactment of Act No. 496, which repealed the Spanish Notarial Law. 25 Under the Notarial Law in force at the time of the notarization of the questioned deed, Chapter 11 of the Revised Administrative Code, only


those who had been convicted of any crime involving moral turpitude were disqualified to notarize documents. Thus, a representative of a person in whose favor a contract was executed was not necessarily so disqualified. Besides, there is no proof that Atty. Ramon Igaña was a representative of petitioner in 1964; what appears on record is that he was the Chief of the petitioner's Legal Department in 1993. Additionally, this alleged violation of the Notarial Law was raised only now.

Anent the non-annotation of the Extrajudicial Partition with Deed of Absolute Sale in the reconstituted Original Certificate of Title No. RO-2856, the same does not render the deed legally defective. It must be borne in mind that the act of registering a document is never necessary to give the conveyance legal effect as between the parties 26 and the vendor's heirs. As between the parties to a sale, registration is not indispensable to make it valid and effective. The peculiar force of a title is exhibited only when the purchaser has sold to innocent third parties the land described in the conveyance. The purpose of registration is merely to notify and protect the interests of strangers to a given transaction, who may be ignorant thereof, and the non-registration of the deed evidencing said transaction does not relieve the parties thereto of their obligations thereunder. 27 Here, no right of innocent third persons or subsequent transferees of the subject lot is involved; thus, the conveyance executed in favor of AZNAR by private respondents and their predecessors is valid and binding upon them, and is equally binding and effective against their heirs. 28

The principle that registration is the operative act that gives validity to the transfer or creates a lien upon the land "refers to cases involving conflicting rights over registered property and those of innocent transferees who relied on the clean title of the properties." 29 This principle has no bearing on the present case, as no subsequent transfer of the subject lot to other persons has been made either by private respondents or their predecessors-in-interest. 30

By and large, it appears on the face of the Extrajudicial Partition with Deed of Absolute Sale that the same was registered on 6 March 1964. The registration was under Act No. 3344 on unregistered lands allegedly because at the time, no title was existing in the files of the Register of Deeds of Lapu-Lapu City, as it was allegedly lost during the last world war. It was only on 8 August 1988 that the title was reconstituted at the instance of the petitioner.

As to the fourth assigned error, we do not agree with the Court of Appeals and the private respondents that

petitioner is in estoppel to assert ownership over the subject property because of petitioner's own allegation in the petition for reconstitution, to wit:

That certificates of title were issued thereto but were lost during the last world war. That the same were not conveyed much less offered as a collateral for any debt contracted or delivered for the security of payment of any obligation in favor of any person or lending institution.

The words "the same" in the second sentence of the afore-quoted paragraph clearly refers to the certificates of title. This means that the certificates of title, not necessarily the subject lot, were not conveyed or offered as a collateral but were lost during the last world war. Indeed, as petitioner contends, it would be very absurd and self-defeating construction if we were to interpret the above-quoted allegation in the manner that the Court of Appeals and the private respondents did, for how could petitioner, who is claiming ownership over the subject property, logically allege that the property was not sold to it?

It bears repeating that petitioner's claim of possession over the subject lot is anchored on its claim of ownership on the basis of the Extrajudicial Partition with Deed of Absolute Sale. Our ruling on the issue of the validity of the questioned deed is solely for the purpose of resolving the issue of possession and is to be regarded merely as provisional, without prejudice, however, to the final determination of the issue in the other case for the annulment or cancellation of the Extrajudicial Partition with Deed of Absolute Sale.

WHEREFORE, the petition is GRANTED. The challenged decision of public respondent Court of Appeals in CA-G.R. SP No. 35060 is hereby REVERSED, and the decision of the Regional Trial Court, Branch 27, Lapu-Lapu City, is REINSTATED.


Art. 919 – Disinheritance of children and descendants

Seangio et.al. vs. Reyes et.al.

This is a petition for certiorari[1] with application for the issuance of a writ of preliminary injunction and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, “In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al.” and “In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio.” The facts of the cases are as follows: On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and praying for the appointment of private respondent Elisa D. Seangio–Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio. Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo executed a general power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as the administrator of the estate of Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the will. On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99–93396, was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take precedence over SP. Proc. No. 98–90870 because testate proceedings take precedence and enjoy priority over intestate proceedings.[2]

The document that petitioners refer to as Segundo’s holographic will is quoted, as follows: Kasulatan sa pag-aalis ng mana Tantunin ng sinuman Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking. At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia. Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana. Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. [3] (signed) Segundo Seangio Nilagdaan sa harap namin (signed) Dy Yieng Seangio (signed) Unang Saksi ikalawang saksi (signed) ikatlong saksi On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No. 99–93396 were consolidated.[4]


On July 1, 1999, private respondents moved for the dismissal of the probate proceedings[5] primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being the case, private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent. Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition does not apply because Segundo’s will does not constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.[6] On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings: A perusal of the document termed as “will” by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a compulsory heir in the direct line. As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear: “for … respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be intrinsically void … would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED without pronouncement as to costs. SO ORDERED.[7] Petitioners’ motion for reconsideration was denied by the RTC in its order dated October 14, 1999. Petitioners contend that: THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS “A” AND “B” HEREOF) CONSIDERING THAT: I THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR’S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW; II EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND, III RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE


THAT TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS. Petitioners argue, as follows: First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest the allowance thereof, and cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of general circulation; and, b) cause the mailing of said notice to the heirs, legatees and devisees of the testator Segundo; Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no preterition in the decedent’s will and the holographic will on its face is not intrinsically void; Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were preterited in the holographic will since there was no institution of an heir; Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate case; and, Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render nugatory the disinheritance of Alfredo. The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as regards the authenticity of the document. The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo. For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that were stated by Segundo in his

document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code: Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant;(6) Maltreatment of the testator by word or deed, by the child or descendant;[8](7) When a child or descendant leads a dishonorable or disgraceful life;(8) Conviction of a crime which carries with it the penalty of civil interdiction. Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will. A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Segundo’s document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo.[10]


Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.[11] Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present case, should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator.[12] In this regard, the Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is probated,[13] the disinheritance cannot be given effect.[14]

With regard to the issue on preterition,[15] the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir[16] to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo. Considering that the questioned document is Segundo’s holographic will, and that the law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory.[17] In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate proceedings for the same purpose.[18] WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set

aside. Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid testate proceedings.

Art. 947 – Right of legatees and devisees over pure and simple legacy and devise

February 21, 1908

G.R. No. 3751EDUARDA BENEDICTO, administratrix of the estate

of Maximino Jalandoni, plaintiff-appellee,vs.

JULIO JAVELLANA, defendant-appellant.

For the purpose of enforcing the terms of the will made on the 26th of June, 1903, by Maximo Jalandoni, resident of Jaro, the brother of the testator, Maximino Jalandoni, petitioned by a writing dated August 20, 1906, that the administrator or executor, Julio Javellana, be directed to pay him the sum of P985 which he held in lieu of the land donated to petitioner. To this end he alleged that according to the said will, one-half of the hacienda "Lantad", situated in the pueblo of Silay, Occidental Negros, had been bequeathed to him, which gift was subject to the payment of certain debts and expenses of the estate, with respect to the products of the years 1903 and 1904 only, and which had already been applied to that object by the administrator, Javellana; that one-half of said hacienda was sold with the consent of the administrator, the sum P985 remaining in the possession of the latter, from the entire proceeds of the sale, to meet any just or lawful claim which might arise against the gift made to him, or until such time as the court should confirm the legacy; that, as the administrator had already received the products of the hacienda, he is no longer entitled to retain any portion of the legacy, nor demand that he should respond for other debts or expenses of the estate, because with the value of the portion inherited by the heirs Francisco Jalandoni and Sofia Jalandoni, there was more than would be required to pay the other debts of the estate, and the expenses.

Owing to the death of the plaintiff, Eduarda Benedicto, the administratrix of his estate, represented him.

The administrator of the estate, Julio Javellana, in answer to the above motion, alleged that it was not proper to ask, by means of a motion, for the relief that Maximino Jalandoni claimed, but that a complaint should


have been filed and action brought against the other legatees, or rather against all the parties concerned in the estate, and not against the administrator alone; that Francisco Jalandoni and Sofia Jalandoni should not be considered as heirs but simply as the legatees of the testator, and that they are in the same position as the petitioner, Maximino Jalandoni, with respect to the charges against the estate; that the obligation to pay all the debts of the same was imposed on the entire inheritance, and not any particular property, nor on any determined party in interest named in the will; and that the amount in deposit with the administrator was not P985 but P949.29, voluntarily deposited not only to pay certain debts but also to meet all the charges against the estate and proportionately by the share allotted to Maximino Jalandoni, as had been done by applying the said sum toward the payment of debts, and for other reasons appearing therein.

The pertinent clauses or paragraphs of the will above referred to are as follows:

The hacienda "Malogo," owned by me and situated in the pueblo of Eustaquio Lopez, Province of Occidental Negros, P.I., and one parcel of land situated in the pueblo of Mandurriao, Province of Iloilo, P.I., I bequeath to Jose Jalbuena, the son of Benito Jalbuena, to whom I profess particular affection, having taken care of him in my own house from his most tender age.

I institute Francisco Jalandoni and Sofia Jalandoni, the children of my late brother Nicolas Jalandoni, whose memory is so dear to me for the favors I have received of him, as heirs to all the property real and personal, which I own in the Province of Iloilo, P.I., with the exception of the parcel of land previously assigned to Jose Jalbuena, which property shall be divided between the above-mentioned heirs in equal parts.

It is my will that my hacienda denominated "Lantad" shall be divided one half to my brother, Maximino Jalandoni, and the other half to the sisters Maria, Felisa, and Felicidad Jalandoni, daughters of Nazaria Hojilla.

On my entire estate I impose the obligation that out of the products thereof, all my debts shall be paid, the same being about 2,300 pesos which I owe Francisco Villanueva, without interest, and 2,550 pesos which I received on loan from Julio Javellana, with interest thereon at the rate of 10 percent per annum, provided, however, that one-half of the products which each parcel of land pertaining to the estate may yield this year shall be devoted to the payment of said debts, and should the said one-half not prove sufficient to meet the liabilities, two-thirds of the said products, or the total amount thereof, shall be applied; and provided, further, that in

any case, the balance of such products shall remain in charge of the administrator for the settlement of such other charges as the estate may be subjected to.

And further on Francisco and Sofia Jalandoni I particularly impose the obligation to pay Teodora Berola, for a period of ten years, an annuity of 300 pesos, Mexican currency, or the equivalent thereof in Philippine currency; said obligation becoming extinguished by the death of the said Teodora, in case of her demise before the expiration of the said period of ten years.

The judge in view of the result of the proceedings issued an order on the 27th of October, 1906, granting the motion filed by the legatee Maximino Jalandoni, as stated therein, from which order the opponent appealed to this court.

From the printed and certified copy of the proceedings, and from the will inserted therein, it appears that the testator, Maximo Jalandoni, on his death, left no lawful ascendants or descendants having any direct claim as hereditary successors.

It also appears, by the will in question, that the testator has distributed all his property in legacies, and that, notwithstanding the manner in which he designates his nephews Francisco and Sofia Jalandoni in paragraph 3 of the same, in order to leave in their favor all the real and personal property that he owned in Iloilo, with the exception of the parcel of land situated in Mandurriao, bequeathed to Jose Jalbuena, the truth is that such nephews of the testator are likewise legatees the same as the last beneficiary under paragraph two of the said will.

Respect for the will of a testator as expressed in his last testamentary disposition, constitutes the principal basis of the rules which the law prescribes for the correct interpretation of all of the clauses of the will; the words and provisions therein written must be plainly construed in order to avoid a violation of his intentions and real purpose.

The will of the testator clearly and explicitly stated must be respected and complied with as an inviolable law among the parties in interest. such is the doctrine established by the Supreme Court of Spain, constantly maintained in a great number of decisions, among which are those of March 24, 1863, April 28, 1882, and December 16, 1903.

The testator, under clause 5 of his will, has imposed on his entire estate the obligation to pay his debts with the products of the same, and has prescribed the manner in


which the same shall be done until all obligations are extinguished.

Such a testamentary disposition is not contrary to law, and as a matter of fact article 1027 of the Civil Code provides that —

The administrator can not pay the legacies until he has paid all the creditors.

Section 728 of the Code of Civil Procedure provides as follows:

If the testator makes provision by his will, or designates the estate to be appropriated for the payment of his debts and the expenses of administration or family expenses, they shall be paid according to the provisions of the will. But if the provision made by the will or the estate appropriated is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of by will, if any shall be appropriated for that purpose.

Therefore, in accordance with the above legal provisions and with the doctrine established by the courts, the aforesaid will of the late Maximo Jalandoni must be complied with and carried into execution; and, considering that all those who are benefited thereby have not received from the testator a universal succession to his estate, but certain property expressly stated in his will, they should, under the law be considered merely as legatees, without the right to received their share of the property of the deceased until after his debts have been paid. (Secs. 729, 731 and 754, Code of Civil Procedure ).

None of the parties interested in the will of Maximo Jalandoni is invested with the character of heir designated by law, and consequently, the provisions he has incorporated in his last will do not injure any of the rights covered by the law which protects the legitimate portions of such heirs. Article 858 of the Civil Code reads:

A testator may charge with legacies and bequests not only his heir, but also the legatees.

The latter shall not be liable for the charge except to the extent of the value of the legacy.

Article 859, following provides:

When the testator charges one of the heirs with a legacy the latter only shall be obliged to fulfill the same.

Should he not charge any one in particular, all shall be liable in the same proportion in which they may be heirs.

It is to be noticed that in the present case, where the whole of the inheritance was distributed by legacies, the parties in interest are indiscriminately designated as heirs or legatees.

As to specific devices, section 729 of the Code of Civil Procedure provides exemption from the payment of debts and expenses if there is sufficient other property and if it appears to the court necessary to carry into effect the intention of the testator; and, as the legacies stated in the aforesaid will consist of specific property, less the annuity provided for by clause 6, which is made a special lien upon the property for by clause 6, which is made a special lien upon the property bequeathed to Francisco and Sofia Jalandoni, it is unquestionable that in this case the debts and expenses of the estate must be paid pro rata by the legatees in the manner provided in the will, or in accordance with the provisions of sections 753 and 754 of the Code of Civil Procedure.

On the other hand, and for such effects as may be proper, it should be stated herein that any challenge to the validity of a will, any objection to the authentication thereof, and every demand or claim which any heir, legatee, or party in interest in a testate or intestate succession may make, must be acted upon and decided within the same special proceedings not in a separate action and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised, inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties, as may be seen in part II of the Code of Civil Procedure, from section 551 forward.

By the foregoing it has been shown that the judgment appealed from is not in accordance with the law, therefore it is our opinion that the same should be reversed, and that the request of the representative of Maximino Jalandoni, now sustained by Eduarda Benedicto, the administratrix of his estate, should be dismissed without any special ruling as to costs. So ordered.

Art. 950 - Order of preference for legacies and devise

G.R. No. 3459CHIONG JOC-SOY, petitioner-appellant,

vs.JAIME VAÑO, ET AL., respondents-appellants.


Genoveva Rosales, a resident of Cebu, made her will on the 26th day of October, 1903. The third clause is in part as follows:

3. Of the third part of the estate, which is at my free disposal, I bequeath to the Chinaman Chiong Joc-Soy, the sum of 50,000 pesos, Mexican currency, of which amount 20,000 pesos are for the aforesaid Chiong Joc-Soy, and the balance of 30,000 pesos for the expenses of interment etc. of my late husband Don Nicasio Veloso, . . . .

The rest of her property, which amounted in all to upward of 800,000 pesos, she left to her children. After her death the will was presented for probate in the Court of First Instance of the Province of Cebu and was duly proved and allowed on the 24th of November, 1903, and an administrator with the will annexed was appointed. By order of the court he was allowed one year from the 24th of November, 1903, in which to pay the debts and legacies of the deceased.

On the 6th of February, 1905, the petitioner, Chiong Joc-Soy, the legatee named in the will, filed a petition in the said proceeding for the settlement of the estate of the deceased, Genoveva Rosales, asking that the administrator be directed to pay him the 50,000 pesos mentioned in the will. An order was made by consent on the 28th of February, 1905, directing the administrator to pay to the petitioner the 20,000 pesos expressed in the first part of the legacy. As to the remainder of the amount therein expressed, the court, on the 6th day of May, 1906, made another order or judgment which as afterwards modified directed as follows:

And the court hereby orders that the administrator shall immediately pay over the said to the Joc-Soy the sum of 30,000 pesos, Mexican currency, or its equivalent in Conant money, at this day's price, fixed by the court, with interest at the rate of 6 per cent annum from the date of the presentation of the claim, or that is, from the 6th of February, 1905.

From this order both the petitioner, Chiong Joc-Soy, and the administrator and some of the heirs have appealed. No appeal was taken by any one from the order probating the will.

I. As to the appeal of the administrator and the heirs: It is alleged as the first assignment of error that the will was not executed in accordance with the law; that the legacy therein did not, therefore, exist and consequently that the court erred in ordering the administrator to pay the amount thereof of the petitioner.

The complete answer to this claim is that the validity of the will was conclusively established by the order of the court admitting it to probate. The question as to whether in the execution of the will the requirements of the law were complied with was then submitted to that court for decision. It had jurisdiction to decide that question. The heirs who have now appealed were parties to that proceeding. After a hearing, the court decided the question and from that decision none of the heirs appealed. The judgment of the probate court in such case stands like any other decision of a court of competent jurisdiction. Its judgments are binding upon the parties interested and their validity, in the absence of any proof of fraud or accidents, or mistakes, can be called in question only by an appeal. In this case there is no suggestion of the existence of any of those things. There is no claim made that the heirs were not properly notified of the hearing upon the probate of the will and nothing to indicate that they were not present and took part in that hearing. Section 625 of the Code of Civil Procedure provides that "the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution."

The second error assigned is that the court below ordered the payment of the 30,000 pesos without requiring the petitioner to give a bond conditioned that he would dispose of the money as indicated in the will.

Article 797 of the Civil Code is as follows:

The statement of the object of the designation or of the legacy or the application to be given to what has been left by the testator, or the charge imposed by the same, shall not be considered as a condition, unless it appears that such was his will.

What has been left in this manner may be immediately claimed and is transmissible to the heirs who give security for the fulfillment of the orders of the testator and the repayment of what they may have received, with its fruits and interest, should they fail to comply with this obligation.

From the first paragraph of this article it is apparent that there is a presumption in cases of this kind that the legacy is not conditional, and unless it clearly appears in the will that it was the intention of the testratrix in this case to make the legacy conditional, the words used must be considered as not imposing any condition. We think under all the circumstances of the case that the testratrix did not intend to impose upon the legatee any condition in making this gift of 30,000 pesos. It is true, as claimed by the heirs, that it is very evident that she intended the 20,000 pesos to be the absolute property of the petitioner and that as to the 30,000 pesos she had a


different intention, but this does not resolve the question presented. That she wished and desired the petitioner to expend the 30,000 pesos as indicated in the will is apparent, but the question is, did she intent to make her gift conditional, or did she rely upon her confidence in the petitioner that he would carry out her suggestion without the necessity of imposing a condition upon him? It appears that the husband of the testratrix was a Chinaman; that she was a Filipina, and that the legatee was Chinaman. The manner in which persons of Chinese descent spend money to perpetuate the memory of a deceased person of their race does not appear, nor the amount that they are accustomed so to expend, nor the time during which it may be expended. All these circumstances were doubtless known to the testratrix and we believe that knowing them she intentionally selected a person of Chinese birth to carry out her purposes in these regard. We hold, therefore, that they legacy is not conditional.

When the legacy is not conditional, there may, however, be cases which do not fall under the provisions of said article 797.

Scaevola says in his Commentaries on the Civil Code, volume 13, page 646:

It is doubtful if the definite directions of the testator, not imposed in the sense of a duty, are embraced in the quoted expression of the purpose of the legacy, with the consequences provided in paragraph 2 of the said article 797. Examples of this class of instructions: "I bequeath to Luis my property and desire him to expend in good works all in excess of that which is necessary for his support. I name him my heir so that he may as in duty bound attend to the better education of his children." In these cases, capable of infinite variety, attention must be paid to the true intention of the testator, and if it appears that there was no wish to impose a definite condition, but merely to express a desire or personal opinion as to the best disposal of the estate, then article 797 would not be applicable.

We do not find it necessary to decide whether the legacy in question comes within the provisions of the said article or not, for we are satisfied that, even if it does, the judgment of the court below may be affirmed. A fair construction of the second paragraph of the article indicates that the heirs of the legatee are the only ones who are required to give security, and that such security is not required of the legatee himself.

In the case of Fuentes vs. Canon,[[1]] No. 2386, decided April 16, 1906 (4 Off. Gaz., 379), the will there in question contained the following clause:

Twentieth. I order the sum of 3,000 pesos to be delivered to the spouses Don MIguel de la Fuente and Doña Potenciana Medrano to be expended in the purchase of good agricultural land, one-third of which shall belong to them, and of the remaining two-thirds, one third shall be given to the widow and son of Don Eriberto de la Fuente and the other third to the sons and heirs of Don Honorio de la Fuente.

We held that the heirs were bound to pay the full 3,000 pesos to the legatee named in the will and that the court could not require such legatee to give security that they would deliver to the other persons named in the will the parts corresponding to them. The testratrix in that case, however, died prior to the enactment of the Civil Code.

The third assignment of error made by the heirs is that the court erred in ordering the payment of interest from the date of the presentation of the petition. The petitioner in his appeal has also assigned as error the failure of the court to order the payment of interest from the date of the death of the testratrix, or at least from the expiration of the period of one year granted to the administrator for the purpose of paying the debts.

Article 882 of the Civil Code provides that when the legacy relates to a specific article the legatee is entitled to the income and rents from the death of the deceased, but article 884 is as follows:

If the bequest should not be of a specific and determined thing, but generic or of quantity, its fruits and interest from the death of the testator shall belong to the legatee if the testator should have expressly so ordered.

In this case the testratrix did not expressly provide that the legatee should be entitled to interest from her death. In the case of Fuentes vs. Canon, above cited, the same question was presented and we there held that the legatee was entitled to interest from the date of his demand for payment. We follow the rule laid down in that case and hold that the court committed no error in ordering the judgment of interest from the date of presentation of the petition by the legatee.

II. As to the appeal of the petitioner, what has been said disposes of all the assignments of error made by him except one. After the court below had made its order of March 6, 1906, in which it directed the payment of 30,000 Mexican pesos, or its equivalent in Philippine currency at that day's price fixed by the court, the petitioner made a motion that the court fix the rate at 100 pesos, Mexican currency, for 100 pesos and 25 centavos, Philippine currency, and presented an affidavit to the effect that was the market price of Mexican currency on the 6th day of March. The court below, in its


order of the 28th of April, which was not made by the same judge who made the order of the 6th of March, held that it was improper at that time to receive evidence as to the market value of the two kinds of money; that no evidence had been presented at the trial as to such market value, and that consequently the court, in making the order, must have intended to apply the rate fixed by the Executive Order then in force.

We can not agree with the court's construction of the order of the 6th of March. We think that order means that the rate of exchange should be the rate which actually existed in Cebu on the 6th day of March, 1906, and the court, not having determined that in his order, left it to the parties to ascertain and determine it when payment was made. That price is a matter which can be easily determined at any time, and we hold that it is the duty of the administrator, if he pays in Philippine currency, to pay at the market price of Mexican currency at Cebu on the 6th day of March, 1906.

The judgment of the court below is affirmed, without costs to either party in this court.

After the expiration of twenty days let judgment be entered in accordance herewith and ten days thereafter let the case be remanded to the court from whence it came for proper action. So ordered.

Art. 956 – Onerous and Gratuitous Gifts

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

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH PRIEST OF

THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,

vs.BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR DE

FAUSTO, respondents-appellees.

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:

Total amount and value — 44.1163 P13,090.00

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

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

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

administrator was appointed. On January 31, 1957 the parish priest filed another petition for the delivery of the ricelands to the church as trustee.

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

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

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

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

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

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

In this case, as in cases involving the law of contracts and statutory construction, where the intention of the


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

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

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

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

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

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

2. That the devisee could not sell the ricelands.

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

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

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

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

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

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

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

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

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

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


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

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

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

Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted by the parish priest of Victoria before the latter filed his second motion for reconsideration which was based on the ground that the testator's grandnephew, Edgardo, was studying for the priesthood at the San Jose Seminary.

Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961. For that reason, the legal heirs apprised the Court of Appeals that the probate court's order adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84, Appellant's brief).

Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's intention and which is hearsay, has no probative value. Our opinion that the said bequest refers to the testator's nephew who was living at the time of his death, when his

succession was opened and the successional rights to his estate became vested, rests on a judicious and unbiased reading of the terms of the will.

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

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

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

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

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

It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time of his death, who desired to become a priest, had not yet entered the seminary or, having been


ordained a priest, he was excommunicated. Those two contingencies did not arise, and could not have arisen in this case because no nephew of the testator manifested any intention to enter the seminary or ever became a priest.

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

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

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

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

SO ORDERED

Art. 959 - Dispositions in general terms

G.R. No. 48627TESTATE ESTATE OF VICENTE SINGSON PABLO, deceased. ROSALIA ROSARIO VDA. DE SINGSON,

petitioner-appellee,vs.

JOSEFINA F. VDA. DE LIM, oppositor-appellee,EMILIA FLORENTINO, ET AL., oppositors-appellees,EVARISTO SINGSON, ET AL., oppositors-appellants.

Don Vicente Singson Pablo, a lawyer of Vigan, Ilocos Sur, died on April 15, 1938, without any descendant or ascendant, his nearest surviving relatives being his widow Doña Rosalia Rosario, four brothers, and four nieces, the children of a deceased sister. He left a will

which was duly probated, clause 8 of which reads as follows:

Octavo. — Orderno y mando que todos mis bienes no dispuestos de otro modo en este testamento, se distribuiran en partes iguales a todos los que tienen derecho a ello.

The widow, as administratrix, presented a project of partition in which the properties not disposed of in the will were adjudicated to the four brothers and the four nieces of the deceased "in the proportion provided in paragraph 8 of the will." The brothers, appellants herein, objected to the project of partition insofar as it includes the nieces of the deceased, on the ground that under clause 8 of the will, in relation to article 751 of the Civil Code, they were not entitled to any share. The nieces also objected to the project of partition, alleging that certain other specified properties had been omitted therefrom, which formed part of the properties not disposed of and which under clause 8 of the will "should be distributed in equal parts to all who are entitled thereto." The trial court sustained the contention of the nieces (appellees herein) and ordered the administratrix "to amend the project of partition so as to include therein the said properties and that all of those not disposed of in the will be adjudicated in equal parts to the brothers and nieces of the deceased."

The only question raised in this appeal is the interpretation of clause 8 of the will above quoted. Said clause provides that "all of my properties not disposed of otherwise in this testament shall be distributed in equal parts to all who are entitled thereto." In this connection appellants invoke article 751 of the Civil Code, which provides that "a disposition made in general terms in favor of the testator's relatives shall be understood as made in favor of those nearest in degree."

The trial court noted that the testator, who was a lawyer, did not use the word "relatives" in the clause in question. We do not need to decide here whether, had the testator used the word "relatives," the nieces would be excluded. The authorities differ on the interpretation of article 751. Some hold that under said article the nephews and nieces inherit by representation together with the brothers and sisters of the testator, as in legal succession; while others. Manresa among them, hold that said article excludes nephews and nieces when brothers and sisters survive. We think the testator, by referring to "all who are entitled thereto," instead of referring to his "relatives," precisely meant to avoid the uncertainty of the interpretation of article 751 and to indicate his wish that the residue of his estate be distributed in equal parts to all who would have been entitled to inherit from him had he dies intestate.


The order appealed from is affirmed, with costs. So ordered.

Art 856 - 959 Full Text

Documents

Transcript of Art 856 - 959 Full Text