RULE 73 VENUE

[G.R. No. 128314. May 29, 2002]

RODOLFO V. JAO, petitioner, vs. COURT OF APPEALS and PERICO V. JAO, respondents.
Rodolfo and Perico Jao were the only sons of the spouses Ignacio Jao Tayag and Andrea V. Jao,
who died intestate in 1988 and 1989, respectively. The decedents left real estate, cash, shares of
stock and other personal properties.
On April 17, 1991, Perico instituted a petition for issuance of letters of administration before the
Regional Trial Court of Quezon City, Branch 99, over the estate of his parents, docketed as Special
Proceedings No. Q-91-8507.[1] Pending the appointment of a regular administrator, Perico moved that
he be appointed as special administrator. He alleged that his brother, Rodolfo, was gradually
dissipating the assets of the estate. More particularly, Rodolfo was receiving rentals from real
properties without rendering any accounting, and forcibly opening vaults belonging to their deceased
parents and disposing of the cash and valuables therein.
Rodolfo moved for the dismissal of the petition on the ground of improper venue. [2] He argued that
the deceased spouses did not reside in Quezon City either during their lifetime or at the time of their
deaths. The decedents actual residence was in Angeles City, Pampanga, where his late mother used
to run and operate a bakery. As the health of his parents deteriorated due to old age, they stayed in
Rodolfos residence at 61 Scout Gandia Street, Quezon City, solely for the purpose of obtaining
medical treatment and hospitalization. Rodolfo submitted documentary evidence previously executed
by the decedents, consisting of income tax returns, voters affidavits, statements of assets and
liabilities, real estate tax payments, motor vehicle registration and passports, all indicating that their
permanent residence was in Angeles City, Pampanga.
In his opposition,[3] Perico countered that their deceased parents actually resided in Rodolfos
house in Quezon City at the time of their deaths. As a matter of fact, it was conclusively declared in
their death certificates that their last residence before they died was at 61 Scout Gandia Street,
Quezon City.[4] Rodolfo himself even supplied the entry appearing on the death certificate of their
mother, Andrea, and affixed his own signature on the said document.
Rodolfo filed a rejoinder, stating that he gave the information regarding the decedents residence
on the death certificates in good faith and through honest mistake. He gave his residence only as
reference, considering that their parents were treated in their late years at the Medical City General
Hospital in Mandaluyong, Metro Manila. Their stay in his house was merely transitory, in the same
way that they were taken at different times for the same purpose to Pericos residence at Legaspi
Towers in Roxas Boulevard. The death certificates could not, therefore, be deemed conclusive
evidence of the decedents residence in light of the other documents showing otherwise. [5]
The court required the parties to submit their respective nominees for the position. [6] Both failed to
comply, whereupon the trial court ordered that the petition be archived. [7]
Subsequently, Perico moved that the intestate proceedings be revived. [8] After the parties
submitted the names of their respective nominees, the trial court designated Justice Carlos L.
Sundiam as special administrator of the estate of Ignacio Jao Tayag and Andrea Jao. [9]
On April 6, 1994, the motion to dismiss filed by petitioner Rodolfo was denied, to wit:

A mere perusal of the death certificates of the spouses issued separately in 1988 and 1989,
respectively, confirm the fact that Quezon City was the last place of residence of the
decedents. Surprisingly, the entries appearing on the death certificate of Andrea V. Jao were supplied
by movant, Rodolfo V. Jao, whose signature appears in said document. Movant, therefore, cannot
disown his own representation by taking an inconsistent position other than his own
admission. xxx xxx xxx.

WHEREFORE, in view of the foregoing consideration, this court DENIES for lack of merit movants
motion to dismiss.

SO ORDERED.[10]

Rodolfo filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R.
SP No. 35908. On December 11, 1996, the Court of Appeals rendered the assailed decision, the
dispositive portion of which reads:
WHEREFORE, no error, much less any grave abuse of discretion of the court a quo having been
shown, the petition for certiorari is hereby DISMISSED. The questioned order of the respondent
Judge is affirmed in toto.

SO ORDERED.[11]

Rodolfos motion for reconsideration was denied by the Court of Appeals in the assailed resolution
dated February 17, 1997.[12] Hence, this petition for review, anchored on the following grounds:
I

RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN

ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE DECISION
ALREADY RENDERED BY THIS HONORABLE COURT.

II

RESPONDENT COURT ERRED IN DISREGARDING THE RULING OF THIS HONORABLE COURT

IN THE CASE OF EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY INTERPRETED
WHAT IS MEANT BY RESIDENCE IN SEC. 1 OF RULE 73 OF THE RULES OF COURT.

III

RESPONDENT COURT ERRED IN HOLDING THAT PHYSICAL PRESENCE IN A PLACE AT THE

TIME OF DEATH IS DETERMINATIVE OF DECEDENTS RESIDENCE RATHER THAN THE
INTENTION OF THE DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN
ANOTHER PLACE.

IV

RESPONDENT COURT ERRED IN APPLYING BY ANALOGY THE RESIDENCE CONTEMPLATED

IN SEC. 2 OF RULE 4 FOR THE PURPOSE OF SERVING SUMMONS TO A DEFENDANT IN A
PERSONAL ACTION TO THE RESIDENCE CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE
PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT OF THE ESTATE OF A DECEASED.

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT TO THE ENTRY OF PETITIONER AND
PRIVATE RESPONDENT IN THE RESPECTIVE DEATH CERTIFICATES OF THE DECEDENTS
RATHER THAN THE OVERWHELMING EVIDENCE SHOWING THE CLEAR INTENTION OF THE
DECEDENTS TO ESTABLISH THEIR PERMANENT RESIDENCE IN ANGELES CITY.

VI

RESPONDENT COURT ERRED IN APPLYING THE PRINCIPLE OF ESTOPPEL AS AGAINST

PETITIONER WHICH CAN NOT BE MORE PERSUASIVE THAN THE CLEAR INTENTION OF THE
DECEDENTS THEMSELVES TO ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY.

VII

RESPONDENT COURT ERRED IN DISMISSING THE PETITION FOR CERTIORARI DESPITE THE
CLEAR ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT IN INSISTING TO TAKE
COGNIZANCE OF SP. PROCEEDING NO. Q-91-8507. [13]

The main issue before us is: where should the settlement proceedings be had --- in Pampanga,
where the decedents had their permanent residence, or in Quezon City, where they actually stayed
before their demise?
Rule 73, Section 1 of the Rules of Court states:

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

Clearly, the estate of an inhabitant of the Philippines shall be settled or letters of administration
granted in the proper court located in the province where the decedent resides at the time of his
death.
Petitioner Rodolfo invokes our ruling in the case of Eusebio v. Eusebio, et al., [14] where we held
that the situs of settlement proceedings shall be the place where the decedent had his permanent
residence or domicile at the time of death. In determining residence at the time of death, the following
factors must be considered, namely, the decedent had: (a) capacity to choose and freedom of choice;
(b) physical presence at the place chosen; and (c) intention to stay therein permanently. [15] While it
appears that the decedents in this case chose to be physically present in Quezon City for medical
convenience, petitioner avers that they never adopted Quezon City as their permanent residence.
The contention lacks merit.
The facts in Eusebio were different from those in the case at bar. The decedent therein, Andres
Eusebio, passed away while in the process of transferring his personal belongings to a house in
Quezon City. He was then suffering from a heart ailment and was advised by his doctor/son to
purchase a Quezon City residence, which was nearer to his doctor. While he was able to acquire a
house in Quezon City, Eusebio died even before he could move therein. In said case, we ruled that
Eusebio retained his domicile --- and hence, residence --- in San Fernando, Pampanga. It cannot be
said that Eusebio changed his residence because, strictly speaking, his physical presence in Quezon
City was just temporary.
In the case at bar, there is substantial proof that the decedents have transferred to petitioners
Quezon City residence. Petitioner failed to sufficiently refute respondents assertion that their elderly
parents stayed in his house for some three to four years before they died in the late 1980s.
Furthermore, the decedents respective death certificates state that they were both residents of
Quezon City at the time of their demise. Significantly, it was petitioner himself who filled up his late
mothers death certificate. To our mind, this unqualifiedly shows that at that time, at least, petitioner
recognized his deceased mothers residence to be Quezon City. Moreover, petitioner failed to contest
the entry in Ignacios death certificate, accomplished a year earlier by respondent.
The recitals in the death certificates, which are admissible in evidence, were thus properly
considered and presumed to be correct by the court a quo. We agree with the appellate courts
observation that since the death certificates were accomplished even before petitioner and
respondent quarreled over their inheritance, they may be relied upon to reflect the true situation at the
time of their parents death.
The death certificates thus prevailed as proofs of the decedents residence at the time of
death, over the numerous documentary evidence presented by petitioner. To be sure, the documents
presented by petitioner pertained not to residence at the time of death, as required by the Rules of
Court, but to permanent residence or domicile. In Garcia-Fule v. Court of Appeals,[16] we held:

xxx xxx xxx the term resides connotes ex vi termini actual residence as distinguished from legal
residence or domicile. This term resides, like the terms residing and residence, is elastic and should
be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of Court is of such
nature residence rather than domicile is the significant factor. Even where the statute uses the word
domicile still it is construed as meaning residence and not domicile in the technical sense. Some
cases make a distinction between the terms residence and domicile but as generally used in statutes
fixing venue, the terms are synonymous, and convey the same meaning as the term inhabitant. In
other words, resides should be viewed or understood in its popular sense, meaning, the personal,
actual or physical habitation of a person, actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this popular sense, the term means merely residence,
that is, personal residence, not legal residence or domicile. Residence simply requires bodily
presence as an inhabitant in a given place, while domicile requires bodily presence in that place and
also an intention to make it ones domicile. No particular length of time of residence is required
though; however, the residence must be more than temporary. [17]

Both the settlement court and the Court of Appeals found that the decedents have been living
with petitioner at the time of their deaths and for some time prior thereto. We find this conclusion to be
substantiated by the evidence on record. A close perusal of the challenged decision shows that,
contrary to petitioners assertion, the court below considered not only the decedents physical
presence in Quezon City, but also other factors indicating that the decedents stay therein was more
than temporary. In the absence of any substantial showing that the lower courts factual findings
stemmed from an erroneous apprehension of the evidence presented, the same must be held to be
conclusive and binding upon this Court.
Petitioner strains to differentiate between the venue provisions found in Rule 4, Section 2, [18] on
ordinary civil actions, and Rule 73, Section 1, which applies specifically to settlement proceedings. He
argues that while venue in the former understandably refers to actual physical residence for the
purpose of serving summons, it is the permanent residence of the decedent which is significant in
Rule 73, Section 1. Petitioner insists that venue for the settlement of estates can only refer to
permanent residence or domicile because it is the place where the records of the properties are kept
and where most of the decedents properties are located.
Petitioners argument fails to persuade.
It does not necessarily follow that the records of a persons properties are kept in the place where
he permanently resides. Neither can it be presumed that a persons properties can be found mostly in
the place where he establishes his domicile. It may be that he has his domicile in a place different
from that where he keeps his records, or where he maintains extensive personal and business
interests. No generalizations can thus be formulated on the matter, as the question of where to keep
records or retain properties is entirely dependent upon an individuals choice and peculiarities.
At any rate, petitioner is obviously splitting straws when he differentiates between venue in
ordinary civil actions and venue in special proceedings. In Raymond v. Court of Appeals[19] and Bejer
v. Court of Appeals,[20] we ruled that venue for ordinary civil actions and that for special proceedings
have one and the same meaning. As thus defined, residence, in the context of venue provisions,
means nothing more than a persons actual residence or place of abode, provided he resides therein
with continuity and consistency.[21] All told, the lower court and the Court of Appeals correctly held that
venue for the settlement of the decedents intestate estate was properly laid in the Quezon City court.
WHEREFORE, in view of the foregoing, the petition is DENIED, and the decision of the Court of
Appeals in CA-G.R. SP No. 35908 is AFFIRMED.
SO ORDERED.

G.R. No. 104960 September 14, 1993

PHILIP G. ROMUALDEZ, petitioner,

vs.REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO ADVINCULA, BOARD OF
ELECTION INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA, LEYTE, and the MUNICIPAL
REGISTRAR COMELEC, TOLOSA, LEYTE, respondents.

An event in this decade, which future generations would likely come to know simply as the "EDSA
People's Power Revolution of 1986," has dramatically changed the course of our nation's history. So,
too, not a few of our countrymen have by it been left alone in their own personal lives. One such case
is that of the petitioner in this special civil action for certiorari.

The petitioner is Philip Romualdez, a natural born citizen of the Philippines, the son of the former
Governor of Leyte, Benjamin "Kokoy" Romualdez, and nephew of the then First Lady Imelda Marcos.
Sometime in the early part of 1980, the petitioner, in consonance with his decision to establish his
legal residence at Barangay Malbog, Tolosa, Leyte, 1 caused the construction of his residential house
therein. He soon thereafter also served as Barangay Captain of the place. In the 1984 Batasan
Election and 1986 "snap" Presidential Election, Romualdez acted as the Campaign Manager of the
Kilusang Bagong Lipunan (KBL) in Leyte where he voted. 2

When the eventful days from the 21st to the 24th of February, 1986, came or were about to come to a
close, some relatives and associates of the deposed President, fearing for their personal safety,
whether founded or not, "fled" the country. Petitioner Romualdez, for one, together with his immediate
family, left the Philippines and sought "asylum" in the United States which the United States (U.S.)
government granted.3 While abroad, he took special studies on the development of Leyte-Samar and
international business finance.4

In the early part of 1987, Romualdez attempted to come back to the Philippines to run for a
congressional seat in Leyte. On 23 March 1987, he finally decided to book a flight back to the
Philippines but the flight was somehow aborted. 5

On 25 September 1991, Romualdez received a letter from Mr. Charles Cobb, District Director of the
U.S. Immigration and Naturalization Service, informing him that he should depart from the U.S. at his
expense on or before 23 August 1992, thus:

. . . Failure to depart on or before the specified date may result in the withdrawal of
voluntary departure and action being taken to effect your deportation. In accordance
with a decision made to your case, you are required to depart from the United States at
your expense on or before 23 August 1992.6

Upon receipt of the letter, Romualdez departed from the U.S. for the Philippines, arriving on
December 1991 apparently without any government document. 7

When Romualdez arrived in the Philippines, he did not delay his return to his residence at Malbog,
Tolosa, Leyte. During the registration of voters conducted by the Commission on Election
("COMELEC") on 01 February 1992 for the Synchronized National and Local Election scheduled for
11 May 1992, petitioner registered himself anew as a voter at Precinct No. 9 of Malbog, Tolosa, Leyte.
The chairman of the Board of Election Inspectors, who had known Romualdez to be a resident of the
place and, in fact, an elected Barangay Chairman of Malbog in 1982, allowed him to be registered.

Romualdez's registration, however, was not to be unquestioned. On 21 February 1992, herein private
respondent Donato Advincula ("Advincula") filed a petition with the Municipal Trial Court of Tolosa,
Leyte, praying that Romualdez be excluded from the list of voters in Precinct No. 9 of Malbog, Tolosa,
Leyte, under BP 881 and RA 7166. 8 Advincula alleged that Romualdez was a resident of
Massachusetts, U.S.A.; that his profession and occupation was in the U.S.A.; that he had just recently
arrived in the Philippines; and that he did not have the required one-year residence in the Philippines
and the six-month residence in Tolosa to qualify him to register as a voter in Barangay Malbog,
Tolosa, Leyte.9

On 25 February 1992, Romualdez filed an answer, contending that he has been a resident of Tolosa,
Leyte, since the early 1980's, and that he has not abandoned his said residence by his physical
absence therefrom during the period from 1986 up to the third week of December 1991. 10
11
After due hearing, the Municipal Court of Tolosa, Leyte rendered a decision on 28 February 1992,
the dispositive portion of which reads:

WHEREFORE PREMISES CONSIDERED, the court finds the respondent to be a

resident of Brgy. Malbog, Tolosa, Leyte and qualified to register as a voter thereat.
Hence, the instant petition for exclusion of Philip G. Romualdez from the list of voter of
Precinct No. 9, Malbog, Tolosa, Leyte is hereby ordered DENIED and petition
DISMISSED.

SO ORDERED.

Upon receipt of the adverse decision, Advincula appealed the case to the respondent court.
12
On 03 April 1992, the respondent court rendered the assailed decision, thus:

WHEREFORE, this Court finds respondent Philip Romualdez disqualified to register as

a voter for the 1992 elections and hereby reverses the decision of the lower court in
toto.

The Municipal Registrar of the Commission on Elections of Tolosa, Leyte, is hereby

ordered to delete and cancel the name of respondent Philip G. Romualdez from the list
 of qualified voters registered February 1, 1992, at Precinct 9, barangay Malbog, Tolosa,
Leyte.

SO ORDERED.

Hence, this recourse.

On 7 May 1992, this Court issued a temporary restraining order directing respondent Regional Trial
Court Judge Pedro Espino to cease and desist from enforcing questioned decision. 13

The petitioner has raised several issues which have been well synthesized by the Solicitor General
into —

(1) Whether or not the MTC and RTC acquired jurisdiction over, respectively, Case No. 01-S. 1992
and Case No. 92-03-42, the petition having been filed by one who did not allege to be himself a
registered voter of the municipality concerned; and

(2) Whether or not the respondent court erred in finding the petitioner to have voluntarily left the
country and abandoned his residence in Malbog, Tolosa, Leyte.

The petition is impressed with merit.

Anent the first issu he e, tpetitioner assails for the first time the jurisdiction of the respondent Court
and the MTC of Tolosa, Leyte, in taking cognizance of the case, despite an absence of any allegation
in the petition filed with the MTC that Advincula was himself a registered voter in Precinct No. 9 of
Barangay Malbog, Tolosa, Leyte conformably with Section 142 of the Omnibus Election Code. 14

When respondent Advincula filed the petition with the MTC for the exclusion of herein petitioner
Romualdez, the latter countered by filing his answer 15 and praying for the denial of the petition,
without raising the issue of jurisdiction. But what can be telling is that when the MTC decision,
denying the petition for disqualification, went on appeal to the RTC, Romualdez, in his own appeal-
memorandum, explicitly prayed that the MTC decision be affirmed. This unassailable incident leads
us to reiterate that "while lack of jurisdiction may be assailed at any stage, a party's active
participation in the proceedings before a court without jurisdiction will estop such party from assailing
such lack of jurisdiction." 16 Undoubtedly, the petitioner is now estopped from questioning the
jurisdiction of the respondent not only by his active participation in the proceedings thereat but, more
importantly, in having sought an affirmative relief himself when the appeal was made to the latter
court whose jurisdiction he, in effect, invoked. Furthermore, the question is not really as much the
jurisdiction of the courts below as merely the locus standi of the complainant in the proceedings, a
matter that, at this stage, should be considered foreclosed.

In any case, we consider primordial the second issue of whether or not Romualdez voluntarily left the
country and abandoned his residence in Malbog, Tolosa, Leyte. Here, this time, we find for the
petitioner.

The Solicitor General himself sustains the view of petitioner Romualdez. Expressing surprise at this
stance given by the Solicitor General, respondent Advincula posits non sequitur argument 17 in his
comment assailing instead the person of Solicitor Edgar Chua. If it would have any value, at all, in
disabusing the minds of those concerned, it may well be to recall what this Court said in Rubio
vs. Sto. Tomas: 18

It is also incumbent upon the Office of the Solicitor General to present to the Court the
position that will legally uphold the best interest of the government, although it may run
counter to a client's position.

In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term
"residence" as used in the election law is synonymous with "domicile", which imports not only an
intention to reside in a fixed place but also personal presence in that place, coupled with conduct
indicative of such intention." 19 "Domicile" denotes a fixed permanent residence to which when absent
for business or pleasure, or for like reasons, one intends to return. 20 That residence, in the case of
the petitioner, was established during the early 1980's to be at Barangay Malbog, Tolosa, Leyte.
Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in
turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the
new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. 21 In
other words, there must basically be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change
of residence must be voluntary; and the residence at the place chosen for the new domicile must be
actual. 22

The political situation brought about by the "People's Power Revolution" must have truly caused great
apprehension to the Romualdezes, as well as a serious concern over the safety and welfare of the
members of their families. Their going into self-exile until conditions favorable to them would have
somehow stabilized is understandable. Certainly, their sudden departure from the country cannot be
described as "voluntary," or as "abandonment of residence" at least in the context that these terms
are used in applying the concept of "domicile by choice."

We have closely examined the records, and we find not that much to convince us that the petitioner
had, in fact, abandoned his residence in the Philippines and established his domicile elsewhere.

It must be emphasized that the right to vote is a most precious political right, as well as a bounden
duty of every citizen, enabling and requiring him to participate in the process of government so as to
ensure that the government can truly be said to derive its power solely from the consent of the
governed. 23 We, therefore, must commend respondent Advincula for spending time and effort even
all the way up to this Court, for as the right of suffrage is not to be abridged, so also must we
safeguard and preserve it but only on behalf of those entitled and bound to exercise it.

WHEREFORE, finding merit on the petition the same is hereby GRANTED DUE COURSE; of the
Decision of the respondent Regional Trial Court dated 03 April 1992 is hereby REVERSED and SET
ASIDE, and the Decision of the Municipal Trial Court dated 28 February 1992 is hereby REINSTATED
and the Temporary Restraining Order issued by the Court in this case is correspondingly made
PERMANENT. No pronouncement as to costs.

SO ORDERED.

G.R. No. L-22761 May 31, 1969

ROSE BUSH MALIG and JOE, THOMAS, and JOHN all surnamed BUSH, represented in this
suit by their attorney-in-fact, ROSE BUSH MALIG, plaintiffs-appellants,
vs.
MARIA SANTOS BUSH, defendant-appellee.

This is an appeal by the plaintiffs from two orders of the Court of First Instance of Manila in Civil Case
No. 51639, the first dismissing the complaint and the second denying the motion to reconsider the
order of dismissal.

On September 19, 1962 the plaintiffs filed the complaint, alleging that they were the acknowledged
natural children and the only heirs in the direct line of the deceased John T. Bush, having been born
of the common-law relationship of their father with Apolonia Perez from 1923 up to August, 1941; that
said John T. Bush and Apolonia Perez, during the conception of the plaintiffs, were not suffering from
any disability to marry each other; that they lived with their alleged father during his lifetime and were
considered and treated by. him as his acknowledge natural children; that said John T. Bush, at the
time of his death, left several real and personal properties; that the defendant, by falsely alleging that
she was the legal wife of the deceased was able to secure her appointment as administratrix of the
estate of the deceased in Testate Proceedings No. 29932 of the Court of First Instance of Manila; that
she submitted to the court for approval a project of partition, purporting to show that the deceased left
a will whereby he bequeathed his estate to three persons, namely: Maria Santos Bush, Anita S. Bush
and Anna Berger; that the defendant then knew that the plaintiffs were the acknowledged natural
children of the deceased; and that they discovered the fraud and misrepresentation perpetrated by
the defendant only in July, 1962. They prayed that the project of partition be annulled; that the
defendant be ordered to submit a complete inventory and accounting of all the properties left by the
deceased and another project of partition adjudicating to the plaintiffs their legal participation in the
said estate and/or in the event that the defendant had disposed of all or part of the estate, that she be
ordered to pay them the market value thereof; and that the defendant be ordered to pay for the value
of the fruits received, damages and attorney's fees.
The defendant moved to dismiss, alleging lack of cause of action, res judicata and statute of
limitations. The plaintiffs opposed and the defendant filed a reply to the opposition. On January 10,
1963 the lower court denied the motion, "it appearing that the grounds upon which said motion is
based are not indubitable." In time, the defendant filed her answer specifically denying all the material
averments of the complaint and invoking laches, res judicata and statute of limitations as affirmative
defenses.

After the issues were joined the case was set for hearing, but on the date thereof the hearing was
postponed upon the defendant's manifestation that she would file a written motion to dismiss. The
motion, when filed, challenged the jurisdiction of the court, stating that since the action was one to
annul a project of partition duly approved by the probate court it was that court alone which could take
cognizance of the case, citing Rule 75, Section 1, of the Rules of Court. On October 31, 1963 the
lower court granted the motion and dismissed the complaint, not on the ground relied upon by the
defendant but because the action had prescribed. The plaintiffs moved to reconsider but were turned
down; hence, this appeal.

The procedural question posed by appellants is: May the lower court dismiss an action on a ground
not alleged in the motion to dismiss?

It must be remembered that the first motion to dismiss, alleging lack of cause of action, res
judicata and statute of limitations, was denied because those grounds did not appear to the court to
be indubitable. The second motion reiterated none of those grounds and raised only the question of
jurisdiction. In dismissing the complaint upon a ground not relied upon, the lower court in effect did
so motu proprio, without offering the plaintiffs a chance to argue the point. In fact the court did not
even state in its order why in its opinion the action had prescribed, and why in effect, without any
evidence or new arguments on the question, it reversed its previous ruling that the ground of
prescription was not indubitable.

In Manila Herald Publishing Co., Inc. vs. Ramos, et al., 88 Phil. 94, it was held:

Section 1 of Rule 8 enumerates the grounds upon which an action may be dismissed, and it
specifically ordains that a motion to this end be filed. In the light of this express requirement we
do not believe that the court had power to dismiss the case without the requisite motion duly
presented. The fact that the parties filed memoranda upon the court's indication or order in
which they discussed the proposition that the action was unnecessary and was improperly
brought outside and independently of the case for libel did not supply the deficiency. Rule 30 of
the Rules of Court provides for the cases in which an action may be dismissed, and the
inclusion of those therein provided excludes any other, under the familiar maxims, inclusio
unius est exclusivo ulterius. The only instance in which, according to said Rules, the court may
dismiss upon the court's own motion an action is, when the 'plaintiff fails to appear at the time
of the trial or to prosecute his action for an unreasonable length of time or to comply with the
Rules or any order of the court.

The foregoing ruling is applicable in this case, because although a motion to dismiss had been
presented defendant the resolution of the court granting the same was based upon a ground not
alleged in said motion. But assuming that the lower court could properly consider the question of
prescription anew, the same still did not appear to be indubitable on the face of the allegations in the
complaint. The defendant cites Article 137 of the Civil Code, which provides that an action for
acknowledgment of natural children may be commenced only during the lifetime of the putative
parents, except in two instances not obtaining in this case, and that the present action was
commenced after the death of the putative father of the plaintiffs. The said provision is not of
indubitable application, since the plaintiffs do not seek acknowledgment but allege as a matter of fact
that they "are the acknowledged natural children and the only heirs in the direct line of the late John T.
Bush." Whether or not this allegation is true will, of course, depend upon the evidence to be
presented at the trial.

The defendant insists in this instance on the jurisdictional ground posed in her motion to dismiss,
citing Rule 75, Section 1, of the Rules of Court formerly in force (now Rule 73, Section 1), which says:

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

the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the Court of First Instance in the
 province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the location of his estate, shall not be contested in
a suit or proceeding, except in an appeal from that court, in the original case, or when the want
of jurisdiction appears on the record.lawphi1.ñet

It will be noted that the foregoing rule fixes jurisdiction for purposes of the special proceeding for the
settlement of the estate of a deceased person, "so far as it depends on the place of residence of the
decedent, or of the location of his estate." The matter really concerns venue, as the caption of Rule
cited indicates, and in order to preclude different courts which may properly assume jurisdiction from
doing so, the Rule specifies that "the court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts."

In the final analysis this action is not necessarily one to annul the partition already made and
approved by the probate court, and to reopen the estate proceeding so that a new partition may be
made, but for recovery by the plaintiffs of the portion of their alleged inheritance of which, through
fraud, they have been deprived.

Without prejudice to whatever defenses may be available to the defendant, this Court believes that
the plaintiffs' cause should not be foreclosed without a hearing on the merits.

WHEREFORE, the orders appealed from are set aside and the case remanded for further
proceedings. Costs against the defendant-appellee in this instance.

[G.R. No. 124715. January 24, 2000]

RUFINA LUY LIM petitioner, vs. COURT OF APPEALS, AUTO TRUCK TBA CORPORATION,
SPEED DISTRIBUTING, INC., ACTIVE DISTRIBUTORS, ALLIANCE MARKETING
CORPORATION, ACTION COMPANY, INC. respondents.

May a corporation, in its universality, be the proper subject of and be included in the inventory of the
estate of a deceased person?

Petitioner disputes before us through the instant petition for review on certiorari, the decision[1] of the
Court of Appeals promulgated on 18 April 1996, in CA-GR SP No. 38617, which nullified and set
aside the orders dated 04 July 1995[2], 12 September 1995[3] and 15 September 1995[4] of the
Regional Trial Court of Quezon City, Branch 93, sitting as a probate court.

Petitioner Rufina Luy Lim is the surviving spouse of the late Pastor Y. Lim whose estate is the subject
of probate proceedings in Special Proceedings Q-95-23334, entitled, "In Re: Intestate Estate of
Pastor Y. Lim Rufina Luy Lim, represented by George Luy, Petitioner".

Private respondents Auto Truck Corporation, Alliance Marketing Corporation, Speed Distributing, Inc.,
Active Distributing, Inc. and Action Company are corporations formed, organized and existing under
Philippine laws and which owned real properties covered under the Torrens system.

On 11 June 1994, Pastor Y. Lim died intestate. Herein petitioner, as surviving spouse and duly
represented by her nephew George Luy, filed on 17 March 1995, a joint petition [5] for the
administration of the estate of Pastor Y. Lim before the Regional Trial Court of Quezon City.

Private respondent corporations, whose properties were included in the inventory of the estate of
Pastor Y. Lim, then filed a motion [6] for the lifting of lis pendens and motion[7] for exclusion of certain
properties from the estate of the decedent.

In an order[8] dated 08 June 1995, the Regional Trial Court of Quezon City, Branch 93, sitting as a
probate court, granted the private respondents twin motions, in this wise:

"Wherefore, the Register of Deeds of Quezon City is hereby ordered to lift, expunge or
delete the annotation of lis pendens on Transfer Certificates of Title Nos. 116716,
116717, 116718, 116719 and 5182 and it is hereby further ordered that the properties
 covered by the same titles as well as those properties by (sic) Transfer Certificate of
Title Nos. 613494, 363123, 236236 and 263236 are excluded from these proceedings.

SO ORDERED."

Subsequently, Rufina Luy Lim filed a verified amended petition[9] which contained the following
averments:

"3. The late Pastor Y. Lim personally owned during his lifetime the following business
entities, to wit:

Business Entity Address:

XXXX

Alliance Marketing ,Inc. Block 3, Lot 6, Dacca

BF Homes,

Paraaque,

Metro Manila.

XXXX

Speed Distributing Inc. 910 Barrio Niog,

Aguinaldo Highway,

Bacoor, Cavite.

XXXX

Auto Truck TBA Corp. 2251 Roosevelt Avenue,

Quezon City.

XXXX

Active Distributors, Inc. Block 3, Lot 6, Dacca BF

Homes, Paraaque,

Metro Manila.

XXXX

Action Company 100 20th Avenue

Murphy, Quezon City

or

92-D Mc-Arthur Highway

Valenzuela Bulacan.

"3.1 Although the above business entities dealt and engaged in business with the public
as corporations, all their capital, assets and equity were however, personally owned by
the late Pastor Y Lim. Hence the alleged stockholders and officers appearing in the
respective articles of incorporation of the above business entities were mere dummies
 of Pastor Y. Lim, and they were listed therein only for purposes of registration with the
Securities and Exchange Commission.

"4. Pastor Lim, likewise, had Time, Savings and Current Deposits with the following
banks: (a) Metrobank, Grace Park, Caloocan City and Quezon Avenue, Quezon City
Branches and (b) First Intestate Bank (formerly Producers Bank), Rizal Commercial
Banking Corporation and in other banks whose identities are yet to be determined.

"5. That the following real properties, although registered in the name of the above
entities, were actually acquired by Pastor Y. Lim during his marriage with petitioner, to
wit:

Corporation Title Location

XXXX

k. Auto Truck TCT No. 617726 Sto. Domingo

TBA Corporation Cainta, Rizal

q. Alliance Marketing TCT No. 27896 Prance,

Metro Manila

Copies of the above-mentioned Transfer Certificate of Title and/or Tax Declarations are
hereto attached as Annexes "C" to "W".

XXXX

"7. The aforementioned properties and/or real interests left by the late Pastor Y. Lim, are
all conjugal in nature, having been acquired by him during the existence of his marriage
with petitioner.

"8. There are other real and personal properties owned by Pastor Y. Lim which petitioner
could not as yet identify. Petitioner, however will submit to this Honorable Court the
identities thereof and the necessary documents covering the same as soon as
possible."

On 04 July 1995, the Regional Trial Court acting on petitioners motion issued an order [10], thus:

"Wherefore, the order dated 08 June 1995 is hereby set aside and the Registry of
Deeds of Quezon City is hereby directed to reinstate the annotation of lis pendens in
case said annotation had already been deleted and/or cancelled said TCT Nos. 116716,
116717, 116718, 116719 and 51282.

Further more (sic), said properties covered by TCT Nos. 613494, 365123, 236256 and
236237 by virtue of the petitioner are included in the instant petition.

SO ORDERED."

On 04 September 1995, the probate court appointed Rufina Lim as special administrator [11] and
Miguel Lim and Lawyer Donald Lee, as co-special administrators of the estate of Pastor Y. Lim, after
which letters of administration were accordingly issued.

In an order[12] dated 12 September 1995, the probate court denied anew private respondents motion
for exclusion, in this wise:

"The issue precisely raised by the petitioner in her petition is whether the corporations
are the mere alter egos or instrumentalities of Pastor Lim, Otherwise (sic) stated, the
issue involves the piercing of the corporate veil, a matter that is clearly within the
jurisdiction of this Honorable Court and not the Securities and Exchange Commission.
Thus, in the case of Cease vs. Court of Appeals, 93 SCRA 483, the crucial issue
 decided by the regular court was whether the corporation involved therein was the mere
extension of the decedent. After finding in the affirmative, the Court ruled that the assets
of the corporation are also assets of the estate.

A reading of P.D. 902, the law relied upon by oppositors, shows that the SECs exclusive
(sic) applies only to intra-corporate controversy. It is simply a suit to settle the intestate
estate of a deceased person who, during his lifetime, acquired several properties and
put up corporations as his instrumentalities.

SO ORDERED."

On 15 September 1995, the probate court acting on an ex parte motion filed by petitioner, issued an
order[13] the dispositive portion of which reads:

"Wherefore, the parties and the following banks concerned herein under enumerated
are hereby ordered to comply strictly with this order and to produce and submit to the
special administrators , through this Honorable Court within (5) five days from receipt of
this order their respective records of the savings/current accounts/time deposits and
other deposits in the names of Pastor Lim and/or corporations above-mentioned,
showing all the transactions made or done concerning savings /current accounts from
January 1994 up to their receipt of this court order.

XXX XXX XXX

SO ORDERED."

Private respondent filed a special civil action for certiorari[14], with an urgent prayer for a restraining
order or writ of preliminary injunction, before the Court of Appeals questioning the orders of the
Regional Trial Court, sitting as a probate court.

On 18 April 1996, the Court of Appeals, finding in favor of herein private respondents, rendered the
assailed decision[15], the decretal portion of which declares:

"Wherefore, premises considered, the instant special civil action for certiorari is hereby
granted, The impugned orders issued by respondent court on July 4,1995 and
September 12, 1995 are hereby nullified and set aside. The impugned order issued by
respondent on September 15, 1995 is nullified insofar as petitioner corporations" bank
accounts and records are concerned.

SO ORDERED."

Through the expediency of Rule 45 of the Rules of Court, herein petitioner Rufina Luy Lim now
comes before us with a lone assignment of error [16]:

"The respondent Court of Appeals erred in reversing the orders of the lower court which
merely allowed the preliminary or provisional inclusion of the private respondents as
part of the estate of the late deceased (sic) Pastor Y. Lim with the respondent Court of
Appeals arrogating unto itself the power to repeal, to disobey or to ignore the clear and
explicit provisions of Rules 81,83,84 and 87 of the Rules of Court and thereby
preventing the petitioner, from performing her duty as special administrator of the estate
as expressly provided in the said Rules."

Petitioners contentions tread on perilous grounds.

In the instant petition for review, petitioner prays that we affirm the orders issued by the probate court
which were subsequently set aside by the Court of Appeals.

Yet, before we delve into the merits of the case, a review of the rules on jurisdiction over probate
proceedings is indeed in order.

The provisions of Republic Act 7691 [17], which introduced amendments to Batas Pambansa Blg. 129,
are pertinent:
 "Section 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary
Reorganization Act of 1980", is hereby amended to read as follows:

Section 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive
jurisdiction:

xxx xxx xxx

(4) In all matters of probate, both testate and intestate, where the gross value of the
estate exceeds One Hundred Thousand Pesos (P100,000) or, in probate matters in
Metro Manila, where such gross value exceeds Two Hundred Thousand Pesos
(P200,000);

xxx xxx xxx

Section 3. Section 33 of the same law is hereby amended to read as follows:

Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts in Civil Cases.-Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts shall exercise:

1. Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate,
including the grant of provisional remedies in proper cases, where the value of the personal property,
estate or amount of the demand does not exceed One Hundred Thousand Pesos(P100,000) or, in
Metro Manila where such personal property, estate or amount of the demand does not exceed Two
Hundred Thousand Pesos (P200,000), exclusive of interest, damages of whatever kind, attorneys
fees, litigation expenses and costs, the amount of which must be specifically alleged, Provided, that
interest, damages of whatever kind, attorneys, litigation expenses and costs shall be included in the
determination of the filing fees, Provided further, that where there are several claims or causes of
actions between the same or different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action, irrespective of whether the
causes of action arose out of the same or different transactions;

xxx xxx xxx"

Simply put, the determination of which court exercises jurisdiction over matters of probate depends
upon the gross value of the estate of the decedent.

As to the power and authority of the probate court, petitioner relies heavily on the principle that a
probate court may pass upon title to certain properties, albeit provisionally, for the purpose of
determining whether a certain property should or should not be included in the inventory.

In a litany of cases, We defined the parameters by which the court may extend its probing arms in the
determination of the question of title in probate proceedings.

This Court, in PASTOR, JR. vs. COURT OF APPEALS,[18] held:

"X X X As a rule, the question of ownership is an extraneous matter which the probate
court cannot resolve with finality. Thus, for the purpose of determining whether a certain
property should or should not be included in the inventory of estate properties, the
Probate Court may pass upon the title thereto, but such determination is provisional, not
conclusive, and is subject to the final decision in a separate action to resolve title."

We reiterated the rule in PEREIRA vs. COURT OF APPEALS[19]:

"X X X The function of resolving whether or not a certain property should be included in
the inventory or list of properties to be administered by the administrator is one clearly
within the competence of the probate court. However, the courts determination is only
provisional in character, not conclusive, and is subject to the final decision in a separate
action which may be instituted by the parties."
Further, in MORALES vs. CFI OF CAVITE [20] citing CUIZON vs. RAMOLETE[21], We made an
exposition on the probate courts limited jurisdiction:

"It is a well-settled rule that a probate court or one in charge of proceedings whether
testate or intestate cannot adjudicate or determine title to properties claimed to be a part
of the estate and which are equally claimed to belong to outside parties. All that the said
court could do as regards said properties is to determine whether they should or should
not be included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the parties, the
administrator and the opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court cannot do so."

Again, in VALERA vs. INSERTO[22], We had occasion to elucidate, through Mr. Justice Andres
Narvasa[23]:

"Settled is the rule that a Court of First Instance (now Regional Trial Court), acting as a
probate court, exercises but limited jurisdiction, and thus has no power to take
cognizance of and determine the issue of title to property claimed by a third person
adversely to the decedent, unless the claimant and all other parties having legal interest
in the property consent, expressly or impliedly, to the submission of the question to the
probate court for adjudgment, or the interests of third persons are not thereby
prejudiced, the reason for the exception being that the question of whether or not a
particular matter should be resolved by the court in the exercise of its general
jurisdiction or of its limited jurisdiction as a special court (e.g. probate, land registration,
etc.), is in reality not a jurisdictional but in essence of procedural one, involving a mode
of practice which may be waived. x x x

x x x. These considerations assume greater cogency where, as here, the Torrens

title is not in the decedents name but in others, a situation on which this Court
has already had occasion to rule x x x."(emphasis Ours)

Petitioner, in the present case, argues that the parcels of land covered under the Torrens system and
registered in the name of private respondent corporations should be included in the inventory of the
estate of the decedent Pastor Y. Lim, alleging that after all the determination by the probate court of
whether these properties should be included or not is merely provisional in nature, thus, not
conclusive and subject to a final determination in a separate action brought for the purpose of
adjudging once and for all the issue of title.

Yet, under the peculiar circumstances, where the parcels of land are registered in the name of private
respondent corporations, the jurisprudence pronounced in BOLISAY vs., ALCID[24] is of great
essence and finds applicability, thus:

"It does not matter that respondent-administratrix has evidence purporting to support
her claim of ownership, for, on the other hand, petitioners have a Torrens title in their
favor, which under the law is endowed with incontestability until after it has been set
aside in the manner indicated in the law itself, which, of course, does not include,
bringing up the matter as a mere incident in special proceedings for the settlement of
the estate of deceased persons. x x x"

"x x x. In regard to such incident of inclusion or exclusion, We hold that if a property

covered by Torrens title is involved, the presumptive conclusiveness of such title should
be given due weight, and in the absence of strong compelling evidence to the contrary,
the holder thereof should be considered as the owner of the property in controversy until
his title is nullified or modified in an appropriate ordinary action, particularly, when as in
the case at bar, possession of the property itself is in the persons named in the title. x x
x"

A perusal of the records would reveal that no strong compelling evidence was ever presented by
petitioner to bolster her bare assertions as to the title of the deceased Pastor Y. Lim over the
properties. Even so, P.D. 1529, otherwise known as, " The Property Registration Decree", proscribes
collateral attack on Torrens Title, hence:
 "xxx xxx xxx

Section 48. Certificate not subject to collateral attack.

- A certificate of title shall not be subject to collateral attack. It cannot be altered,

modified or cancelled except in a direct proceeding in accordance with law."

In CUIZON vs. RAMOLETE, where similarly as in the case at bar, the property subject of the
controversy was duly registered under the Torrens system, We categorically stated:

"x x x Having been apprised of the fact that the property in question was in the
possession of third parties and more important, covered by a transfer certificate of title
issued in the name of such third parties, the respondent court should have denied the
motion of the respondent administrator and excluded the property in question from the
inventory of the property of the estate. It had no authority to deprive such third persons
of their possession and ownership of the property. x x x"

Inasmuch as the real properties included in the inventory of the estate of the late Pastor Y. Lim are in
the possession of and are registered in the name of private respondent corporations, which under the
law possess a personality separate and distinct from their stockholders, and in the absence of any
cogency to shred the veil of corporate fiction, the presumption of conclusiveness of said titles in favor
of private respondents should stand undisturbed.

Accordingly, the probate court was remiss in denying private respondents motion for exclusion. While
it may be true that the Regional Trial Court, acting in a restricted capacity and exercising limited
jurisdiction as a probate court, is competent to issue orders involving inclusion or exclusion of certain
properties in the inventory of the estate of the decedent, and to adjudge, albeit, provisionally the
question of title over properties, it is no less true that such authority conferred upon by law and
reinforced by jurisprudence, should be exercised judiciously, with due regard and caution to the
peculiar circumstances of each individual case.

Notwithstanding that the real properties were duly registered under the Torrens system in the name of
private respondents, and as such were to be afforded the presumptive conclusiveness of title, the
probate court obviously opted to shut its eyes to this gleamy fact and still proceeded to issue the
impugned orders.

By its denial of the motion for exclusion, the probate court in effect acted in utter disregard of the
presumption of conclusiveness of title in favor of private respondents. Certainly, the probate court
through such brazen act transgressed the clear provisions of law and infringed settled jurisprudence
on this matter.

Moreover, petitioner urges that not only the properties of private respondent corporations are properly
part of the decedents estate but also the private respondent corporations themselves. To rivet such
flimsy contention, petitioner cited that the late Pastor Y. Lim during his lifetime, organized and wholly-
owned the five corporations, which are the private respondents in the instant case. [25] Petitioner thus
attached as Annexes "F" [26] and "G"[27] of the petition for review affidavits executed by Teresa Lim and
Lani Wenceslao which among others, contained averments that the incorporators of Uniwide
Distributing, Inc. included on the list had no actual participation in the organization and incorporation
of the said corporation. The affiants added that the persons whose names appeared on the articles of
incorporation of Uniwide Distributing, Inc., as incorporators thereof, are mere dummies since they
have not actually contributed any amount to the capital stock of the corporation and have been
merely asked by the late Pastor Y. Lim to affix their respective signatures thereon.

It is settled that a corporation is clothed with personality separate and distinct from that of the persons
composing it. It may not generally be held liable for that of the persons composing it. It may not be
held liable for the personal indebtedness of its stockholders or those of the entities connected with it.
[28]

Rudimentary is the rule that a corporation is invested by law with a personality distinct and separate
from its stockholders or members. In the same vein, a corporation by legal fiction and convenience is
an entity shielded by a protective mantle and imbued by law with a character alien to the persons
comprising it.
Nonetheless, the shield is not at all times invincible. Thus, in FIRST PHILIPPINE INTERNATIONAL
BANK vs. COURT OF APPEALS[29], We enunciated:

"x x x When the fiction is urged as a means of perpetrating a fraud or an illegal act or as
a vehicle for the evasion of an existing obligation, the circumvention of statutes, the
achievement or perfection of a monopoly or generally the perpetration of knavery or
crime, the veil with which the law covers and isolates the corporation from the members
or stockholders who compose it will be lifted to allow for its consideration merely as an
aggregation of individuals. x x x"

Piercing the veil of corporate entity requires the court to see through the protective shroud which
exempts its stockholders from liabilities that ordinarily, they could be subject to, or distinguishes one
corporation from a seemingly separate one, were it not for the existing corporate fiction. [30]

The corporate mask may be lifted and the corporate veil may be pierced when a corporation is just
but the alter ego of a person or of another corporation. Where badges of fraud exist, where public
convenience is defeated; where a wrong is sought to be justified thereby, the corporate fiction or the
notion of legal entity should come to naught. [31]

Further, the test in determining the applicability of the doctrine of piercing the veil of corporate fiction
is as follows: 1) Control, not mere majority or complete stock control, but complete domination, not
only of finances but of policy and business practice in respect to the transaction attacked so that the
corporate entity as to this transaction had at the time no separate mind, will or existence of its own;
(2) Such control must have been used by the defendant to commit fraud or wrong, to perpetuate the
violation of a statutory or other positive legal duty, or dishonest and unjust act in contravention of
plaintiffs legal right; and (3) The aforesaid control and breach of duty must proximately cause the
injury or unjust loss complained of. The absence of any of these elements prevent "piercing the
corporate veil".[32]

Mere ownership by a single stockholder or by another corporation of all or nearly all of the capital
stock of a corporation is not of itself a sufficient reason for disregarding the fiction of separate
corporate personalities.[33]

Moreover, to disregard the separate juridical personality of a corporation, the wrong-doing must be
clearly and convincingly established. It cannot be presumed. [34]

Granting arguendo that the Regional Trial Court in this case was not merely acting in a limited
capacity as a probate court, petitioner nonetheless failed to adduce competent evidence that would
have justified the court to impale the veil of corporate fiction. Truly, the reliance reposed by petitioner
on the affidavits executed by Teresa Lim and Lani Wenceslao is unavailing considering that the
aforementioned documents possess no weighty probative value pursuant to the hearsay rule.
Besides it is imperative for us to stress that such affidavits are inadmissible in evidence inasmuch as
the affiants were not at all presented during the course of the proceedings in the lower court. To put it
differently, for this Court to uphold the admissibility of said documents would be to relegate from Our
duty to apply such basic rule of evidence in a manner consistent with the law and jurisprudence.

Our pronouncement in PEOPLE BANK AND TRUST COMPANY vs. LEONIDAS[35] finds pertinence:

"Affidavits are classified as hearsay evidence since they are not generally prepared by
the affiant but by another who uses his own language in writing the affiants statements,
which may thus be either omitted or misunderstood by the one writing them. Moreover,
the adverse party is deprived of the opportunity to cross-examine the affiants. For this
reason, affidavits are generally rejected for being hearsay, unless the affiant themselves
are placed on the witness stand to testify thereon."

As to the order[36] of the lower court, dated 15 September 1995, the Court of Appeals correctly
observed that the Regional Trial Court, Branch 93 acted without jurisdiction in issuing said order; The
probate court had no authority to demand the production of bank accounts in the name of the private
respondent corporations.

WHEREFORE, in view of the foregoing disquisitions, the instant petition is hereby DISMISSED for
lack of merit and the decision of the Court of Appeals which nullified and set aside the orders issued
by the Regional Trial Court, Branch 93, acting as a probate court, dated 04 July 1995 and 12
September 1995 is AFFIRMED.

SO ORDERED.

G.R. No. L-40502 November 29, 1976

VIRGINIA GARCIA FULE, and HONORABLE SEVERO A. MALVAR, Presiding Judge, Court of
First Instance of Laguna, Branch Vl, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, * PRECIOSA B. GARCIA and AGUSTINA B.
GARCIA, respondents.

G.R. No. L-42670 November 29, 1976

VIRGINIA GARCIA FULE, petitioner,

vs.
HONORABLE ERNANI C. PAÑO, Presiding Judge of Court of First Instance of Rizal, Quezon
City, Branch XVIII, and PRECIOSA B. GARCIA, respondents.

Francisco Carreon for petitioners.

Augusto G. Gatmaytan for private respondents.

These two interrelated cases bring to Us the question of what the word "resides" in Section 1,
Rule 73 of the Revised Rules Of Court, referring to the situs of the settlement of the estate of
deceased persons, means. Additionally, the rule in the appointment of a special administrator
is sought to be reviewed.

On May 2, 1973, Virginia G. Fule filed with the Court of First Instance of Laguna, at Calamba,
presided over by Judge Severo A. Malvar, a petition for letters of administration, docketed as
Sp. Proc. No. 27-C, alleging, inter alia, "that on April 26, 1973, Amado G. Garcia, a property
owner of Calamba, Laguna, died intestate in the City of Manila, leaving real estate and
personal properties in Calamba, Laguna, and in other places, within the jurisdiction of the
Honorable Court." At the same time, she moved
ex parte for her appointment as special administratrix over the estate. On even date, May 2,
1973, Judge Malvar granted the motion.

A motion for reconsideration was filed by Preciosa B. Garcia on May 8, 1973, contending that
the order appointing Virginia G. Fule as special administratrix was issued without jurisdiction,
since no notice of the petition for letters of administration has been served upon all persons
interested in the estate; there has been no delay or cause for delay in the proceedings for the
appointment of a regular administrator as the surviving spouse of Amado G. Garcia, she
should be preferred in the appointment of a special administratrix; and, Virginia G. Fule is a
debtor of the estate of Amado G. Garcia. Preciosa B. Garcia, therefore, prayed that she be
appointed special administratrix of the estate, in lieu of Virginia G. Fule, and as regular
administratrix after due hearing.

While this reconsideration motion was pending resolution before the Court, Preciosa B.
Garcia filed on May 29, 1973 a motion to remove Virginia G. Fule as special administratrix
alleging, besides the jurisdictional ground raised in the motion for reconsideration of May 8,
1973 that her appointment was obtained through erroneous, misleading and/or incomplete
misrepresentations; that Virginia G. Fule has adverse interest against the estate; and that she
has shown herself unsuitable as administratrix and as officer of the court.

In the meantime, the notice of hearing of the petition for letters of administration filed by
Virginia G. Fule with the Court of First Instance of Calamba, Laguna, was published on May 17,
24, and 31, 1973, in the Bayanihan, a weekly publication of general circulation in Southern
Luzon.
On June 6, 1973, Preciosa B. Garcia received a "Supplemental Petition for the Appointment of
Regular Administrator ' filed by Virginia G. Fule. This supplemental petition modified the
original petition in four aspects: (1) the allegation that during the lifetime of the deceased
Amado G. Garcia, he was elected as Constitutional Delegate for the First District of Laguna
and his last place of residence was at Calamba, Laguna; (2) the deletion of the names of
Preciosa B. Garcia and Agustina Garcia as legal heirs of Amado G. Garcia; (3) the allegation
that Carolina Carpio, who was simply listed as heir in the original petition, is the surviving
spouse of Amado G. Garcia and that she has expressly renounced her preferential right to the
administration of the estate in favor of Virginia G. Fule; and (4) that Virginia G. Fule be
appointed as the regular administratrix. The admission of this supplemental petition was
opposed by Preciosa B. Garcia for the reason, among others, that it attempts to confer
jurisdiction on the Court of First Instance of Laguna, of which the court was not possessed at
the beginning because the original petition was deficient.

On July 19, 1973, Preciosa B. Garcia filed an opposition to the original and supplemental
petitions for letters of administration, raising the issues of jurisdiction, venue, lack of interest
of Virginia G. Fule in the estate of Amado G. Garcia, and disqualification of Virginia G Fule as
special administratrix.

An omnibus motion was filed by Virginia G. Fule on August 20, 1973, praying for authority to
take possession of properties of the decedent allegedly in the hands of third persons as well
as to secure cash advances from the Calamba Sugar Planters Cooperative Marketing
Association, Inc. Preciosa B. Garcia opposed the motion, calling attention to the limitation
made by Judge Malvar on the power of the special administratrix, viz., "to making an inventory
of the personal and real properties making up the state of the deceased."

However, by July 2, 1973, Judge Malvar and already issued an order, received by Preciosa B.
Garcia only on July 31, 1973, denying the motion of Preciosa B. Garcia to reconsider the order
of May 2, 1973, appointing Virginia G. Fule as special administratrix, and admitting the
supplementation petition of May 18,1973.

On August 31, 1973, Preciosa B. Garcia moved to dismiss the petition, because (1) jurisdiction
over the petition or over the parties in interest has not been acquired by the court; (2) venue
was improperly laid; and (3) Virginia G. Fule is not a party in interest as she is not entitled to
inherit from the deceased Amado G. Garcia.

On September 28, 1973, Preciosa B. Garcia filed a supplemental motion to substitute Virginia
G. Fule as special administratrix, reasoning that the said Virginia G. Fule admitted before
before the court that she is a full-blooded sister of Pablo G. Alcalde, an illegitimate son of
Andrea Alcalde, with whom the deceased Amado G. Garcia has no relation.

Three motions were filed by Preciosa B. Garcia on November 14, 1973, one, to enjoin the
special administratrix from taking possession of properties in the hands of third persons
which have not been determined as belonging to Amado G. Garcia; another, to remove the
special administratrix for acting outside her authority and against the interest of the estate;
and still another, filed in behalf of the minor Agustina B. Garcia, to dismiss the petition for
want of cause of action, jurisdiction, and improper venue.

On November 28, 1973, Judge Malvar resolved the pending omnibus motion of Virgina G. Fule
and the motion to dismiss filed by Preciosa B. Garcia. Resolving the motion to dismiss, Judge
Malvar ruled that the powers of the special administratrix are those provided for in Section 2,
Rule 80 of the Rules of Court, 1subject only to the previous qualification made by the court
that the administration of the properties subject of the marketing agreement with the
Canlubang Sugar Planters Cooperative Marketing Association should remain with the latter;
and that the special administratrix had already been authorized in a previous order of August
20, 1973 to take custody and possession of all papers and certificates of title and personal
effects of the decedent with the Canlubang Sugar Planters Cooperative Marketing Association,
Inc. Ramon Mercado, of the Canlubang Sugar Planters Cooperative Marketing Association,
Inc., was ordered to deliver to Preciosa B. Garcia all certificates of title in her name without
any qualifying words like "married to Amado Garcia" does not appear. Regarding the motion
to dismiss, Judge Malvar ruled that the issue of jurisdiction had already been resolved in the
order of July 2, 1973, denying Preciosa B. Garcia's motion to reconsider the appointment of
Virginia G. Fule and admitting the supplemental petition, the failure of Virginia G. Fule to
allege in her original petition for letters of administration in the place of residence of the
decedent at the time of his death was cured. Judge Malvar further held that Preciosa B. Garcia
had submitted to the jurisdiction of the court and had waived her objections thereto by
praying to be appointed as special and regular administratrix of the estate.

An omnibus motion was filed by Preciosa B. Garcia on December 27, 1973 to clarify or
reconsider the foregoing order of Judge Malvar, in view of previous court order limiting the
authority of the special administratrix to the making of an inventory. Preciosa B. Garcia also
asked for the resolution of her motion to dismiss the petitions for lack of cause of action, and
also that filed in behalf of Agustina B. Garcia. Resolution of her motions to substitute and
remove the special administratrix was likewise prayed for.

On December 19, 1973, Judge Malvar issued two separate orders, the first, denying Preciosa
B. Garcia's motions to substitute and remove the special administratrix, and the second,
holding that the power allowed the special administratrix enables her to conduct and submit
an inventory of the assets of the estate.

On January 7, 1974, Preciosa B. Garcia moved for reconsideration of the foregoing orders of
November 28, 1973 and December 19, 1973, insofar as they sustained or failed to rule on the
issues raised by her: (a) legal standing (cause of action) of Virginia G. Fule; (b) venue; (c)
jurisdiction; (d) appointment, qualification and removal of special administratrix; and (e)
delivery to the special administratrix of checks and papers and effects in the office of the
Calamba Sugar Planters Cooperative Marketing Association, Inc.

On March 27, 1973, Judge Malvar issued the first questioned order denying Preciosa B.
Garcia's motion for reconsideration of January 7, 1974. On July 19, 1974, Judge Malvar issued
the other three questioned orders: one, directing Ramon Mercado, of the Calamba Sugar
Planters Cooperative Marketing Association, Inc., to furnish Virginia G. Fule, as special
administratrix, copy of the statement of accounts and final liquidation of sugar pool, as well as
to deliver to her the corresponding amount due the estate; another, directing Preciosa B.
Garcia to deliver to Virginia G. Fule two motor vehicles presumably belonging to the estate;
and another, directing Ramon Mercado to deliver to the court all certificates of title in his
possession in the name of Preciosa B. Garcia, whether qualified with the word "single" or
"married to Amado Garcia."

During the hearing of the various incidents of this case (Sp. Proc. 27-C) before Judge
Malvar, 2 Virginia G. Fule presented the death certificate of Amado G. Garcia showing that his
residence at the time of his death was Quezon City. On her part, Preciosa B. Garcia presented
the residence certificate of the decedent for 1973 showing that three months before his death
his residence was in Quezon City. Virginia G. Fule also testified that Amado G. Garcia was
residing in Calamba, Laguna at the time of his death, and that he was a delegate to the 1971
Constitutional Convention for the first district of Laguna.

On July 26, 1974, Preciosa B. Garcia and Agustina B. Garcia commenced a special action for
certiorari and/or prohibition and preliminary injunction before the Court of Appeals, docketed
as CA-G.R. No. 03221-SP. primarily to annul the proceedings before Judge Malvar in Sp. Proc.
No. 27-C of the Court of First Instance of Laguna, or, in the alternative, to vacate the
questioned four orders of that court, viz., one dated March 27, 1974, denying their motion for
reconsideration of the order denying their motion to dismiss the criminal and supplemental
petitions on the issue, among others, of jurisdiction, and the three others, all dated July 19,
1974, directing the delivery of certain properties to the special administratrix, Virginia G. Fule,
and to the court.

On January 30, 1975, the Court of Appeals rendered judgment annulling the proceedings
before Judge Severo A. Malvar in Sp. Proc. 27-C of the Court of First Instance of Calamba,
Laguna, for lack of jurisdiction.

Denied of their motion for reconsideration on March 31, 1975, Virginia G. Fule forthwith
elevated the matter to Us on appeal by certiorari. The case was docketed as G.R. No. L-40502.
However, even before Virginia G. Fule could receive the decision of the Court of Appeals,
Preciosa B. Garcia had already filed on February 1, 1975 a petition for letters of administration
before the Court of First Instance of Rizal, Quezon City Branch, docketed as Sp. Proc. No. Q-
19738, over the same intestate estate of Amado G. Garcia. On February 10, 1975, Preciosa B.
Garcia urgently moved for her appointment as special administratrix of the estate. Judge
Vicente G. Ericta granted the motion and appointed Preciosa B. Garcia as special
administratrix upon a bond of P30,000.00. Preciosa B. Garcia qualified and assumed the office.

For the first time, on February 14, 1975, Preciosa B. Garcia informed Judge Ericta of the
pendency of Sp. Proc. No. 27-C before Judge Malvar of the Court of First Instance of Laguna,
and the annulment of the proceedings therein by the Court of Appeals on January 30, 1975.
She manifested, however, her willingness to withdraw Sp. Proc. Q-19738 should the decision
of the Court of Appeals annulling the proceedings before the Court of First Instance of Laguna
in Sp. Proc. No. 27-C have not yet become final, it being the subject of a motion for
reconsideration.

On March 10, 1973, Judge Ericta ordered the suspension of the proceedings before his court
until Preciosa B. Garcia inform the court of the final outcome of the case pending before the
Court of Appeals. This notwithstanding, Preciosa B. Garcia filed on December 11, 1975, an
"Urgent Petition for Authority to Pay Estate Obligations."

On December 13, 1975, Virginia G. Fule filed a "Special Appearance to Question Venue and
Jurisdiction" reiterating the grounds stated in the previous special appearance of March 3,
1975, and calling attention that the decision of the Court of Appeals and its resolution denying
the motion for reconsideration had been appealed to this Court; that the parties had already
filed their respective briefs; and that the case is still pending before the Court.

On December 17, 1975, Judge Ernani Cruz Pano, who succeeded Judge Ericta, issued an
order granting Preciosa B. Garcia's "Urgent Petition for Authority to Pay Estate Obligations" in
that the payments were for the benefit of the estate and that there hangs a cloud of doubt on
the validity of the proceedings in Sp. Proc. No. 27-C of the Court of First Instance of Laguna.

A compliance of this Order was filed by Preciosa B. Garcia on January 12,1976.

On February 4,1974, VIRGINIA G. FULE instituted G.R. No. L-42670, a petition for certiorari with
temporary restraining order, to annul the proceedings in Sp. Proc. No. Q-19738 and to restrain
Judge Ernani Cruz Paño from further acting in the case. A restraining order was issued on
February 9, 1976.

We dismiss the appeal in G.R. No. L-40502 and the petition for certiorari in G.R. No. L-
42670 for the reasons and considerations hereinafter stated.

1. Section 1, Rule 73 of the Revised Rules of Court provides: "If the decedent is an inhabitant
of the Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the time of his death, and if he is an inhabitant
of a foreign country, the Court of First Instance of any province in which he had estate. The
court first taking cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as
it depends on the place of residence of the decedent, or of the location of his estate, shall not
be contested in a suit or proceeding, except in an appeal from that court, in the original case,
or when the want of jurisdiction appears on the record." With particular regard to letters of
administration, Section 2, Rule 79 of the Revised Rules of Court demands that the petition
therefor should affirmatively show the existence of jurisdiction to make the appointment
sought, and should allege all the necessary facts, such as death, the name and last
residence of the decedent, the existence, and situs if need be, of assets, intestacy, where this
is relied upon, and the right of the person who seeks administration, as next of kin, creditor, or
otherwise, to be appointed. The fact of death of the intestate and his last residence within the
country are foundation facts upon which all subsequent proceedings in the administration of
the estate rest, and that if the intestate was not an inhabitant of the state at the time of his
death, and left no assets in the state, no jurisdiction is conferred on the court to grant letters
of administration. 3
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it
depends on the place of residence of the decedent, or of the location of the estate," is in reality a
matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes. 4 It could not have been intended to define the jurisdiction over the
subject matter, because such legal provision is contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing; jurisdiction over the subject matter is another. The power
or authority of the court over the subject matter "existed and was fixed before procedure in a given
cause began." That power or authority is not altered or changed by procedure, which simply directs
the manner in which the power or authority shall be fully and justly exercised. There are cases though
that if the power is not exercised conformably with the provisions of the procedural law, purely, the
court attempting to exercise it loses the power to exercise it legally. However, this does not amount to
a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose
jurisdiction over the person or that the judgment may thereby be rendered defective for lack of
something essential to sustain it. The appearance of this provision in the procedural law at once
raises a strong presumption that it has nothing to do with the jurisdiction of the court over the subject
matter. In plain words, it is just a matter of method, of convenience to the parties. 5

The Judiciary Act of 1948, as amended, confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of the deceased. Because of the existence of
numerous Courts of First Instance in the country, the Rules of Court, however, purposedly fixes the
venue or the place where each case shall be brought. A fortiori, the place of residence of the
deceased in settlement of estates, probate of will, and issuance of letters of administration does not
constitute an element of jurisdiction over the subject matter. It is merely constitutive of venue. And it is
upon this reason that the Revised Rules of Court properly considers the province where the estate of
a deceased person shall be settled as "venue." 6

2. But, the far-ranging question is this: What does the term "resides" mean? Does it refer to the actual
residence or domicile of the decedent at the time of his death? We lay down the doctrinal rule that the
term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or
domicile." This term "resides," like, the terms "residing" and "residence," is elastic and should be
interpreted in the light of the object or purpose of the statute or rule in which it is employed. 7 In the
application of venue statutes and rules — Section 1, Rule 73 of the Revised Rules of Court is of such
nature — residence rather than domicile is the significant factor. Even where the statute uses the
word "domicile" still it is construed as meaning residence and not domicile in the technical sense.
Some cases make a distinction between the terms "residence" and "domicile" but as generally used
in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term
"inhabitant." 8 In other words, "resides" should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a person, actual residence or place of abode.
It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means
merely residence, that is, personal residence, not legal residence or domicile. 9Residence simply
requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one's domicile. 10 No particular length of time of residence
is required though; however, the residence must be more than temporary. 11

3. Divergent claims are maintained by Virginia G. Fule and Preciosa B. Garcia on the residence of the
deceased Amado G. Garcia at the time of his death. In her original petition for letters of administration
before the Court of First Instance of Calamba, Laguna, Virginia G. Fule measely stated "(t)hat on April
26,1973, Amado G. Garcia, a property owner of Calamba, Laguna, died intestate in the City of
Manila, leaving real estate and personal properties in Calamba, Laguna, and in other places within
the jurisdiction of this Honorable Court." Preciosa B. Garcia assailed the petition for failure to satisfy
the jurisdictional requirement and improper laying of venue. For her, the quoted statement avers no
domicile or residence of the deceased Amado G. Garcia. To say that as "property owner of Calamba,
Laguna," he also resides in Calamba, Laguna, is, according to her, non sequitur. On the contrary,
Preciosa B. Garcia claims that, as appearing in his death certificate presented by Virginia G. Fule
herself before the Calamba court and in other papers, the last residence of Amado G. Garcia was at
11 Carmel Avenue, Carmel Subdivision, Quezon City. Parenthetically, in her amended petition,
Virginia G. Fule categorically alleged that Amado G. Garcia's "last place of residence was at
Calamba, Laguna."

On this issue, We rule that the last place of residence of the deceased Amado G. Garcia was at 11
Carmel Avenue, Carmel Subdivision, Quezon City, and not at Calamba, Laguna. A death certificate is
admissible to prove the residence of the decedent at the time of his death. 12 As it is, the death
certificate of Amado G. Garcia, which was presented in evidence by Virginia G. Fule herself and also
by Preciosa B. Garcia, shows that his last place of residence was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City. Aside from this, the deceased's residence certificate for 1973 obtained
three months before his death; the Marketing Agreement and Power of Attorney dated November 12,
1971 turning over the administration of his two parcels of sugar land to the Calamba Sugar Planters
Cooperative Marketing Association, Inc.; the Deed of Donation dated January 8, 1973, transferring
part of his interest in certain parcels of land in Calamba, Laguna to Agustina B. Garcia; and
certificates of titles covering parcels of land in Calamba, Laguna, show in bold documents that Amado
G. Garcia's last place of residence was at Quezon City. Withal, the conclusion becomes imperative
that the venue for Virginia C. Fule's petition for letters of administration was improperly laid in the
Court of First Instance of Calamba, Laguna. Nevertheless, the long-settled rule is that objection to
improper venue is subject to waiver. Section 4, Rule 4 of the Revised Rules of Court states: "When
improper venue is not objected to in a motion to dismiss, it is deemed waived." In the case before Us
the Court of Appeals had reason to hold that in asking to substitute Virginia G. Fule as special
administratrix, Preciosa B. Garcia did not necessarily waive her objection to the jurisdiction or venue
assumed by the Court of First Instance of Calamba, Laguna, but availed of a mere practical resort to
alternative remedy to assert her rights as surviving spouse, while insisting on the enforcement of the
Rule fixing the proper venue of the proceedings at the last residence of the decedent.

4. Preciosa B. Garcia's challenge to Virginia G. Fule's appointment as special administratrix is

another issue of perplexity. Preciosa B. Garcia claims preference to the appointment as surviving
spouse. Section 1 of Rule 80 provides that "(w)hen there is delay in granting letters testamentary or of
administration by any cause including an appeal from the allowance or disallowance of a will, the
court may appoint a special administrator to take possession and charge of the estate of the
deceased until the questions causing the delay are decided and executors or administrators
appointed. 13 Formerly, the appointment of a special administrator was only proper when the
allowance or disallowance of a will is under appeal. The new Rules, however, broadened the basis for
appointment and such appointment is now allowed when there is delay in granting letters
testamentary or administration by any cause e.g., parties cannot agree among
themselves. 14 Nevertheless, the discretion to appoint a special administrator or not lies in the probate
court. 15 That, however, is no authority for the judge to become partial, or to make his personal likes
and dislikes prevail over, or his passions to rule, his judgment. Exercise of that discretion must be
based on reason, equity, justice and legal principle. There is no reason why the same fundamental
and legal principles governing the choice of a regular administrator should not be taken into account
in the appointment of a special administrator. 16 Nothing is wrong for the judge to consider the order of
preference in the appointment of a regular administrator in appointing a special administrator. After
all, the consideration that overrides all others in this respect is the beneficial interest of the appointee
in the estate of the decedent. 17 Under the law, the widow would have the right of succession over a
portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For
such reason, she would have as such, if not more, interest in administering the entire estate correctly
than any other next of kin. The good or bad administration of a property may affect rather the fruits
than the naked ownership of a property. 18

Virginia G. Fule, however, disputes the status of Preciosa B. Garcia as the widow of the late Amado
G. Garcia. With equal force, Preciosa B. Garcia maintains that Virginia G. Fule has no relation
whatsoever with Amado G. Garcia, or that, she is a mere illegitimate sister of the latter, incapable of
any successional rights. 19 On this point, We rule that Preciosa B. Garcia is prima facie entitled to the
appointment of special administratrix. It needs be emphasized that in the issuance of such
appointment, which is but temporary and subsists only until a regular administrator is appointed, 20 the
appointing court does not determine who are entitled to share in the estate of the decedent but who is
entitled to the administration. The issue of heirship is one to be determined in the decree of
distribution, and the findings of the court on the relationship of the parties in the administration as to
be the basis of distribution. 21The preference of Preciosa B. Garcia is with sufficient reason. In a
Donation Inter Vivos executed by the deceased Amado G. Garcia on January 8, 1973 in favor of
Agustina B. Garcia, he indicated therein that he is married to Preciosa B. Garcia. 22 In his certificate of
candidacy for the office of Delegate to the Constitutional Convention for the First District of Laguna
filed on September 1, 1970, he wrote therein the name of Preciosa B. Banaticla as his
spouse. 23 Faced with these documents and the presumption that a man and a woman deporting
themselves as husband and wife have entered into a lawful contract of marriage, Preciosa B. Garcia
can be reasonably believed to be the surviving spouse of the late Amado G. Garcia. Semper
praesumitur pro matrimonio. 24
5. Under these circumstances and the doctrine laid down in Cuenco vs. Court of Appeals, 25 this Court
under its supervisory authority over all inferior courts may properly decree that venue in the instant
case was properly assumed by and transferred to Quezon City and that it is in the interest of justice
and avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the
settlement of the estate of the deceased Amado G. Garcia and the appointment of special
administratrix over the latter's estate be approved and authorized and the Court of First Instance of
Laguna be disauthorized from continuing with the case and instead be required to transfer all the
records thereof to the Court of First Instance of Quezon City for the continuation of the proceedings.

6. Accordingly, the Order of Judge Ernani Cruz Pano of December 17, 1975, granting the "Urgent
Petition for Authority to Pay Estate Obligations" filed by Preciosa B. Garcia in Sp. Proc. No. Q-19738,
subject matter of G.R. No. L-42670, and ordering the Canlubang Sugar Estate to deliver to her as
special administratrix the sum of P48,874.70 for payment of the sum of estate obligations is hereby
upheld.

IN VIEW OF THE FOREGOING, the petitions of petitioner Virginia Garcia Fule in G.R. No. L-40502
and in G.R. No. L42670 are hereby denied, with costs against petitioner.

SO ORDERED.

[G.R. No. 122646. March 14, 1997]

ADELIA C. MENDOZA, for herself and Administratrix of the Intestate Estate of the late
NORBERTO B. MENDOZA, petitioners, vs. Hon. Angelito C. Teh, Presiding Judge,
Branch 87, RTC, Rosario, Batangas, Sps. Herminio & Clarita Tayag @ Sps. George T.
Tiglao & Clarizza T. Tiglao and/or @ Teofilo M. Esguera, Leonor M. Esguera. Leticia M.
Esguera, Joel M. Esguera, Ricardo M. Esguera, Voltaire E. Tayag, Benito I. Tayag, Merlie
Malig, Alberto T. Tayag, Rosemarie T. Tayag. Leticia E. Lulu and the Register of Deeds
for the Province of Batangas, respondents.
On October 28, 1994, petitioner for herself and as administratrix of the intestate estate of her
deceased husband Norberto Mendoza filed before the Regional Trial Court (RTC) of Batangas a
complaint for reconveyance of title (involving parcels of lot in Batangas) and damages with petition for
preliminary injunction docketed as Civil Case No. R94-009. [1] Paragraphs 2 and 3 of said complaint
states:

2. That Adelia C. Mendoza likewise represents her co-plaintiff, the Intestate Estate of the late
Norberto B. Mendoza in her capacity as the surviving wife of the deceased Norberto B. Mendoza who
died on December 29, 1993;

3. That Adelia C. Mendoza should be appointed by this Honorable Court as the judicial administratrix
of her co-plaintiff for purposes of this case;[2]

Private respondents filed on January 21, 1995 [3] their answer with motion to dismiss [4] alleging
among others that the complaint states no cause of action and that petitioners demand had already
been paid.[5] On February 17, 1995, private respondents filed another pleading entitled motion to
dismiss invoking, this time, lack of jurisdiction, lack of cause of action, estoppel, laches and
prescription. In support of their argument of lack of jurisdiction, private respondents contend that a
special proceedings case for appointment of administratrix of an estate cannot be incorporated in the
ordinary action for reconveyance. In her opposition to the motions, petitioner asserts among others,
that the allegation seeking appointment as administratrix is only an incidental matter which is not
even prayed for in the complaint. Replying to the opposition, private respondents argued that since
petitioners husband resided in Quezon City at the time of his death, the appointment of the estate
administratrix should be filed in the RTC of that place in accordance with Section 1 Rule 73 of the
Rules of Court. Accordingly, it is their argument that the RTC of Batangas has no jurisdiction over the
case.
In a Resolution dated June 14, 1995, the RTC of Batangas thru respondent Judge Teh dismissed
without prejudice the complaint for lack of jurisdiction on the ground that the rules governing an
ordinary civil action and a special proceeding are different. Accordingly, the lower court found it
unnecessary to discuss the other grounds raised in the motion to dismiss. [6]Upon denial of petitioners
motion for reconsideration, he filed this petition under Rule 45 on pure questions of law. The Court
thereafter gave due course to the petition.
 The issue is whether or not in an action for reconveyance, an allegation seeking appointment as
administratrix of an estate, would oust the RTC of its jurisdiction over the whole case?
We rule in the negative. First, Section 19 of B.P. 129 as amended by RA 7691 provides:

Jurisdiction in Civil Cases. - Regional Trial Courts shall exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;

(2) In all civil actions which involve the title to, or possession of, real property, or any interest therein,
where the assessed value of property involved exceeds Twenty thousand pesos (P20,000.00)...

xxx xxx xxx

(4) In all matters of probate, both testate and intestate ....

Likewise, Section 33 of the same law provides that:

Metropolitan Trial Court shall exercise:

(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate...
(italics ours).

The above law is clear. An action for reconveyance, which involves title title to property worth millions
of pesos, such as the lots subject of this case, is cognizable by the RTC. Likewise falling within its
jurisdiction are actions incapable of pecuniary estimation, such as the appointment of an
administratrix for an estate. Even the Rules on venue of estate proceedings (Section 1 of Rule 73 [7])
impliedly recognizes the jurisdiction of the RTC over petitions for granting of letters of administration.
On the other hand, probate proceedings for the settlement of estate are within the ambit of either the
RTC or MTC depending on the net worth of the estate. By arguing that the allegation seeking such
appointment as administratrix ousted the RTC of its jurisdiction, both public and private respondents
confuses jurisdiction with venue. Section 2 of Rule 4 as revised by Circular 13-95 [8] provides that
actions involving title to property shall be tried in the province where the property is located, in this
case, - Batangas. The mere fact that petitioners deceased husband resides in Quezon City at the
time of his death affects only the venue but not the jurisdiction of the Court. [9]
Second, the cases cited[10] by private respondents are not at point as they involve settlement of
estate where the probate court was asked to resolve questions of ownership of certain properties. In
the present suit, no settlement of estate is involved, but merely an allegation seeking appointment as
estate administratrix which does not necessarily involve settlement of estate that would have invited
the exercise of the limited jurisdiction of a probate court. The above allegation is not even a
jurisdictional fact which must be stated in an action for reconveyance. The Court therefore, should
have at least, proceeded with the reconveyance suit rather than dismiss the entire case.
Third, jurisprudential rulings that a probate court cannot generally decide questions of ownership
or title to property[11] is not applicable in this case, because: there is no settlement of estate involved
and the RTC of Batangas was not acting as a probate court. It should be clarified that whether a
particular matter should be resolved by the RTC in the exercise of its general jurisdiction or its limited
probate jurisdiction, is not a jurisdictional issue but a mere question of procedure. [12] Moreover, the
instant action for reconveyance does not even invoke the limited jurisdiction of a probate court.
[13]
Considering that the RTC has jurisdiction, whether it be on the reconveyance suit or as to the
appointment of an administratrix, it was improper for respondent judge to dismiss the whole complaint
for alleged lack of jurisdiction.
Finally, judges should not dismiss with precipitate haste, complaints or petitions filed before them,
just so they can comply with their administrative duty to dispose cases within 90 days at the expense
of their judicial responsibility.
WHEREFORE, the Resolutions dated June 14, 1995 and November 14, 1995 of the RTC of
Batangas are REVERSED and SET ASIDE. The trial court is ordered to immediately proceed with the
disposition of the case in accordance with this Decision.
SO ORDERED.

G.R. No. L-21993 June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,
vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Lorenzo Somulong for petitioners.

Torres and Torres for respondents.

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

Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ
of certiorari and prohibition to the Court of First Instance of Bulacan, for its refusal to grant their
motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken
cognizance of without jurisdiction.

The facts and issues are succinctly narrated in the order of the respondent court, dated June 13,
1963 (Petition, Annex 0), in this wise:

It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez,
through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of the
pendency of another action for the settlement of the estate of the deceased Rev. Fr. Celestino
Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No. 3907 entitled 'In
the matter of the Intestate Estate of the deceased Rev. Fr. Celestino Rodriguez which was filed
ahead of the instant case".

The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of Manila;
that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the Clerk of
Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March 8, 1963,
Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of court to
allow them to examine the alleged will; that on March 11, 1963 before the Court could act on
the petition, the same was withdrawn; that on March 12, 1963, aforementioned petitioners filed
before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of
Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a resident of Parañaque,
Rizal, and died without leaving a will and praying that Maria Rodriguez be appointed as
Special Administratrix of the estate; and that on March 12, 1963 Apolonia Pangilinan and
Adelaida Jacalan filed a petition in this Court for the probation of the will delivered by them on
March 4, 1963. It was stipulated by the parties that Fr. Rodriguez was born in Parañaque,
Rizal; that he was Parish priest of the Catholic Church of Hagonoy, Bulacan, from the year
1930 up to the time of his death in 1963; that he was buried in Parañaque, and that he left real
properties in Rizal, Cavite, Quezon City and Bulacan.

The movants contend that since the intestate proceedings in the Court of First Instance of
Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the
Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no
jurisdiction to entertain the petition for probate, citing as authority in support thereof the case
of Ongsingco Vda. de Borja vs. Tan and De Borja, G.R. No. 7792, July 27, 1955.

The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of
First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will
to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has
precedence over the case filed in Rizal on March 12, 1963.

The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a
difference of a few hours did not entitle one proceeding to preference over the other; that, as early as
March 7, movants were aware of the existence of the purported will of Father Rodriguez, deposited in
the Court of Bulacan, since they filed a petition to examine the same, and that movants clearly filed
the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of Bulacan) from
exercising jurisdiction over the probate proceedings". Reconsideration having been denied, movants,
now petitioners, came to this Court, relying principally on Rule 73, section 1 of the Rules of Court, and
invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955.
 SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or
letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, as far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when the want
of jurisdiction appears on the record.

We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan
became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963,
even if no petition for its allowance was filed until later, because upon the will being deposited the
court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued
the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised
Rules of Court (Section 3, Rule 77, of the old Rules):

SEC. 3. Court to appoint time for proving will. Notice thereof to be published. — When a will is
delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction,
such Court shall fix a time and place for proving the will when all concerned may appear to
contest the allowance thereof, and shall cause notice of such time and place to be published
three (3) weeks successively, previous to the time appointed, in a newspaper of general
circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by
the testator himself.

The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of a
will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made
after the deposit of the will, the petition is deemed to relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan
on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only
on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is
incontestable.1äwphï1.ñët

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to
"the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the
decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of
residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that
he retained throughout some animus revertendi to the place of his birth in Parañaque, Rizal, that
detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the
power to settle decedents' estates is conferred by law upon all courts of first instance, and the
domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco,
74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies
that the late Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of
Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in
the case before us.

In the Kaw Singco case (ante) this Court ruled that:

"... If we consider such question of residence as one affecting the jurisdiction of the trial court
over the subject-matter, the effect shall be that the whole proceedings including all decisions
on the different incidents which have arisen in court will have to be annulled and the same
case will have to be commenced anew before another court of the same rank in another
province. That this is of mischievous effect in the prompt administration of justice is too obvious
to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31,
1942). Furthermore, section 600 of Act No. 190, providing that the estate of a deceased person
shall be settled in the province where he had last resided, could not have been intended as
defining the jurisdiction of the probate court over the subject matter, because such legal
provision is contained in a law of procedure dealing merely with procedural matters, and, as
 we have said time and again, procedure is one thing and jurisdiction over the subject matter is
another. (Attorney General vs. Manila Railroad Company, 20 Phil. 523.) The law of jurisdiction
— Act No. 136, Section 56, No. 5 — confers upon Courts of First Instance jurisdiction over all
probate cases independently of the place of residence of the deceased. 1 Since, however, there
are many Courts of First Instance in the Philippines, the Law of Procedure, Act No. 190,
section 600, fixes the venue or the place where each case shall be brought. Thus, the place of
residence of the deceased is not an element of jurisdiction over the subject matter but merely
of venue. And it is upon this ground that in the new Rules of Court the province where the
estate of a deceased person shall be settled is properly called "venue" (Rule 75, section 1.)
Motion for reconsideration is denied.

The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any
other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a
case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the
same enjoins that:

The Court first taking cognizance of the settlement of the estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts. (Sec. 1)

This disposition presupposes that two or more courts have been asked to take cognizance of the
settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence
to that Court whose jurisdiction is first invoked, without taking venue into account.

There are two other reasons that militate against the success of petitioners. One is that their
commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to
the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the
precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule
75) was not designed to convert the settlement of decedent's estates into a race between applicants,
with the administration of the properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or
subordinate to the testate, since intestacy only takes place in the absence of a valid operative will.
Says Article 960 of the Civil Code of the Philippines:

ART. 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its
validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property in
which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this Code.

Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the nullity
of testate succession could an intestate succession be instituted in the form of pre-established
action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of the
purported will of Father Rodriguez is pending.

We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate
in question, and that in refusing to dismiss the probate. proceedings, said court did not commit any
abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued.

Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.

G.R. No. L-29407 July 29, 1983

ESTATE OF AMADEO MATUTE OLAVE, as represented by JOSE S. MATUTE, Judicial Co-
Administrator in Sp. Proc. No. 25876, Court of First Instance of Manila, petitioner,
vs.
HONORABLE MANASES G. REYES, Presiding Judge of Branch III, Court of First Instance of
Davao, Davao City; SOUTHWEST AGRICULTURAL MARKETING CORPORATION also known as
(SAMCO); CARLOS V. MATUTE, as another Administrator of the Estate of Amadeo Matute
Olave, Sp. Proc. No. 25876 CFI, Manila; and MATIAS S. MATUTE, as former Co-Administrator of
the Estate of Amadeo Matute Olave, Sp. Proc. No. 25876, CFI, Manila, respondents.

In this petition for certiorari, the estate of Amadeo Matute Olave, represented by Jose S. Matute,
Judicial Administrator in Sp. Proc. No. 25876, of the then Court of First Instance of Manila, assails the
Order, dated November 10, 1967, of the respondent judge, approving the "Amicable Settlement"
submitted by the parties in Civil Case No. 4623 of the then Court of First Instance of Davao, 16th
Judicial District, Branch III, and prays that the said Order be set aside.

The petition alleged that the estate of Amadeo Matute Olave is the owner in fee simple of a parcel of
land containing an area of 293,578 square meters, situated in sitio Tibambam, barrio Tibambam,
municipality of Sigaboy (now Governor Generoso), province of Davao, and covered by Original
Certificate of Title No. 0-27 of the Registry of Deeds of Davao Province; that in April 1965 herein
private respondent Southwest Agricultural Marketing Corporation (SAMCO), as plaintiff, filed Civil
Case No. 4623 with the respondent Court of First Instance of Davao against respondents, Carlos V.
Matute and Matias S. Matute, as defendants, in their capacities as co-administrators of the estate of
Amadeo Matute Olave, for the collection of an alleged indebtedness of P19,952.11 and for attorney's
fees of P4,988.02; that on May 8, 1965, defendants Carlos V. Matute and Matias S. Matute in said
Civil Case No. 4623, filed an answer denying their lack of knowledge and questioning the legality of
the claim of SAMCO; that on October 25, 1966 in Sp. Proc. No. 25876, the then Court of First
Instance of Manila, Branch IV, issued an order directing the administrators to secure the probate
court's approval before entering into any transaction involving the seventeen (17) titles of the estate,
of which the property described in OCT No. 0-27 is one of them; that on October 20, 1967, the parties
(plaintiff and defendants) in Civil Case No. 4623 of the Court of First Instance of Davao, submitted to
the respondent court an Amicable Settlement whereby the property of the estate covered by OCT No.
0-27 of Davao was conveyed and ceded to SAMCO as payment of its claim; that the said Amicable
Settlement signed by the herein respondents was not submitted to and approved by the then Court of
First Instance of Manila, Branch IV, in Sp. Proc. No. 25876, nor notice thereof made to the
beneficiaries and heirs in said special proceedings; that on November 10, 1967, respondent court,
despite the opposition of the other parties who sought to intervene in Civil Case No. 4623 and despite
the utter lack of approval of the probate court in Manila, approved the said Amicable Settlement and
gave the same the enforceability of a court decision which, in effect, ceded the property covered by
OCT No. 0-27, containing an area of 293,578 square meters and with an assessed value of
P31,700.00 to SAMCO in payment of its claim for only P19,952.11; and, that if the said Order of
respondent dated November 10, 1967 is not set aside, the same will operate as a judgment that
"conveys illegally and unfairly, the property of petitioner-estate without the requisite approval of the
probate court of Manila, which has the sole jurisdiction to convey this property in custodia legis of the
estate. (par. 16, Petition).

Made to answer, herein respondent SAMCO and respondent judge, among others, contend that the
Amicable Settlement need not be approved by the probate court, "the same having been entered into
in another independent action and in another court of co-equal rank. Article 2032 of the Civil Code
applies only to extrajudicial compromise entered into by the administrators of the estate. In the
alternative, lack of approval of the probate court of the Amicable Settlement does not render it null
and void, but at most voidable, which must be the subject matter of a direct proceeding in the proper
Court of First Instance." (p. 60, Rollo)

In said Civil Case No. 4623 for sum of money, plaintiff SAMCO and defendants Carlos V. Matute and
Matias S. Matute, in their capacities as judicial administrators of the estate of Amado Matute Olave in
Special Proceeding No. 25876, Court of First Instance of Manila, Branch IV, submitted the following
Amicable Settlement:

1. That defendants in their capacity as judicial administrators of the Estate of Amadeo

Matute, hereby submit and acknowledge that the said Estate of Amadeo Matute is justly
indebted to plaintiff in the total sum of P28,403.02 representing the principal account of
 P19,952.11 and in the sum of P8,450.91 as attorney's fees, damages, interest and
costs;

2. That at present the defendant estate is devoid of or does not have any funds with
which to pay or settle the aforestated obligation in favor of the plaintiff, and that being
so, the defendant estate through the undersigned administrators, decides to pay the
plaintiff by way of conveying and ceding unto the plaintiff the ownership of a certain real
property owned by the defendant estate now under the administration of the said
undersigned administrators;

3. That plaintiff hereby accepts the offer of defendants of conveying, transferring and
ceding the ownership of the above described property as full and complete payment
and satisfaction of the total obligation of P28,403.02;

4. That the defendant estate, through the undersigned administrators hereby agree and
bind the defendant estate to pay their counsel Atty. Dominador Zuho, of the Zufio Law
Offices the sum of Eight Thousand (P8,000.00) Pesos by way of Attorney's Fee;

5. That the parties herein waive an other claims which they might have against one
another.

WHEREFORE, premises considered, it is respectfully prayed that this Honorable Court

approves the foregoing settlement and that judgment be rendered transferring the said
real property covered by Original Certificate of Title No. 0-27 to plaintiff Southwest
Agricultural Marketing Corporation and that a new transfer certificate of title be issued to
said plaintiff. (pp. 25-26, Rollo)

Section 1, Rule 87 of the Rules of Court, provides that "no action upon a claim for the recovery of
money or debt or interest thereon shall be commenced against the executor or administrator; ..." The
claim of private respondent SAMCO being one arising from a contract may be pursued only by filing
the same in the administration proceedings in the Court of First Instance of Manila (Sp. Proc. No.
25876) for the settlement of the estate of the deceased Amadeo Matute Olave; and the claim must be
filed within the period prescribed, otherwise, the same shall be deemed "barred forever." (Section 5,
Rule 86, Rules of Court).

The purpose of presentation of claims against decedents of the estate in the probate court is to
protect the estate of deceased persons. That way, the executor or administrator will be able to
examine each claim and determine whether it is a proper one which should be allowed. Further, the
primary object of the provisions requiring presentation is to apprise the administrator and the probate
court of the existence of the claim so that a proper and timely arrangement may be made for its
payment in full or by pro-rata portion in the due course of the administration, inasmuch as upon the
death of a person, his entire estate is burdened with the payment of all of his debts and no creditor
shall enjoy any preference or priority; all of them shag share pro-rata in the liquidation of the estate of
the deceased.

It is clear that the main purpose of private respondent SAMCO in filing Civil Case No. 4623 in the
then Court of First Instance of Davao was to secure a money judgment against the estate which
eventually ended in the conveyance to SAMCO of more than twenty-nine (29) hectares of land
belonging to the estate of the deceased Amadeo Matute Olave in payment of its claim, without prior
authority of the probate court of Manila, in Sp. Proc. No. 25876, which has the exclusive jurisdiction
over the estate of Amadeo Matute Olave. It was a mistake on the part of respondent court to have
given due course to Civil Case No. 4623, much less issue the questioned Order, dated November 10,
1967, approving the Amicable Settlement.

Section 1, Rule 73 of the Rules of Court, expressly provides that "the court first taking cognizance of
the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts." (Emphasis supplied). The law is clear that where the estate of the deceased person is
already the subject of a testate or intestate proceeding, the administrator cannot enter into any
transaction involving it without prior approval of the probate court.
WHEREFORE, the petition for certiorari is GRANTED, and the Order, dated November 10, 1967, of
the respondent court approving the Amicable Settlement of the parties in Civil Case No. 4623 of the
then Court of First Instance of Davao, is hereby SET ASIDE.

SO ORDERED.

G.R. No. L-55509 April 27, 1984

ETHEL GRIMM ROBERTS, petitioner,

vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-
GRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents.

The question in this case is whether a petition for allowance of wills and to annul a partition, approved
in an intestateproceeding by Branch 20 of the Manila Court of First Instance, can be entertained by
its Branch 38 (after a probate in the Utah district court).

Antecedents. — Edward M. Grimm an American resident of Manila, died at 78 in the Makati Medical
Center on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm and their
two children, named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris
and Ethel Grimm Roberts (McFadden), his two children by a first marriage which ended in divorce
(Sub-Annexes A and B. pp. 36-47, Rollo).

He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his
Philippine estate which he described as conjugal property of himself and his second wife. The second
win disposed of his estate outside the Philippines.

In both wills, the second wife and two children were favored. The two children of the first
marriage were given their legitimes in the will disposing of the estate situated in this country. In the
will dealing with his property outside this country, the testator said: têñ.£îhqwâ£

I purposely have made no provision in this will for my daughter, Juanita Grimm Morris,
or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have
provided for each of them in a separate will disposing of my Philippine property. (First
clause, pp. 43-47, Rollo).

The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on
March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah. Juanita
Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village,
Quezon City were notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo).

Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January,
1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial District Court admitted to
probate the two wills and the codicil It was issued upon consideration of the stipulation dated April 4,
1978 "by and between the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E.
LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts"
(Annex C, pp. 48-51, Rollo).

Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first
parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm as the second
parties, with knowledge of the intestate proceeding in Manila, entered into a compromise
agreement in Utah regarding the estate. It was signed by David E. Salisbury and Donald B. Holbrook,
as lawyers of the parties, by Pete and Linda and the attorney-in-fact of Maxine and by the attorney-in-
fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.

In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal
representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that
Maxine's one-half conjugal share in the estate should be reserved for her and that would not be less
than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated
the computation of the "net distributable estate". It recognized that the estate was liable to pay the
fees of the Angara law firm (par. 5).
It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net
Distributable Estate" and that Ethel and Juanita Morris should each receive at least 12-1/2% of the
total of the net distributable estate and marital share. A supplemental memorandum also dated April
25, 1978 was executed by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).

Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three days after
Grimm's death, or January 9, 1978, his daughter of the first marriage, Ethel, 49, through lawyers
Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First
Instance intestate proceeding No. 113024 for the settlement of his estate. She was named special
administratrix.

On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion
to dismiss the intestate proceeding on the ground of the pendency of Utah of a proceeding for the
probate of Grimm's will. She also moved that she be appointed special administratrix, She submitted
to the court a copy of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of
the record.

The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer,
William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case withdrew that opposition
and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint
administrators. Apparently, this was done pursuant to the aforementioned Utah compromise
agreement. The court ignored the will already found in the record.

The three administrators submitted an inventory. With the authority and approval of the court, they
sold for P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a business owned by the
deceased. Linda and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned out
that the buyer, Makiling Management Co., Inc., was incorporated by Ethel and her husband, Rex
Roberts, and by lawyer Limqueco (Annex L, p. 90, testate case).

Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to
Joseph Server and others 193,267 shares of RFM Corporation (p. 135, Record).

Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and
Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July
27, 1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8)
each to his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in
that order.

Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del
Callar as their lawyer who on August 9, moved to defer approval of the project of partition. The court
considered the motion moot considering that it had already approved the declaration of heirs and
project of partition (p. 149, Record).

Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected
with Makiling Management Co., Inc. when the Palawan Pearl Project was sold: that it was Maxine's
son Pete who negotiated the sale with Rex Roberts and that he (Limqueco) was going to sue Maxine
for the lies she imputed to him (Annex H, p. 78, testate case).

Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated
October 2, 1979. It was stated therein that Maxine paid P1,992,233.69 as estate tax and penalties
and that he interposed no objection to the transfer of the estate to Grimm's heirs (p. 153, Record).
The court noted the certification as in conformity with its order of July 27, 1979.

After November, 1979 or for a period of more than five months, there was no movement or activity in
the intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's lawyers, filed a motion for
accounting "so that the Estate properties can be partitioned among the heirs and the present intestate
estate be closed." Del Callar, Maxine's lawyer was notified of that motion.

Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its
appearance in collaboration with Del Callar as counsel for Maxine and her two children, Linda and
Pete. It should be recalled that the firm had previously appeared in the case as Maxine's counsel on
March 11, 1978, when it filed a motion to dismiss the intestate proceeding and furnished the court
with a copy of Grimm's will. As already noted, the firm was then superseded by lawyer Limqueco.

Petition to annul partition and testate proceeding No. 134559. — On September 8, 1980, Rogelio A.
Vinluan of the Angara law firm in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower
court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979
partition approved by the intestate court be set aside and the letters of administration revoked, that
Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the
properties received by them and to return the same to Maxine (pp. 25-35, Rollo).

Grimm's second wife and two children alleged that they were defraud due to the machinations of the
Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate
proceeding is void because Grimm died testate and that the partition was contrary to the decedent's
wills.

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of
October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the
testate proceeding be dismissed, or. alternatively that the two proceedings be consolidated and heard
in Branch 20 and that the matter of the annulment of the Utah compromise agreement be heard prior
to the petition for probate (pp. 22-23, Rollo).

Ruling. — We hold that respondent judge did not commit any grave abuse of discretion, amounting to
lack of jurisdiction, in denying Ethel's motion to dismiss.

A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass
either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75,
Rules of Court).

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs.
Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who
died testate should be settled in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the testate proceeding should
continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer
to the petition unless she considers her motion to dismiss and other pleadings sufficient for the
purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of
orders, notices and other papers in the testate case.

WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No costs.

SO ORDERED.1äwphï1.ñ

G.R. No. L-24742 October 26, 1973

ROSA CAYETANO CUENCO, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES
CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO
REYES, and TERESITA CUENCO GONZALEZ, respondents.

Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No. 34104-R,
promulgated 21 November 1964, and its subsequent Resolution promulgated 8 July 1964 denying
petitioner's Motion for Reconsideration.

The pertinent facts which gave rise to the herein petition follow:

On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila.
He was survived by his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr.
and Jesus Salvador, both surnamed Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights,
Quezon City, and by his children of the first marriage, respondents herein, namely, Manuel Cuenco,
Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco Reyes and
Teresita Cuenco Gonzales, all of legal age and residing in Cebu.

On 5 March 1964, (the 9th day after the death of the late Senator) 1 respondent Lourdes Cuenco filed
a Petition for Letters of Administration with the court of first instance of Cebu (Sp. Proc. No. 2433-R),
alleging among other things, that the late senator died intestate in Manila on 25 February 1964; that
he was a resident of Cebu at the time of his death; and that he left real and personal properties in
Cebu and Quezon City. On the same date, the Cebu court issued an order setting the petition for
hearing on 10 April 1964, directing that due notice be given to all the heirs and interested persons,
and ordering the requisite publication thereof at LA PRENSA, a newspaper of general circulation in
the City and Province of Cebu.

The aforesaid order, however, was later suspended and cancelled and a new and modified one
released on 13 March 1964, in view of the fact that the petition was to be heard at Branch II instead of
Branch I of the said Cebu court. On the same date, a third order was further issued stating that
respondent Lourdes Cuenco's petition for the appointment of a special administrator dated 4 March
1964 was not yet ready for the consideration of the said court, giving as reasons the following:

It will be premature for this Court to act thereon, it not having yet regularly acquired
jurisdiction to try this proceeding, the requisite publication of the notice of hearing not
yet having been complied with. Moreover, copies of the petition have not been served
on all of the heirs specified in the basic petition for the issuance of letters of
administration.2

In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu petition) herein
petitioner Rosa Cayetano Cuenco filed a petition with the court of first instance of Rizal (Quezon City)
for the probate of the deceased's last will and testament and for the issuance of letters
testamentary in her favor, as the surviving widow and executrix in the said last will and testament.
The said proceeding was docketed as Special Proceeding No. Q-7898.

Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano Cuenco filed
in said Cebu court an Opposition and Motion to Dismiss, dated 30 March 1964, as well as an
Opposition to Petition for Appointment of Special Administrator, dated 8 April 1964. On 10 April 1964,
the Cebu court issued an order holding in abeyance its resolution on petitioner's motion to dismiss
"until after the Court of First Instance of Quezon City shall have acted on the petition for probate of
that document purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco."3 Such order of the Cebu court deferring to the probate proceedings in the Quezon City court
was neither excepted to nor sought by respondents to be reconsidered or set aside by the Cebu court
nor did they challenge the same by certiorari or prohibition proceedings in the appellate courts.

Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss, dated 10
April 1964, opposing probate of the will and assailing the jurisdiction of the said Quezon City court to
entertain petitioner's petition for probate and for appointment as executrix in Sp. Proc. No. Q-7898 in
view of the alleged exclusive jurisdiction vested by her petition in the Cebu court in Sp. Proc. No.
2433-R. Said respondent prayed that Sp. Proc. No. Q-7898 be dismissed for lack of
jurisdiction and/or improper venue.

In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving as a principal
reason the "precedence of probate proceeding over an intestate proceeding." 4 The said court further
found in said order that the residence of the late senator at the time of his death was at No. 69 Pi y
Margal, Sta. Mesa Heights, Quezon City. The pertinent portion of said order follows:

On the question of residence of the decedent, paragraph 5 of the opposition and motion
to dismiss reads as follows: "that since the decedent Don Mariano Jesus Cuenco was a
resident of the City of Cebu at the time of his death, the aforesaid petition filed by Rosa
Cayetano Cuenco on 12 March 1964 was not filed with the proper Court (wrong venue)
in view of the provisions of Section 1 of Rule 73 of the New Rules of Court ...". From the
aforequoted allegation, the Court is made to understand that the oppositors do not
mean to say that the decedent being a resident of Cebu City when he died, the intestate
proceedings in Cebu City should prevail over the probate proceedings in Quezon City,
because as stated above the probate of the will should take precedence, but that the
probate proceedings should be filed in the Cebu City Court of First Instance. If the last
 proposition is the desire of the oppositors as understood by this Court, that could not
also be entertained as proper because paragraph 1 of the petition for the probate of the
will indicates that Don Mariano Jesus Cuenco at the time of his death was a resident of
Quezon City at 69 Pi y Margal. Annex A (Last Will and Testament of Mariano Jesus
Cuenco) of the petition for probate of the will shows that the decedent at the time when
he executed his Last Will clearly stated that he is a resident of 69 Pi y Margal, Sta.
Mesa Heights, Quezon City, and also of the City of Cebu. He made the former as his
first choice and the latter as his second choice of residence." If a party has two
residences, the one will be deemed or presumed to his domicile which he himself
selects or considers to be his home or which appears to be the center of his affairs. The
petitioner, in thus filing the instant petition before this Court, follows the first choice of
residence of the decedent and once this court acquires jurisdiction of the probate
proceeding it is to the exclusion of all others.5

Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's said order of 11
April 1964 asserting its exclusive jurisdiction over the probate proceeding as deferred to by the Cebu
court was denied on 27 April 1964 and a second motion for reconsideration dated 20 May 1964 was
likewise denied.

On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of the last will
of the decedent was called three times at half-hour intervals, but notwithstanding due notification
none of the oppositors appeared and the Quezon City court proceeded at 9:00 a.m. with the hearing
in their absence.

As per the order issued by it subsequently on 15 May 1964, the Quezon City court noted that
respondents-oppositors had opposed probate under their opposition and motion to dismiss on the
following grounds:

(a) That the will was not executed and attested as required by law;

(b) That the will was procured by undue and improper pressure and influence on the
part of the beneficiary or some other persons for his benefit;

(c) That the testator's signature was procured by fraud and/or that the testator acted by
mistake and did not intend that the instrument he signed should be his will at the time
he affixed his signature thereto.6

The Quezon City court further noted that the requisite publication of the notice of the hearing had
been duly complied with and that all the heirs had been duly notified of the hearing, and after
receiving the testimony of the three instrumental witnesses to the decedent's last will, namely Atty.
Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda, and of the notary public, Atty.
Braulio A. Arriola, Jr., who ratified the said last will, and the documentary evidence (such as the
decedent's residence certificates, income tax return, diplomatic passport, deed of donation) all
indicating that the decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by
him in his last will, the Quezon City court in its said order of 15 May 1964 admitted to probate the late
senator's last will and testament as having been "freely and voluntarily executed by the testator" and
"with all formalities of the law" and appointed petitioner-widow as executrix of his estate without bond
"following the desire of the testator" in his will as probated.

Instead of appealing from the Quezon City court's said order admitting the will to probate and naming
petitioner-widow as executrix thereof, respondents filed a special civil action of certiorari and
prohibition with preliminary injunction with respondent Court of Appeals (docketed as case CA-G.R.
No. 34104-R) to bar the Rizal court from proceeding with case No. Q-7898.

On 21 November 1964, the Court of Appeals rendered a decision in favor of respondents (petitioners
therein) and against the herein petitioner, holding that:

Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the estate
of a deceased person, covers both testate and intestate proceedings. Sp. Proc. 2433-R
of the Cebu CFI having been filed ahead, it is that court whose jurisdiction was first
invoked and which first attached. It is that court which can properly and exclusively pass
 upon the factual issues of (1) whether the decedent left or did not leave a valid will, and
(2) whether or not the decedent was a resident of Cebu at the time of his death.

Considering therefore that the first proceeding was instituted in the Cebu CFI (Special
Proceeding 2433-R), it follows that the said court must exercise jurisdiction to the
exclusion of the Rizal CFI, in which the petition for probate was filed by the respondent
Rosa Cayetano Cuenco (Special Proceeding Q-7898). The said respondent should
assert her rights within the framework of the proceeding in the Cebu CFI, instead of
invoking the jurisdiction of another court.

The respondents try to make capital of the fact that on March 13, 1964, Judge Amador
Gomez of the Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition for
appointment of special administrator was "not yet ready for the consideration of the
Court today. It would be premature for this Court to act thereon, it not having yet
regularly acquired jurisdiction to try this proceeding ... . " It is sufficient to state in this
connection that the said judge was certainly not referring to the court's jurisdiction over
the res, not to jurisdiction itself which is acquired from the moment a petition is filed, but
only to the exercise of jurisdiction in relation to the stage of the proceedings. At all
events, jurisdiction is conferred and determined by law and does not depend on the
pronouncements of a trial judge.

The dispositive part of respondent appellate court's judgment provided as follows:

ACCORDINGLY, the writ of prohibition will issue, commanding and directing the
respondent Court of First Instance of Rizal, Branch IX, Quezon City, and the respondent
Judge Damaso B. Tengco to refrain perpetually from proceeding and taking any action
in Special Proceeding Q-7898 pending before the said respondent court. All orders
heretofore issued and actions heretofore taken by said respondent court and
respondent Judge, therein and connected therewith, are hereby annulled. The writ of
injunction heretofore issued is hereby made permanent. No pronouncement as to costs.

Petitioner's motion for reconsideration was denied in a resolution of respondent Court of Appeals,
dated 8 July 1965; hence the herein petition for review on certiorari.

The principal and decisive issue at bar is, theretofore, whether the appellate court erred in law in
issuing the writ of prohibition against the Quezon City court ordering it to refrain perpetually from
proceeding with the testateproceedings and annulling and setting aside all its orders and actions,
particularly its admission to probate of the decedent's last will and testament and appointing
petitioner-widow as executrix thereof without bond in compliance with the testator's express wish in
his testament. This issue is tied up with the issue submitted to the appellate court, to wit, whether the
Quezon City court acted without jurisdiction or with grave abuse of discretion in taking cognizance
and assuming exclusive jurisdiction over the probate proceedings filed with it, in pursuance of the
Cebu court's order of 10 April 1964 expressly consenting in deference to the precedence of probate
over intestate proceedings that it (the Quezon City court) should first act "on the petition for probate of
the document purporting to be the last will and testament of the deceased Don Mariano Jesus
Cuenco" - which order of the Cebu court respondents never questioned nor challenged by prohibition
or certiorari proceedings and thus enabled the Quezon City court to proceed without any impediment
or obstruction, once it denied respondent Lourdes Cuenco's motion to dismiss the probate
proceeding for alleged lack of jurisdiction or improper venue, to proceed with the hearing of the
petition and to admit the will to probate upon having been satisfied as to its due execution and
authenticity.

The Court finds under the above-cited facts that the appellate court erred in law in issuing the writ of
prohibition against the Quezon City court from proceeding with the testate proceedings and annulling
and setting aside all its orders and actions, particularly its admission to probate of the deceased's last
will and testament and appointing petitioner-widow as executrix thereof without bond pursuant to the
deceased testator's express wish, for the following considerations: —

1. The Judiciary Act7 concededly confers original jurisdiction upon all Courts of First Instance over "all
matter of probate, both of testate and intestate estates." On the other hand, Rule 73, section of the
Rules of Court lays down the rule of venue, as the very caption of the Rule indicates, and in order to
prevent conflict among the different courts which otherwise may properly assume jurisdiction from
doing so, the Rule specifies that "the court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts." The cited Rule provides:

Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant of

the Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance in the Province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of the province in which he
had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of residence, of the decedent, or
of the location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction appears on
the record. (Rule 73)8

It is equally conceded that the residence of the deceased or the location of his estate is not an
element of jurisdiction over the subject matter but merely of venue. This was lucidly stated by the late
Chief Justice Moran in Sy Oa vs. Co Ho9 as follows:

We are not unaware of existing decisions to the effect that in probate cases the place of
residence of the deceased is regarded as a question of jurisdiction over the subject-
matter. But we decline to follow this view because of its mischievous consequences. For
instance, a probate case has been submitted in good faith to the Court of First Instance
of a province where the deceased had not resided. All the parties, however, including all
the creditors, have submitted themselves to the jurisdiction of the court and the case is
therein completely finished except for a claim of a creditor who also voluntarily filed it
with said court but on appeal from an adverse decision raises for the first time in this
Court the question of jurisdiction of the trial court for lack of residence of the deceased
in the province. If we consider such question of residence as one affecting the
jurisdiction of the trial court over the subject-matter, the effect shall be that the whole
proceedings including all decisions on the different incidents which have arisen in court
will have to be annulled and the same case will have to be commenced
anew before another court of the same rank in another province. That this is
of mischievous effect in the prompt administration of justice is too obvious to require
comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942)
Furthermore, section 600 of Act No. 190, 10 providing that the estate of a deceased
person shall be settled in the province where he had last resided, could not have been
intended as defining the jurisdiction of the probate court over the subject-matter,
because such legal provision is contained in a law of procedure dealing merely with
procedural matters, and, as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney-General vs. Manila Railroad
Company, 20 Phil. 523.) The law of jurisdiction — Act No. 136, 11Section 56, No. 5 —
confers upon Courts of First Instance jurisdiction over all probate cases independently
of the place of residence of the deceased. Since, however, there are many courts of
First Instance in the Philippines, the Law of Procedure, Act No. 190, section 600, fixes
the venue or the place where each case shall be brought. Thus, the place
of residence of the deceased is not an element of jurisdiction over the subject-matter
but merely of venue. And it is upon this ground that in the new Rules of Court the
province where the estate of a deceased person shall be settled is properly called
"venue".

It should be noted that the Rule on venue does not state that the court with whom the estate or
intestate petition is first filed acquires exclusive jurisdiction.

The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts."

A fair reading of the Rule — since it deals with venue and comity between courts of equal and co-
ordinate jurisdiction — indicates that the court with whom the petition is first filed, must also first take
cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of
all other courts.
Conversely, such court, may upon learning that a petition for probate of the decedent's last will has
been presented in another court where the decedent obviously had his conjugal domicile and resided
with his surviving widow and their minor children, and that the allegation of the intestate petition
before it stating that the decedent died intestatemay be actually false, may decline to take
cognizance of the petition and hold the petition before it in abeyance, and instead defer to the second
court which has before it the petition for probate of the decedent's alleged last will.

2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss
Lourdes' intestate petition, it issued its order holding in abeyance its action on the dismissal motion
and deferred to the Quezon City court, awaiting its action on the petition for probate before that court.
Implicit in the Cebu court's order was that if the will was duly admitted to probate, by the Quezon City
court, then it would definitely decline to take cognizance of Lourdes' intestate petition which would
thereby be shown to be false and improper, and leave the exercise of jurisdiction to the Quezon City
court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu court left it to the
Quezon City court to resolve the question between the parties whether the decedent's residence at
the time of his death was in Quezon City where he had his conjugal domicile rather than in Cebu City
as claimed by respondents. The Cebu court thus indicated that it would decline to take cognizance of
the intestate petition before it and instead defer to the Quezon City court, unless the latter would
make a negative finding as to the probate petition and the residence of the decedent within its
territory and venue.

3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with grave
abuse of jurisdiction in declining to take cognizance of the intestate petition and deferring to the
Quezon City court.

Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in
taking cognizance of and acting on the probate petition since under Rule 73, section 1, the Cebu
court must first take cognizance over the estate of the decedent and must exercise jurisdiction to
exclude all other courts, which the Cebu court declined to do. Furthermore, as is undisputed, said rule
only lays down a rule of venue and the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.

Since the Quezon City court took cognizance over the probate petition before it and assumed
jurisdiction over the estate, with the consent and deference of the Cebu court, the Quezon City court
should be left now, by the same rule of venue of said Rule 73, to exercise jurisdiction to the exclusion
of all other courts.

Under the facts of the case and where respondents submitted to the Quezon City court
their opposition to probate of the will, but failed to appear at the scheduled hearing despite due
notice, the Quezon City court cannot be declared, as the appellate court did, to have acted without
jurisdiction in admitting to probate the decedent's will and appointing petitioner-widow as executrix
thereof in accordance with the testator's testamentary disposition.

4. The relatively recent case of Uriarte vs. Court of First Instance of Negros Occidental 12 with facts
analogous to the present case 13 is authority against respondent appellate court's questioned
decision.

In said case, the Court upheld the doctrine of precedence of probate proceedings over intestate
proceedings in this wise:

It can not be denied that a special proceeding intended to effect the distribution of the
estate of a deceased person, whether in accordance with the law on intestate
succession or in accordance with his will, is a "probate matter" or a proceeding for the
settlement of his estate. It is equally true, however, that in accordance with settled
jurisprudence in this jurisdiction, testate proceedings for the settlement of the estate of
a deceased person take precedence over intestate proceedings for the same purpose.
Thus it has been held repeatedly that, if in the course of intestate proceedings pending
before a court of first instance it is found that the decedent had left a last will,
proceedings for the probate of the latter should replace the intestate proceedings even if
at that state an administrator had already been appointed, the latter being required to
render final account and turn over the estate in his possession to the executor
subsequently appointed. This however, is understood to be without prejudice that
 should the alleged last will be rejected or is disapproved, the proceeding shall continue
as an intestacy. As already adverted to, this is a clear indication that proceedings for the
probate of a will enjoy priority over intestate proceedings. 14

The Court likewise therein upheld the jurisdiction of the second court, (in this case, the Quezon City
court) although opining that certain considerations therein "would seem to support the view that
[therein respondent] should have submitted said will for probate to the Negros Court, [in this case, the
Cebu court] either in a separate special proceeding or in an appropriate motion for said purpose filed
in the already pending Special Proceeding No. 6344," 15 thus:

But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan
Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept
petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition,
albeit we say that it was not the proper venuetherefor.

It is well settled in this jurisdiction that wrong venue is merely a waivable procedural
defect, and, in the light of the circumstances obtaining in the instant case, we are of the
opinion, and so hold, that petitioner has waived the right to raise such objection or is
precluded from doing so by laches. It is enough to consider in this connection that
petitioner knew of the existence of a will executed by Juan Uriarte y Goite since
December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in
Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the
petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte
Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these
notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in
Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for
the dismissal and annulment of all the proceedings had therein up to that date; thus
enabling the Manila Court not only to appoint an administrator with the will annexed but
also to admit said will to probate more than five months earlier, or more specifically, on
October 31, 1962. To allow him now to assail the exercise of jurisdiction over the
probate of the will by the Manila Court and the validity of all the proceedings had in
Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it
must be remembered that this Court is not inclined to annul proceedings regularly had
in a lower court even if the latter was not the proper venue therefor, if the net result
would be to have the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the objection against said
proceedings is raised too late. 16

5. Under Rule 73, section 1 itself, the Quezon City court's assumption of jurisdiction over the
decedent's estate on the basis of the will duly presented for probate by petitioner-widow and finding
that Quezon City was the first choiceof residence of the decedent, who had his conjugal home and
domicile therein — with the deference in comity duly given by the Cebu court — could not be
contested except by appeal from said court in the original case. The last paragraph of said Rule
expressly provides:

... The jurisdiction assumed by a court, so far as it depends on the place of residence of
the decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the want
of jurisdiction appears on the record. (Rule 73)

The exception therein given, viz, "when the want of jurisdiction appears on the record" could probably
be properly invoked, had such deference in comity of the Cebu court to the Quezon City
court not appeared in the record, or had the record otherwise shown that the Cebu court had taken
cognizance of the petition before it and assumed jurisdiction.

6. On the question that Quezon City established to be the residence of the late senator, the appellate
court while recognizing that "the issue is a legitimate one" held in reliance on Borja vs. Tan 17 that.

... The issue of residence comes within the competence of whichever court is
considered to prevail in the exercise jurisdiction - in this case, the Court of First Instance
of Cebu as held by this Court. Parenthetically, we note that the question of the
 residence of the deceased is a serious one, requiring both factual and legal resolution
on the basis of ample evidence to be submitted in the ordinary course of procedure in
the first instance, particularly in view of the fact that the deceased was better known as
the Senator from Cebu and the will purporting to be his also gives Cebu, besides
Quezon City, as his residence. We reiterate that this matter requires airing in the proper
court, as so indicated in the leading and controlling case of Borja vs. Hon. Bienvenido
Tan, et al., G.R. L-7792, July 27, 1955.

In the case at bar, however, the Cebu court declined to take cognizance of the intestate petition first
filed with it and deferred to the testate proceedings filed with the Quezon City court and in effect
asked the Quezon City court to determine the residence of the decedent and whether he did leave a
last will and testament upon which would depend the proper venue of the estate proceedings, Cebu
or Quezon City. The Quezon City court having thus determined in effect for both courts — at the
behest and with the deference and consent of the Cebu court — that Quezon City was the actual
residence of the decedent who died testate and therefore the proper venue, the Borja ruling would
seem to have no applicability. It would not serve the practical ends of justice to still require the Cebu
court, if the Borja ruling is to be held applicable and as indicated in the decision under review, to
determine for itself the actual residence of the decedent (when the Quezon City court had already so
determined Quezon City as the actual residence at the Cebu court's behest and respondents have
not seriously questioned this factual finding based on documentary evidence) and if the Cebu court
should likewise determine Quezon City as the actual residence, or its contrary finding reversed on
appeal, only then to allow petitioner-widow after years of waiting and inaction to institute the
corresponding proceedings in Quezon City.

7. With more reason should the Quezon City proceedings be upheld when it is taken into
consideration that Rule 76, section 2 requires that the petition for allowance of a will must show: "(a)
the jurisdictional facts." Such "jurisdictional facts" in probate proceedings, as held by the Court
in Fernando vs. Crisostomo 18 " are the death of the decedent, his residence at the time of his death
in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, his
having left his estate in such province."

This tallies with the established legal concept as restated by Moran that "(T)he probate of a will is a
proceeding in rem. The notice by publication as a pre-requisite to the allowance of a will, is a
constructive notice to the whole world, and when probate is granted, the judgment of the court
is binding upon everybody, even against the State. The probate of a will by a court having jurisdiction
thereof is conclusive as to its due execution and validity." 19 The Quezon City court acted
regularly within its jurisdiction (even if it were to be conceded that Quezon City was not the proper
venue notwithstanding the Cebu court's giving way and deferring to it,) in admitting the decedent's
last will to probate and naming petitioner-widow as executrix thereof. Hence, the Quezon city court's
action should not be set aside by a writ of prohibition for supposed lack of jurisdiction as per the
appellate court's appealed decision, and should instead be sustained in line with Uriarte, supra,
where the Court, in dismissing the certiorari petition challenging the Manila court's action admitting
the decedent's will to probate and distributing the estate in accordance therewith in
the second proceeding, held that "it must be remembered that this Court is not inclined to annul
proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the
net result would be to have the same proceedings repeated in some other court of similar
jurisdiction." As stressed by Chief Justice Moran in Sy Oa, supra, "the mischievous effect in the
administration of justice" of considering the question of residence as affecting the jurisdiction of the
trial court and annulling the whole proceedings only to start all over again the same proceedings
before another court of the same rank in another province "is too obvious to require comment."

8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives
gets first to file a petition for settlement of the decedent's estate, then the established jurisprudence of
the Court that Rule 73, section 1 provides only a rule of venue in order to preclude different courts
which may properly assume jurisdiction from doing so and creating conflicts between them to the
detriment of the administration of justice, and that venue is waivable, would be set at naught. As
between relatives who unfortunately do not see eye to eye, it would be converted into a race as to
who can file the petition faster in the court of his/her choice regardless of whether the decedent is still
in cuerpo presente and in disregard of the decedent's actual last domicile, the fact that he left a last
will and testament and the right of his surviving widow named as executrix thereof. Such dire
consequences were certainly not intended by the Rule nor would they be in consonance with public
policy and the orderly administration of justice.
9. It would finally be unjust and inequitable that petitioner-widow, who under all the applicable rules
of venue, and despite the fact that the Cebu court (where respondent Lourdes Cuenco had filed
an intestate petition in the Cebu court earlier by a week's time on 5 March 1964) deferred to the
Quezon City court where petitioner had within fifteen days (on March 12, 1964) after the decedent's
death (on February 25, 1964) timely filed the decedent's last will and petitioned for letters
testamentary and is admittedly entitled to preference in the administration of her husband's
estate, 20 would be compelled under the appealed decision to have to go all the way to Cebu and
submit anew the decedent's will there for probate either in a new proceeding or by asking that the
intestate proceedings be convertedinto a testate proceeding — when under the Rules, the
proper venue for the testate proceedings, as per the facts of record and as already affirmed by the
Quezon City court is Quezon City, where the decedent and petitioner-widow had their conjugal
domicile.

It would be an unfair imposition upon petitioner as the one named and entitled to be executrix of the
decedent's last will and settle his estate in accordance therewith, and a disregard of her rights under
the rule on venue and the law on jurisdiction to require her to spend much more time, money and
effort to have to go from Quezon City to the Cebu court everytime she has an important matter of the
estate to take up with the probate court.

It would doubly be an unfair imposition when it is considered that under Rule 73, section 2, 21 since
petitioner's marriage has been dissolved with the death of her husband, their community property and
conjugal estate have to be administered and liquidated in the estate proceedings of the deceased
spouse. Under the appealed decision, notwithstanding that petitioner resides in Quezon City, and the
proper venue of the testate proceeding was in Quezon City and the Quezon City court properly took
cognizance and exercised exclusive jurisdiction with the deference in comity and consent of the Cebu
court, such proper exercise of jurisdiction would be nullified and petitioner would have to continually
leave her residence in Quezon City and go to Cebu to settle and liquidate even her own community
property and conjugal estate with the decedent.

10. The Court therefore holds under the facts of record that the Cebu court did not act without
jurisdiction nor with grave abuse of discretion in declining to take cognizance of the intestate petition
and instead deferring to the testateproceedings filed just a week later by petitioner as surviving widow
and designated executrix of the decedent's last will, since the record before it (the petitioner's
opposition and motion to dismiss) showed the falsity of the allegation in the intestate petition that the
decedent had died without a will. It is noteworthy that respondents never challenged by certiorari or
prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the probate proceedings
before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's order of
deference) to exercise jurisdiction and admit the decedent's will to probate.

For the same reasons, neither could the Quezon City court be held to have acted without jurisdiction
nor with grave abuse of discretion in admitting the decedent's will to probate and appointing petitioner
as executrix in accordance with its testamentary disposition, in the light of the settled doctrine that the
provisions of Rule 73, section 1 lay down only a rule of venue, not of jurisdiction.

Since respondents undisputedly failed to appeal from the Quezon City court's order of May 15, 1964
admitting the will to probate and appointing petitioner as executrix thereof, and said court concededly
has jurisdiction to issue said order, the said order of probate has long since become final and can not
be overturned in a special civic action of prohibition.

11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory authority over all
inferior courts, 22 it may properly determine, as it has done in the case at bar, that venue was properly
assumed by and transferredto the Quezon City court and that it is the interest of justice and in
avoidance of needless delay that the Quezon City court's exercise of jurisdiction over the testate
estate of the decedent (with the due deference and consent of the Cebu court) and its admission to
probate of his last will and testament and appointment of petitioner-widow as administratrix without
bond in pursuance of the decedent's express will and all its orders and actions taken in the testate
proceedings before it be approved and authorized rather than to annul all such proceedings regularly
had and to repeat and duplicate the same proceedings before the Cebu court only to revert once
more to the Quezon City court should the Cebu court find that indeed and in fact, as already
determined by the Quezon City court on the strength of incontrovertible documentary evidence of
record, Quezon City was the conjugal residence of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and resolution of the
Court of Appeals and the petition for certiorari and prohibition with preliminary injunction originally
filed by respondents with the Court of Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No
costs.

Separate Opinions

BARREDO, J., concurring:

I concur in the main opinion of Mr. Justice Teehankee.

I only want to stress that in my view, the failure of respondents to question within a reasonable time
the laying of the venue in the Quezon City Court of First Instance and the assumption of jurisdiction
by that court, after the Court of First Instance of Cebu deferred in its favor, in order to prevent the
holding therein of any proceeding and trial, and their having filed therein a formal opposition to the
probate of the will, makes them guilty of laches, for which reason they are not entitled to the equitable
relief prayed for in the present petition.

Separate Opinions

BARREDO, J., concurring:

I concur in the main opinion of Mr. Justice Teehankee.

I only want to stress that in my view, the failure of respondents to question within a reasonable time
the laying of the venue in the Quezon City Court of First Instance and the assumption of jurisdiction
by that court, after the Court of First Instance of Cebu deferred in its favor, in order to prevent the
holding therein of any proceeding and trial, and their having filed therein a formal opposition to the
probate of the will, makes them guilty of laches, for which reason they are not entitled to the equitable
relief prayed for in the present petition.

G.R. Nos. L-21938-39 May 29, 1970

VICENTE URIARTE, petitioner,

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE
COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and
HIGINIO URIARTE, respondents.

On October 3, 1963 petitioner Vicente Uriarte filed an original petition for certiorari — docketed as
G.R. L-21938 — against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of
First Instance of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as
the Negros Court and the Manila Court, respectively — praying:

... that after due proceedings judgment be rendered annulling the orders of 19 April
1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the
first instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex
'K') of respondent Manila court denying petitioner's omnibus motion to intervene and to
dismiss the later-instituted Special Proceeding No. 51396, supra, both special
proceedings pertaining to the settlement of the same estate of the same deceased, and
consequently annulling all proceedings had in Special Proceeding No. 51396; supra, of
the respondent Manila court as all taken without jurisdiction.

For the preservation of the rights of the parties pending these proceedings, petitioner
prays for the issuance of a writ of preliminary injunction enjoining respondents Manila
court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special
Proceeding No. 51396, supra, until further orders of this Court.

Reasons in support of said petition are stated therein as follows:

6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra,
and failing to declare itself 'the court first taking cognizance of the settlement of the
 estate of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of
the Rules of Court. Respondent Manila court erred in failing to dismiss its Special
Proceeding No. 51396, supra, notwithstanding proof of prior filing of Special Proceeding
No. 6344, supra, in the Negros court.

The writ of preliminary injunction prayed for was granted and issued by this Court on October 24,
1963.

On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL
PETITION FOR MANDAMUS — docketed in this Court as G.R. No. L-21939 — praying, for the
reasons therein stated, that judgment be rendered annulling the orders issued by the Negros Court
on December 7, 1963 and February 26, 1964, the first disapproving his record on appeal and the
second denying his motion for reconsideration, and further commanding said court to approve his
record on appeal and to give due course to his appeal. On July 15, 1964 We issued a resolution
deferring action on this Supplemental Petition until the original action for certiorari (G.R. L-21938) is
taken up on the merits.

On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's
contention that the respondent courts had committed grave abuse of discretion in relation to the
matters alleged in the petition for certiorari.

It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the
settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging
therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that, during the lifetime
of said decedent, petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory
acknowledgment as such natural son. Upon petitioner's motion the Negros Court appointed the
Philippine National Bank as special administrator on November 13, 1961 and two days later it set the
date for the hearing of the petition and ordered that the requisite notices be published in accordance
with law. The record discloses, however, that, for one reason or another, the Philippine, National Bank
never actually qualified as special administrator.

On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition
to the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite
who had "executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been
requested and which shall be submitted to this Honorable Court upon receipt thereof," and further
questioning petitioner's capacity and interest to commence the intestate proceeding.

On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special
Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be the last will of
the deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of
the Negros Court a motion to dismiss the same on the following grounds: (1) that, as the deceased
Juan Uriarte y Goite had left a last will, there was no legal basis to proceed with said intestate
proceedings, and (2) that petitioner Vicente Uriarte had no legal personality and interest to initiate
said intestate proceedings, he not being an acknowledged natural son of the decedent. A copy of the
Petition for Probate and of the alleged Will were attached to the Motion to Dismiss.

Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to
take cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired
exclusive jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court.

On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and
dismissed the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said
order having been denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal
bond and record on appeal for the purpose of appealing from said orders to this court on questions of
law. The administrator with the will annexed appointed by the Manila Court in Special Proceeding No.
51396 objected to the approval of the record on appeal, and under date of December 7, 1963 the
Negros Court issued the following order:

Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be
dismissed for having been filed out of time and for being incomplete. In the meantime,
before the said record on appeal was approved by this Court, the petitioner filed a
petition for certiorari before the Supreme Court entitled Vicente Uriarte, Petitioner, vs.
 Court of First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case
squarely before the Supreme Court on questions of law which is tantamount to
petitioner's abandoning his appeal from this Court.

WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the
petitioner is hereby disapproved.

In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned
heretofore.

On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending
in the Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the
annulment of the proceedings had in said special proceeding. This motion was denied by said court in
its order of July 1 of the same year.

It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros
Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case
No. 6142 to obtain judgment for his compulsory acknowledgment as his natural child. Clearly
inferrable from this is that at the time he filed the action, as well as when he commenced the
aforesaid special proceeding, he had not yet been acknowledged as natural son of Juan Uriarte y
Goite. Up to this time, no final judgment to that effect appears to have been rendered.

The record further discloses that the special proceeding before the Negros Court has not gone farther
than the appointment of a special administrator in the person of the Philippine National Bank who, as
stated heretofore, failed to qualify.

On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding
No. 51396, the Manila Court admitted to probate the document submitted to, it as the last will of Juan
Uriarte y Goite, the petition for probate appearing not to have been contested. It appears further that,
as stated heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente
Uriarte's Omnibus Motion for Intervention, Dismissal of Petition and Annulment of said proceedings.

Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the
Negros Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y
Goite and of the petition filed with the Manila Court for its probate. It is clear, therefore, that almost
from the start of Special Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew
of the existence of the aforesaid last will and of the proceedings for its probate.

The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros
Court erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b)
whether the Manila Court similarly erred in not dismissing Special Proceeding No. 51396
notwithstanding proof of the prior filing of Special Proceeding No. 6344 in the Negros Court.

Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original
exclusive jurisdiction over "all matters of probate," that is, over special proceedings for the settlement
of the estate of deceased persons — whether they died testate or intestate. While their jurisdiction
over such subject matter is beyond question, the matter of venue, or the particular Court of First
Instance where the special proceeding should be commenced, is regulated by former Rule 75,
Section 1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides
that the estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen or
an alien, shall be in the court of first instance in the province in which he resided at the time of his
death, and if he is an inhabitant of a foreign country, the court of first instance of any province in
which he had estate. Accordingly, when the estate to be settled is that of a non-resident alien — like
the deceased Juan Uriarte y Goite — the Courts of First Instance in provinces where the deceased
left any property have concurrent jurisdiction to take cognizance of the proper special proceeding for
the settlement of his estate. In the case before Us, these Courts of First Instance are the Negros and
the Manila Courts — province and city where the deceased Juan Uriarte y Goite left considerable
properties. From this premise petitioner argues that, as the Negros Court had first taken cognizance
of the special proceeding for the settlement of the estate of said decedent (Special Proceeding No.
6344), the Manila Court no longer had jurisdiction to take cognizance of Special Proceeding No.
51396 intended to settle the estate of the same decedent in accordance with his alleged will, and that
consequently, the first court erred in dismissing Special Proceeding No. 6344, while the second court
similarly erred in not dismissing Special Proceeding No. 51396.

It can not be denied that a special proceeding intended to effect the distribution of the estate of a
deceased person, whether in accordance with the law on intestate succession or in accordance with
his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true,
however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings, for the
settlement of the estate of a deceased person take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings
pending before a court of first instance it is found it hat the decedent had left a last will, proceedings
for the probate of the latter should replace the intestate proceedings even if at that stage an
administrator had already been appointed, the latter being required to render final account and turn
over the estate in his possession to the executor subsequently appointed. This, however, is
understood to be without prejudice that should the alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that
proceedings for the probate of a will enjoy priority over intestate proceedings.

Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed
the petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court — particularly
in Special Proceeding No. 6344 — or was entitled to commence the corresponding separate
proceedings, as he did, in the Manila Court.

The following considerations and the facts of record would seem to support the view that he should
have submitted said will for probate to the Negros Court, either in a separate special proceeding or in
an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In
the first place, it is not in accord with public policy and the orderly and inexpensive administration of
justice to unnecessarily multiply litigation, especially if several courts would be involved. This, in
effect, was the result of the submission of the will aforesaid to the Manila Court. In the second place,
when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of
letters of administration, he had already informed the Negros Court that the deceased Juan Uriarte y
Goite had left a will in Spain, of which a copy had been requested for submission to said court; and
when the other respondent, Juan Uriarte Zamacona, filed his motion to dismiss Special Proceeding
No. 6344, he had submitted to the Negros Court a copy of the alleged will of the decedent, from
which fact it may be inferred that, like Higinio Uriarte, he knew before filing the petition for probate
with the Manila Court that there was already a special proceeding pending in the Negros Court for the
settlement of the estate of the same deceased person. As far as Higinio Uriarte is concerned, it
seems quite clear that in his opposition to petitioner's petition in Special Proceeding No. 6344, he had
expressly promised to submit said will for probate to the Negros Court.

But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan
Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept
petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition,
albeit we say that it was not the proper venue therefor.

It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect, and, in
the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is
enough to consider in this connection that petitioner knew of the existence of a will executed by Juan
Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition
filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence
(presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with
the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal
of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed
with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to
intervene and for the dismissal and annulment of all the proceedings had therein up to that date; thus
enabling the Manila Court not only to appoint an administrator with the will annexed but also to admit
said will to probate more than five months earlier, or more specifically, on October 31, 1962. To allow
him now to assail the exercise of jurisdiction over the probate of the will by the Manila Court and the
validity of all the proceedings had in Special Proceeding No. 51396 would put a premium on his
negligence. Moreover, it must be remembered that this Court is not inclined to annul proceedings
regularly had in a lower court even if the latter was not the proper venue therefor, if the net result
would be to have the same proceedings repeated in some other court of similar jurisdiction; more so
in a case like the present where the objection against said proceedings is raised too late.

In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the
Negros Court said that he was "not inclined to sustain the contention of the petitioner that inasmuch
as the herein petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the
decedent such action justifies the institution by him of this proceedings. If the petitioner is to be
consistent with the authorities cited by him in support of his contention, the proper thing for him to do
would be to intervene in the testate estate proceedings entitled Special Proceedings No. 51396 in the
Court of First Instance of Manila instead of maintaining an independent action, for indeed his
supposed interest in the estate of the decedent is of his doubtful character pending the final decision
of the action for compulsory acknowledgment."

We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No.
6142 until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if
it is still open, or to ask for its reopening if it has already been closed, so as to be able to submit for
determination the question of his acknowledgment as natural child of the deceased testator, said
court having, in its capacity as a probate court, jurisdiction to declare who are the heirs of the
deceased testator and whether or not a particular party is or should be declared his acknowledged
natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino
vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G.
1119).

Coming now to the supplemental petition for mandamus (G.R. No. L-21939), We are of the opinion,
and so hold, that in view of the conclusions heretofore stated, the same has become moot and
academic. If the said supplemental petition is successful, it will only result in compelling the Negros
Court to give due course to the appeal that petitioner was taking from the orders of said court dated
December 7, 1963 and February 26, 1964, the first being the order of said court dismissing Special
Proceeding No. 6344, and the second being an order denying petitioner's motion for the
reconsideration of said order of dismissal. Said orders being, as a result of what has been said
heretofore beyond petitioner's power to contest, the conclusion can not be other than that the
intended appeal would serve no useful purpose, or, worse still, would enable petitioner to circumvent
our ruling that he can no longer question the validity of said orders.

IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs
prayed for and, as a result, the petition for certiorari filed in G.R. No. L-21938, as well as the
supplemental petition for mandamus docketed as G.R. No. L-21939, are hereby dismissed. The writ
of preliminary injunction heretofore issued is set aside. With costs against petitioner.

G.R. No. L-27082 January 31, 1978

Intestate Estate of the Spouses Juan C. Pangilinan and Teresa Magtuba. FILOMENO COCA,
Administrator, PRIMA PANGILINAN, and HEIRS OF CONCEPCION PANGILINAN-YAMUTA,
namely, MARIA P. YAMUTA DE ATAY, EUSEBIO P. YAMUTA, and APOLINAR P.
YAMUTA, petitioners-appellants,
vs.
GUADALUPE PIZARRAS VDA. DE PANGILINAN, HEIRS OF FRANCISCO PANGILINAN, namely,
FRANCIS, ALGERIAN, BENJAMIN, PERLA and FRANCISCO, JR., all surnamed PANGILINAN,
and CRISPIN BORROMEO, oppositors-appellees.

G.R. No. L-29545 January 31, 1978

FILOMENO COCA, administrator-appellant,

vs.
CRISPIN BORROMEO and GUADALUPE PIZARRAS VDA. DE PANGILINAN and her
Children, claimants-appellees.

These two cases involve the question of whether the ownership of a parcel of land, whether
belonging to the deceased spouses or to their heirs, should be decided in the intestate proceeding or
in a separate action. Also in issue in these two cases is the liability of the decedents' estate for the
litigation expenses allegedly incurred in a case regarding that same land.
Being related cases, their adjudication in a single decision was allowed in this Court's resolution of
August 13, 1969.

The spouses Juan Pan and Teresa Magtuba died intestate in 1943 and 1948, respectively. They
possession a homestead, consisting of two parcels of land, located at Barrio Bunawan or
Mauswagon, Calamba, Misamis Occidental.

One parcel is Identified as Lot No. 1927. It has an area of 3.9791 hectares. It was covered by Original
Certificate of Title (OCT) No. 10 of the registry of deeds of Oriental Misamis in the name of Juan
Pangilinan issued in 1927. It is now covered by Transfer Certificate of Title No. 86 (T-10) of the
registry of deeds of Misamis Occidental (p. 7, Appellees' brief in L-27082).

The other parcel is Identified as Lot No. 1112. It has an area of 18.0291 hectares. It is covered by
OCT No. P-8419 issued on November 21, 1961 in the name of the Heirs of Juan Pan , represented
by Concepcion Pan de Yamuta (p. 73, Record on Appeal in
L-27082).

According to Guadalupe Pizarras and her children, a third parcel, Lot No. 1920, with an area of eight
hectares which was surveyed in the name of Concepcion Pan and which adjoins Lots Nos. 1927 and
1112, also forms part of the estate of the deceased Pangilinan spouses (pp. 61-64, Record on
Appeal).

The Pangilinan spouses were survived by the following heirs: (1) Prima Pangilinan, (2) Maria,
Eusebio and Apolinar all surnamed Yamuta, the children of Concepcion Pangilinan Yamuta who died
in 1961, and (3) Francis, A Benjamin Perla and Francisco, Jr., all surnamed Pan the children of
Francisco Pan who died in 1948 and who was also survived by his widow, Guadalupe Pizarras. (It is
not clear whether Roseller, Demosthenes and Eliza, all surnamed Japay, were the children of the
deceased Helen Pangilinan, presumably a daughter of Francisco Pangilinan and Teresa Magtuba.
See pages 81-82, Record on Appeal).

Special Proceeding No. 508 of the Court of First Instance of Misamis Occidental was instituted on
September 5, 1963 for the settlement of the estate of the deceased spouses, Juan C. Pangilinan and
Teresa Magtuba.

On September 25, 1965 the administrator presented a project of partition wherein the combined
areas of Lots Nos. 1112 and 1927, or 22.0082 hectares, were partitioned as follows:

(a) To Crispin Borromeo as payment of his attorney's fees in Civil Case No. 560 or CA-
G.R. No. 6721-R, February 27, 1952, Crispin Labaria vs. Juan C. Pangilinan, in
accordance with the lower court's decision dated July 19, 1965 in Civil Case No. 2440.
Borromeo vs. Coca (p. 11, Appellees' brief in L-27082), three hectares which should be
taken from Lot No. 1112 and designated as Lot No. 1112-A;

(b) To the heirs of Francisco Pangilinan (Mrs. Pizarras and children), 5.3361
hectares taken from Lot No. 1112 and designated as Lot No. 1112-B;

(c) To Prima Pangilinan, 6.3361 hectares, taken from Lot No. 1112 and designated as
Lot No. 1112-C, and presumably a daughter of Francisco Pan 81-82, Record on
Appeal).

(d) To the heirs of Concepcion Pangilinan, 7.3360 hectares, consisting of Lot No. 1927
and the remainder of Lot No. 1112, which remainder is designated as Lot No. 1112-D.

It was also provided in the project of partition that the sum of P5,088.50, as the alleged debt of the
estate to Concepcion Pan should be divided equally among the three sets of heirs, or P1,696.16 for
each set of heirs, and that Prima Pangilinan and the heirs of Francisco Pangilinan should pay that
amount to the heirs of Concepcion Pangilinan.

The heirs of Francisco Pangilinan (Guadalupe Pizarras, et al.) opposed that project of partition. They
contended that the proposed partition contravened the lower court's order of December 6, 1963 which
recognized the right of the heirs of Francisco Pan to a twelve-hectare portion of Lot No. 1112; that
Prima Pangilinan, who sold her share to Francisco Pan should be excluded from the partition; that the
total share of the heirs of Francisco Pangilinan in Lot No. 1112 is 12.6720 hectares, while that of the
heirs of Concepcion Pangilinan is 6.3360 hectares, and that the claim of the heirs of Concepcion
Pangilinan for 115,088.50 had not been properly allowed.

The lower court in its order of October 2, 1965 directed the administrator to pay the debt of the estate
to the heirs of Concepcion Pangilinan. It deferred action on the project of partition until the ownership
of the twelve hectares, which were claimed by the heirs of Francisco Pan and the six hectares, which
were claimed by Crispen Borromeo (eighteen hectares in all which were excluded from the inventory
in the court's order of December 6, 1963) is determined in an ordinary action.

On may 14,1966 the heirs of Francisco Pangilinan filed a supplemental opposition wherein they
asked that Lot No. 1920, with an area of eight hectares, which lot was surveyed at should be included
in the project of partition.

On August 31, 1966 the lower court, apparently acting on its own volition, tackled once more the
project of partition. After noting that no separate action had been filed to determine the ownership of
the twelve hectares, it issued an order approving the project of partition but excluding the twelve
hectares claimed by the heirs of Francisco Pangilinan.

That order on its face appears to be incomplete because, after excluding the twelve hectares, the
lower court did not bother to decide how the remainder should be partitioned and whether Prima
Pangilinan had a share in that remainder.

That is the order under appeal in L-27082 by Filomeno Coca as administrator, Prima Pangilinan and
the heirs of Concepcion Pangilinan. However, the said appellants in their brief also assail the lower
court's order of December 6, 1963, excluding eighteen hectares from the inventory, which order was
sustained by the Court of Appeals in its decision in Atay vs. Catolico, CA-G.R. Nos. 33165-R, and
3426-R, May 14,1964, 5 CAR 1200. This Court refused to review that decision in its resolution of July
29, 1964, in
L-23088-89, Atay vs. Court of Appeals.

The other incident involves the lower court's order of May 11, 1968 which directed that the claim of
the heirs of Francisco Pangilinan for reimbursement of litigation expenses (apart from the sum of
P1,459.49, as the value of the produce of the twelve hectares already mentioned, which was
appropriated by the special administrator), be referred to the clerk of court for reception of the
evidence.

In another order, also dated May 11, 1968, the lower court reiterated its order of October 2, 1965 that
the administrator should pay the heirs of Concepcion Pan the. amount to be reimbursed to her estate.
The court further directed the administrator to account for the income of the estate, to recover any
amount due from the special administrator, and to pay the claim of Crispin Borromeo and the amount
due to the heirs of Concepcion Pangilinan as directed in its order of August 31, 1966 and in its
approval of the accounting of the special administrator.

The administrator, Filomeno Coca, Prima Pangilinan and the heirs of Concepcion Pan also appealed
from those two orders dated May 11, 1968 (L-29545).

The appellant contend that the lower court, as a probate court, has no jurisdiction to decide the
ownership of the twelve-hectare portion of Lot No. 1112. On the other hand, the appellees" or the
heirs of Francisco Pangilinan counter that the lower court did not decide the ownership of the twelve
hectares when it ordered their exclusion from the project of partition. So, the problem is how the title
to the twelve hectares should be decided, whether in a separate action or in the intestate. proceeding.

It should be clarified that whether a particular matter should be resolved by the Court of First Instance
in the exercise of its general jurisdiction or of its limited probate jurisdiction is in reality not a
jurisdictional question. In essence, it is a procedural question involving a mode of practice "which may
be waived" (Cunanan vs. Amparo, 80 Phil. 227, 232. Cf. Reyes vs. Diaz, 73 Phil. 484 re jurisdiction
over the issue).

As a general rule, the question as to title to property should not be passed upon in the estate or
intestate proceeding. That question should be ventilated in a separate action. (Lachenal vs. Salas, L-
42257, June 14, 1976, 71 SCRA 262, 266). That general rule has qualifications or exceptions justified
by expediency and convenience.

Thus, the probate court may provisionally pass upon in an intestate or testate proceeding the
question of inclusion in, or exclusion from, the inventory of a piece of property without prejudice to its
final determination in a separate action Lachenal vs. Salas, supra).

Although generally, a probate court may not decide a question of title or ownership, yet if the
interested parties are all heirs or the question is one of collation or advancement, or the parties
consent to the assumption of jurisdiction by the probate court and the rights of 'third parties are not
impaired, then the probate court is competent to decide the question of ownership (Pascual vs.
Pascual 73 Phil. 561; Alvarez vs. Espiritu, L-18833, August 14, 1965, 14 SCRA 892; Cunanan vs.
Amparo, supra; 3 Morans Comments on the Rules of Court, 1970 Ed., p. 4731).

We hold that the instant case may be treated as an exception to the general rule that questions of title
should be ventilated in a separate action.

Here, the probate court had already received evidence on the ownership of the twelve-hectare portion
during the hearing of the motion for its exclusion from title inventory The only interested parties are
the heirs who have all appeared in the intestate proceeding.

As pointed out by the appellees, they belong to the poor stratum of society. They should not be forced
to incur additional expenses (such as filing fees) by bringing a separate action to determine the
ownership of the twelve-hectare portion.

The just, expeditious and inexpensive solution is to require the heirs of Francisco Pangilinan to the in
the intestate, proceeding, Special Proceeding No. 568, a motion in the form of a complaint wherein
they should set forth their claim for the twelve hectares in question, stating the ultimate facts in
support of their claim, such as the partition made by Juan C. Pangilinan, their acquisition of the share
of Prima Pangilinan and the usufructuary rights of their parents, their long possession of the said
portion, their claim for the produce of the land, the expenses incurred by them in Civil Case No.
560, Labaria vs. Pangilinan, and their contention that Lot No. 1920 forms part of the estate of the
Pangilinan spouses.

Copies of that motion should be serves upon the administrator and upon Prima Pangilinan and the
heirs of Concepcion Pangilinan (who are all represented by the same lawyers). They should answer
the motion within fifteen days from service. In their answer the appellants should set forth the ultimate
facts and the defenses (such as the violation of section 118 of the Public Land Law) to support their
theory that Lot No. 1112 still forms part of the estate of the spouses Juan C. Pangilinan and Teresa
Magtuba and that the heirs of Francisco Pangilinan should bear one-third of the expenses incurred by
Concepcion Pan in Civil Case No. 560.

After the issues have been joined and in case no amicable settlement has been reached, the probate
court should receive evidence or, as indicated by the Court of Appeals in Atay vs. Catolico, supra a
full-dress hearing should be held.

Crispin Borromeo may set forth also his claim for the three hectares but only for the purpose of
deciding what portion of the estate should be given to him in satisfaction of his share. His claim for
the sum of P416 had already been adjudicated by the lower court in its order of August 31, 1966 (pp.
26- 27, Record on Appeal in L-29545). No appeal was interposed from that adjudication.

After trial the lower court's decision on the issues as to what constitutes the estate of the Pangilinan
spouses should include the partition thereof and should indicate what portion of the estate should be
allocated to Crispen Borromeo. If necessary, the validity of the donation or partition of Lot No. 1112,
made by Juan C. Pangilinan during his lifetime, should be passed upon.

Considering that the respective claims of the heirs of Francisco Pangilinan . and the heirs of
Concepcion Pangilinan for reimbursement of the litigation expenses allegedly incurred in Civil Case
No. 560 will be included in the trial, the two orders of the trial court dated May 11, 1968 regarding
those matters (L-29545) should not be enforced. They should be set aside.
WHEREFORE, (1) the lower court's amended order of August 31, 1966, excluding twelve hectares
from the partition of the estate of the deceased Pan spouses (L-27082) and (2) the two orders dated
May 11, 1968, regarding the claim of Guadalupe Pizarras and her children and the debt of the estate
to Concepcion Pangilinan (L-29545) are reversed and set aside.

A new trial should be held on those matters after the filing of the proper pleadings and in case no
amicable settlement is reached. The heirs of Francisco Pangilinan should file their motion within thirty
days from notice of the entry of judgment in this case.

The case is remanded to the lower court for further proceedings in accordance with the guidelines
already set forth. No costs.

SO ORDERED.

ëtANITA REYESMESUGAS, G.R. No. 174835

Petitioner,
Present:

CORONA, J., Chairperson,

VELASCO, JR.,
- v e r s u s - NACHURA,
PERALTA and
ABAD, JJ.*
ALEJANDRO AQUINO REYES,
Respondent. Promulgated:

March 22, 2010

This is a petition for review on certiorari [1] seeking to reverse the June 23, 2006 and
September 21, 2006 orders[2] of the Regional Trial Court of Makati (RTC), Branch 62 denying the
petitioners motion to cancel a notice of lis pendens.

Petitioner Anita Reyes-Mesugas and respondent Alejandro A. Reyes are the children of Lourdes

Aquino Reyes and Pedro N. Reyes. Lourdes died intestate, leaving to her heirs, among others, three

parcels of land, including a lot covered by Transfer Certificate of Title (TCT) No. 24475.

On February 3, 2000, respondent filed a petition for settlement of the estate of Lourdes,
[3]
praying for his appointment as administrator due to alleged irregularities and fraudulent
transactions by the other heirs. Petitioner, her father Pedro and Arturo, a sibling of the petitioner,
opposed the petition.

On August 30, 2000, a compromise agreement [4] was entered into by the parties whereby the estate
of Lourdes was partitioned. A decision [5] dated September 13, 2000 was rendered by the RTC
pursuant to the said compromise agreement. The compromise agreement with respect to TCT No.
24475 is reproduced below:

5. That the parties hereto hereby agree to recognize, acknowledge and respect:

5.1. the improvements found on the parcel of land covered under TCT No. 24475
of the Registry of Deeds of Rizal consisting of two lots namely Lot 4-A and
Lot 4-B of the new survey with two (2) residential houses presently
occupied and possessed as owners thereof by Antonio Reyes and Anita
Reyes-Mesugas to constitute part of their shares in the estate of Lourdes
Aquino Reyes;

5.2 further, the improvement consisting of a bakery-store under lease to a third

party. The proceeds thereof shall be shared by Antonio Reyes and Pedro
N. Reyes;
 5.3 that the expenses for the partition and titling of the property between Antonio
Reyes and Anita Reyes-Mesugas shall be equally shared by them.

On December 7, 2004, petitioner filed a motion to cancel lis pendens annotation for TCT No.
24475[6] in the RTC in view of the finality of judgment in the settlement of the estate. Petitioner argued
that the settlement of the estate proceeding had terminated; hence, the annotation
of lis pendens could already be cancelled since it had served its purpose.

Respondent opposed the motion and claimed that the parties, in addition to the compromise
agreement, executed side agreements which had yet to be fulfilled. One such agreement was
executed between petitioner[7] and respondent granting respondent a one-meter right of way on the
lot covered by TCT No. 24475. However, petitioner refused to give the right of way and threatened to
build a concrete structure to prevent access. He argued that, unless petitioner permitted the
inscription of the right of way on the certificate of title pursuant to their agreement, the notice
of lis pendens in TCT No. 24475 must remain.

In its order[8] dated January 26, 2006, the RTC denied the motion to cancel the notice
of lis pendens annotation for lack of sufficient merit. It found that the cancellation of the notice
of lis pendens was unnecessary as there were reasons for maintaining it in view of petitioner's non-
compliance with the alleged right of way agreement between the parties. It stated that:

A careful perusal of the compromise agreement dated September 13, 2000 revealed that
one of the properties mentioned is a parcel of land with improvements consisting [of] two
hundred nine (209) square meters situated in Makati covered under TCT No. 24475 of
the Registry of Deeds [of] Rizal in the name of Pedro N. Reyes married to Lourdes
Aquino Reyes and form[s] part of the notarized right of way agreement on TCT No.
24475, considering that the movant Anita Reyes is still bound by the right of way
agreement, the same should be complied with before the cancellation of the subject
annotation.[9] (Citations omitted)
Petitioner filed a notice of appeal. [10] Because the denial of a motion to cancel the notice
of lis pendens annotation was an interlocutory order, the RTC denied the notice of appeal as it could
not be appealed until the judgment on the main case was rendered. [11] A motion for reconsideration
was filed by petitioner but the same was also denied. [12]

Hence, this petition.

We find for petitioner.

A compromise is a contract whereby the parties, by making reciprocal concessions, avoid litigation or
put an end to one already commenced. [13] Once submitted to the court and stamped with judicial
approval, it becomes more than a mere private contract binding upon the parties; having the sanction
of the court and entered as its determination of the controversy, it has the force and effect of any
judgment.[14]

Consequently, a judgment rendered in accordance with a compromise agreement is

immediately executory as there is no appeal from such judgment. [15] When both parties enter into an
agreement to end a pending litigation and request that a decision be rendered approving said
agreement, such action constitutes an implied waiver of the right to appeal against the said decision.
[16]

In this instance, the case filed with the RTC was a special proceeding for the settlement of the
estate of Lourdes. The RTC therefore took cognizance of the case as a probate court.

Settled is the rule that a probate court is a tribunal of limited jurisdiction. It acts on matters
pertaining to the estate but never on the rights to property arising from the contract. [17] It approves
contracts entered into for and on behalf of the estate or the heirs to it but this is by fiat of the Rules of
Court.[18] It is apparent therefore that when the RTC approved the compromise agreement on
September 13, 2000, the settlement of the estate proceeding came to an end.

Moreover, a notice of lis pendens may be cancelled when the annotation is not necessary to
protect the title of the party who caused it to be recorded. [19] The compromise agreement did not
mention the grant of a right of way to respondent. Any agreement other than the judicially approved
compromise agreement between the parties was outside the limited jurisdiction of the probate court.
Thus, any other agreement entered into by the petitioner and respondent with regard to a grant of a
right of way was not within the jurisdiction of the RTC acting as a probate court. Therefore, there was
no reason for the RTC not to cancel the notice of lis pendens on TCT No. 24475 as respondent had
no right which needed to be protected. Any alleged right arising from the side agreement on the right
of way can be fully protected by filing an ordinary action for specific performance in a court of general
jurisdiction.

More importantly, the order of the probate court approving the compromise had the effect of
directing the delivery of the residue of the estate of Lourdes to the persons entitled thereto under the
compromise agreement. As such, it brought to a close the intestate proceedings [20] and the probate
court lost jurisdiction over the case, except only as regards to the compliance and the fulfillment by
the parties of their respective obligations under the compromise agreement.

Having established that the proceedings for the settlement of the estate of Lourdes came to an
end upon the RTCs promulgation of a decision based on the compromise agreement, Section 4, Rule
90 of the Rules of Court provides:

Sec. 4. Recording the order of partition of estate. - Certified copies of final orders and
judgments of the court relating to the real estate or the partition thereof shall be
recorded in the registry of deeds of the province where the property is situated.
In line with the recording of the order for the partition of the estate, paragraph 2, Section 77 of
Presidential Decree (PD) No. 1529[21] provides:

Section 77. Cancellation of Lis Pendens xxx xxx xxx

xxx xxx
At any time after final judgment in favor of the defendant, or other disposition
of the action such as to terminate finally all rights of the plaintiff in and to the
land and/or buildings involved, in any case in which a memorandum or notice
of lis pendens has been registered as provided in the preceding section, the notice
of lis pendens shall be deemed cancelledupon the registration of a certificate of the
clerk of court in which the action or proceeding was pending stating the manner of
disposal thereof. (emphasis supplied)

Thus, when the September 13, 2000 decision was recorded in the Registry of Deeds of Rizal

pursuant to Section 4, Rule 90 of the Rules of Court, the notice of lis pendensinscribed on TCT No.

24475 was deemed cancelled by virtue of Section 77 of PD No. 1529.

WHEREFORE, the petition is hereby GRANTED. The Orders of the Regional Trial Court of

Makati, Branch 62 dated June 23, 2006 and September 21, 2006 are SET ASIDE. The notice

of lis pendens annotated on TCT No. 24475 is hereby declared CANCELLED pursuant to Section 77

of the PD No. 1529 in relation to Section 4, Rule 90 of the Rules of Court.

SO ORDERED.

G.R. No. L-8162 August 30, 1955

JULIETA TAMBUNTING DE TENGCO, petitioner,

vs.
Honorable RAMON R. SAN JOSE, as Judge of First Instance of Manila, SALVADOR BARRIOS,
JOSE S. SARTE and EDUARDO D. GUTIERREZ, respondents.

Ozaeta, Lichauco and Picazo for petitioner.

Jose S. Sarte in his own behalf and in that of the other respondents.
Eduardo D. Gutierrez in his own behalf.
Salvador Barrios in his own behalf.
MONTEMAYOR, J.:

Clara Tambunting died on April 2, 1950, leaving properties, real and personal, of great value. Her will
was probated on August 21, 1950. Survived by her husband Vicente L. Legarda, she left as sole and
direct heir her grandson Vicente Legarda Price, an only child of her only child and daughter Clarita
Tambunting married to Walter Scott Price. Clarita died during the Liberation in 1945; her surviving
spouse Walter Scott Price later remarried and returned to the United States. His sister Pacifica Price
de Barrios married to a brother of Atty. Salvador Barrios was later appointed guardian of the minor
Vicente Legarda Price who by now must be around ten or eleven years old. Clara's will disposed of
her estate in the following manner:

1. 4/6 to her grandson Vicente Legarda Price;

2. 1/6 to her husband Vicente L. Legarda (who later married a daughter of Atty. Jose S. Sarte);
and

3. 1/6 to her nephews and nieces named Benjamin, Augusto, Romeo, and Julieta, all
surnamed Tambunting, children of her brother Manuel Tambunting.

Three co-administrators were appointed—Vicente L. Legarda, represented by his father-in-law Atty.

Sarte; Pacifica Price de Barrios, represented by her brother-in-law Atty. Barrios; and Augusto
Tambunting, represented by Atty. Eduardo D. Gutierrez. Each co-administrator filed a bond in the sum
of P10,000. At the time the estate was valued at P200,000.

By order of the probate court of October 14, 1950 for payment of the fees of said three attorneys
Barrios, Sarte and Gutierrez, Judge Pecson authorized them to collect from the estate P50,000,
P25,000, and P25,000, respectively. This order was based on an omnibus petition filed by all the
heirs, co-administrators and their attorneys asking for said payment and informing the court that the
estate was actually worth P3,000,000.

Walter Scott Price, father of the minor Vicente Legarda Price was also given a legacy in the sum of
P25,000 on condition that he relinquished the administration of the estate. He evidently accepted the
condition and he was paid the amount of the legacy. It should be stated in this connection that each of
the co-administrators was awarded by the court a fee of P30,000 and the total award of P90,000
seems to have also been paid to said co-administrators.

On June 15, 1951, Attys. Sarte and Gutierrez filed a joint petition asking the probate court that their
authorized attorney's fees of P25,000 each be equalized to that of Atty. Barrios which was P50,000.
Pacifica Price, co-administrator and her counsel Atty. Barrios opposed the petition but later withdrew
their opposition provided that the additional fees of P25,000 each sought by Attys. Sarte and
Gutierrez be paid from the share of their clients, namely, Benjamin, Augusto, Romeo and Julieta,
represented by Atty. Gutierrez and Vicente L. Legarda represented Atty. Sarte. Because of the
conformity of the parties this petition for increase was granted by the probate court, and to be paid
from the estate, but with the understanding that the fee of P50,000 given to Atty. Barrios and the fees
of Atty. Sarte and Gutierrez of P25,000 each plus the additional P25,000 to each should be the limit to
the amounts of attorney's fees chargeable to the estate, and that any additional attorney's fees
sought and awarded should come from the estate of their respective clients and with the consent of
the latter.

The probate court was informed that the estate had around P1,000,000 in cash deposited in
Philippine and United States Banks from which the attorney's fees already mentioned could be paid,
and cash advances to the heirs and legatees could be made. From the record we gather that these
funds were withdrawn from the banks and were presumably distributed and paid out roughly as
follows:

Partial distribution:

To Vicente Legarda Price, minor P250,000.00

To Vicente Legarda, surviving spouse 225,000.00

 To children of Manuel Tambunting, named Benjamin,
Augusto, Romeo and Julieta 185,000.00

To legatees enumerated in the will in different amounts 49,000.00

Legacy to Walter Scott Price, father of minor Vicente

Legarda Price provided he relinquished administration of
the estate 25,000.00

Paid to various creditors 7,186.95

Administration fees, 3 per cent of value of estate or 1

per cent to each co-administrator, per order of October
6, 1950. (Certainty of payment does not appear in the
record.) 90,000.00

Attorney's fees, P50,000 to each attorney of each co-

administrator, as of the order of February 3, 1951 150,000.00

Total P981,168.95.

On January 16, 1951, Atty. Gutierrez filed a proof of claim for P30,000 "for study, preparation and
drawing of the last will and testament" of Clara Tambunting which will is said to consist of only three
pages. The amount claimed was based on the alleged value of the estate, namely, P3,000,000 that is
to say, 1% thereof.

On February 6,1952, an omnibus petition filed by all the heirs, principal legatees and co-
administrators and their attorneys was filed asking the court to fix and approve the cash value of the
usufruct of the surviving spouse Vicente L. Legarda in the amount of P50,000; to pay an additional
attorney's fees to the three lawyers Sarte, Barrios and Gutierrez in the amount of P100,000 each; to
pay an account of said additional attorney's fees the sum of P20,000,000 to each attorney and that in
order to pay said amounts of P50,000, cash value of the usufruct, P60,000 advance to the attorneys
and P50,000 as partial payment of the taxes to the Government, the three co-administrators be
authorized to procure a loan from the trust funds deposited in the name of Vicente Legarda Price in
the amount of P160,000.

In an order dated February 29, 1952, Judge San Jose denied the prayer for authority to secure a
loan; denied the prayer for the payment of additional attorney's fees in the amount of P100,000 each,
but approved the agreement of the parties fixing the cash value of the usufruct of Vicente L. Legarda
in the sum of P50,000. This amount was paid to Vicente Legarda and is included in the P225,000
paid to him according to the partial distribution already stated. In the same other Judge San Jose
directed the administrators to wind up the probate proceedings within 30 days.

In an omnibus petition dated March 20,1952 filed by the heirs, co-administrators and their attorneys
the reconsideration of the order of the Judge San Jose of February 29, 1952, was asked, alleging as
an important ground for said reconsideration the assertion and claim that the state may
conservatively valued at P7,000,000.

By order of April 9, 1952 Judge Ibañez, apparently acting as vacation Judge in the sala of Judge San
Jose, granted in part the motion for reconsideration and allowed each of the three attorneys an
additional fee of P70,000 instead of P100,000 as previously sought, and that instead of the P20,000
desired to be advanced to each attorney on account of the P70,000 increase in fees, only P17,500 be
paid each attorney. This order of April 9, 1952, granting the petition for the payment of P70,000
additional fee to each attorney is one of the orders involved in the present case before this Court.

In a petition dated November 25, 1952, Atty. Gutierrez reminded the probate court of his previous
petition of January 15, 1951 claiming the sum of P30,000 for drawing up the will of Clara Tambunting
and of the omnibus petition filed by the heirs, administrators and their attorneys agreeing to said
claim. In an order dated November 26, 1952, Judge San Jose granted said claim for P30,000. This is
the other order involved in the present petition for mandamus.

On December 2, 1952 Julieta Tambunting dismissed Atty. Gutierrez as her lawyer and employed the
law firm of Ozaeta, Roxas, Lichauco & Picazo who filed their appearance on the same date.

Presumably, because of the claims and representations made by the three attorneys Sarte, Barrios &
Gutierrez that the estate had a conservative value of P7,000,000, the Government on April 27, 1953,
filed a claim for taxes, estate and inheritance, including surcharges, in the amount of P1,581,671.80,
based apparently on the value of the estate as stated in the petition for increase of attorney's fees
dated January 31, 1952. Subsequently, however, his claim of the Government for taxes was
reconsidered presumably upon representation of the co-administrators and attorneys that the estate
was worth much less than P70,000,000 and the Government accordingly reduced its claim for taxes
from P1,581,671.80 to P493,734.26, and from this latter amount one may estimate the actual value of
the estate at between two and two and a half million pesos.

On August 14, 1953, Julieta Tambunting thru her new attorneys petitioned the probate court to set
aside its order of April 9, 1952, granting to each of three respondent attorneys P70,000 as additional
attorney's fees and its order of November 26, 1952, granting to Atty. Gutierrez a separate fee of
P30,000 for preparing the will of Clara Tambunting, all on the ground that the said fees were procured
through fraudulent misrepresentation that the value of the estate was P7,000,000 when in fact said
attorneys knew it to be only two million pesos, this, with the collusion of the administrators and their
respective attorneys, to the prejudice of the estate especially of the minor Vicente Legarda Price
under the guardianship of one of the co-administrators. In its order of December 28, 1953 Judge San
Jose denied said petition apparently on the ground that it was filed out of time, well beyond the period
fixed by Rule 38 of the Rules of Court relative to petitions for relief; he also denied a motion for
reconsideration of this order of denial.

On April 20, 1954, petitioner Julieta Tambunting filed a notice of appeal and an appeal bond and the
record on appeal, but respondent Judge San Jose in his order of August 27, 1954, denied the appeal.
Because of that order denying the appeal, Julieta Tambunting filed the present petition
for mandamus against Judge San Jose and attorneys Barrios, Sarte and Gutierrez, to compel the
former to approve and certify to this Court the record on appeal presented by petitioner on April 20,
1954.

The reason given by respondent Judge in his order of August 27, 1954 refusing to give due course to
the appeal is that his order of December 28, 1953 sought to be appealed did not constitute a final
determination of the rights of petitioner Julieta with respect to the orders of April 9, 1952 and
November 26, 1952 for the reason that she had an adequate remedy granted to her by law, namely, a
separate action to annul said two orders on the ground of fraud, if filed within four years after the
discovery of the fraud. We believe that the order of December 28, 1953, denying the petition of
August 14, 1953 on the ground that it was filed beyond the period required by Rule 38, is appealable
(Paner vs. Yatco,* G.R. No. L-2042, 48 Off. Gaz., No. 1, p. 59). Being appealable, the lower court may
not deny the appeal if perfected on time as apparently it was so perfected. Even assuming for a
moment that it was a mere interlocutory order, as claimed by respondents and so not appealable
under Rule 41, Section 2 of the Rules of Court, nevertheless, it has been held in the case of Dais vs.
Garduño, 49 Phil., 169, that this rule is not applicable to probate proceedings.

But the lower court says that the order sought to be appealed did not constitute a final determination
of the rights of petitioner with respect to the two orders sought to be set aside. We do not agree. If not
appealed, then there was nothing to stop or prevent the probate court from enforcing and carrying out
the terms of the two orders in question and paying out the large sums involved in them. In other
words, within the probate proceedings, the order of December 28, 1953, would constitute a final
determination of the rights of appellant-petitioner with respect to the payment of said sums, thereby
coming within the purview of Rule 105, section 1 (e) which provides that an interested person may
appeal in special proceedings from an order or judgment rendered by a Court of First Instance, where
such order or judgment:

Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or

the administration of a trustee or guardian, a final determination in the lower court of the rights
of the party appealing, except that no appeal shall be allowed from the appointment of a
special administrator.

The lower court further claims that appellant had another adequate remedy granted to her by law,
namely, a separate action to annul said two orders on the ground of fraud. But why compel appellant
to resort to another remedy, assuming that it was available, when the remedy by appeal which she is
now invoking is not only adequate but the most speedy, convenient and least expensive? Moreover,
the adequate remedy referred to by the probate court meant filing a separate action not before the
same probate court but before the regular Court of First Instance, perhaps presided over by another
judge who would have no knowledge whatsoever of the facts and circumstances involved in the
probate proceedings, particularly those surrounding the issuance of the two orders in question. Aside
from the pleadings required in said separate action, evidence would have to be presented, and by the
time that the separate action is finally terminated, not excluding appeal by the party dissatisfied with
the decision of the lower court, the remedy sought may prove to be too late and empty because the
sums whose disbursement was sought to be stopped and prevented, may in the meantime have been
paid, and spent by the payees, thereby rendering recovery difficult, if not impossible.

After a probate case is definitely closed, then is the time to consider a separate action to set aside an
order or judgment of the probate court, this, in order not to reopen the probate proceedings already
terminated. But while the probate proceedings are still open, then the logical tribunal called upon to
consider and grant the remedy is the probate court itself.

One would naturally inquire into and it is necessary to ascertain the nature and status of the two
orders in question dated April 9, 1952 and November 26, 1952, granting attorney's fees, and whether
or not they were such orders or judgments which were covered by Rule 38 of the Rules of Court
regarding petitions for relief. Rule 38, particularly sections 2 and 3 thereof refer to orders and
judgments which have become final or executory. Do the two orders aforementioned come under this
category?

We believe and hold that the two orders in question granting attorney's fees are merely incidental to
the probate proceedings and may be regarded as interlocutory in nature, subject to modification or
setting aside by the probate court until the proceedings are terminated and the case definitely closed,
after which said orders become final and executory. As a rule, during the pendency of special
proceedings, the probate court retains control and jurisdiction over incidents connected with it,
including its orders not affecting third parties who may by such orders, have acquired vested rights.
This control and jurisdiction is particularly extensive to and effective against its own officers, such as
administrators appointed by it, and attorneys representing them or representing parties included in
the preceedings. As this Court has said in the case of Oñas vs. Javillo, 54 Phil., 604, "In probate
proceedings considerable latitude is allowed a Court of First Instance in modifying or revoking its own
orders as long as the proceedings are pending in the same Court and timely application or motions
for such modifications or revocations are made by the interested parties." Just as the probate court
may increase as it had increased the fees of the attorneys in the present case, it could equally and
with the same authority decrease said attorney's fees when so warranted, as for instance, if it is found
that the value of the estate is much less than what was originally assessed, and on which erroneous
assessment, the original fees were awarded. The same thing is true with regards to fees to be
allowed administrators. In other words, an order fixing the fees of an administrator or of an attorney
rendering professional services to an administrator, continues to be under the control of the probate
court until the case is closed, and until then, the court may modify or set it aside in the sense that it
may decrease or increase the same accordingly to the facts and circumstances as they develop and
unfold in the course of the probate proceedings; and even if said fees have already been partially or
fully paid, they may yet be ordered returned or reimbursed to the estate, or a bond may be required of
the court officer receiving them, to guarantee the return or reimbursement if later found to be
necessary (Dais vs. Carduño, 49 Phil., 165). Respondent Judge therefore erred in denying the
petition of Julieta Tambunting dated August 14, 1953 to set aside the two orders of April 9, 1952 and
November 26, 1952, in the mistaken belief that said orders had become final and executory and so
came under the provisions of Rule 38, and because the petition for relief was filed beyond the period
prescribed by said Rule 38.

In this connection, it may be stated that we have carefully gone over the record, particularly the
different fees awarded to the rather numerous court officers intervening in these probate proceedings,
and we cannot get away from the impression that the estate cannot be said to have been
administered economically. For instance, we are not convinced that it was necessary to have three
co-administrators to administer the estate, and each of them being paid P30,000, and on top of that to
have each co-administrator represented by a separate attorney who, excluding the P70,000
additional fees now in question, have already been granted and paid P50,000 each. This does not
seem to be a case involving much if any litigation, or of numerous claims or complicated accounts. So
far, the amount paid to creditors is only about seven thousand pesos. There are no children or heirs
of several marriages, with conflicting and adverse interests which should be represented and
protected by perhaps separate administrators and counsel. There is only one forced and direct heir
and a minor at that. The rest are legatees whose rights and interests can have no possible, much less
serious conflict with those of the direct heir. True, most of the awards and grants of fees to the court
officers intervening were based on omnibus petitions and bolstered by the conformity of the co-
administrators, the heirs, legatees, and the attorneys themselves, but one might consider the special
relationship between the heirs, legatees, co-administrators and their attorneys. As already stated, as
co-administrator Vicente Legarda is represented by Atty. Sarte, his father-in-law; co-administratrix
Pacifica Price Barrios is represented by Atty. Barrios, her brother-in-law; and as to the minor Vicente
Legarda Price now about 10 or 11 years old, he could have been represented by his own father
Walter Scott Price his natural guardian but said father after being given a legacy of P25,000 but said
father after being given a legacy of P25,000 had left the Islands and remarried. The minor could also
have been under the guardianship of his grandfather Vicente Legarda but the latter has also
remarried and as already said, in his capacity as co-administrator, has engaged as his lawyer his
father-in-law. So, the minor is now under the guardianship of his aunt Pacifica Price Barrios but she is
also married and in her capacity as co-administratrix, has engaged as her counsel her brother-in-law
Atty. Barrios. Considering this special relationships above referred to, which may have effect of
divided loyalty, the omnibus petition agreed to by the legatees, heirs, co-administrators and their
attorneys would appear not have the weight and merit usually accorded such petitions, especially
when we bear in mind that the conformity to such omnibus petitions on the part of the minor Vicente
Legarda Price, was given not by him personally for he was only about nine or ten years old, but by
guardian Pacifica Price de Barrios. Another point not to be lost sight of is that inasmuch as the minor
is entitled to 4/5 or 2/3 of the whole estate, naturally, for every amount disbursed as attorney's fees
and co-administrators fees, he would have to bear 2/3 of the same. By these observations, it is
neither our intention nor our desire to prejudge the merits of the case as regards the propriety or
reasonableness of the two orders of April 9, 1952 and November 26, 1952, granting attorney's fees,
which will eventually and in due time, be considered and passed upon by the proper court.

We may add that in probate proceedings the probate court acts as a trustee of the estate and as such
trustee it should jealousy guard the estate under administration (Dariano vs. Fidalgo, 14 Phil., 67) and
see to it that it is wisely and economically administered and not dissipated. In the case of Mendoza
vs. Pacheco, 64 Phil., 142, this Court said:

. . . This State fails wretchedly in its duty to its citizens if the machinery furnished by it for the
division and distribution of the property of a decedent is so cumbersome, unwieldy and
expensive that a considerable portion of the estate is absorbed in the process of such division.
Where administration is necessary, it ought to be accomplished quickly and at very small
expense; and a system which consumes any considerable portion of the property which it was
designated to distribute is a failure. . . . (McMicking vs. Sy Conbieng, 21 Phil., 211, 220)

Here, although the estate was originally valued at P200,000 the assessment was later raised to
P3,000,000 and still later to P7,000,000, and it seems that the fees of the court officials intervening
here were based on this apparently inflated valuation. The three lawyers would appear to have
already been paid a total of P202,500, and under existing orders of the probate court, they still have
P187,500 coming to them or a total of P390,000. This does not include the P90,000 already paid to
the three co-administrators, all of which would give a grand total of P480,000. And yet the probate
court proceedings are not yet terminated. Another thing, up to the present, it seems that nothing has
been paid for taxes; and although the tax assessment of the Bureau of Internal Revenue has been
reduced from P1,581,671.80 to P493,734.26, the latter sum includes surcharges and penalties which
otherwise would not have been incurred had the taxes been paid on time. We repeat that it is the duty
of the probate court to jealousy guard the estate and see to it that it is administered wisely and
economically and also see to it that the expense incurred in the administration, including the fees of
the administrators and attorneys are commensurate with the actual value of the estate and the extent
and value of the services rendered, so that at the end of the proceedings the bulk and the greater
portion of the estate will remain, to be distributed among those entitled to the same.

As already stated, the present petition for mandamus was presented for the purpose of compelling
the respondent Judge to give due course to the appeal of petitioner. We agree with petitioner that she
has a right to appeal from the order denying her petition to set aside the orders of April 9, 1952 and
November 26, 1952. By merely granting the petition for mandamus, the appeal would be given due
course and when the case is elevated to us on appeal, the question or questions to be submitted and
discussed would revolve around the nature of said two orders of April 9 and November 26, whether
they had become final and executory and therefore beyond the power of the probate court to amend
or to set aside, even under a petition for relief under Rule 38, for the reason that said petition was
filed beyond the period prescribed by said rule, or whether said two orders may be considered as
merely incidental in the special proceedings and consequently, interlocutory in nature, subject to the
control of the probate court until the case is finally closed, during which time they may be amended or
set aside. This same questions were exhaustively presented and discussed by counsel for both
parties and we have carefully considered and passed upon them, our opinion and ruling being that
said orders are interlocutory in character and may be modified or even set aside by the probate court
when so warranted. For this reason, we have decided in the interest of justice, and to save time,
expense and labor to the parties, and avoid further expense to the estate, and also so as not to
unduly prolong these probate proceedings, to dispense with the appeal and to consider the present
petition as one for certiorari to set aside and annul the order of the probate court of December 28,
1953 denying the petition to set aside two orders in question, solely on the ground that it was filed out
of time.

In view of the foregoing, not only the order of the probate court dated August 27, 1954 denying the
appeal is set aside but also its order of December 28, 1953, and respondent Judge is directed to
consider and pass upon the petition of August 14, 1953, anew and on its merits. It is also suggested
that respondent Judge examine and review the whole proceedings from the beginning to determine
whether the expenses incurred in the administration, including the awards of the different amounts to
the co-administrators and the attorneys were warranted, and if not, to fix the amounts which in its
opinion are reasonable and proper considering the real and actual value of the estate, the extent and
value of the services rendered, etc. and take whatever action is necessary. No costs.

Bengzon, Acting C. J., Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador and Reyes, J. B. L.,
JJ., concur.

G.R. No. L-18148 February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI;
and the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET
AL., petitioners,
vs.
HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES, namely:
FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents.

This is a petition by certiorari for the review of the decision of the Court of Appeals affirming that of
the Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had
jurisdiction to determine the validity of the deed of donation in question and to pass upon the question
of title or ownership of the properties mentioned therein.

The facts are briefly stated in the appealed decision of the Court of Appeals as follows:

Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958
and a testate proceeding for the settlement of his estate was instituted in the Court of the Fist
Instance of Bulacan. His will was admitted to probate on October 9, 1958, disposing of his
properties in favor of his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed
Capili; and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes
herself died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the estate of
the deceased Eusebio Capili, she was substituted by her collateral relatives and intestate
 heirs, namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and Jose,
Constancia, Raymunda and Elena, all surnamed Isidoro.

On June 12, 1959, the executor filed a project of partition in the testate proceeding in
accordance with the terms of the will, adjudicating the estate of Eusebio Capili among the
testamentary heirs with the exception of Hermogena Reyes, whose share was alloted to her
collateral relatives aforementioned. On June 16, 1959 these relatives filed an opposition to the
executor's project of partition and submitted a counter-project of partition of their own, claiming
1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that
they belonged not to the latter alone but to the conjugal partnership of the spouses.

The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set
the two projects of partition for hearing, at which evidence was presented by the parties,
followed by the submission of memoranda discussing certain legal issues. In the memorandum
for the executor and the instituted heirs it was contended: (1) that the properties disposed of in
the will of the deceased Eusebio Capili belonged to him exclusively and not to the conjugal
partnership, because Hermogena Reyes had donated to him her half share of such
partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful standing or
grounds to question the validity of the donation; and (3) that even assuming that they could
question the validity of the donation, the same must be litigated not in the testate proceeding
but in a separate civil action.

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

The oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation
itself was determinative of the original conjugal character to the properties, aside from the legal
presumption laid down in Article 160 of the Civil Code, and that since the donation was null
and void the deceased Eusebio Capili did not become owner of the share of his wife and
therefore could not validly dispose of it in his will.

On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order
declaring the donation void without making any specific finding as to its juridical nature, that is,
whether it was inter vivos or mortis causa, for the reason that, considered under the first
category, it falls under Article 133 of the Civil Code, which prohibits donations between
spouses during the marriage; and considered under the second category, it does not comply
with the formalities of a will as required by Article 728 in relation to Article 805 of the same
Code, there being no attestation clause. In the same order the court disapproved both projects
of partition and directed the executor to file another," dividing the property mentioned in the last
will and testament of the deceased Eusebio Capili and the properties mentioned in the deed of
donation, Exhibit B, between the instituted heirs of the deceased Eusebio Capili and the legal
heirs of the deceased Hermogena Reyes, upon the basis that the said properties were
conjugal properties of the deceased spouses." On September 27, 1960, the executor filed a
motion for new trial, reiterating and emphasizing the contention previously raised in their
memorandum that the probate court had no jurisdiction to take cognizance of the claim of the
legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of
Eusebio Capili and taking exception to the court's declaration of the nullity of the donation
"without stating facts or provision of law on which it was based." The motion for new trial was
denied in an order dated October 3, 1960.

On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this
present petition for review by certiorari.

The petitioners-appellants contend that the appellate court erred in not declaring that the probate
court, having limited and special jurisdiction, had generally no power to adjudicate title and erred in
applying the exception to the rule.

In a line of decisions, this Court consistently held that as a general rule, question as to title to property
cannot be passed upon on testate or intestate proceedings," 1 except where one of the parties prays
merely for the inclusion or exclusion from the inventory of the property, in which case the probate
court may pass provisionally upon the question without prejudice to its final determination in a
separate action.2 However, we have also held that when the parties interested are all heirs of the
deceased, it is optional to them to submit to the probate court a question as to title to property, and
when so submitted, said probate court may definitely pass judgment thereon (Pascual v. Pascual, 73
Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the parties, matters
affecting property under judicial administration may be taken cognizance of by the court in the course
of intestate proceeding, provided interests of third persons are not prejudiced (Cunanan v. Amparo,
80 Phil. 229, 232).

In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals
erred in upholding the power of the probate court in this case to adjudicate in the testate proceedings,
the question as to whether the properties herein involved belong to the conjugal partnership of
Eusebio Capili and Hermogena Reyes, or to the deceased husband exclusively?

At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense
advanced by appellants that the trial court had completely no authority to pass upon the title to the
lands in dispute, and that its decision on the subject is null and void and does not bind even those
who had invoked its authority and submitted to its decision because, it is contended, jurisdiction is a
creature of law and parties to an action can not vest, extend or broaden it. If appellants' contention is
correct, then there can be no exception to the no-jurisdiction theory. But as has been stated in the
case of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro Tuason:
"Determination of title to property is within the jurisdiction of Courts of First Instance. The responding
Soriano's objection (that the probate court lacked jurisdiction to order the delivery of the possession of
the lots to the estate) relates exclusively to the procedure, which is distinct from jurisdiction. It affects
only personal rights to a mode of practice (the filing of an independent ordinary action) which may be
waived". Strictly speaking, it is more a question of jurisdiction over the person, not over the subject
matter, for the jurisdiction to try controversies between heirs of a deceased person regarding the
ownership of properties alleged to belong to his estate, has been recognized to be vested in probate
courts. This is so because the purpose of an administration proceeding is the liquidation of the estate
and distribution of the residue among the heirs and legatees. Liquidation means determination of all
the assets of the estate and payment of all the debts and expenses. 3 Thereafter, distribution is made
of the decedent's liquidated estate among the persons entitled to succeed him. The proceeding is in
the nature of an action of partition, in which each party is required to bring into the mass whatever
community property he has in his possession. To this end, and as a necessary corollary, the
interested parties may introduce proofs relative to the ownership of the properties in dispute. All the
heirs who take part in the distribution of the decedent's estate are before the court, and subject to the
jurisdiction thereof, in all matters and incidents necessary to the complete settlement of such estate,
so long as no interests of third parties are affected. 4

In the case now before us, the matter in controversy is the question of ownership of certain of the
properties involved — whether they belong to the conjugal partnership or to the husband exclusively.
This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate
the conjugal partnership in order to determine the estate of the decedent which is to be distributed
among his heirs who are all parties to the proceedings, including, of course, the widow, now
represented because of her death, by her heirs who have been substituted upon petition of the
executor himself and who have appeared voluntarily. There are no third parties whose rights may be
affected. It is true that the heirs of the deceased widow are not heirs of the testator-husband, but the
widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to
be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir
to the testator and, consequently, it complies with the requirement of the exception that the parties
interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the
testator.

Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the
probate court, for the purpose of the determination of the question of ownership of the disputed
properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the
ones who presented the project of partition claiming the questioned properties as part of the testator's
asset. The respondents, as representatives or substitutes of the deceased widow opposed the project
of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be
deemed to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners
can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the
court take it for granted that their theory as to the character of the properties is correct, entirely
without regard to the opposition of the respondents". In other words, by presenting their project of
partition including therein the disputed lands (upon the claim that they were donated by the wife to her
husband), petitioners themselves put in issue the question of ownership of the properties — which is
well within the competence of the probate court — and just because of an opposition thereto, they
can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court.
Certainly, there is here a waiver where the parties who raise the objection are the ones who set the
court in motion.5 They can not be permitted to complain if the court, after due hearing, adjudges
question against them.6

Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of
the properties involved because the widow herself, during her lifetime, not only did not object to the
inclusion of these properties in the inventory of the assets of her deceased husband, but also signed
an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants
require that to constitute estoppel, the actor must have knowledge of the facts and be appraised of
his rights at the time he performs the act constituting estoppel, because silence without knowledge
works no estoppel.7 In the present case, the deceased widow acted as she did because of the deed
of donation she executed in favor of her husband not knowing that such deed was illegal, if inter-
vivos, and ineffectual if mortis-causa, as it has not been executed with the required formalities similar
to a will.

WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby
affirmed with costs against appellants. So ordered.

EDUARDO G. AGTARAP,
Petitioner,

- versus -

SEBASTIAN AGTARAP, JOSEPH AGTARAP, TERESA AGTARAP, WALTER DE SANTOS, and

ABELARDO DAGORO,
Respondents.

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

SEBASTIAN G. AGTARAP,
Petitioner,

- versus -

EDUARDO G. AGTARAP, JOSEPH AGTARAP, TERESA AGTARAP, WALTER DE SANTOS, and

ABELARDO DAGORO,
Respon
Before us are the consolidated petitions for review on certiorari of petitioners Sebastian G. Agtarap
(Sebastian)[1] and Eduardo G. Agtarap (Eduardo),[2] assailing the Decision dated November 21,
2006[3] and the Resolution dated March 27, 2007 [4] of the Court of Appeals (CA) in CA-G.R. CV No.
73916.

The antecedent facts and proceedings

On September 15, 1994, Eduardo filed with the Regional Trial Court (RTC), Branch 114, Pasay City, a
verified petition for the judicial settlement of the estate of his deceased father Joaquin Agtarap
(Joaquin). It was docketed as Special Proceedings No. 94-4055.

The petition alleged that Joaquin died intestate on November 21, 1964 in Pasay City without
any known debts or obligations. During his lifetime, Joaquin contracted two marriages, first with Lucia
Garcia (Lucia),[5] and second with Caridad Garcia (Caridad). Lucia died on April 24, 1924. Joaquin
and Lucia had three childrenJesus (died without issue), Milagros, and Jose (survived by three
children, namely, Gloria,[6] Joseph, and Teresa[7]). Joaquin married Caridad on February 9, 1926. They
also had three childrenEduardo, Sebastian, and Mercedes (survived by her daughter Cecile). At the
time of his death, Joaquin left two parcels of land with improvements in Pasay City, covered by
Transfer Certificates of Title (TCT) Nos. 873-(38254) and 874-(38255). Joseph, a grandson of
Joaquin, had been leasing and improving the said realties and had been appropriating for
himself P26,000.00 per month since April 1994.

Eduardo further alleged that there was an imperative need to appoint him as special
administrator to take possession and charge of the estate assets and their civil fruits, pending the
appointment of a regular administrator. In addition, he prayed that an order be issued (a) confirming
and declaring the named compulsory heirs of Joaquin who would be entitled to participate in the
estate; (b) apportioning and allocating unto the named heirs their aliquot shares in the estate in
accordance with law; and (c) entitling the distributees the right to receive and enter into possession
those parts of the estate individually awarded to them.

On September 26, 1994, the RTC issued an order setting the petition for initial hearing and
directing Eduardo to cause its publication.

On December 28, 1994, Sebastian filed his comment, generally admitting the allegations in the
petition, and conceding to the appointment of Eduardo as special administrator.

Joseph, Gloria, and Teresa filed their answer/opposition. They alleged that the two subject lots
belong to the conjugal partnership of Joaquin with Lucia, and that, upon Lucias death in April 1924,
they became the pro indiviso owners of the subject properties. They said that their residence was
built with the exclusive money of their late father Jose, and the expenses of the extensions to the
house were shouldered by Gloria and Teresa, while the restaurant (Manongs Restaurant) was built
with the exclusive money of Joseph and his business partner. They opposed the appointment of
Eduardo as administrator on the following grounds: (1) he is not physically and mentally fit to do so;
(2) his interest in the lots is minimal; and (3) he does not possess the desire to earn. They claimed
that the best interests of the estate dictate that Joseph be appointed as special or regular
administrator.

On February 16, 1995, the RTC issued a resolution appointing Eduardo as regular
administrator of Joaquins estate. Consequently, it issued him letters of administration.

On September 16, 1995, Abelardo Dagoro filed an answer in intervention, alleging that
Mercedes is survived not only by her daughter Cecile, but also by him as her husband. He also
averred that there is a need to appoint a special administrator to the estate, but claimed that Eduardo
is not the person best qualified for the task.

After the parties were given the opportunity to be heard and to submit their respective
proposed projects of partition, the RTC, on October 23, 2000, issued an Order of Partition, [8] with the
following disposition

In the light of the filing by the heirs of their respective proposed projects of
partition and the payment of inheritance taxes due the estate as early as 1965, and
there being no claim in Court against the estate of the deceased, the estate of
JOAQUIN AGTARAP is now consequently ripe for distribution among the heirs minus
the surviving spouse Caridad Garcia who died on August 25, 1999.
 Considering that the bulk of the estate property were acquired during the
existence of the second marriage as shown by TCT No. (38254) and TCT No. (38255)
which showed on its face that decedent was married to Caridad Garcia, which fact
oppositors failed to contradict by evidence other than their negative allegations, the
greater part of the estate is perforce accounted by the second marriage and the
compulsory heirs thereunder.

The Administrator, Eduardo Agtarap rendered a true and just accounting of his
administration from his date of assumption up to the year ending December 31, 1996
per Financial and Accounting Report dated June 2, 1997 which was approved by the
Court. The accounting report included the income earned and received for the period
and the expenses incurred in the administration, sustenance and allowance of the
widow. In accordance with said Financial and Accounting Report which was duly
approved by this Court in its Resolution dated July 28, 1998 the deceased JOAQUIN
AGTARAP left real properties consisting of the following:

I LAND:

Two lots and two buildings with one garage quarter located at #3030 Agtarap
St., Pasay City, covered by Transfer Certificate of Title Nos. 38254 and 38255 and
registered with the Registry of Deeds of Pasay City, Metro Manila, described as follows:

TCT NO. LOT NO. AREA/SQ.M. ZONAL VALUE AMOUNT

38254 745-B-1 1,335 sq. m. P5,000.00 P6,675,000.00
38255 745-B-2 1,331 sq. m. P5,000.00 P6,655,000.00
TOTAL-------------------------------------------------------------P13,330,000.00

II BUILDINGS AND IMPROVEMENTS:

BUILDING I (Lot # 745-B-1) ------------------------------ P350,000.00

BUILDING II (Lot # 745-B-2) ----------------------------- 320,000.00
Building Improvements -------------------------------------- 97,500.00
Restaurant ------------------------------------------------------ 80,000.00
TOTAL --------------------------------------------------------- P847,500.00

TOTAL NET WORTH ----------------------------------------- P14,177,500.00

WHEREFORE, the net assets of the estate of the late JOAQUIN AGTARAP with a total
value of P14,177,500.00, together with whatever interest from bank deposits and all
other incomes or increments thereof accruing after the Accounting Report of December
31, 1996, after deducting therefrom the compensation of the administrator and other
expenses allowed by the Court, are hereby ordered distributed as follows:

TOTAL ESTATE P14,177,500.00

CARIDAD AGTARAP of the estate as her conjugal share P7,088,750.00, the other half
of P7,088,750.00 to be divided among the compulsory heirs as follows:

1) JOSE (deceased) - P1,181,548.30

2) MILAGROS (deceased) - P1,181,548.30
3) MERCEDES (deceased) - P1,181,548.30
4) SEBASTIAN - P1,181,548.30
5) EDUARDO - P1,181,548.30
6) CARIDAD - P1,181,548.30

The share of Milagros Agtarap as compulsory heir in the amount of P1,181,548.30 and
who died in 1996 will go to Teresa Agtarap and Joseph Agtarap, Walter de Santos and
half brothers Eduardo and Sebastian Agtarap in equal proportions.

TERESA AGTARAP - P236,291.66

JOSEPH AGTARAP - P236,291.66
WALTER DE SANTOS - P236,291.66
SEBASTIAN AGTARAP - P236,291.66
 EDUARDO AGTARAP - P236,291.66

Jose Agtarap died in 1967. His compulsory heirs are as follows:

COMPULSORY HEIRS:
1) GLORIA (deceased) represented by Walter de Santos
- P295,364.57
2) JOSEPH AGTARAP - P295,364.57
3) TERESA AGTARAP - P295,364.57
4) PRISCILLA AGTARAP - P295,364.57

Hence, Priscilla Agtarap will inherit P295,364.57.

Adding their share from Milagros Agtarap, the following heirs of the first marriage stand
to receive the total amount of:

HEIRS OF THE FIRST MARRIAGE:

1) JOSEPH AGTARAP - P236,291.66 share from Milagros Agtarap

P295,364.57 as compulsory heir of
P531,656.23 Jose Agtarap

2) TERESA AGTARAP - P236,291.66 share from Milagros Agtarap

P295,364.57 as compulsory heir of
P531,656.23 Jose Agtarap

3) WALTER DE SANTOS - P236,291.66 share from Milagros Agtarap

P295,364.57 as compulsory heir of
P531,656.23 Jose Agtarap

HEIRS OF THE SECOND MARRIAGE:

a) CARIDAD AGTARAP - died on August 25, 1999

P7,088,750.00 - as conjugal share
P1,181,458.30 - as compulsory heir
Total of P8,270,208.30

b) SEBASTIAN AGTARAP - P1,181,458.38 as compulsory heir

P 236,291.66 share from Milagros

c) EDUARDO AGTARAP - P1,181,458.38 as compulsory heir

P 236,291.66 share from Milagros

d) MERCEDES - as represented by Abelardo Dagoro as the

surviving spouse of a compulsory heir
P1,181,458.38

REMAINING HEIRS OF CARIDAD AGTARAP:

1) SEBASTIAN AGTARAP
2) EDUARDO AGTARAP
MERCEDES AGTARAP (Predeceased Caridad Agtarap)

In sum, Sebastian Agtarap and Eduardo Agtarap stand to inherit:

SEBASTIAN P4,135,104.10 share from Caridad Garcia

P1,181,458.30 as compulsory heir
P 236,291.66 share from Milagros
P5,522,854.06
 EDUARDO P4,135,104.10 share from Caridad Garcia
P1,181,458.30 as compulsory heir
P 236,291.66 share from Milagros
P5,522,854.06

SO ORDERED.[9]

Eduardo, Sebastian, and oppositors Joseph and Teresa filed their respective motions for
reconsideration.

On August 27, 2001, the RTC issued a resolution [10] denying the motions for reconsideration of
Eduardo and Sebastian, and granting that of Joseph and Teresa. It also declared that the real estate
properties belonged to the conjugal partnership of Joaquin and Lucia. It also directed the modification
of the October 23, 2000 Order of Partition to reflect the correct sharing of the heirs. However, before
the RTC could issue a new order of partition, Eduardo and Sebastian both appealed to the CA.

On November 21, 2006, the CA rendered its Decision, the dispositive portion of which reads

WHEREFORE, premises considered, the instant appeals are DISMISSED for

lack of merit. The assailed Resolution dated August 27, 2001 is AFFIRMED and
pursuant thereto, the subject properties (Lot No. 745-B-1 [TCT No. 38254] and Lot No.
745-B-2 [TCT No. 38255]) and the estate of the late Joaquin Agtarap are hereby
partitioned as follows:

The two (2) properties, together with their improvements, embraced by TCT No.
38254 and TCT No. 38255, respectively, are first to be distributed among the following:

Lucia Mendietta - of the property. But since she is deceased, her share shall be inherited by
Joaquin, Jesus, Milagros and Jose in equal shares.

Joaquin Agtarap - of the property and of the other half of the property which pertains to Lucia
Mendiettas share.

Jesus Agtarap - of Lucia Mendiettas share. But since he is already deceased (and died without
issue), his inheritance shall, in turn, be acquired by Joaquin Agtarap.

Milagros Agtarap - of Lucia Mendiettas share. But since she died in 1996 without issue, 5/8 of
her inheritance shall be inherited by Gloria (represented by her husband Walter de Santos and
her daughter Samantha), Joseph Agtarap and Teresa Agtarap, (in representation of Milagros
brother Jose Agtarap) and 1/8 each shall be inherited by Mercedes (represented by her
husband Abelardo Dagoro and her daughter Cecile), Sebastian Eduardo, all surnamed
Agtarap.

Jose Agtarap - of Lucia Mendiettas share. But since he died in 1967, his inheritance shall be
acquired by his wife Priscilla, and children Gloria (represented by her husband Walter de
Santos and her daughter Samantha), Joseph Agtarap and Teresa in equal shares.

Then, Joaquin Agtaraps estate, comprising three-fourths (3/4) of the subject properties and its
improvements, shall be distributed as follows:

Caridad Garcia - 1/6 of the estate. But since she died in 1999, her share shall be inherited by
her children namely Mercedes Agtarap (represented by her husband Abelardo Dagoro and her
daughter Cecilia), Sebastian Agtarap and Eduardo Agtarap in their own right, dividing the
inheritance in equal shares.

Milagros Agtarap - 1/6 of the estate. But since she died in 1996 without issue, 5/8 of her
inheritance shall be inherited by Gloria (represented by her husband Walter de Santos and her
daughter Samantha), Joseph Agtarap and Teresa Agtarap, (in representation of Milagros
brother Jose Agtarap) and 1/8 each shall be inherited by Mercedes (represented by her
husband Abelardo Dagoro and her daughter Cecile), Sebastian and Eduardo, all surnamed
Agtarap.

Jose Agtarap - 1/6 of the estate. But since he died in 1967, his inheritance shall be acquired by
his wife Priscilla, and children Gloria (represented by her husband Walter de Santos and her
daughter Samantha), Joseph Agtarap and Teresa Agtarap in equal shares.

Mercedes Agtarap - 1/6 of the estate. But since she died in 1984, her inheritance shall be
acquired by her husband Abelardo Dagoro and her daughter Cecile in equal shares.

Sebastian Agtarap - 1/6 of the estate.

Eduardo Agtarap - 1/6 of the estate.

SO ORDERED.[11]

Aggrieved, Sebastian and Eduardo filed their respective motions for reconsideration.

In its Resolution dated March 27, 2007, the CA denied both motions. Hence, these petitions
ascribing to the appellate court the following errors:

G.R. No. 177192

1. The Court of Appeals erred in not considering the aforementioned important

[12]
facts which alter its Decision;

2. The Court of Appeals erred in not considering the necessity of hearing the
issue of legitimacy of respondents as heirs;

3. The Court of Appeals erred in allowing violation of the law and in not applying
the doctrines of collateral attack, estoppel, and res judicata. [13]

G.R. No. 177099

THE COURT OF APPEALS (FORMER TWELFTH DIVISION) DID NOT ACQUIRE

JURISDICTION OVER THE ESTATE OF MILAGROS G. AGTARAP AND ERRED IN
DISTRIBUTING HER INHERITANCE FROM THE ESTATE OF JOAQUIN AGTARAP
NOTWITHSTANDING THE EXISTENCE OF HER LAST WILL AND TESTAMENT IN
VIOLATION OF THE DOCTRINE OF PRECEDENCE OF TESTATE PROCEEDINGS
OVER INTESTATE PROCEEDINGS.

II.

THE COURT OF APPEALS (FORMER TWELFTH DIVISION) ERRED IN DISMISSING

THE DECISION APPEALED FROM FOR LACK OF MERIT AND IN AFFIRMING THE
ASSAILED RESOLUTION DATED AUGUST 27, 2001 OF THE LOWER
COURT HOLDING THAT THE PARCELS OF LAND COVERED BY TCT NO. 38254
AND TCT (NO.) 38255 OF THE REGISTRY OF DEEDS FOR THE CITY OF PASAY
BELONG TO THE CONJUGAL PARTNERSHIP OF JOAQUIN AGTARAP MARRIED TO
LUCIA GARCIA MENDIETTA NOTWITHSTANDING THEIR REGISTRATION UNDER
THEIR EXISTING CERTIFICATES OF TITLE AS REGISTERED IN THE NAME OF
JOAQUIN AGTARAP, CASADO CONCARIDAD GARCIA. UNDER EXISTING
JURISPRUDENCE, THE PROBATE COURT HAS NO POWER TO DETERMINE THE
OWNERSHIP OF THE PROPERTY DESCRIBED IN THESE CERTIFICATES OF TITLE
WHICH SHOULD BE RESOLVED IN AN APPROPRIATE SEPARATE ACTION FOR A
TORRENS TITLE UNDER THE LAW IS ENDOWED WITH INCONTESTABILITY UNTIL
IT HAS BEEN SET ASIDE IN THE MANNER INDICATED IN THE LAW ITSELF. [14]
 As regards his first and second assignments of error, Sebastian contends that Joseph and
Teresa failed to establish by competent evidence that they are the legitimate heirs of their father Jose,
and thus of their grandfather Joaquin. He draws attention to the certificate of title (TCT No. 8026) they
submitted, stating that the wife of their father Jose is Presentacion Garcia, while they claim that their
mother is Priscilla. He avers that the marriage contracts proffered by Joseph and Teresa do not
qualify as the best evidence of Joses marriage with Priscilla, inasmuch as they were not
authenticated and formally offered in evidence. Sebastian also asseverates that he actually
questioned the legitimacy of Joseph and Teresa as heirs of Joaquin in his motion to exclude them as
heirs, and in his reply to their opposition to the said motion. He further claims that the failure of
Abelardo Dagoro and Walter de Santos to oppose his motion to exclude them as heirs had the effect
of admitting the allegations therein. He points out that his motion was denied by the RTC without a
hearing.

With respect to his third assigned error, Sebastian maintains that the certificates of title of real
estate properties subject of the controversy are in the name of Joaquin Agtarap, married to Caridad
Garcia, and as such are conclusive proof of their ownership thereof, and thus, they are not subject to
collateral attack, but should be threshed out in a separate proceeding for that purpose. He likewise
argues that estoppel applies against the children of the first marriage, since none of them registered
any objection to the issuance of the TCTs in the name of Caridad and Joaquin only. He avers that the
estate must have already been settled in light of the payment of the estate and inheritance tax by
Milagros, Joseph, and Teresa, resulting to the issuance of TCT No. 8925 in Milagros name and of
TCT No. 8026 in the names of Milagros and Jose. He also alleges that res judicata is applicable as
the court order directing the deletion of the name of Lucia, and replacing it with the name of Caridad,
in the TCTs had long become final and executory.

In his own petition, with respect to his first assignment of error, Eduardo alleges that the CA
erroneously settled, together with the settlement of the estate of Joaquin, the estates of Lucia, Jesus,
Jose, Mercedes, Gloria, and Milagros, in contravention of the principle of settling only one estate in
one proceeding. He particularly questions the distribution of the estate of Milagros in the intestate
proceedings despite the fact that a proceeding was conducted in another court for the probate of the
will of Milagros, bequeathing all to Eduardo whatever share that she would receive from Joaquins
estate. He states that this violated the rule on precedence of testate over intestate proceedings.

Anent his second assignment of error, Eduardo contends that the CA gravely erred when it
affirmed that the bulk of the realties subject of this case belong to the first marriage of Joaquin to
Lucia, notwithstanding that the certificates of title were registered in the name of Joaquin
Agtarap casado con (married to) Caridad Garcia. According to him, the RTC, acting as an intestate
court with limited jurisdiction, was not vested with the power and authority to determine questions of
ownership, which properly belongs to another court with general jurisdiction.

The Courts Ruling

As to Sebastians and Eduardos common issue on the ownership of the subject real properties, we
hold that the RTC, as an intestate court, had jurisdiction to resolve the same.

The general rule is that the jurisdiction of the trial court, either as a probate or an intestate court,
relates only to matters having to do with the probate of the will and/or settlement of the estate of
deceased persons, but does not extend to the determination of questions of ownership that arise
during the proceedings.[15] The patent rationale for this rule is that such court merely exercises special
and limited jurisdiction.[16] As held in several cases,[17] a probate court or one in charge of estate
proceedings, whether testate or intestate, cannot adjudicate or determine title to properties claimed to
be a part of the estate and which are claimed to belong to outside parties, not by virtue of any right of
inheritance from the deceased but by title adverse to that of the deceased and his estate. All that the
said court could do as regards said properties is to determine whether or not they should be included
in the inventory of properties to be administered by the administrator. If there is no dispute, there
poses no problem, but if there is, then the parties, the administrator, and the opposing parties have to
resort to an ordinary action before a court exercising general jurisdiction for a final determination of
the conflicting claims of title.

However, this general rule is subject to exceptions as justified by expediency and convenience.
First, the probate court may provisionally pass upon in an intestate or a testate proceeding the
question of inclusion in, or exclusion from, the inventory of a piece of property without prejudice to the
final determination of ownership in a separate action. [18] Second, if the interested parties are all heirs
to the estate, or the question is one of collation or advancement, or the parties consent to the
assumption of jurisdiction by the probate court and the rights of third parties are not impaired, then
the probate court is competent to resolve issues on ownership. [19] Verily, its jurisdiction extends to
matters incidental or collateral to the settlement and distribution of the estate, such as the
determination of the status of each heir and whether the property in the inventory is conjugal or
exclusive property of the deceased spouse. [20]

We hold that the general rule does not apply to the instant case considering that the parties
are all heirs of Joaquin and that no rights of third parties will be impaired by the resolution of the
ownership issue. More importantly, the determination of whether the subject properties are conjugal is
but collateral to the probate courts jurisdiction to settle the estate of Joaquin.

It should be remembered that when Eduardo filed his verified petition for judicial settlement of
Joaquins estate, he alleged that the subject properties were owned by Joaquin and Caridad since the
TCTs state that the lots were registered in the name of Joaquin Agtarap, married to Caridad
Garcia. He also admitted in his petition that Joaquin, prior to contracting marriage with Caridad,
contracted a first marriage with Lucia. Oppositors to the petition, Joseph and Teresa, however, were
able to present proof before the RTC that TCT Nos. 38254 and 38255 were derived from a mother
title, TCT No. 5239, dated March 17, 1920, in the name of FRANCISCO VICTOR BARNES Y
JOAQUIN AGTARAP, el primero casado con Emilia Muscat, y el Segundo con Lucia Garcia
Mendietta (FRANCISCO VICTOR BARNES y JOAQUIN AGTARAP, the first married to Emilia
Muscat, and the second married to Lucia Garcia Mendietta). [21] When TCT No. 5239 was divided
between Francisco Barnes and Joaquin Agtarap, TCT No. 10864, in the name of Joaquin Agtarap,
married to Lucia Garcia Mendietta, was issued for a parcel of land, identified as Lot No. 745 of the
Cadastral Survey of Pasay, Cadastral Case No. 23, G.L.R.O. Cadastral Record No. 1368, consisting
of 8,872 square meters. This same lot was covered by TCT No. 5577 (32184) [22] issued on April 23,
1937, also in the name of Joaquin Agtarap, married to Lucia Garcia Mendietta.

The findings of the RTC and the CA show that Lucia died on April 24, 1924, and subsequently,
on February 9, 1926, Joaquin married Caridad. It is worthy to note that TCT No. 5577 (32184)
contained an annotation, which reads
 Ap-4966 NOTA: Se ha enmendado el presente certificado de titulo, tal como aparece,
tanchando las palabras con Lucia Garcia Mendiet[t]a y poniendo en su lugar, entre
lineas y en tinta encarnada, las palabras en segundas nupcias con Caridad Garcia, en
complimiento de un orden de fecha 28 de abril de 1937, dictada por el Hon. Sixto de la
Costa, juez del Juzgado de Primera Instancia de Rizal, en el expediente cadastal No.
23, G.L.R.O. Cad. Record No. 1368; copia de cual orden has sido presentada con el
No. 4966 del Libro Diario, Tomo 6.0 y, archivada en el Legajo T-No. 32184.

Pasig, Rizal, a 29 abril de 1937.[23]

Thus, per the order dated April 28, 1937 of Hon. Sixto de la Costa, presiding judge of the Court of
First Instance of Rizal, the phrase con Lucia Garcia Mendiet[t]a was crossed out and replaced by en
segundas nuptias con Caridad Garcia, referring to the second marriage of Joaquin to Caridad. It
cannot be gainsaid, therefore, that prior to the replacement of Caridads name in TCT No. 32184,
Lucia, upon her demise, already left, as her estate, one-half (1/2) conjugal share in TCT No.
32184. Lucias share in theproperty covered by the said TCT was carried over to the properties
covered by the certificates of title derivative of TCT No. 32184, now TCT Nos. 38254 and 38255. And
as found by both the RTC and the CA, Lucia was survived by her compulsory heirs Joaquin, Jesus,
Milagros, and Jose.

Section 2, Rule 73 of the Rules of Court provides that when the marriage is dissolved by the
death of the husband or the 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,
and if both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate
proceedings of either. Thus, the RTC had jurisdiction to determine whether the properties are
conjugal as it had to liquidate the conjugal partnership to determine the estate of the decedent. In
fact, should Joseph and Teresa institute a settlement proceeding for the intestate estate of Lucia, the
same should be consolidated with the settlement proceedings of Joaquin, being Lucias spouse.
[24]
Accordingly, the CA correctly distributed the estate of Lucia, with respect to the properties covered
by TCT Nos. 38254 and 38255 subject of this case, to her compulsory heirs.

Therefore, in light of the foregoing evidence, as correctly found by the RTC and the CA, the claim of
Sebastian and Eduardo that TCT Nos. 38254 and 38255 conclusively show that the owners of the
properties covered therein were Joaquin and Caridad by virtue of the registration in the name of
Joaquin Agtarap casado con (married to) Caridad Garcia, deserves scant consideration. This cannot
be said to be a collateral attack on the said TCTs. Indeed, simple possession of a certificate of title is
not necessarily conclusive of a holders true ownership of property. [25] A certificate of title under
the Torrens system aims to protect dominion; it cannot be used as an instrument for the deprivation of
ownership.[26] Thus, the fact that the properties were registered in the name of Joaquin Agtarap,
married to Caridad Garcia, is not sufficient proof that the properties were acquired during the spouses
coverture.[27] The phrase married to Caridad Garcia in the TCTs is merely descriptive of the civil status
of Joaquin as the registered owner, and does not necessarily prove that the realties are their conjugal
properties.[28]

Neither can Sebastians claim that Joaquins estate could have already been settled in 1965 after the
payment of the inheritance tax be upheld. Payment of the inheritance tax, per se, does not settle the
estate of a deceased person. As provided in Section 1, Rule 90 of the Rules of Court
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 share 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.

Thus, an estate is settled and distributed among the heirs only after the payment of the debts of the
estate, funeral charges, expenses of administration, allowance to the widow, and inheritance tax. The
records of these cases do not show that these were complied with in 1965.

As regards the issue raised by Sebastian on the legitimacy of Joseph and Teresa, suffice it to say that
both the RTC and the CA found them to be the legitimate children of Jose.The RTC found that
Sebastian did not present clear and convincing evidence to support his averments in his motion to
exclude them as heirs of Joaquin, aside from his negative allegations. The RTC also noted the fact of
Joseph and Teresa being the children of Jose was never questioned by Sebastian and Eduardo, and
the latter two even admitted this in their petitions, as well as in the stipulation of facts in the August
21, 1995 hearing.[29] Furthermore, the CA affirmed this finding of fact in its November 21, 2006
Decision.[30]

Also, Sebastians insistence that Abelardo Dagoro and Walter de Santos are not heirs to the estate of
Joaquin cannot be sustained. Per its October 23, 2000 Order of Partition, the RTC found that Gloria
Agtarap de Santos died on May 4, 1995, and was later substituted in the proceedings below by her
husband Walter de Santos. Gloria begot a daughter with Walter de Santos, Georgina Samantha de
Santos. The RTC likewise noted that, on September 16, 1995, Abelardo Dagoro filed a motion for
leave of court to intervene, alleging that he is the surviving spouse of Mercedes Agtarap and the
father of Cecilia Agtarap Dagoro, and his answer in intervention. The RTC later granted the motion,
thereby admitting his answer on October 18, 1995. [31] The CA also noted that, during the hearing of
the motion to intervene on October 18, 1995, Sebastian and Eduardo did not interpose any objection
when the intervention was submitted to the RTC for resolution. [32]

Indeed, this Court is not a trier of facts, and there appears no compelling reason to hold that
both courts erred in ruling that Joseph, Teresa, Walter de Santos, and Abelardo Dagoro rightfully
participated in the estate of Joaquin. It was incumbent upon Sebastian to present competent
evidence to refute his and Eduardos admissions that Joseph and Teresa were heirs of Jose, and thus
rightful heirs of Joaquin, and to timely object to the participation of Walter de Santos and Abelardo
Dagoro. Unfortunately, Sebastian failed to do so. Nevertheless, Walter de Santos and Abelardo
Dagoro had the right to participate in the estate in representation of the Joaquins compulsory heirs,
Gloria and Mercedes, respectively.[33]

This Court also differs from Eduardos asseveration that the CA erred in settling, together with
Joaquins estate, the respective estates of Lucia, Jesus, Jose, Mercedes, and Gloria. A perusal of the
November 21, 2006 CA Decision would readily show that the disposition of the properties related only
to the settlement of the estate of Joaquin. Pursuant to Section 1, Rule 90 of the Rules of Court, as
cited above, the RTC was specifically granted jurisdiction to determine who are the lawful heirs of
Joaquin, as well as their respective shares after the payment of the obligations of the estate, as
enumerated in the said provision. The inclusion of Lucia, Jesus, Jose, Mercedes, and Gloria in the
distribution of the shares was merely a necessary consequence of the settlement of Joaquins estate,
they being his legal heirs.

However, we agree with Eduardos position that the CA erred in distributing Joaquins estate pertinent
to the share allotted in favor of Milagros. Eduardo was able to show that a separate proceeding was
instituted for the probate of the will allegedly executed by Milagros before the RTC, Branch
108, Pasay City.[34] While there has been no showing that the alleged will of Milagros, bequeathing all
of her share from Joaquins estate in favor of Eduardo, has already been probated and approved,
prudence dictates that this Court refrain from distributing Milagros share in Joaquins estate.

It is also worthy to mention that Sebastian died on January 15, 2010, per his Certificate of Death.
[35]
He is survived by his wife Teresita B. Agtarap (Teresita) and his children Joaquin Julian B. Agtarap
(Joaquin Julian) and Ana Ma. Agtarap Panlilio (Ana Ma.).

Henceforth, in light of the foregoing, the assailed November 21, 2006 Decision and the March 27,
2007 Resolution of the CA should be affirmed with modifications such that the share of Milagros shall
not yet be distributed until after the final determination of the probate of her purported will, and that
Sebastian shall be represented by his compulsory heirs.

WHEREFORE, the petition in G.R. No. 177192 is DENIED for lack of merit, while the petition in G.R.
No. 177099 is PARTIALLY GRANTED, such that the Decision dated November 21, 2006 and the
Resolution dated March 27, 2007 of the Court of Appeals are AFFIRMED with the
following MODIFICATIONS: that the share awarded in favor of Milagros Agtarap shall not be
distributed until the final determination of the probate of her will, and that petitioner Sebastian G.
Agtarap, in view of his demise on January 15, 2010, shall be represented by his wife Teresita B.
Agtarap and his children Joaquin Julian B. Agtarap and Ana Ma. Agtarap Panlilio.

These cases are hereby remanded to the Regional Trial Court, Branch 114, Pasay City, for further
proceedings in the settlement of the estate of Joaquin Agtarap. No pronouncement as to costs.

SO ORDERED.

G.R. No. L-48140 May 4, 1942

SINFOROSO PASCUAL, plaintiff-appellant,

vs.
PONCIANO S. PASCUAL, ET AL., defendants-appellees.

Celedonio Bernardo for appellant.

Ortega & Ortega for appellees.

MORAN, J.:

On September 14, 1940, while the proceedings for the probate of the will of the deceased Eduarda de
los Santos were pending in the Court of First Instance of Rizal plaintiff, Sinforoso Pascual, instituted
in the Court of First Instance of Pampanga against Ponciano S. Pascual and others, an action for the
annulment of a contract of sale of a fishpond situated in Lubao, Pampanga, supposedly executed
without consideration by said deceased in her lifetime in favor of the defendants. The complaint
alleges that plaintiff and defendants are all residents of Malabon, Rizal, and are legitimate children of
the testratix, Eduarda de los Santos. Defendants filed of a motion to dismiss, alleging want of cause
of action, limitation of action, wrong venue and pendency of another action. The trial court granted the
motion on the ground that the action should have been brought by the executor or administrator of the
estate left by the deceased, and directed the plaintiff to amend his complaint within five days. Plaintiff
filed an amended complaint, the amendment consisting in that "el demandado Miguel S. Pascual ha
sido nombrado por el Juzgado de Primera Instancia de Rizal albacea testamentario de los bienes de
la finada Eduarda de los Santos. en el asunto de la testamentaria de dicha finada." The trial court
declaring that such amendment did not cure the insufficiency of the complaint, dismissed the action. It
is from this order of dismissal that plaintiff interposed his appeal.

Under Rule 86, section 1, of the new Rules of Court, actions for the recovery or protection of the
property or rights of the deceased for causes which survive may be prosecuted or defended by his
executor or administrator. Upon the commencement of the testate or intestate proceedings the heirs
have no standing in court in actions of the above character, except when the executor or
administrator is unwilling or fails or refuses to act, in which event to heirs may act in his place.
(Pomeroy on Code Remedies, p. 158, 11 R C. L. p. 262; 21 Am. Jur., 940) Here, the fictitious sale is
alleged to have been made to the defendants, one of them, Miguel S. Pascual, being the executor
appointed by the probate court. Such executor naturally would not bring an action against himself for
recovery of the fishpond. His refusal to act may, therefore, be implied. And this brings the case under
the exception. It should be noted that in the complaint the prayer is that the fishpond be delivered not
to the plaintiff but to the executor, thus indicating that the action is brought in behalf of the estate of
the deceased.

Appellees contend that there is here a wrong venue. They argue that an action for the annulment of a
contract of sale is a personal action which must be commenced at the place of residence of either the
plaintiff or the defendant, at the election of the plaintiff (Rule 5, sec. 1, Rules of Court), and, in the
instant case, both plaintiff and defendants are residents of Malabon, Rizal, but the action was
commenced in the Court of First Instance of Pampanga. It appearing, however, that the sale is
alleged to be fictitious, with absolutely no consideration, it should be regarded as a non-existent, not
merely null, contract. (8 Manresa, Comentarios al Codigo Civil Español, 2nd ed., pp. 766-770.) And
there being no contract between the deceased and the defendants, there is in truth nothing to annul
by action. The action brought cannot thus be for annulment of contract, but is one for recovery of a
fishpond, a real action that should be, as it has been, brought in Pampanga, where the property is
located (Rule 5, sec. 3, Rules of Court.)

Appellees argue further that the action brought by the plaintiff is unnecessary, the question involved
therein being one that may properly be raised and decided in the probate proceedings. The general
rule is that questions as to title to property cannot be passed upon in testate proceedings.
(Bauermann vs. Casas, 10 Phil., 386; Devesa vs.Arbes, 13 Phil., 273; Guzman vs. Anog, 37 Phil., 61;
Lunsod vs. Ortega, 46 Phil., 664; Adapon vs. Maralit, 40 Off. Gaz., 6th Sup., p. 84.) The court is,
however, of the opinion and so holds that, when as in the instant case, the parties interested are all
heirs of the deceased claiming title under him, the question as to whether the transfer made by the
latter to the former is or is not fictitious, may properly be brought by motion in the testate or intestate
proceedings on or before the distribution of the estate among the heirs. This procedure is optional to
the parties concerned who may choose to bring a separate action as a matter of convenience in the
preparation or presentation of evidence, and accordingly, the action brought by the appellant is not
improper.

Order is reversed, and the case is remanded the trial court for further proceedings, with costs against
appellees.

G.R. No. L-1313 February 16, 1948

ROSALINA CUNANAN, in her capacity as administratix of the intestate of Isaac Cunanan and
Candida Joaquin — Special Proceeding No. 8355 of Court of First Instance of Nueva
Ecija, petitioner,
vs.
RAFAEL AMPARO, Judge of First Instance of Nueva Ecija, and BONIFACIO
SORIANO, respondents.
Herminio E. Algas and Jose Cando for petitioner.
Alfonso G. Espinosa for respondent Soriano.

TUASON, J.:

The petitioner, Rosalina Cunanan, in her capacity as administratix of the Intestate Estate of Isaac
Cunanan and Candida Joaquin (Special Proceeding No. 8355 of the Court of First Instance of Nueva
Ecija), seeks a review of two orders of the respondent Judge, Honorable Rafael Amparo, alleging that
these orders were made "without and/or in excess of his jurisdiction, with grave abuse of discretion."

It results that in the aforesaid special proceeding, Bonifacio Soriano, one of the present respondents,
under date of September 26, 1940, filed a money claim for P880 against the decedent's estate. He
alleged that on various dates in 1937 and 1938, the deceased received from him diverse sums of
money aggregating P880. (Exhibit "A.")

On April 17, 1941, Rosalina Cunanan, the administratix, filed a motion setting out Bonifacio Soriano's
claim and two others totalling P2,054, besides a debt of P1,600 in favor of one Filomeno Santos
bearing 12 per cent interest per year. To pay these obligations, and because funds were needed to
defray the expenses on the farm, she asked the court for authority to negotiate a loan in such amount
or to sell so much of the property described in the inventory as might be sufficient to satisfy the said
obligations. (Exhibit "B".) The Honorable Sotero Rodas, Judge, in an order dated April 23, 1941,
granted the motion. (Exhibit "C".)

On June 1, 1944, Rosalina Cunanan manifested to the court that she had tendered to Bonifacio
Soriano in March of that year P880 but that Soriano refused to accept it on the ground that the money
she offered was Japanese notes and had no value. She prayed that the creditor be ordered to accept
the amount tendered, to execute the necessary deed of cancellation, and to return the possession of
two parcels of land which had been conveyed to him. (Exhibit "D.")

On June 15, 1944, the Honorable Quintin Paredes, Jr., Judge, authorized the administratix to deposit
with the clerk of court P880 in full payment of the obligation in favor of Bonifacio Soriano and ordered
Soriano to deliver the property in his possession to the administratix. (Exhibit "E".) This order was not
appealed nor was any motion for its reconsideration filed, so far as the pleadings would reveal.

On July 17, 1944, the administratix filed a complaint against Soriano for contempt of court, alleging
that she had complied with the court's order of June 15, 1944, but that Soriano disobeyed that part of
it which commanded him to return the two parcels of land to the estate of Isaac Cunanan and
Candida Joaquin (Exhibit "F".)

After hearing, Judge Paredes, on August 4, 1944, found Soriano not guilty of contempt, having
"granted him the benefit of doubt" on the strength of Soriano's defense that he, in the words of the
decision, "misunderstood, or misconstrued, the order of this court, dated June 15, 1944." However,
Judge Paredes reiterated his order that Soriano "deliver the property in question to the administratix
Rosalina Cunanan for the benefit of the Intestate Estate." He also directed the clerk of court to turn
over to Soriano the P880 which had been deposited with him, "upon proper proof that the possession
of the property has been actually delivered to the Intestate Estate." (Exhibit "G".)

On September 1, 1944, Bonifacio Soriano filed a motion for reconsideration of the order of August 4,
1944, that is, the last order of Judge Paredes. Soriano stated as grounds of his motion, first, that the
title to those lots had been consolidated in his and his wife's names "by virtue of a deed of sale in
their favor by Isaac Cunanan and Rosalina Cunanan on April 7, 1938, which was later on amended
by another instrument dated July 28, 1938," and, second, that under the terms of the sale, the
vendors were given the option to repurchase the said lots not later than April 7, 1944. Soriano also
alleged that a transfer certificate of title to the two lots had been issued to him and his wife by the
Register of Deeds of Nueva Ecija. (Exhibit "H.")

On August 16, 1946, the Honorable Rafael Amparo, who now was presiding over the Court of First
Instance of Nueva Ecija, in a lengthy order granted Soriano's motion (Exhibit "I"), and on September
16 following he confirmed that order. (Exhibit "K".) He justified the refusal of Bonifacio Soriano to
accept Japanese military notes and Soriano's insistence on being paid in the same currency which he
had paid for the land. In fine, he set aside the order of Judge Paredes of August 4, 1944, and denied
"the petition of the administratix dated July 25, 1946, praying, in effect, that said order be enforced."
One important thing that at once strikes attention upon reading the foregoing statement of the case, is
that the order of Judge Paredes of June 15, 1944 "directing Bonifacio Soriano to accept from the
petitioner Rosalina Cunanan the amount of P880 and to execute the necessary document in favor of
said administratix and to deliver the possession of the property in question," was not appealed or
excepted to and is now final. It had already become final when, on August 16, 1946, Judge Amparo
made his order, identified herein as Annex I. It was Judge Paredes' order of August 4, 1944, on the
administratix's motion for contempt of court filed on July 17, 1944, which Soriano sought to have
reconsidered and which Judge Amparo set aside on August 16, 1946. Although the allegations do not
show when Soriano received notice of Judge of Paredes' order of June 15, 1944, he must have been
notified of it before the proceeding for contempt against him started, at the latest, proceeding in which
he was absolved. And the tenor of the order acquitting Soriano gives rise to the inference that he
abided by the order of June 15 which he was accused of disobeying, for the order gave as reason for
his exoneration the fact that he had not properly disobeyed him.

We do not agreed with the respondents that the court lacked jurisdiction to order the delivery of the
possession of the lots to the estate. This power is a mere consequence of the power to approve
Soriano's claim; a power which the court undoubtedly had and which Soriano himself invoked with full
knowledge of then facts. As a general rule, with the consent of the parties matters affecting property
under judicial administration may be taken cognizance of by the court in the course of the intestate
proceeding provided the interests of third persons are not prejudiced. Determination of title to
property is within the jurisdiction of Courts of First Instance. The respondent Soriano's objection
relates exclusively to the procedure, which is distinct from jurisdiction. It affects only personal rights to
a mode of practice which may be waived. Certainly, there is waiver where, as here, and has been
pointed out, the party who raises the objection was the one who set the court in motion, and who, by
failing to disclose the existence of a sale under pacto de retro, suppressed jurisdictional facts that
might be in the way of his claim's success.

Soriano is bound by his own petition and by the court's adjudication of his claim made in consonance
with his prayer. A party can not trifle with a court's decision or order which he himself sought with full
awareness of his rights under the premises, by taking it or leaving it at pleasure. The allegations,
statements, or admissions contained in a pleading are conclusively as against the pleader. A party
cannot subsequently take a position contradictory of, or inconsistent with, his pleadings.
(McDaniel vs. Apacible, 44 Phil., 248; 49 C. J., 122-124.) Specifically, he is not allowed to ask money
back when the peso value is good, and later say he wants to keep the land when the peso's
purchasing power is down.

Under the theory on which the respondents would have the case decided; i.e., viewed in the light of a
sale with the right of repurchase, the respondents' position is not a whit improved. The tender of
payment by the administratix, to say the least, operated to preserve her right of redemption. The
Court's ruling that the repurchase of the lots should have been effected in Commonwealth currency is
bereft of reason and justice and is not the law. Japanese war notes were the only money in circulation
in March, 1944. It seems to us extremely unjust and unreasonable to expect the administratix at that
time to repurchase the lots in any other means of exchange. If it be correct — a point which we do not
decide — that the purchaser could not be compelled to accept payment in the currency in use at the
time of repurchase, then the period of redemption should have been considered extended until that
currency was replaced with one more acceptable to the creditor. Suspension of the time of
repurchase should have followed the vendor's inability to effect the redemption in Commonwealth
currency by reason of circumstances not of his own making. As we have said, this was the least that
should have been conceded to the debtor. Thus given a grace, the administratix had until within
reasonable time after liberation top repurchase the property. It is fortunate, be it said to the credit of
the administratix, that she expressed to the respondent judge, before he made the orders complained
of, her willingness to pay the debt or to repurchase the lots, as the case may be, in genuine Philippine
money, forgetting the deposit and without insisting that it be regarded as a sufficient and valid
exercise of her option. This attitude of the administratix relieves us of the necessity of passing on
what otherwise would be a more serious question — the question of who should bear the loss
consequent on the destruction of the notes deposited or the subsequent evanescence of their utility.

The petition is granted and the orders of the respondent judge of August 16 and September 16, 1946,
(Annexes I and "K"), are reversed, with costs against the respondent Bonifacio Soriano.

Paras, Perfecto, Hilado, and Briones, JJ., concur.

G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA
VILLANUEVA, respondents.

Rex Suiza Castillon for petitioner.

Salas & Villareal for private respondent.

MEDIALDEA, J.:

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.

xxxxxxxxx

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

EN BANC
[G.R. No. L-7644. November 27, 1956.]
HENRY LITAM, ETC., ET AL., Plaintiffs-Appellants, vs. REMEDIOS R. ESPIRITU, as guardian of
the incompetent MARCOSA RIVERA, and ARMINIO RIVERA, Defendants-Appellees.
[G.R. No. L-7645. November 27, 1956]
IN THE MATTER OF THE INTESTATE OF THE DECEASED RAFAEL LITAM. GREGORIO DY
TAM, Petitioner-Appellant, vs. REMEDIOS R. ESPIRITU, in her capacity as judicial guardian of
the incompetent MARCOSA RIVERA, counter-Petitioner, ARMINIO RIVERA, administrator-
Appellee.

DECISION
CONCEPCION, J.:
This is an appeal from a decision of the Court of First Instance of Rizal in the above entitled case,
which were jointly tried.
On May 21, 1952, Gregorio Dy Tam instituted Special Proceeding No. 1537 of said court, entitled “In
the matter of the Intestate Estate of the Deceased Rafael Litam”. The petition therein filed, dated April
24, 1952, states that Petitioner is the son of Rafael Litam, who died in Manila on January 10,
1951; chan roblesvirtualawlibrarythat the deceased was survived by:chanroblesvirtuallawlibrary
Li Hong Hap 40 years
Li Ho 37 years
Gregorio Dy Tam 33 years
Henry Litam alias Dy Bun Pho 29 years
Beatriz Lee Tam alias Lee Giak Ian 27 years
Elisa Lee Tam alias Lee Giok Bee 25 years
William Litam alias Li Bun Hua 23 years
Luis Litam alias Li Bun Lin 22 years
that the foregoing children of the decedent “by a marriage celebrated in China in 1911 with Sia Khin,
now deceased”; chan roblesvirtualawlibrarythat “after the death of Rafael Litam, Petitioner and his co-
heirs came to know” that the decedent had, during the subsistence of said marriage with Sia Khin,
“contracted in 1922 in the Philippines cralaw another marriage with Marcosa Rivera, Filipino
citizen”; chan roblesvirtualawlibrarythat “the decedent left as his property among others, his one-half
(1/2) share valued at P65,000 in the purported conjugal properties between him and Marcosa Rivera,
which cralaw partnership consisted of the following real property acquired during the marriage
between him and Marcosa Rivera, to wit:chanroblesvirtuallawlibrary
(1) “Three (3) parcels of land covered by Transfer Certificate of Title No. 1228 of the Registry of
Deeds of the province of Pampanga:chanroblesvirtuallawlibrary
(2) “One (1) parcel of land covered by Transfer Certificate of Title No. 26011 of the Registry of Deeds
of the province of Bulacan.”
and that the decedent had left neither a will nor debt. Petitioner prayed, therefore, that, after
appropriate proceedings, letters of administration be issued to Marcosa Rivera, “the surviving spouse
of the decedent”. Soon thereafter, Marcosa Rivera filed a counter-
petition:chanroblesvirtuallawlibrary (1) substantially denying the alleged marriage of the decedent to
Sia Khin, as well as the alleged filiation of the persons named in the petition; chan
roblesvirtualawlibrary(2) asserting that the properties described herein are her paraphernal
properties, and that the decedent had left unpaid debts, and certain properties in Bulan and
Casiguran, Sorsogon, and in Virac, Catanduanes, apart from shares of stock in a private corporation
known by the name of Litam Co., Inc.; chan roblesvirtualawlibraryand (3) praying that her nephew,
Arminio Rivera, be appointed administrator of the intestate estate of the deceased.
In due course, the court granted this petition and letters of administration were issued to Arminio
Rivera, who assumed his duties as such, and, later, submitted an inventory of the alleged estate of
Rafael Litam. Inasmuch as said inventory did not include the properties mentioned in the petition,
dated April 24, 1952, of Gregorio Dy Tam, the latter filed, on November 29, 1952, a motion for the
removal of Rivera as administrator of the aforementioned estate. This led to a number of incidents
hinging on the question whether said properties belong in common to the decedent and Marcosa
Rivera or to the latter exclusively.
Meanwhile, Remedios R. Espiritu was appointed, in Special Proceeding No. 1709 of the Court of First
Instance of Rizal, guardian of Marcosa Rivera, who had been declared incompetent. Thereafter, or on
April 20, 1953, Gregorio Dy Tam and his alleged brothers and sisters aforementioned, filed the
complaint in Civil Case No. 2071 of the same court, against Remedios R. Espiritu, as guardian of
Marcosa Rivera, and Arminio Rivera. In said complaint, Plaintiffs therein reproduced substantially the
allegations made in the aforementioned petition of Gregorio Dy Tam dated April 24. 1952, except that
the properties acquired “during the existence of marriage” between Rafael Litam and Marcosa Rivera
“and/or with their joint efforts during the time that they lived as husband and wife” were said to be
more than those specified in said petition, namely:chanroblesvirtuallawlibrary
“(1) 3 parcels of land situated in the Municipality of Macabebe, Province of Pampanga, covered by
Transfer Certificate of Title No. 1228 of the Registry of Deeds for the Province of Pampanga, issued
on July 29, 1947;
“(2) 2 Parcels of land, together with all buildings and improvements thereon except those expressly
noted in the title as belonging to other persons, situated in the Municipality of Navotas, Province of
Rizal, covered by Transfer Certificate of Title No. 35836 of the Registry of Deeds for the Province of
Rizal, issued on October 4, 1938;
“(3) 1 parcel of land situated in the Municipality of Malabon, Province of Rizal, covered by Transfer
Certificate of Title No. 23248 of the Registry of Deeds for the Province of Rizal, issued on June 12,
1933;
“(4) 1 parcel of land situated in Barrio of Kay-Badia, Municipality of Obando, Province of Bulacan,
covered by Transfer Certificate of Title No. 21809 of the Registry of Deeds for the Province of
Bulacan, issued on May 25, 1939;
“(5) 1 parcel of land (plan psu-93067, swo-16049) situated in Barrio of Quibadia, Municipality of
Obando, Province of Bulacan, covered by Transfer Certificate of Title No. 26011 of the Registry of
Deeds for the Province of Bulacan, issued on April 9, 1943;
“Other properties are located in Bataan province.
“All properties total an assessed value of approximately P150,000.00.”
In said complaint, Plaintiffs prayed that the judgment be rendered:chanroblesvirtuallawlibrary
“(1) declaring the aforesaid properties as belonging to the conjugal partnership or tenancy in
common which existed between the deceased Rafael Litam and the incompetent Marcosa Rivera;
“(2) ordering the Defendants to deliver the aforesaid properties to the administration of the estate of
the deceased Rafael Litam (Rule 75, section 2, Rules of Court);
“(3) ordering the said Defendants further to render an accounting of the fruits they collected from the
aforesaid properties and to deliver the same to the administration of the estate of the deceased
Rafael Litam;
“(4) ordering the said Defendants to pay the administration of the estate of the deceased Rafael
Litam damages in double the value of the fruits mentioned in the preceding paragraph which they
embezzled; chan roblesvirtualawlibraryand
“(5) ordering the Defendants to pay the costs. “The Plaintiffs further pray for such other remedy as
the Court may deem just and equitable in the premises.”
In her answer to the complaint, Marcosa Rivera reiterated, in effect, the allegations in her counter-
petition, dated July 12, 1952, in Special Proceeding No. 1537, and set up some affirmative and
special defenses, as well as a counter-claim for attorney’s fees and damages in the aggregate sum of
P110,000.00.
Owning to the identity of the issue raised in said Civil Case No. 2071 and in the aforementioned
incidents in Special Proceeding No. 1537, both were jointly heard. Later on, the court rendered a
decision.
“(1) Dismissing Civil Case No. 2071, with costs against the Plaintiffs;
“(2) Sentencing the Plaintiff in Civil Case No. 2071, under the Defendants’ counterclaim, to pay jointly
and severally each of the Defendants the sum of P5,000.00 as actual damages and P25,000.00 as
moral damages;
“(3) Declaring that the properties in question, namely:chanroblesvirtuallawlibrary the fishponds,
consisting of three parcels, situated in Macabebe, Pampanga, with Transfer certificate of Title No.
1228 of the land records of Pampanga, one-half undivided portion of the fishponds, consisting of two
parcels, situated in Navotas, Rizal, covered by Transfer Certificate of Title No. 35836, the parcel of
land with the improvements thereon situated in Malabon, Rizal, covered by Transfer Certificate of Title
No. 23248, both of the land records of Rizal, and the fishponds, consisting of two parcels, situated in
Obando, Bulacan, covered by Transfer Certificates of Title Nos. 21809 and 26011, both of the land
records of Bulacan, are the exclusive, separate and paraphernal properties of Marcosa Rivera; chan
roblesvirtualawlibraryand
“(4) Declaring that the Plaintiffs in Civil Case No. 2071 (who are the same persons alleged to be
children of Rafael Litam in the petition, dated April 24, 1952, filed by the Petitioner in Sp. Proc. No.
1537) are not the children of the deceased Rafael Litam, and that his only heir is his surviving wife,
Marcosa Rivera.”
The two (2) Cases are now before us on appeal taken by the Petitioner in Special Proceeding No.
1537 and the Plaintiffs in Civil Case No. 2071. The issues for determination
are:chanroblesvirtuallawlibrary (1) Are Appellants the legitimate children of Rafael Litam? (2) Is
Marcosa Rivera the exclusive owner of the properties in question, or do the same constitute a
common property of her and the decedent?
The first issue hinges on whether Rafael Litam and Sia Khin were married in 1911, and whether
Rafael Litam is the father of Appellants herein. In this connection, the lower court had the following to
say:chanroblesvirtuallawlibrary
“ cralaw the evidence weikhs very heavily in favor of the theory of the Defendants in Civil Case No.
2071 to the effect that the said deceased Rafael Litam was not married to Sia Khin and that Plaintiffs,
are not the children of the said decedent. The Plaintiffs in Civil Case No. 2071 and the Petitioner in
Sp. Proc. No. 1537 have utterly failed to prove their alleged status as children of Rafael Litam by a
marriage with Sia Khin.
“It appears from the evidence presented by the Defendants in civil Case No. 2071 and the
administrator and the counter-Petitioner in Sp. Proc. No. 1537 that there was no such marriage
between the deceased Rafael Litam and Sia Khin and that the Plaintiffs named in Civil Case No.
2071 are not children of said deceased. The various official and public documents executed by Rafael
Litam himself convincingly show that he had not contracted any marriage with any person other than
Marcosa Rivera, and that he had no child. In the marriage certificate, (Exhibit 55) it was clearly stated
that he was single when he married Marcosa Rivera on June 10, 1922. In the sworn application for
alien certificate of registration dated July 7, 1950 (Exhibit 1), Rafael Litam unequivocably declared
under oath that he had no child. In the several other documents executed by him and presented in
evidence, (Exhibits 19, 21, 22, 23, 46 and 46-A) Rafael Litam had consistently referred to Marcosa
Rivera alone as his wife; chan roblesvirtualawlibraryhe had never mentioned of Sia Khin as his wife,
or of his alleged children.
The witnesses presented by the Defendants in Civil Case No. 2071 and the administrator and
counter Petitioner in Sp. Proc. No. 1537 positively testified to the effect that they know that Rafael
Litam did not have any child, nor was he married with Sia Khin. An impartial and disinterested
witness, Felipe Cruz, likewise testified that he has known Rafael Litam even before his marriage with
Marcosa Rivera and that said Rafael Litam did not have any child.
“On the other hand, the Plaintiffs in Civil Case No. 2071 and the Petitioner in Sp. Proc. No. 1537
presented in support of their theory the testimony of their lone witness, Luis Litam, and certain
documentary evidence. It is noteworthy that the said Plaintiffs and said Petitioner did not present in
evidence the marriage certificate of Rafael Litam and Sia Khin, which in the opinion of the Court, is
the competent and best evidence of the alleged marriage between them. No explanation has been
given for the non-presentation of said marriage certificate, nor has there been any showing of its loss.
Neither have said Plaintiffs and said Petitioner presented any competent secondary evidence of the
supposed marriage.
“The testimony of the lone witness, Luis Litam, cannot be given any credence and value at all. His
testimony is mostly hearsay, as according to him, he was merely informed by Rafael Litam of the
latter’s supposed marriage with Sia Khin. His testimony is uncorroborated. The court noticed that the
said witness was only 22 years old when he testified, and it appears in the petition filed by
the Petitioner in Sp. Proc. No. 1537 that said witness is the youngest of all the alleged eight children
of Rafael Litam. The Court is at a loss to understand why one or some of the older alleged children of
Rafael Litam were not presented as witnesses in view of the unreliable testimony of Luis Litam, and
considering that older persons are better qualified to testify on the matters sought to be proved which
allegedly happened a long time ago.
“The birth certificate presented by the Plaintiff in Civil Case No. 2071 and Petitioner in Sp. Proc. No.
1537 cannot be given even little consideration, because the name of the father of the children
appearing therein is not Rafael Litam, but different persons. It is very significant to note that the
names of the father of the persons appearing in said birth certificates are Dy Tham, Li Tam, Lee
Tham, Rafael Dy Tam, and that said persons were born in different places, some in Amoy, China,
another Fukien, China, and the other in Limtao, China. It also appears in said birth certificates that the
children’s mothers named therein are different, some being Sia Khim, others Sia Quien, the other Sia
Khun, and still another Sia Kian. These documents do not establish the identity of the deceased
Rafael Litam and the persons named therein as father. Besides, it does not appear in the said
certificates of birth that Rafael Litam had in any manner intervened in the preparation and filing
thereof.
“The other documentary evidence presented by the said Plaintiffs and Petitioner are entirely
immaterial and highly insufficient to prove the alleged marriage between the deceased Rafael Litam
and Sia Khin and the alleged statue of the Plaintiffs as children of said decedent.
“It is, therefore, the finding of this Court that the Plaintiffs named in Civil Case No. 2071 are not heirs
of the said decedent, his only heir being his surviving wife, Marcosa Rivera.” (Emphasis ours.)
The findings of fact thus made in the decision appealed from are borne out by the records and the
conclusion drawn from said facts is, to our mind, substantially correct.
Appellants’ evidence on this point consists of the testimony of Appellant Li Bun Lin, who said that he
is, also known as Luis Litam; chan roblesvirtualawlibrarythat his co-Appellants are his brothers and
sisters; chan roblesvirtualawlibrarythat their parents are the decedent and Sia Khin, who were
married in China in 1911; chan roblesvirtualawlibraryand that Sia Khin died in Manila during the
Japanese occupation. He likewise, identified several pictures, marked Exhibits I to S, which were
claimed to be family portraits, but the lower court rejected their admission in evidence. Although we
agree with herein Appellants that this was an error, it is clear to us that said pictures and the
testimony of Luis Litam, as well as the other evidence adverted to in the above-quoted portion of the
decision appealed from, are far from sufficient to outweigh, or even offset, the evidence in favor of
the Appellees.
It should be noted that the decedent had admittedly married Marcosa Rivera in 1922. In the very
petition of Appellant Gregorio Dy Tam, in Special Proceeding No. 1537, dated April 24, 1952, he
alleged that Marcosa Rivera is “the surviving spouse of the decedent”. In their complaint in Civil Case
No. 2071, Appellants specifically admitted and averred “the existence of the marriage between said
Rafael Litam and Marcosa Rivera” — which would have been void ab initio, and, hence, inexistent
legally, if Appellants’ pretense were true or they believed it to be so — and that they had “lived as
husband and wife”. Again, although Gregorio Dy Tam, asserted, in his aforementioned petition, that
he and his co-heirs “came to know” about the marriage of the decedent and Marcosa Rivera “after the
death of Rafael Litam”, the very testimony of Li Bun Lin, as witness for the Appellants, show, beyond
doubt, that said Appellants knew, during the lifetime of Rafael Litam that he and Marcosa Rivera were
living in Malabon, Rizal, openly and publicly, as husband and wife, and regarded her as his lawful
wife. Indeed, in the course of his testimony, said Li Bun Lin alluded to her as his “mother”. In other
words, aside from the circumstance that the wedding and marital life of Marcosa Rivera and Rafael
Litam is undisputed, it is, also, an established fact that they had the general reputation of being legally
married and were so regarded by the community and by Appellants herein, during the lifetime of
Rafael Litam.
Upon the other hand, Appellants maintain, in effect, that Rafael Litam was guilty of the crime of
bigamy; chan roblesvirtualawlibrarythat he had, likewise, willfully and maliciously falsified public and
official documents; chan roblesvirtualawlibraryand that, although Appellants and Sia Khin were living
in Manila and Marcosa Rivera — whom Appellants knew — resided only a few kilometers away, in
Malabon, Rizal where Rafael Litam returned daily, after attending to his business in Manila, the
decedent had succeeded, for about thirty (30) years, in keeping each party in complete ignorance of
the nature of his alleged relations with the other. Apart from the highly improbable nature of the last
part of Appellants’ pretense, it is obvious that the same cannot be sustained unless the evidence in
support thereof is of the strongest possible kind, not only because it entails the commission by Rafael
Litam of grave criminal offenses which are derogatory to his honor, but, also, because death has
sealed his lips, thus depriving him of the most effective means of defense. The proof
for Appellants herein does not satisfy such requirement.
As regards the title to the properties in dispute, the evidence thereon was analyzed by the lower court
in the following language:chanroblesvirtuallawlibrary
“It has been established by the evidence that the properties in question were bought by Marcosa
Rivera with her separate and exclusive money. The fishponds situated in Obando, Bulacan, covered
by Transfer Certificate of Title Nos. 21809 and 26011, the one-half (1/2) undivided portion of the
fishponds situated in Navotas, Rizal with Transfer Certificate of Title No. 35836, and the property
situated in Hulong-Duhat, Malabon, Rizal, with Transfer Certificate of Title No. 23248 were all
purchased by Marcosa Rivera with the money she earned and accumulated while she was still
single; chan roblesvirtualawlibrarywhile the fishponds situated in Macabebe, Pampanga with Transfer
Certificate of Title No. 1228 were purchased by her with the money she inherited from her late sister,
Rafaela Rivera and with the money she received from the proceeds of the sale of the pieces of
jewelry she inherited from her father Eduardo Rivera and her sister Rafaela Rivera. The properties in
question, having been bought by Marcosa Rivera, although during her marriage with Rafael Litam,
with her exclusive and separate money, said properties are undeniably her paraphernal properties.
(Art. 1396, Spanish Civil Code, which is the same as Art. 148 of the Civil Code of the Phil.)
“Great importance should be given to the documentary evidence,
vis:chanroblesvirtuallawlibrary Exhibits 21, 22, 23, 19, 46 and 46-A, presented by the Defendants, in
Civil Case No. 2071 and the administrator and counter- Petitioner in Sp. Proc. No. 1537, which prove
beyond peradventure of any doubt that the properties in question are the paraphernal properties of
Marcosa Rivera. In Exhibit 21, Rafael Litam unequivocably declared under his oath that the money
paid by Marcosa Rivera for the fishponds in Obando, Bulacan was her exclusive and separate money
which was earned by her while she was still single. In Exhibits 22 and 23, both dated June 16, 1947,
same Rafael Litam, also under oath, acknowledge the fact that the sums of P13,000.00 and
P10,000.00 loaned by Marcosa Rivera to the spouses Catalino Pascual and Juliana Pascual, and to
Juliana Pascual, respectively, are the separate and exclusive money of Marcosa Rivera, in which
money Rafael Litam had no interest whatsoever. In Exhibit 19, same Rafael Litam acknowledged the
fact that he had obtained, before the outbreak of the second world war, from Marcosa Rivera the sum
of P135,000.00 which belongs exclusively to the latter, and that after the liberation, or more
specifically, on January 4, 1946, he stole from Marcosa Rivera the further sum of P62,000.00, also
belonging exclusively to the latter, which amounts, totalling P197,000.00, exclusive of interests, have
not, according to the evidence, been paid to her up to the present. In Exhibits 46 and 46-A, it was
acknowledged by Rafael Litam that he had not given any money to his wife, Marcosa Rivera, and that
they have actually adopted a system of separation of property, each of them not having any interest
or participation whatsoever in the property of the other. These declarations and admission of fact
made by Rafael Litam against his interest are binding upon him, his heirs and successors in interests
and third persons as well. (Secs. 7 & 29, Rule 123, Rules of Court).
“The finding of this Court that the properties in question are paraphernal properties of Marcosa
Rivera, having been bought by her with her separate and exclusive money, is further strengthened by
the fact that, as it is clearly disclosed by the evidence when Marcosa Rivera married Rafael Litam in
1922, she was already rich, she having already earned and saved money as ‘consignataria’ while she
was still single. It also appears that she was born of a rich family, her father, Eduardo Rivera, being
the owner of fishponds, commercial and residential lands and buildings, (Exhibits 5 to 18, inclusive),
with an assessed value of around P150,000.00 (Exhibits 25 and 42, inclusive), now worth
approximately a million pesos, and most of which properties as may be seen from the certificates of
title were acquired by him way back in the years 1916 and 1919. When Eduardo Rivera died on
February 5, 1942, his cash and jewelry were inherited by his eldest daughter, Rafaela Rivera, and
when the latter died single on July 2, 1943, Marcosa Rivera inherited her cash amounting to
P150,000.00, Philippine currency, and and her pieces of jewelry. It is with this amount and with the
proceeds of the sale of some of said pieces of jewelry that Marcosa Rivera purchased the fishponds
in question, situated in Macabebe, Pampanga.
“On the other hand, it appears from the evidence that when Rafael Litam was on June 10, 1922,
married to Marcosa Rivera, he was poor. He had to borrow from Marcosa Rivera, the sum of
P135,000.00 belonging exclusively to her before the outbreak of the war, and to steal from her further
sum of P62,000.00 after the liberation (Exhibit 10). The said amounts totalling P197,000.00, exclusive
of the stipulated interests, according to the evidence, have not been paid to Marcosa Rivera up to the
present. Rafael Litam did not contribute any amount of money or labor to the properties in question,
as he and Marcosa Rivera maintained an absolute separation of property (Exhibits 46 and 46-A).
Besides, during his lifetime he used to go his office in Manila everyday.
“Another circumstance which clearly proves that the properties in question belong exclusively to
Marcosa Rivera is the established fact that before she became incompetent sometime in the early
part of the year, 1953, she had been administering said properties, to the exclusion of Rafael Litam.
In fact, as may be seen from the very documentary evidence (Exhibit ‘EE’, same as Nxh. 50)
presented by the Plaintiffs in Civil Case No. 2071 themselves and Petitioner in Sp. Proc. No. 1537,
she alone leased the properties in question, situated in Macabebe, Pampanga, and the
corresponding lease contract, dated July 13, 1948 was signed by her as lessor and by Rafael Suarez,
Jr. as lessees. Furthermore, the properties in question have been declared in the name of Marcosa
Rivera alone, and she alone pays the real estate taxes due thereon. (Exhibits 43, 44 & 45.)
“Further strong proofs that the properties in question are the paraphernal properties of Marcosa
Rivera, are the very Torrens Titles covering said properties. All the said properties are registered in
the name of ‘Marcosa Rivera, married to Rafael Litam.’ This circumstance indicates that the
properties in question belong to the registered owner, Marcosa Rivera, as her paraphernal properties,
for if they were conjugal, the titles covering the same should have been issued in the names of Rafael
Litam and Marcosa Rivera. The words ‘married to Rafael Litam’ written after the name of Marcosa
Rivera, in each of the above mentioned titles are merely descriptive of the civil status of Marcosa
Rivera, the registered owner of the properties covered by said titles.
“On the other hand, the evidence presented by the Plaintiffs in Civil Case No. 2071 and Petitionerin
Sp. Proc. No. 1537 in support of their contention that the properties in question are conjugal is, in the
mind of the Court, very weak, unreliable, and mostly incompetent, and cannot overcome the clear,
convincing and almost conclusive proofs presented by the opposite party. Scant or no consideration
at all could be given by the Court to the immaterial, incompetent and unbelievable testimonies of the
witnesses presented by the said Plaintiffs and Petitioners. The disputable presumption of law that the
properties acquired during the marriage are conjugal properties, upon which legal presumption
said Plaintiffs and Petitioner mainly rely has been decisively overcome by the overwhelming
preponderance of evidence adduced in these cases that the properties in question are the
paraphernal properties of Marcosa Rivera.” (Emphasis ours.)
Appellants’ counsel assail the decision appealed from upon the ground that the lower court had been
partial to the Appellees and had not accorded to the Appellants a fair and just hearing.
As above pointed out, His Honor the trial Judge could have been, and should have been, more liberal
in the reception of evidence. Appellants’ witnesses (Li Bun Lin, Dominador Gadi, Benigno Musni and
Rafael B. Suarez) should have been allowed to testify on the alleged title of Rafael Litam to certain
properties and on his alleged reasons for the language used in the public and official documents
relied upon by the Appellees. However, it is apparent to us that said evidence cannot affect the
decision in these cases.
The evidenciary value of the testimony of said witnesses would have depended mainly upon their
individual appraisal of certain facts, upon their respective inferences therefrom and their biases or
view points, and upon a number of other factors affecting their credibility. At best, said testimony could
not possibly prevail over the repeated admissions made by the decedent against his own interest in
Exhibits 19, 21, 22, 23, 46 and 46-A (adverted to in the abovequoted portion of the decision appealed
from), which admissions are corroborated by the fact that the deceased father of Marcosa Rivera was
well to do; chan roblesvirtualawlibrarythat aside from her share in his estate, she had, likewise,
inherited from a sister who died single and without issue; chan roblesvirtualawlibrarythat the lands in
dispute were registered, and some were, also, leased, in her name, instead of hers and that of the
decedent; chan roblesvirtualawlibraryand that the latter lived in her house in Malabon, Rizal.
Appellants contend that the transactions covered by said Exhibits 19, 21 to 23 and 46 and 46-A, as
well as by the other deeds referred to in the decision appealed from, were caused to be made in the
name of Marcosa Rivera, to the exclusion of her husband, in order to evade the constitutional
provision disqualifying foreigners from the acquisition of private agricultural lands, except by
succession. Apart from being based, solely, upon a surmise, without any evidentiary support, this
pretense is refuted by the fact that said residential property in Hulong-Duhat, Malabon, Rizal, was
acquired on April 12, 1933, or prior to the adoption of our Constitution (see Exhibits Z and AA). Her
transactions subsequently thereto, merely followed, therefore, the pattern of her activities before the
drafting of said fundamental law.
This notwithstanding, we do not believe that Appellants should be sentenced to pay damages. The
petition of Gregorio Dy Tam in Special Proceeding No. 1537 and the complaint in Civil Case No. 2071
contain nothing derogatory to the good name or reputation of the herein Appellees. On the contrary, it
may be surmised from said pleadings that Marcosa Rivera had no knowledge of the alleged previous
marriage of the decedent to Sia Khin. Moreover, the records do not show that Appellants have acted
in bad faith.
Likewise, we are of the opinion that the lower court should not have declared, in the decision
appealed from, that Marcosa Rivera is the only heir of the decedent, for such declaration is improper
in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceeding
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.
Wherefore, with the elimination of the award for damages in favor of the herein Appellees, and of said
declaration of heirship, the decision appealed from is hereby affirmed in all other respects, with costs
against the Appellants. It is SO ORDERED.
Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.

G.R. No. L-2108 December 18, 1905

JUANA PIMENTEL, plaintiff-appellant,

vs.
ENGRACIO PALANCA, as administrator of the estate of Margarita Jose, deceased, ET AL.,
defendants-appellees.

Del-Pan, Ortigas and Fisher for appellant.

M. Caringal and R. del Rosario for appellees.

WILLARD, J.:

Margarita Jose, a native and citizen of the Philippine Islands, died in the city of Amoy, China, on the
4th of February, 1902. Her last will was duly proved and allowed in the Court of First Instance of
Manila on the 15th day of April, 1902, and on the same day Engracio Palanca was duly appointed
administrator of the estate of the deceased. He entered upon the discharge of his duties as such
administrator, and is still engaged therein. As far as appears from the bill of exceptions the estate still
remains unsettled, and no final decree has ever been entered therein.

By her said will Margarita Jose left all her property, amounting to over 50,000 pesos, to her two
children, Vicente Barreto, alias Tan-Keng, and Benito Carlos, alias Doon. On the 8th day of July,
1902, Juana Pimentel, the mother of said Margarita Jose, commenced this, an ordinary action, in the
Court of First Instance of Manila, alleging that the two children of Margarita Jose were illegitimate,
and that she was the heir at law and entitled to the whole estate. The prayer of the original complaint
was that the plaintiff be declared the lawful heir and entitled to all the property of her daughter,
Margarita Jose.

The defendant named in this original complaint was the "Estate of Doña Margarita Jose." The
summons in the action was served upon the administrator, Engracio Palanca. He appeared and
demurred, on the ground, among others, that there was a defect of parties, and that the two sons
should have been made defendants. This demurrer was overruled. He took an exception to the
overruling of the demurrer, and answered, denying generally the facts state in the complaint. A trial
was had in the Court of First Instance, and judgment was entered in favor of the defendant on the
28th of July, 1903, the court holding that Vicente Barreto was the legitimate son of Margarita Jose.
Plaintiff made a motion for a new trial, which was granted on the 15th day of September, 1903. On
the 22nd day of January, 1904, the plaintiff presented an amended complaint, naming as defendants
Engracio Palanca, as administrator of the estate of margarita Jose, and Benito Carlos and Vicente
Barreto. The prayer of that complaint is as follows:

Por todo lo expuesto la demandante pide al Juzgado:

(a) Que la legalizacion de dicho testamento sea revocada y anulada;

(b) Que la institucion de los demandados Vicente barreto alias Tan-Keng y Benito
Carlos alias Doon como herederos en dicho testamento sea declarada nula por razon de la
pretericion de un heredero forzoso.

(c) Que la demandante sea declarada heredera de tres cuartas partes de los bienes de los
cuales era dueña la citada Margarita Jose al tiempo de su fallecimiento.

(d) Que el nombramiento de administrador conferido por virtud del auto del Juzgado a favor
del demandado Engracio Palanca sea anulado;

(e) Que el demandado Engracio Palanca como tal administrador sea requerido a rendir
cuentas de su administracion y a depositar en el Juzgado todo el dinero que tenga en su
poder perteneciente a los herederos de la citada difunta;

(f) Que el Juzgado conceda a la demandante cualquier otro remedio adecuado y equitativo.

The defendants all answered the amended complaint. A trial was had in the court below, and on the
7th of April, 1904, judgement was entered in favor of the defendants. The court held that Vicente
Barreto was the legitimate son of Margarita Jose; that Benito Carlos was an illegitimate son, and that
Margarita Jose had a right to bequeath her property to these sons to the exclusion of the plaintiff. He
held also that the plaintiff, not having appealed from the probate of the will, could not maintain this
action.

We think that judgment should be entered for the defendants, but not upon the ground stated in the
decision of the court below.

The will of Margarita Jose was made and she died after the present Code of Civil Procedure went into
effect in these Islands. Her will was duly proved and allowed under the provisions of that code. An
administrator was duly appointed and he is now engaged in settling the affairs of the estate. The
important question in this case is, Can an ordinary action at law be maintained under these
circumstances by a person claiming to be an heir of the deceased against other persons, also
claiming to be such heirs, for the purpose of having their rights in the estate determined? We think
that such an action is inconsistent with the provisions of the new code, and that it can not be
maintained. Section 600 of the present Code of Civil Procedure provides that the will of an inhabitant
of the Philippine Islands shall be proved and his estate settled in the Court of First Instance in which
he resided at the time of his death. By section 641 when a will is proved it is obligatory upon the court
to appoint an executor or administrator. By virtue of other provisions of the code this executor or
administrator has, under the direction of the court, the full administration and control of the
deceased's property, real and personal, until a final decree is made in accordance with section 753.
During the period of administration the heirs, devisees, and legatees have no right to interfere with
the administrator or executor in the discharge of his duties. They have no right, without his consent, to
the possession of any part of the estate, real or personal. The theory of the present system is that the
property is all in the hands of the court, and must stay there until the affairs of the deceased are
adjusted and liquidated, and then the net balance is turned over to the persons by law entitled to it.
For the purpose of such administration and distribution there is only one proceeding in the Court of
First Instance. That proceeding is not an action of law, but fall under Part II of the Code of Civil
Procedure, and is a special proceeding. After the estate is fully settled, and all the debts and
expenses of administration are paid, the law contemplates that there shall be a hearing or trial in this
proceeding in the Court of First Instance for the purpose of determining who the parties are that are
entitled to the estate in the hands of the executor or administrator for distribution, and after such
hearing or trial it is made the duty of the court to enter a decree or final judgment, in which decree,
according to section 753, the court "shall assign the residue of the estate to the persons entitled to
the same, and in its order the court shall name the persons and proportions or parts to which each is
entitled." (See also sec. 782 of the Code of Civil Procedure.) By section 704 it is expressly provided
that no action shall be maintained by an heir or devisee against an executor or administrator for the
recovery of the possession or ownership of lands until there is a decree of the court assigning such
lands to such heir or devisee, or until the time allowed for paying debts has expired.

It seems clear from these provisions of the law that while the estate is being settled in the Court of
First Instance in a special proceeding, no ordinary action can be maintained in that court, or in any
other court, by a person claiming to be the heir, against the executor or against other persons
claiming to be heirs, for the purpose of having the rights of the plaintiff in the estate determined. The
very purpose of the trial or hearing provided for in section 753 is to settle and determine those
questions, and until they are settled and determined in that proceeding and under that section no
action such as the present one can be maintained.

An examination of the prayer of the amended complaint above quoted will show that to grant it would
be to prevent the settlement of the estate of a deceased person in one proceeding in the Court of
First Instance. It would require, in the first place, the revocation of the judgment probating the will.
This relief can not be obtained in an ordinary action. The plaintiff not having appealed from the order
admitting the will to probate, as she had a right to do, that order is final and conclusive. It does not,
however, as the court below held, determine that the plaintiff is not entitled to any part of the estate.
The effect of such a decree was stated in the case of Castañeda vs. Alemany 1 (2 Off. Gaz., 366).
The statements there made need not be repeated here. The plaintiff in her amended complaint asks
also that the appointment of Engracio Palanca be annulled. This relief can not be granted in an
ordinary action. The plaintiff had a right to appeal from the order of the court appointing the
administrator in this case, and not having exercised that right such order is final and conclusive
against her. The plaintiff also asks that the administrator be required to render an account to her of his
administration, and deposit in court the money which he has in his possession. To grant this relief in
an ordinary action between parties would be to take away from the court having in charge the
settlement of the estate the express powers conferred upon it by law. To grant that part of the prayer
of the amended complaint which asks that the plaintiff be declared to be entitled to three-fourths of
the property of the estate, would be to take away from the court administering the estate the power
expressly given to it by section 753 to determine that question in the proceeding relating to the estate.

The judgment of the court below is reversed, and after the expiration of twenty days judgment should
be entered in accordance herewith and the case remanded to the court below, with instructions to
dismiss the same, with costs, but without prejudice to the right of the plaintiff to present her claims in
the special proceeding relating to the administration of the estate, when the final decree is made
therein under section 753. No costs will be allowed in this court. So ordered.

Separate Opinions

ARELLANO, C.J., and MAPA, J., concurring:

In view of sections 753 and 782, we agree with the preceding opinion on the ground therein set forth:

While the estate is being settled in the Court of First Instance in a special proceeding, no
ordinary action can be maintained in that court, or in any other court, by a person claiming to
be the heir, against the executor or against other persons claiming to be heirs, for the purpose
of having the rights of the plaintiff in the estate determined.
The purpose of this concurring opinion is to reserve the question as to any other action in connection
with the settlement of such estates not instituted during the period of administration but independently
and which may relate to rights to any part thereof, especially the action for distribution which differs
from the action of partition.

G.R. No. L-27526 September 12, 1974

ANGELITA G. VDA. DE VALERA, AMANDA G. VALERA, OSCAR G. VALERA, DIONISIO G.

VALERA, FELIXBERTO G. VALERA, BENITO G. VALERA, EVA G. VALERA, LITA G. VALERA,
TONIETTE VALERA, ANGEL V. COLET, NORMAN PE BENITO and ROMEO PE
BENITO, petitioners,
vs.
HON. MACARIO M. OFILADA, as Probate Judge, Court of First Instance of Abra; ADORACION
VALERA-BRINGAS, as Administratrix of the Intestate Estate of Francisco Valera; PROVINCIAL
SHERIFF of Abra; DOMINGO V. BANEZ as Deputy Provincial Sheriff of Abra, and CELSO
VALERA, respondents.

Leandro C. Sevilla for petitioners.

Romeo R. Bringas for respondents.

FERNANDEZ, J.:p

Had the Court of First Instance of Abra been more cognizant of the limitations on its prerogative as a
probate court, it would not have committed the jurisdictional and procedural errors pointed out in this
certiorari case by the petitioners, the heirs of the late Virgilio Valera.

The record discloses that the lower court exceeded its jurisdiction in issuing its orders of July 10,
1964, April 15, 1966 and January 4, 1967 as well as the writ of execution against the assets of the
deceased Virgilio Valera. The jurisdictional and procedural errors committed by the lower court justify
the writ of certiorari. Hence, We find the petition to be meritorious. We have to set aside the said
orders and writ of execution insofar as the heirs or estate of Virgilio Valera are concerned.

Civil Case No. 64, R-1 of the Court of First Instance of Abra is a special proceeding for the settlement
of the intestate estate of Francisco Valera. Virgilio Valera was the administrator of the estate, He died
on March 21, 1961. He was survived by his widow, Angelita Garduque Vda. de Valera and their ten
(10) children, named Amanda, Oscar, Dionisio, Benito, Felixberto, Eva, Lita, Toniette, Vicenta and
Teresita, all petitioners herein, except Vicenta and Teresita, who were abroad.

Later (the exact date is not shown in the record), Adoracion Valera Bringas, who claims to be an
acknowledged natural child of Francisco Valera, was appointed administratrix. She filed on April 16,
1964 in the intestate proceeding a petition to require "Celso Valera and family and Angelita de Valera
and family to pay P100.00" as monthly rental for the one-third pro-indiviso portion of the Valera
residence located in Bangued, Abra.1

That residence is item 3 of the original inventory dated April 10, 1964 submitted by Mrs. Bringas. It is
described as follows:

Residential land & Improvements. — Covered by Tax Declaration No. 16922, declared
in 1948 in the names of Virgilio & Celso Valera; cancelled by Tax Declaration No. 21571
in the name of Virgilio Valera; cancelled by Tax Declaration No. 29338, in 1962, in the
name of Virgilio Valera, located in Partelo Street, Bangued, Abra, bounded as follows:
N. Alejandro Lizards; E. Partelo Street (now Virgilio Valera Street); S. Taft Street;
W'Consiliman Brook, with an area of 1,775 square meters, and assessed at P1,420.00
for the residential lot, and P9,500.00 for the improvements.

Appraised value — P45,600.00, 1/3 of which is P15,200.00. (p. 5 of Respondents'

Memorandum)
The petition was not served on the widow and ten children of Virgilio Valera. Celso Valera interposed
an opposition to it on the ground that Francisco Valera had no interest in the Valera residence, that
the property was never leased and that the remedy of Mrs. Bringas was "in a appropriate remedy
and/or procedure" and not in the intestate proceeding. 2

The lower court granted the petition in an order dated July 10, 1964 which reads: 3

ORDER

The administratrix, through counsel, has petitioned for an order to pay rental on the
property (Item 1-B, 23 of the Inventory submitted i)v the administratrix, pp. 415-416,
rec.) owned in common by the estate of the deceased Francisco Valera y Versoza and
the late Virgilio Valera and Celso Valera, corresponding to one-third (1/3) interest
pertaining to the estate of the deceased Francisco Valera to be paid by the family of
Virgilio Valera and Celso Valera and family who have been occupying the property since
April, 1945 in the amount of P100.00 a month, plus legal interest, the same to be paid to
the Administratrix.

WHEREFORE, finding the said motion to be well-founded and meritorious, the same is
hereby granted. It is further ordered that the Clerk of Court shall furnish Angelita
Garduque Vda. de Valera with a copy of this order by registered mail.

SO ORDERED.

Done at Bangued, Abra, this 10th day of July, 1964.

(Sgd.) ALFONSO P. DONESA J u d g e

The directive of Judge Donesa to the Clerk of Court to serve a copy of the order by registered mail on
Mrs. Valera implies that the heirs of Virgilio Valera were not served with a copy of the petition. The
said heirs, through Atty. Angel V. Colet, a son-in-law of Mrs. Valera, filed a motion for the
reconsideration of that order. They contended that the Valera residence "should be excluded from the
inventory," because that was their "absolute property of which they have been in complete possession
and occupation".4 Mrs. Bringas replied that Francisco Valera's estate had "already consolidated" its
ownership over that one-third partition "through the submission of the inventory and its approval" by
the probate court.5

It was only nearly two years later that respondent Judge Macario Ofilada in his order of April 15, 1966
denied the motion for reconsideration filed by the heirs of Virgilio Valera. 6

On February 17, 1965 (before the motion for reconsideration was resolved) Mrs. Bringas filed in the
intestate proceeding a pleading known as "Motion for Execution and for an Order Directing Delivery of
the Fruits of the Properties or Value and Monies of the Estate to the Administratrix." 7

She prayed in that motion that Judge Donesa's order for the payment of rentals be executed against
the heirs of Virgilio Valera; that the heirs be ordered to deliver to her the fruits of the properties of the
estate of Francisco Valera, which, according to her calculation, amounted to P100,000 for twenty
years, plus legal interest supposedly amounting to P5,000; that the heirs be ordered to deliver the
sum of P4,684.98 representing the insurance and war damage monies collected by Virgilio Valera;
and that the Sheriff be ordered to "to seize such properties of Virgilio Valera and his heirs" "to be sold
according to law for the payment of double the value of the fruits and the amount of monies alienated
and embezzled".

As already stated, in an order dated April 15, 1966, respondent Judge Macario M. Ofilada denied the
motion for reconsideration filed by the heirs of Virgilio Valera and granted the motion of Mrs. Bringas
for execution and for the delivery of certain funds and properties. (Note that the execution was
granted although the order was not yet final). That order, which is being assailed in this case, is
quoted as follows (pp. 7-9 of the Petition):

Pending resolution before the court are the following motions:

1. Unsigned 'Motion for leave of Court to Intervene and Motion for Reconsideration of
the Order dated July 10, 1964', filed by counsel for the heirs of Virgilio Valera;

2. 'Motion' without any notice of hearing filed by counsel for the heirs of Virgilio Valera;

3. 'Motion for Reconsideration of the Order dated July 10, 1965,' filed by counsel for
petitioner Celso Valera; and

4. 'Motion for Execution and for an Order Directing Delivery of the Fruits of the
Properties or Value thereof and Monies of the Estate to the Administratrix', filed by
counsel for the administratrix.

Also pending is the examination of persons regarding the properties of the estate as
ordered by the court also on July 10, 1964.

On January 27, 1966, the court directed the movants seeking a reconsideration of the
order directing the payment of rentals to the estate to submit their respective
memoranda within 15 days from receipt of the order and the administratrix 5 days from
receipt of adverse parties memoranda to submit her reply if she so desires. Despite the
fact that the parties had received copies of the order of January 27, 1966, none
complied. Considering that this case is already more than 20 years old, the Court can
not, in the interest of justice, further hold or suspend the resolutions on these incidents.
They must as they should now, be resolved.

The motion for reconsideration filed by counsel for the heirs of Virgilio Valera and his
subsequent 'Motion'. appearing to be unfounded, is hereby denied.

The motion for reconsideration filed by counsel for Celso Valera is a mere repetition of
the 'Opposition to Petition for an Order to Pay Rental dated May 8, 1964. This motion is
merely intended to delay the proceedings and it is hereby denied for lack of merit.

Finding the 'Motion for Execution and for an Order Directing the Delivery of Fruits of the
Properties or Value thereof and Monies of the Estate to the Administratrix' well-founded
and meritorious, it is hereby directed:

1. That a writ of execution issue against the heirs of Virgilio Valera and Celso Valera
insofar as the collectible rents pertaining t the estate are concerned;

2. That the heirs of Virgilio Valera and Celso Valera deliver to the administratrix
properties still in their possession which are among those listed in the 'Incomplete
Inventory and Appraisal of the Real and Personal Estate of the Deceased, Francisco
Valera y Versoza' filed by the administratrix on September 17, 1965;

3. That the heirs of Virgilio Valera and Celso Valera and family account to the
Administratrix the fruits of the properties of the estate listed in the said amended
inventory;

4. That the heirs of Virgilio Valera deliver to the administratrix the sum of P4,784.98
representing the insurance and war damage monies collected by Virgilio Valera;

5. That Celso Valera account to the administratrix the war damage monies received by
him for the destroyed Valera family residence and deliver 1/3 of the same to the
administratrix; and

6. That failure to render a satisfactory account as hereby required within 15 days from
receipt of this order shall, conformably with See. 8 of Rule 87 of the Rules of Court,
make the heirs of Virgilio Valera and Celso Valera liable to double the value of the fruits
and monies unaccounted for.

It is further ordered that the Clerk of Court immediately set 2 days for the examination of
the persons required to appear in the order dated July 10, 1964.
 SO ORDERED.

Bangued, Abra, this 15th day of April, 1966.

(Sgd.) MACARIO M. OFILADA

Judge

On January 5. 1967 Judge Ofilada directed the execution of his aforequoted order of April 15, 1966.
That directive reads as follows:8

ORDER

Pending resolution before this Court are: (1) Omnibus Motion filed by the Administratrix
dated September 15, 1966; and, (2) Omnibus Motion filed by the heirs of Virgilio Valera
dated October 13, 1966.

The parties, by the order of this Court dated December 12, 1966 after the hearing on
said date at which counsel discussed their respective motions, were given three days
time within which to submit their written memoranda. No such memoranda have been
filed by any of the parties, and the Court took time and efforts in considering the said
motions, oppositions, affidavit and counter-affidavits.

The Omnibus Motion of the heirs of Virgilio Valera dated October 13, 1966 seeks to stay
the writ of execution issued by this Court pursuant to the order dated April 15, 1966 and
relies upon an alleged compromise agreement entered into between said heirs and the
administratrix on May 21, 1966.

The Court is aware of attempts to a compromise agreement between the

aforementioned parties. There is nothing however in the record of any amicable
settlement such as that required by the Court in its order dated June 26, 1965, which
required the parties 'to inform the court as soon as possible what arrangement or
settlement have been taken and arrived at by them.' The Court has given the parties
long time to agree and settle their differences, even taking time on Sundays to meet
with them for this purpose and, until the present time, no such agreement by all the
parties has been presented for the approval of the Court. Certainly the alleged
compromise agreement is not such agreement especially when the administratrix takes
vigorous exception citing facts of record and valid points of law which have not been
sufficiently answered and explained. To allow the alleged oral compromise agreement in
violation of fundamental principles of law such as the time limit within which to file a
petition for relief and unsupported by the facts on record as cited by counsel for and
administratrix would be to trifle with the administration of justice especially in this case
which is the oldest in this court and which has been pending for more than twenty years
now. For these basic reasons, the Omnibus Motion of the heirs of Virgilio Valera dated
October 13, 1966 must be, as it is hereby, DENIED.

And considering the motion of the administratrix dated September 15, 1966 to be
meritorious, the same, as prayed for, is hereby GRANTED.

WHEREFORE, it is hereby directed that:

(1) The orders of November 14 and 25, 1966 staying the execution of the order of April
15, 1966 are hereby lifted and let another writ of execution immediately issue to effect
the order of April 15, 1966.

(2) A writ of execution issue against said heirs of Virgilio Valera for the satisfaction of the
amounts due the estate;

(3) A writ of execution issue against the properties of Celso Valera for the satisfaction of
the amount due to estate; and,

(4) The heirs of Virgilio Valera deliver to the administratrix the possession of the
properties listed in paragraph 6 and 7 of her Omnibus Motion dated September 15,
 1966 and the fruits or value thereof from April, 1945 until time of delivery, and, pursuant
to Section 8, Rule 87, of the New Rules of Court, to pay double the value of said fruits
upon failure to account and deliver same within thirty days from receipt of this order.

SO ORDERED.

Bangued, Abra, January 4, 1967.

(Sgd.) MACARIO M. OFILADA Judge

The heirs of Virgilio Valera filed a motion dated February 6, 1967 for the reconsideration of Judge
Ofilada's order of January 4, 1967.9 The motion was denied in the order dated February 13,
1967. 10 judge Ofilada in his order dated February 27, 1967 ordered another execution. 11

The Deputy Provincial Sheriff levied upon the properties of the deceased Virgilio Valera and caused
to be published a notice of auction sale also dated February 27, 1967 which reads in part as
follows: 12

1. Of the goods and chattels of Celso Valera and the heirs of Virgilio Valera — the sum
of Forty Thousand Three Hundred Twenty (P40,320.00) Pesos for rent due the estate
together with interest thereon from April, 1945 (P25,200.00) for the principal at
P1,200.00 per annum from April, 1945 to March, 1966, and P15,120.00 for interest due
at six (6) per centum per annum), plus P100.00 a month from April, 1966 with interest at
six (6) per centum until date of payment and delivery of the interest, of the estate in the
property to the administratrix;

2. Of the goods and chattels of the heirs of Virgilio Valera — the sum of Sixty Thousand
(P60,000.00) Pesos representing double the value of undelivered fruits of the properties
of the estate for 20 years from April, 1945 to October, 1965 or One Thousand Five
Hundred (P1,500.00) Pesos per year, and the sum of Nine Thousand Five Hundred
Sixty Nine Pesos and Ninety Six Centavos (P9,569.96), respresenting double the value
of the undelivered insurance and war damage monies collected by Virgilio Valera.

The petitioners filed a motion dated March 15, 1967 to quash the writ of execution and for the
suspension of the auction sale. 13 Judge Ofilada denied it in his order of April 1967. 14 The petitioners
filed a motion dated March 31, 1967 to set aside the lower court's orders of April 15, 1966 and
February 27, 1967 on the grounds of lack of jurisdiction and lack of due process. 15

On April 3, 1967, the dated when Judge Ofilada denied petitioners' motion to quash the writ of
execution, respondent Deputy Sheriff proceeded with the auction sale and sold to the estate of
Francisco Valera eighteen (18) parcels of land supposedly belonging to the deceased Virgilio Valera.
The price was P92,337.00. 16

The petitioners filed a motion dated April 11, 1967 for the reconsideration of the order of April 3,
1967. 17 Judge Ofilada denied it in his order of April 21, 1967. 18

On May 8, 1967 the petitioners, the heirs of Virgilio Valera (except two children who were abroad)
filed the instant petition for certiorari with preliminary injunction against Judge Ofilada, Mrs. Bringas,
the Provincial Sheriff and the Deputy Provincial Sheriff. Celso Valera was joined as a nominal party.
The respondents were required to answer the petition. The Court directed that a writ of preliminary
injunction should issue upon petitioners' posting a bond of P5,000.00.

The petitioners assail the brief, three-sentence order of July 10, 1964 on the following grounds: (a)
that it decided the issue of ownership as to the one-third pro-indiviso share of Francisco Valera in the
Valera residence, an issue, which according to them, is beyond the court's probate jurisdiction; (b)
that it was issued without the benefit of a trial on the merits and without hearing all the parties
involved; (c) that it does not contain findings of fact and law; (d) that it is a judgment for a money
claim which should have been filed in the proceedings for the settlement of the estate of the
deceased debtor, Virgilio Valera, and (e) that the order has no basis in substantive law.

The petitioners attack Judge Ofilada's order of April 15, 1966 on the following grounds: (a) that, as a
probate judge, he had no jurisdiction to require the heirs of Virgilio Valera to account for the fruits of
the six parcels of land administered by him and that a separate action should be filed or the proper
claim should be made against his estate; (b) that he had no jurisdiction to order the heirs of Virgilio
Valera to deliver to Mrs. Bringas the sum of P4,784.98 as "insurance and war damage monies
collected by Virgilio Valera"; (c) that Section 8, Rule 87 of the Rules of Court contemplates that
"double the value of the fruits and monies" should be recovered in an "action" and not in an intestate
proceeding, and (d) that the order was issued without any trial on the merits and it does not contain
findings of fact and law.

The petitioners further contend that the orders of July 10, 1964 and April 15, 1966 are not enforceable
by execution because they are incomplete and not precise as to the amounts supposedly due from
the judgment debtors.

As to the execution sale, the petitioners contend: (a) that the orders sought to be executed are void;
(b) that the probate court ordinarily has no jurisdiction to issue a writ of execution and that the instant
case is not among the exceptional cases wherein the probate court can authorize an execution, and
(c) that execution for a money claim cannot be had against a decedent's estate.

After a careful study of the arguments of the parties in their memoranda, reply, rejoinder and
surrejoinder, We find that, for the resolution of the case, it is not necessary to pass upon all those
issues. The crucial issue in the last analysis is whether the lower court, sitting as a probate court in
the intestate proceeding for the estate of Francisco Valera, could hold the heirs of Virgilio Valera
answerable for certain supposed monetary liabilities of the latter to the estate and enforce said
liabilities against the properties of the deceased Virgilio Valera.

We hold that the trial court, as a probate court, erred in adjudging in the said intestate proceeding the
monetary liabilities of the late Virgilio Valera to the estate of Francisco Valera and in issuing a writ of
execution against his properties to enforce the supposed liabilities.

The controlling principle, which should govern this case, was announced by Justice Torres in 1907
in Pavia vs. De la Rosa, 8 Phil. 70, a case which is on all fours with the instant case. This Court ruled
in that case:

Administrators or executors; Code of Civil Procedure; Heirs. — 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. (Syllabus based on page 77).

In the Pavia case, an action for damages was brought by Rafaela Pavia against Bibiana de la Rosa
and Salud de la Rosa, as the only heirs of the deceased Jose de la Rosa. Rafaela Pavia claimed that
she empowered Jose de la Rosa to administer the estate of Pablo Linart and that, as administrator,
De la Rosa caused damages to the estate through his negligence. The De la Rosa sisters contended
that they could not be held liable for the negligent acts of their brother, Jose de la Rosa.

This Court held that the action was not maintainable against the De la Rosa sisters and that it should
be prosecuted against the executor or administrator of the estate of Jose de la Rosa. Hence, the
action was dismissed, reserving to Rafaela Pavia "the right to institute proper action against the
executor or administrator of the properties of the estate of the deceased Jose de la Rosa".

In the instant case, Mrs. Bringas sought to hold the heirs of the deceased Virgilio Valera liable for his
obligations to pay rentals and to account for the fruits of the properties forming part of the estate of
Francisco Valera and the war damage and insurance monies collected by Virgilio Valera. The heirs of
Virgilio Valera were dragged into the intestate proceeding for the purpose of holding them liable for
the amounts supposedly due from the deceased. As already noted, Mrs. Bringas prayed for "an order
directing the Sheriff to seize such properties of Virgilio Valera and his heirs ... as may be sufficient, to
be sold according to law for the payment of double the value of the fruits and the amount of monies
alienated and embezzled" (Annex "E" of Petition). Judge Ofilada specifically directed that the
execution be issued "against the heirs of Virgilio Valera". The Deputy Sheriff literally followed that
directive by levying upon "the goods and chattels of the heirs of Virgilio Valera".
The procedure followed by the Sheriff was erroneous. The decedent's heirs are not liable personally
for the debts of his debts. Thus, it was held:

It happens, however, that the plaintiffs are not under obligation to pay the debts of their
late father, such as items (a), (f) and (h) of the counterclaim. It does not appear that they
personally bound themselves to pay them, and the mere fact that they are the
deceased's heirs does not make them answerable for such credits against their
predecessor in interest, inasmuch as article 1003 of the Civil Code is no longer in force,
having been abrogated by certain provisions of the Code of Civil Procedure (Pavia vs.
De la Rosa, 8 Phil. 70, cited in Calma vs. Calma, 56 Phil. 102, 105).

The error becomes more glaring in the light of Section 7, Rule 39 of the Rules of Court which allows
execution in case of the death of a party only "where a party dies after the entry of the judgment or
order". The implication is that if a person, before his death, or the legal representative of his estate
was never a party to a case, no execution can be issued against his properties after his death. In this
case, the Sheriff seems to have proceeded on the assumption that the properties levied upon
belonged to the deceased Virgilio Valera and that the said properties were in the possession of his
heirs.

Furthermore, there is merit in the petitioners' contention that the probate court generally cannot issue
a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to
the adjudication of claims against the estate which the executor or administrator may satisfy without
the necessity of resorting to a writ of execution. The probate court, as such, does not render any
judgment enforceable by execution.

The circumstance that the Rules of Court expressly specifies that the probate court may issue
execution (a) to satisfy the contributive shares of devisees, legatees and heirs in possession of the
decedent's assets (Sec. 6, Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule
90), and (e) to satisfy the costs when a person is cited for examination in probate proceedings (Sec.
13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that those are the
only instances when it can issue a writ of execution.

With particular reference to the sum of P4,784.96, which represents the insurance and war damage
monies allegedly embezzled by Virgilio Valera, the lower court, sitting as a probate court, had no
jurisdiction to enforce, by execution, the payment of double the value of that amount. The alleged
embezzler was dead. Execution was not warranted under Sections 7 and 8, Rule 87 of the Rules of
Court, which both refer, to a living person, meaning a person entrusted with a part of the decedent's
estate "by an executor or administrator", and to a person who committed "embezzlement before
letters (were) issued". Section 8 explicitly provides that the embezzler's liability shall be determined in
"an action", and not in the intestate proceeding. 19

The record reveals that there is a dispute between Mrs. Bringas and the heirs of Virgilio Valera as to
whether one-third of the Valera residence and the six parcels of land listed in the "Amended
Incomplete Inventory, etc." dated August 31, 1965 20 belong to the estate of Francisco Valera. The tax
declarations for those properties are in the name of the deceased Virgilio Valera.

Their inclusion in the inventory is not conclusive as to the ownership. "Questions on title to real
property cannot be determined in testate or intestate proceedings. It has, however, been held that for
the purpose of determining whether a certain property should or should not be included in the
inventory, the probate court may pass upon the title thereto, but such determination is not conclusive
and is subject to the final decision in a separate action to he instituted between the parties." 21 As
stressed by Mr. Justice Zaldivar in Mangaliman vs. Gonzales, L-21033, December 28, 1970, 36
SCRA 462, the probate court is a court of special and limited jurisdiction.

We have studied carefully respondents' memorandum and rejoinder. We have not found therein any
citation of a rule or precedent which would justify the arbitrary and irregular procedure followed by the
lower court in determining the liability of a dead person without hearing the legal representative of his
estate and in holding his heirs answerable for his supposed liabilities and then enforcing those
liabilities against his estate. Section 6(b), Rule 78 and Section 2, Rule 79 of the Rules of Court
assume that a creditor, as an interested person, may cause a debtor's estate to be placed under
administration.
The cases of Cunanan vs. Amparo, 80 Phil. 227 and Bernardo vs. Court of Appeals, 62 O.G. 2621
cited by the respondents in page 19 of their rejoinder, refer to a living party, not to a decedent.

Without going into a more extensive and detailed discussion of the other irregularities committed by
the lower court, We believe that the jurisdictional errors already pointed out suffice to show that it
acted in excess of jurisdiction and with grave abuse of discretion. Hence, the issuance of the writ of
certiorari is warranted.

WHEREFORE, the writ of execution and the Sheriff's execution sale on April 3, 1967 and all
proceedings relative thereto as well as the orders of July 10, 1964, April 15, 1966, January 4, April 3
and May 2, 1967 of the lower court, are declared void and are set aside, insofar as the heirs of Virgilio
Valera or his estate are concerned, without prejudice to the right of Adoracion Valera Bringas to
institute the proper action against the administrator of the estate of the estate of the late Virgilio
Valera and to file the appropriate claims in the proceeding for the settlement of his estate. No
pronouncement as to costs.

SO ORDERED.

G.R. No. L-24173 November 24, 1925

In re will of Jose Flores, deceased. SOTERO FLORES and AGUEDA FLORES, petitioners-
appellants,
vs.
GERARDO FLORES, opponent-appellant.

M. H. de Joya, Jose Ma. T. Reyes and Eustaquio M. Banzali for petitioners and appellants.
Felix B. Bautista for opponent-appellant.

STREET, J.:

On October 13, 1919, the Court of First Instance of the Province of Pampanga admitted to probate
the will of one Jose Flores, formerly a resident of the barrio of Santa Rita, in the municipality of
Macabebe, Province of Pampanga, who had died on May 6, 1919, at the advanced age of about 89
years. Rafael Flores, a brother of the deceased, was named in the will as executor and by him the
petition which resulted in the probate of the will was presented. But Romulo Macalino succeeded later
to the office of administrator.

It appears that in life Jose Flores had been three times married, and he left children surviving him
from each of said marriages. By his first wife, Angela Payuyu, he had three children named
respectively Catalina, Apolonia and Eleuterio Flores. The last named died before his father, leaving
three children, to wit, Virginia, Donata and Manuel Flores. By his second wife, Jose Flores had two
children, both of whom are still living, namely, Sotero and Agueda Flores. By his third wife, he also
had two children named Gerardo and Elcredo (or Alfredo), but the last named died before the testator.

In the course of the settlement of the estate various questions have arisen with reference to the
nature of the property to be divided and the respective interest of the different sets of children therein,
but for the purposes of this appeal attention will be directed only to the contention over the claims of
the two surviving children of the second marriage, Sotero Flores and Agueda Flores, who figure in
this proceeding as appellants.

It appears that the deceased lived about twenty-four years with his second wife, and the property with
which we are here concerned was acquired during the said marriage. In so far as appears from this
record the conjugal partnership between Jose Flores and his second wife, Maria Agustin, has never
been formally liquidated, and in conformity with well-established precedents it is proper to have said
partnership liquidated by the testator's executor or administrator, that is, in the present proceeding. In
view of this situation the two children of the second marriage, now appellants, insisted in the lower
court that all of the property acquired by the testator during his second marriage pertained to the
conjugal partnership that had existed between him and his second wife, and they maintained that said
partnership should be liquidated and that the half pertaining to their mother should be segregated
before any general distribution of the estate should occur. This general idea seems to have been
admitted in a qualified way by the court below in its decision of February 4, 1925, and reiterated in its
order of March 11, 1925, denying a motion for reconsideration; but error is assigned to its
pronouncement with respect to the lands included in a Torrens certificate of title (Exhibit D-1). This
feature of the appeal is, we think, well grounded.

From the Exhibit D, which is a certified copy of the decision in a registration proceeding, it appears
that the lands covered by the certificate of title (Exhibit D-1) had been purchased by Jose Flores on
September 15, 1902, or in the lifetime of his second wife, Maria Agustin. After her death Flores
instituted proceedings to register said lands and procured the Torrens certificate of title thereto in his
sole name. This had the effect, so the court seems to have supposed, of making these lands the
exclusive property of Flores and of extinguishing their character as conjugal property of the prior
marriage. To hold otherwise, said his Honor, would have the effect of revising the decree of the land
court and impairing a title which that court had decreed to Flores.

This idea is clearly incorrect. Thus surviving husband is ex-officio manager, or administrator, of the
conjugal estate. He has the power to alienate the property for the purpose of liquidating the estate
and the purchaser under him undoubtedly gets valid title (Nable Jose vs. Nable Jose, 41 Phil., 713).
But as long as the husband retains the property in whatever form, he holds it in the character of
administrator and is virtually a trustee for those interested in the conjugal partnership. Nor does the
obtaining of a Torrens title in any wise change the situation. In section 70 of the Land Registration Act
(No. 496), it is, among other things, expressly declared that nothing contained in this Act shall in any
way be construed to relieve registered land or the owners thereof from any rights incident to the
relation of husband and wife or to change or affect in any other way any other rights or liabilities
created by laws and applicable to unregistered land, except as otherwise expressly provided in the
Act. It is needless to say that there is no express provision anywhere in the Act which has the effect of
extinguishing the responsibility of the husband with respect to the conjugal estate or which would
enable him, by taking a Torrens title, to escape from his responsibility as administrator and liquidator.
Furthermore, in Severino vs. Severino (44 Phil. 343), it is clearly shown that the registration of
property in the name of one who holds in a trust character does not extinguish the trust or destroy the
rights of the beneficiary. His Honor was therefore in error in this case in supposing that the Torrens
certificate of title (Exhibit D-1), covering lands which had been acquired during the second marriage
had changed in any way the character of the property as ganacial property of the spouses in said
marriage. The first assignment error is therefore well taken in so far as it relates to the ruling of the
court with respect to the character of said property. Property acquired during marriage pertains to the
conjugal partnership regardless of the form in which the title is then or there afterwards taken. lawph!
1.net

With respect to the second contention of the appellants, it appears that their attorney was desirous of
presenting proof with respect to the dates upon which the deceased had contracted the various debts
admitted by the committee on claims as valid charges against his estate; and it is said that the
appellants were prepared to show that these debts had all been contracted during his third marriage
and hence could not constitute a proper charge against the conjugal property pertaining to the second
marriage. That the appellants have a right to submit proof for the purpose suggested is a fact that
cannot be questioned, but as we gather from the appealed orders the intention of the court was to
reserve this point until final project of liquidation and partition of the whole estate of Jose Flores
should be presented. While something would probably have been gained in the way of clarifying the
situation by entering into this question at an earlier stage of the proceedings, the court cannot be put
in error in having merely postponed entering into this contention until a later stage of the proceedings.

For the reasons stated the order appealed from will be modified by declaring that the lands covered
by Torrens certificate of title Exhibit D-1, like the other properties mentioned in Nos. 1-8, inclusive, of
the decision of February 4, 1925, pertain to the conjugal partnership of Jose Flores with his second
wife, Maria Agustin. In other respects the orders appealed from are affirmed. So ordered, without
special pronouncement as to costs.

Avanceña, C.J., Malcolm, Villamor, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.

G.R. No. L-18148 February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI;
and the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET
AL., petitioners,
vs.
HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES, namely:
FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents.

Ambrosio Padilla Law Offices for petitioners.

Romerico F. Flores for respondents.

BARRERA, J.:

This is a petition by certiorari for the review of the decision of the Court of Appeals affirming that of
the Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had
jurisdiction to determine the validity of the deed of donation in question and to pass upon the question
of title or ownership of the properties mentioned therein.

The facts are briefly stated in the appealed decision of the Court of Appeals as follows:

Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958
and a testate proceeding for the settlement of his estate was instituted in the Court of the Fist
Instance of Bulacan. His will was admitted to probate on October 9, 1958, disposing of his
properties in favor of his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed
Capili; and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes
herself died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the estate of
the deceased Eusebio Capili, she was substituted by her collateral relatives and intestate
heirs, namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and Jose,
Constancia, Raymunda and Elena, all surnamed Isidoro.

On June 12, 1959, the executor filed a project of partition in the testate proceeding in
accordance with the terms of the will, adjudicating the estate of Eusebio Capili among the
testamentary heirs with the exception of Hermogena Reyes, whose share was alloted to her
collateral relatives aforementioned. On June 16, 1959 these relatives filed an opposition to the
executor's project of partition and submitted a counter-project of partition of their own, claiming
1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that
they belonged not to the latter alone but to the conjugal partnership of the spouses.

The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set
the two projects of partition for hearing, at which evidence was presented by the parties,
followed by the submission of memoranda discussing certain legal issues. In the memorandum
for the executor and the instituted heirs it was contended: (1) that the properties disposed of in
the will of the deceased Eusebio Capili belonged to him exclusively and not to the conjugal
partnership, because Hermogena Reyes had donated to him her half share of such
partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful standing or
grounds to question the validity of the donation; and (3) that even assuming that they could
question the validity of the donation, the same must be litigated not in the testate proceeding
but in a separate civil action.

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

The oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation
itself was determinative of the original conjugal character to the properties, aside from the legal
presumption laid down in Article 160 of the Civil Code, and that since the donation was null
and void the deceased Eusebio Capili did not become owner of the share of his wife and
therefore could not validly dispose of it in his will.

On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order
declaring the donation void without making any specific finding as to its juridical nature, that is,
whether it was inter vivos or mortis causa, for the reason that, considered under the first
category, it falls under Article 133 of the Civil Code, which prohibits donations between
spouses during the marriage; and considered under the second category, it does not comply
with the formalities of a will as required by Article 728 in relation to Article 805 of the same
 Code, there being no attestation clause. In the same order the court disapproved both projects
of partition and directed the executor to file another," dividing the property mentioned in the last
will and testament of the deceased Eusebio Capili and the properties mentioned in the deed of
donation, Exhibit B, between the instituted heirs of the deceased Eusebio Capili and the legal
heirs of the deceased Hermogena Reyes, upon the basis that the said properties were
conjugal properties of the deceased spouses." On September 27, 1960, the executor filed a
motion for new trial, reiterating and emphasizing the contention previously raised in their
memorandum that the probate court had no jurisdiction to take cognizance of the claim of the
legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of
Eusebio Capili and taking exception to the court's declaration of the nullity of the donation
"without stating facts or provision of law on which it was based." The motion for new trial was
denied in an order dated October 3, 1960.

On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this
present petition for review by certiorari.

The petitioners-appellants contend that the appellate court erred in not declaring that the probate
court, having limited and special jurisdiction, had generally no power to adjudicate title and erred in
applying the exception to the rule.

In a line of decisions, this Court consistently held that as a general rule, question as to title to property
cannot be passed upon on testate or intestate proceedings," 1 except where one of the parties prays
merely for the inclusion or exclusion from the inventory of the property, in which case the probate
court may pass provisionally upon the question without prejudice to its final determination in a
separate action.2 However, we have also held that when the parties interested are all heirs of the
deceased, it is optional to them to submit to the probate court a question as to title to property, and
when so submitted, said probate court may definitely pass judgment thereon (Pascual v. Pascual, 73
Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the parties, matters
affecting property under judicial administration may be taken cognizance of by the court in the course
of intestate proceeding, provided interests of third persons are not prejudiced (Cunanan v. Amparo,
80 Phil. 229, 232).

In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals
erred in upholding the power of the probate court in this case to adjudicate in the testate proceedings,
the question as to whether the properties herein involved belong to the conjugal partnership of
Eusebio Capili and Hermogena Reyes, or to the deceased husband exclusively?

At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense
advanced by appellants that the trial court had completely no authority to pass upon the title to the
lands in dispute, and that its decision on the subject is null and void and does not bind even those
who had invoked its authority and submitted to its decision because, it is contended, jurisdiction is a
creature of law and parties to an action can not vest, extend or broaden it. If appellants' contention is
correct, then there can be no exception to the no-jurisdiction theory. But as has been stated in the
case of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro Tuason:
"Determination of title to property is within the jurisdiction of Courts of First Instance. The responding
Soriano's objection (that the probate court lacked jurisdiction to order the delivery of the possession of
the lots to the estate) relates exclusively to the procedure, which is distinct from jurisdiction. It affects
only personal rights to a mode of practice (the filing of an independent ordinary action) which may be
waived". Strictly speaking, it is more a question of jurisdiction over the person, not over the subject
matter, for the jurisdiction to try controversies between heirs of a deceased person regarding the
ownership of properties alleged to belong to his estate, has been recognized to be vested in probate
courts. This is so because the purpose of an administration proceeding is the liquidation of the estate
and distribution of the residue among the heirs and legatees. Liquidation means determination of all
the assets of the estate and payment of all the debts and expenses. 3 Thereafter, distribution is made
of the decedent's liquidated estate among the persons entitled to succeed him. The proceeding is in
the nature of an action of partition, in which each party is required to bring into the mass whatever
community property he has in his possession. To this end, and as a necessary corollary, the
interested parties may introduce proofs relative to the ownership of the properties in dispute. All the
heirs who take part in the distribution of the decedent's estate are before the court, and subject to the
jurisdiction thereof, in all matters and incidents necessary to the complete settlement of such estate,
so long as no interests of third parties are affected. 4
In the case now before us, the matter in controversy is the question of ownership of certain of the
properties involved — whether they belong to the conjugal partnership or to the husband exclusively.
This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate
the conjugal partnership in order to determine the estate of the decedent which is to be distributed
among his heirs who are all parties to the proceedings, including, of course, the widow, now
represented because of her death, by her heirs who have been substituted upon petition of the
executor himself and who have appeared voluntarily. There are no third parties whose rights may be
affected. It is true that the heirs of the deceased widow are not heirs of the testator-husband, but the
widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to
be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir
to the testator and, consequently, it complies with the requirement of the exception that the parties
interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the
testator.

Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the
probate court, for the purpose of the determination of the question of ownership of the disputed
properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the
ones who presented the project of partition claiming the questioned properties as part of the testator's
asset. The respondents, as representatives or substitutes of the deceased widow opposed the project
of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be
deemed to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners
can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the
court take it for granted that their theory as to the character of the properties is correct, entirely
without regard to the opposition of the respondents". In other words, by presenting their project of
partition including therein the disputed lands (upon the claim that they were donated by the wife to her
husband), petitioners themselves put in issue the question of ownership of the properties — which is
well within the competence of the probate court — and just because of an opposition thereto, they
can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court.
Certainly, there is here a waiver where the parties who raise the objection are the ones who set the
court in motion.5 They can not be permitted to complain if the court, after due hearing, adjudges
question against them.6

Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of
the properties involved because the widow herself, during her lifetime, not only did not object to the
inclusion of these properties in the inventory of the assets of her deceased husband, but also signed
an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants
require that to constitute estoppel, the actor must have knowledge of the facts and be appraised of
his rights at the time he performs the act constituting estoppel, because silence without knowledge
works no estoppel.7 In the present case, the deceased widow acted as she did because of the deed
of donation she executed in favor of her husband not knowing that such deed was illegal, if inter-
vivos, and ineffectual if mortis-causa, as it has not been executed with the required formalities similar
to a will.

WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby
affirmed with costs against appellants. So ordered.

G.R. No. L-1781 September 27, 1949

REGISTER OF DEEDS OF PAMPANGA and GONZALO PUYAT, petitioners-appellees,

vs.
PHILIPPINE NATIONAL BANK and PEDRO B. CRUZ, oppositors-appellants.

Ramon B. de los Reyes for appellant Philippine National Bank.

Fortunato de Leon for appellant Pedro B. Cruz.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Manuel Tomacruz for appellee
Register of Deeds.
La O and Feria for appellee Gonzalo Puyat.

TORRES, J.:

This is a petition filed by Rodolfo R. Dimzon as Register of Deeds of Pampanga, whereby he seeks to
correct "the error, omission or mistake made in transfer certificate of title No. 16342 by transferring on
the said title the liens on the property covered by said certificate, consisting of a mortgage in favor of
Gonzalo Puyat under document No. 262 and the lease affecting the portion of 1,045,848 square
meters under document No. 1149."

The parcels of land covered by transfer certificate of title No. 5377 of the office of the register of
deeds of Pampanga were registered in the name of Martin Gonzales. Among those parcels, there
was a lot 1-J which is a portion of lot No. 1 located in the municipality of Lubao, with an area of
3,045,848 square meters, more or less. All the parcels of land described in the said certificate No.
5377, as well as those described in certificate No. 5379, original certificate, of title No. 11578 and
original certificate of title No. 17261 and other parcels of land located in Bataan, were mortgaged in
favor of Gonzalo Puyat, to guaranty a loan of P250,000. Those parcels of land were, besides, leased
to one Romualdo Rivera for a period of six agricultural years, which will expire on June 30, 1951, for
the amount of P150,000 which was paid in advance.

The above-mentioned mortgage was on October 23, 1943 registered in the office of the register of
deeds of Pampanga, and the corresponding annotation made on the back of the respective certificate
of title (5377) covering the lands affected by that encumbrance.

On September 8, 1944, a portion of lot No. 1-J consisting of 2,000,000 square meters was sold by
Jose Gonzales Carrion, as administrator of the estate of Martin Gonzales, to Pedro B. Cruz for the
sum of P60,000. On October 3, 1945, the remaining portion of the said lot No. 1-J covering an area of
1,045,848 square meters was likewise sold by the administrator to Pedro B. Cruz for P104,584.80.

On October 17, 1944, Romualdo Rivera sold his rights on the lease over the 2,000,000 square
meters of lot No. 1-J to Pedro B. Cruz for the sum of P30,000.

By virtue of such sales, transfer certificate of title No. 5377 was partially cancelled as to the whole lot
No. 1-J, and transfer certificate of title No. 16342 was issued on November 26, 1945, in the name of
Pedro B. Cruz, and the only lien appearing thereon is the milling contract executed in favor of
Pampanga Sugar Mills.

On January 4, 1946, Pedro B. Cruz mortgaged the whole of lot No. 1-J described in transfer
certificate of title No. 16342 to the Philippine National Bank, Manila, for the sum of P50,000. Said
mortgage was duly registered in the office of the register of deeds of Pampanga.

It is contended by the register of deeds that Luis Panaguition, then acting vincial fiscal and ex-
officio register of deeds of Pampanga, "overlooked or failed to transfer in the title." the liens referring
to the mortgage in favor of Gonzalo Puyat (document No. 262).

Gonzalo Puyat joined the register of deeds in his petition.

The above petition was opposed by the Philippine National Bank on the ground that it will adversely
affect the interest of the mortgagee bank; it will defeat the primary object of the Torrens system, and it
will not be in accordance with law and the doctrine enunciated by the Supreme Court.

But inasmuch as according to recent developments shown in the record, the oppositor Philippine
National Bank executed in favor of the other oppositor Pedro B. Cruz, a release of the mortgage for
P50,000 annotated on the back of transfer certificate of title No. 16342, and cancelled said mortgage,
by virtue of the fact that Pedro B. Cruz paid the Philippine National Bank the amount of his loan,
counsel for oppositor-appellant Philippine National Bank in his "Manifestation" attached to the record
on August 24, 1949, stated that "the question raised in the case at bar as ventilated by the parties in
their respective briefs are now academical."

By virtue of the foregoing, in view of the settlement thus effected between the oppositors Philippine
National Bank and Pedro B. Cruz, resulting from the payment by the latter of his debt to the former
and the release and cancellation of the mortgage annotated on the back of transfer certificate of title
No. 16342, the legal tangle between the register of deeds of Pampanga and his co-petitioner Gonzalo
Puyat, on the one hand, and the Philippine National Bank, as oppositor, on the other, has now
become a moot question.

There remains now for us to consider the merit of the petition of the register of deeds and his co-
petitioner Gonzalo Puyat, who pray that an error committed by the predecessor of the register of
deeds of Pampanga be corrected. According to the record when transfer certificate of title No. 16342
was issued to Pedro B. Cruz, the former register of deeds did not annotate on the back of said
transfer certificate of title the mortgage in favor of Gonzalo Puyat for the sum of P250,000, dated
October 23, 1943, and the lease over the portion of 1,045,848 square meters in favor of Romualdo
Rivera, notwithstanding the fact that those liens and encumbrances were duly annotated on the back
of transfer certificate of title No. 5377, which oppositor Pedro B. Cruz surrendered to the office of the
register of deeds for the issuance in his name of a new certificate, when he (Pedro B. Cruz), became
the owner of the property covered by said transfer certificate of title No. 5377.

Pedro B. Cruz also filed his opposition to the petition of the register of deeds. His pleading, among
other things, alleges that when on September 20, 1945, the probate court of Pampanga authorized
the sale of 104 additional hectares of the Hacienda of the late Martin Gonzales, over the objection of
Gonzalo Puyat, and notwithstanding a subsequent motion for reconsideration of the order approving
the sale, which was denied, it stated that the land was free from all liens and encumbrances.
Accordingly, the deeds of sale covering the 200 hectares and the additional 104 hectares show that
they were all free from all liens and encumbrances of whatsoever nature, and, therefore, the register
of deeds of Pampanga acted correctly in registering the two deeds of sale in the name of Pedro B.
Cruz, free from all liens and encumbrances of whatsoever nature. It is further alleged by Pedro B.
Cruz that Gonzalo Puyat as mortgagee of the remaining portion of the Gonzales Estate and plaintiff in
civil case No. 70 of the Court of First Instance of Pampanga, entitled "Gonzalo Puyat vs. Jose
Gonzales et al.," did not appeal from the various orders of the probate court of the sale for the 104
hectares free from all liens and encumbrances of whatsoever nature; neither had he taken steps, up
to the date of the institution of the present proceedings, to secure the amendment or the correction of
the orders respectively issued and the transfer certificate of title No. 16342 of the register of deeds of
Pampanga.

It is further averred by Cruz that the petition of the register of deeds of Pampanga is in the nature of a
petition for review under section 38 of Act No. 496, which provides that the final decree of registration
can not be reopened or set aside after the expiration of one year from the entry thereof, and that the
register of deeds of Pampanga, not being the owner or person in interest of the property in question,
has no legal personality to ask for the correction of the entry in transfer certificate of title No. 16342 of
the register of deeds of Pampanga.

Pedro B. Cruz has not contested, much less denied, that he had in his possession or at least must
have seen and read the contents of transfer certificate of title No. 5377, on which it was shown very
clearly that the property described therein, and which he had purchased from the estate of Martin
Gonzales, was encumbered by a mortgage in favor of Gonzalo Puyat and the 6-year lease of
Romualdo Rivera. It is for this reason that counsel for Gonzalo Puyat accuses him of being guilty of
fraud when he secured from the Office of the Register of Deeds of Pampanga — in exchange for said
transfer certificate of title No. 5377 — transfer certificate of title No. 16342, free from all
encumbrances, that is, without the corresponding annotation of the mortgage of Gonzalo Puyat and
the 6-year lease of Romualdo Rivera. For our part, the least that we can say, is that when he
accepted from the acting register of deeds transfer certificate of title No. 16342, in lieu of transfer
certificate of title No. 5377, without the corresponding annotation of the mortgage of Gonzalo Puyat,
and negotiated a loan of P50,000 to be secured by a mortgage on the land described in the new
transfer certificate of title No. 16342, which, as already stated, did not contain any annotation on the
mortgage existing on transfer certificate of title No. 5377, the Philippine National Bank was made to
believe that his property was unencumbered and he was guaranteeing the loan of P50,000 he was
seeking from said institution by a first mortgage, when in truth and in fact, the Philippine National
Bank was getting only a second mortgage. To be sure, had the bank been duly informed of the
existence of the prior existing mortgage in favor of Gonzalo Puyat, that institution would have thought
twice before granting a loan of such amount.

In opposing the petition of the register of deeds of Pampanga and Gonzalo Puyat, oppositor-appellant
Pedro B. Cruz challenges the personality of the register of deeds to file the same under the provisions
of section 112 of Act No. 496. We believe that such objection is without merit. It cannot be denied that
said official is a "person in interest" as this phrase is used in section 112 of Act No. 496. If, upon
discovering the anomaly involved in this litigation, the petitioner register of deeds of Pampanga had
kept silent about it, he would have been liable for damages as provided in section 102 of said Act. But
even assuming arguendo that the register of deeds is not the "person in interest" referred to in section
112, such defect, if any, has been cured when the mortgagee Gonzalo Puyat joined in the petition of
the register of deeds by making it his own. As stated in the case of Alonso vs. Villamor (16 Phil., 315),
— "A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the
subtle art of movement and position, entraps and destroys the other. It is, rather, a contest in which
each contending party fully and fairly lays before the court the facts in issue and then, brushing aside
as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that
justice be done upon the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust. . . ."

It is charged that Gonzalo Puyat is guilty of laches in not having brought the anomaly under
consideration to the attention of the proper court of justice. It appears, however, that on February 24,
1947, Gonzalo Puyat brought suit for the foreclosure of the mortgage executed in his favor against
Jose Gonzales et al., in civil case No. 70 still pending in the Court of First Instance of Pampanga. But
at that time, the Philippine National Bank was not included as defendant because Gonzalo Puyat had
no knowledge that Pedro B. Cruz had mortgaged the property in favor of said bank. Upon discovering
that Pedro B. Cruz had obtained transfer certificate of title No. 16342 free from the encumbrance in
favor of Gonzalo Puyat, this petitioner took the necessary steps to have his first mortgage annotated
on the back of said title, and inasmuch as the register of deeds had already filed his petition, Gonzalo
Puyat joined the register of deeds in his petition. Consequently, upon discovery of the existence of the
other mortgage in favor of the Philippine National Bank, petitioners amended their complaint by
making said banking institution an additional defendant as a second mortgage of the portion of the
land mortgaged in favor of Gonzalo Puyat.

It is further contended by appellant Pedro B. Cruz that the order of the probate court in approving the
sale of the land is res judicata in the present case. We don't believe that such contention is tenable.

The jurisdiction of the Court of First Instance, whether original or appellate, is provided in the Organic
Law of the Judiciary. Formerly, it was the Court of Land Registration that had exclusive jurisdiction
over land matters and proceedings. That court was, however, abolished and its jurisdiction and
functions were transferred to the Court of First Instance. At the present time, the Judiciary Act of 1948
(Republic Act No. 296), which is a compilation of all the previous enactments concernig the various
courts of justice, in its Chapter IV, sections 43 and 44, provides for the original jurisdiction of the
Courts of First Instance established in the Philippine Islands. Paragraph (e) of section 44, which, we
repeat, embodies previous statutory provisions on the subject, refers to jurisdiction of the Courts of
First Instance on probate matters, "both of testate and intestate estates, ... and all such special cases
and proceedings as are not otherwise provided for." The special mention made therein of the original
jurisdiction given the Court of First Instance in "all matters of probate, both testate and intestate
estates," is a clear expression of the legislative intent that when a Court of First Instance is sitting as
a probate court it can not in the same proceeding deal with or adjudicate a matter which has no
reference or bearing on the case under its consideration.

Gonzalo Puyat was not a party in the proceedings of the Estate of Martin Gonzales, and when the
Court of First Instance of Pampanga, as probate court — not as land registration court — authorized
the sale to appellant Pedro B. Cruz of a lot belonging to the estate of Martin Gonzales, it acted as
such probate court, in accordance with paragraph (e) of section 44 of the Judiciary Act, but its
pronouncement regarding the existence or non-existence of encumbrances regarding the lot it
authorized to be sold to Pedro B. Cruz, was beyond its jurisdiction as probate court.

It is, therefore, undeniable that since the probate court had no jurisdiction to cancel the mortgage, the
order given by it approving the sales of the properties of the estate of Martin Gonzales to appellant
Pedro B. Cruz did not and does not, in any manner, affect the existence of the mortgaged executed
by Gonzales in favor of Gonzalo Puyat. Any inasmuch as said mortgage was still in force when Pedro
B. Cruz purchased from the estate of Martin Gonzales the property covered by transfer certificate of
title No. 5377, which was subsequently replaced by transfer certificate No. 16342, the conclusion is
inevitable that the mortgage in favor of Gonzalo Puyat being prior in date than the date of the
mortgage executed by Pedro B. Cruz in favor of the Philippine National Bank, in the absence of any
showing that the former mortgage of Gonzalo Puyat had been cancelled, the existence thereof cannot
be questioned, and it becomes the duty of the register of deeds to annotate that mortgage on transfer
certificate of Cruz, in lieu of transfer certificate of title No. 5377. Potior est in tempore, potior est in
jeru. (He who is first in time, is preferred in right.)

In the light of all the above, we have come to the conclusion that under the provisions of section 112
of Act No. 496, the petition made herein by the register of deeds of Pampanga and Gonzalo Puyat
should be granted.
The order of July 1, 1947, issued in this case by the Court of First Instance of Pampanga, is affirmed.
The appellant Pedro B. Cruz shall pay the costs.

G.R. No. L-22085 April 30, 1966

IN THE MATTER OF THE PETITION TO APPROVE WILL OF SEGUNDA VDA. DE GAMIR.

CONSUELO G. DIAZ, petitioner-appellant,
vs.
THELMA G. SAWAMOTO, in her capacity as Administratrix of the Intestate Estate of the
deceased JOSE GAMIR, oppositor-appellee.

Leonor S. Lozano for petitioner-appellant.

W. F. Escudero and R. Isidro for oppositor-appellee.

BENGZON, J.P., J.:

Segunda Vda. de Gamir died on September 5, 1955, survived by two legitimate children, Consuelo
Gamir Diaz and Jose Gamir. On April 16, 1956 her will, dated July 22, 1955, was submitted for
probate in the Court of First Instance of Davao. Said probate court allowed the will on April 18, 1956.

As administrator of the deceased's estate, Jose Gamir petitioned on May 6, 1958 for approval of final
accounts and of the project of partition. The next day — May 7, 1958 — the final accounts and the
project of partition were approved by the court. It was stated in paragraph 6 at page 6 of said project
of partition:

6. That although in the Will of the late Segunda Vda. de Gamir, Lot No. 10-G (Annex "D")
pertains to Jose Gamir and Lots NG. 44-C and 44-A (Annex "D") to Consuelo Gamir Diaz, by
virtue of a mutual agreement between the abovenamed heirs and on the basis of their mutual
understanding, an interchange of ownership of the aforementioned Lots was effected;" (Exh.
"H"; p. 22, Record on Appeal).

Jose Gamir thereafter died and Consuelo Gamir Diaz was made administratix in his place.

Subsequently, on July 20, 1962, more than four years after the final accounts and the project of
partition were approved, Consuelo Gamir Diaz moved to amend the project of partition to include in
paragraph 6 at page 6 a stipulation as to a perpetual right of way allegedly verbally agreed upon in
the exchange of the lots between the heirs; or, in lieu thereof, to delete said paragraph 6 altogether
and allow the parties to execute a formal deed of exchange so that all terms agreed upon will be
incorporated therein. Said motion was opposed on July 25, 1962 by the heirs of Jose Gamir. In
addition, the administratrix of the estate of Jose Gamir (Thelma G. Sawamoto) moved on November
8, 1962 to close the estate of Segunda Vda. de Gamir.1äwphï1.ñët

The probate court, resolving the motion, stated in its order of November 28, 1962 that it had no
jurisdiction to amend the project of partition in the manner prayed for by the movant Consuelo Gamir
Diaz, because the order approving it had long become final. For purposes of appeal, however,
evidence was allowed to be adduced on the matter. Thereafter, an amended motion for amendment
of the project of partition was filed by the same movant and admitted into the records. Reiterating in
another order, dated January 12, 1963, that the order approving the project of partition had long
become final and adding that there was opposition to its amendment the probate court again ruled
that it has no jurisdiction to allow amendment and therefore denied the motion to amend. From said
order Consuelo Gamir Diaz appealed to this Court to raise a question purely of law.

The single issue is whether the lower court erred in declaring itself without jurisdiction to amend the
project of partition as prayed for.

A right of way is an encumbrance upon real estate (Art. 613, New Civil Code). A probate court has no
jurisdiction to make a pronouncement regarding the existence or non-existence of an encumbrance
on real property (Registry of Deeds of Pampanga vs. Philippine National Bank 47 O.G. 1157). It is
clear therefore that, as aptly observed by the court below, the existence or non-existence of the
aforesaid encumbrance, consisting in a permanent right of way, being a controverted matter, the
probate court has no jurisdiction to resolve and pass upon said dispute.
Accordingly, there is no further need to rule on whether the probate court's order approving the
project of partition had become final, which point, at any rate, is apt to raise factual questions, not
proper herein, as to whether the distribution and closure of the estate have actually been carried out.

Wherefore, the order appealed from is affirmed with costs against appellant. So ordered.

G.R. No. L-19722 February 28, 1966

TESTATE ESTATE OF VITO BORROMEO, DECEASED. DR. PATRICIO BELTRAN, Special

Administrator.
ATTY. FLORENCIO L. ALBINO, movant-appellee,
vs.
TOMAS L. BORROMEO and AMELIA BORROMEO, oppositors-appellants.

J.B. Ruiz for the movant-appellee.

Office of the Solicitor General for the oppositors-appellants.

MAKALINTAL, J.:

In special proceeding No. 916-R of the Court of First Instance of Cebu, Jose H. Junquera was
appointed special administrator of the testate estate of the deceased Vito Borromeo. Teofilo
Borromeo and Crispin Borromeo, who were oppositors to the probate of the will, moved for
Junquera's removal on January 2, 1953 on the ground that he had failed and refused to file an
inventory of the estate. After hearing the motion was granted by the court in an order dated June 9,
1953, from which order Junquera appealed to the Court of Appeals, which thereafter certified the
appeal to Us.

On September 23, 1953 the trial court appointed Dr. Patricio Beltran special administrator "in the
interim that the order for the removal (of Junquera) is on appeal . . . ." On February 19, 1955 Beltran,
without specific authority from the court, cabled Attorney Florencio L. Albino in Manila appointing him
as his lawyer in the appealed case, particularly in connection with the hearing scheduled in the Court
of Appeals. Albino appeared before said court and filed a written memorandum in behalf of Beltran.

On August 22, 1956 Attorney Albino filed a motion in the lower court praying that his fees be fixed at
P4,000.00 and that Beltran, as special administrator, be ordered to pay the same to him. Junquera
opposed the motion, but it was granted nevertheless in the court's order of March 26, 1957. It was
then that the instituted heirs — Tomas L. Borromeo, Amelia Borromeo and Fortunato Borromeo —
took a hand in the incident by appealing from said order, although the appeal of Fortunato was not
allowed because it was filed out of time.

On March 4, 1958, upon motion of Attorney Albino, the lower court ordered partial execution of the
order of March 26, 1957, and directed Beltran to pay the movant the sum of P2,000.00 from the funds
of the estate under administration. The order was forthwith carried out.

Appellants ask that the award of attorney's fees be set aside; that the partial payment of P2,000.00
be declared null and void; and that the movant-appellee be ordered to return the same to the
estate.1äwphï1.ñët

Appellants' position is well founded. The estate should not be saddled with the payment of appellee's
fees. Beltran engaged appellee to defend him although his position as special administrator was not
in issue. He was not even a party in that appeal. The order appealed from was for the removal of
Junquera as special administrator, upon motion of Crispin Borromeo and Teofilo Borromeo, and not
the order appointing Beltran as special administrator "in the interim". There was no need for him to
appear or put up any defense for himself at the hearing in the Court of Appeals, nor in behalf of the
movants-appellees Crispin Borromeo and Teofilo Borromeo, who were already being represented by
two reputable lawyers, namely, Attorneys Miguel Cuenco and Numeriano Estenzo.

If Beltran had any interest at all in the outcome of that appeal it was entirely personal to him. The rule
is that for attorney's fees for services rendered to an administrator to be chargeable against the estate
such services must have been so rendered to assist him in the execution of his trust. Even then, it
has been held that the attorney cannot "hold the estate directly liable for his fees; such fees are
allowed to the executor or administrator and not to the attorney. The liability for the payment rests on
the executor or administrator, but if the fees paid are beneficial to the estate and reasonable, he is
entitled to reimbursement from the estate." (Uy Tioco vs. Imperial and Panis, 53 Phil. 802, 805).
There is no showing that appellee's employment as lawyer had to do with Beltran's performance of
his duties; if anything, the transcript of the record below (consisting of his own testimony) quoted in
appellants' brief discloses certain actuations of Beltran as special administrator that were in violation
of his trust and prejudicial to the estate.

One other point deserves to be noted in connection with the payment to the movant-appellee of the
sum of P2,000.00. Such payment was authorized ten months after the appeal had been taken, with
the approval of the record on appeal and appeal bond, from the order of March 26, 1957, which fixed
the fees of movant-appellee at P4,000.00. No special reasons were given by the court for the partial
execution pending appeal, and there is no law to justify it.

Wherefore, the order appealed from dated March 26, 1957, is hereby set aside; the order of March 4,
1958, is annulled; and the movant-appellee, Attorney Florencio L. Albino, is ordered to pay back to
the present administrator of the Estate of Vito Borromeo the sum of P2,000.00, without prejudice to
any claim for attorney's fees which he may have against Dr. Patricio Beltran personally. Costs against
movant-appellee.

ERLINDA PILAPIL and HEIRS OF G.R. No. 150175

DONATA ORTIZ BRIONES, namely:
ESTELA, ERIBERTO AND VIRGILIO
SANTOS, ANA SANTOS CULTURA,
ELVIRA SANTOS INOCENTES,
ERNESTO MENDOZA, RIZALINA
SANTOS, ADOLFO MENDOZA and
PACITA MENDOZA, Present:
Petitioners,
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,*
- versus- CALLEJO, SR., and
CHICO-NAZARIO, JJ.

HEIRS OF MAXIMINO R. BRIONES,

namely: SILVERIO S. BRIONES,
PETRA BRIONES, BONIFACIO
CABAHUG, JR., ANITA TRASMONTE,
CIRILITA FORTUNA, CRESENCIA
BRIONES, FUGURACION MEDALLE
and MERCEDES LAGBAS,
Respondents.

Promulgated:

February 5, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION
CHICO-NAZARIO, J.:

On 10 March 2006, this Court promulgated its Decision [1] in the above-entitled case, ruling in
favor of the petitioners. The dispositive portion[2] reads as follows:

IN VIEW OF THE FOREGOING, the assailed Decision of the Court of Appeals in

CA-GR CV No. 55194, dated 31 August 2001, affirming the Decision of the Cebu City
RTC in Civil Case No. CEB-5794, dated 28 September 1986, is hereby REVERSED
and SET ASIDE; and the Complaint for partition, annulment, and recovery of
possession filed by the heirs of Maximino in Civil Case No. CEB-5794 is hereby
DISMISSED.

On 10 May 2006, a Motion for Reconsideration [3] of the foregoing Decision was filed by
Atty. Celso C. Reales of the Reales Law Office on behalf of the respondents, heirs
of Maximino R. Briones. On 19 May 2006, petitioners Erlinda Pilapil and the other co-heirs
of Donata Ortiz Vda. de Briones, through counsel, filed an Opposition to Respondents Motion for
Reconsideration,[4] to which the respondents filed a Rejoinder [5] on 23 May 2006. Thereafter, Atty.
Amador F. Brioso, Jr. of the Canto Brioso Arnedo Law Office entered his appearance as collaborating
counsel for the respondents.[6] Atty. Brioso then filed on 11 June 2006 and 16 June 2006,
respectively, a Reply[7] and Supplemental Reply[8] to the petitioners Opposition to respondents Motion
for Reconsideration. Finally, petitioners filed a Rejoinder [9] to the respondents Reply and
Supplemental Reply on 5 July 2006.

The facts of the case, as recounted in the Decision, [10] are as follows

Petitioners are the heirs of the late Donata Ortiz-Briones (Donata), consisting of
her surviving sister, Rizalina Ortiz-
Aguila (Rizalina); Rizalinas daughter, Erlinda Pilapil(Erlinda); and the other nephews
and nieces of Donata, in representation of her two other sisters who had also passed
away. Respondents, on the other hand, are the heirs of the
late Maximino Briones (Maximino), composed of his nephews and nieces, and
grandnephews and grandnieces, in representation of the deceased siblings
of Maximino.

xxxx

Maximino was married to Donata but their union did not produce any
children. When Maximino died on 1 May 1952, Donata instituted intestate proceedings
to settle her husbands estate with the Cebu City Court of First Instance (CFI),
14th Judicial District, designated as Special Proceedings No. 928-R. On 8 July 1952, the
CFI issued Letters of Administration appointing Donata as
the administratrix of Maximinos estate. She submitted an Inventory
of Maximinos properties, which included, among other things, the following parcels of
land x x x.

xxxx

The CFI would subsequently issue an Order, dated 2 October 1952, awarding
ownership of the aforementioned real properties to Donata. On 27 June
1960, Donata had the said CFI Order recorded in the Primary Entry Book of the
Register of Deeds, and by virtue thereof, received new TCTs, covering the said
properties, now in her name.

Donata died on 1 November 1977. Erlinda, one of Donatas nieces, instituted with
the RTC a petition for the administration of the intestate estate of Donata. Erlinda and
her husband, Gregorio, were appointed by the RTC as administrators
of Donatas intestate estate. Controversy arose among Donatas heirs
when Erlinda claimed exclusive ownership of three parcels of land, covered
by TCTs No. 21542, 21545, and 58684, based on two Deeds of Donation, both dated 15
September 1977, allegedly executed in her favor by her aunt Donata. The other heirs
of Donata opposed Erlindas claim. This Court, however, was no longer informed of the
subsequent development in the intestate proceedings of the estate of Donata; and as
far as this Petition is concerned, all the heirs of Donata, including Erlinda, appear to be
on the same side.

On 21 January 1985, Silverio Briones (Silverio), a nephew of Maximino, filed a

Petition with the RTC for Letters of Administration for the intestate estate of Maximino,
which was initially granted by the RTC. The RTC also issued an Order, dated 5
December 1985, allowing Silverio to collect rentals from Maximinos properties. But then,
Gregorio filed with the RTC a Motion to Set Aside the Order, dated 5 December 1985,
claiming that the said properties were already under his and his wifes administration as
part of the intestate estate of Donata. Silverios Letters of Administration for the intestate
estate of Maximino was subsequently set aside by the RTC.

On 3 March 1987, the heirs of Maximino filed a Complaint with the RTC against
the heirs of Donata for the partition, annulment, and recovery of possession of real
property, docketed as Civil Case No. CEB-5794. They later filed an Amended
Complaint, on 11 December 1992. They alleged that Donata, as administratrix of the
estate of Maximino, through fraud and misrepresentation, in breach of trust, and without
the knowledge of the other heirs, succeeded in registering in her name the real
properties belonging to the intestate estate of Maximino.

xxxx

After trial in due course, the RTC rendered its Decision, dated 8 April 1986, in
favor of the heirs of Maximino x x x.

xxxx
 x x x[T]he RTC declared that the heirs of Maximino were entitled to of the real
properties covered by TCTs No. 21542, 21543, 21544, 21545, 21546, and 58684. It also
ordered Erlinda to reconvey to the heirs of Maximino the said properties and to render
an accounting of the fruits thereof.

The heirs of Donata appealed the RTC Decision, dated 8 April 1986, to the
Court of Appeals. The Court of Appeals, in its Decision, promulgated on 31 August
2001, affirmed the RTC Decision, x x x.

xxxx

Unsatisfied with the afore-quoted Decision of the Court of Appeals, the heirs
of Donata filed the present Petition, x x x.

In its Decision, dated 10 March 2006, this Court found the Petition meritorious and, reversing
the Decisions of the Court of Appeals and the Regional Trial Court (RTC), dismissed the Complaint
for partition, annulment, and recovery of possession of real property filed by the heirs of Maximino in
Civil Case No. CEB-5794. This Court summed up its findings,[11] thus
In summary, the heirs of Maximino failed to prove by clear and convincing
evidence that Donata managed, through fraud, to have the real properties, belonging to
the intestate estate of Maximino, registered in her name. In the absence of fraud, no
implied trust was established between Donata and the heirs of Maximino under Article
1456 of the New Civil Code. Donata was able to register the real properties in her
name, not through fraud or mistake, but pursuant to an Order, dated 2 October 1952,
issued by the CFI in Special Proceedings No. 928-R. The CFI Order, presumed to be
fairly and regularly issued, declared Donata as the sole, absolute, and exclusive heir
of Maximino; hence, making Donata the singular owner of the entire estate of Maximino,
including the real properties, and not merely a co-owner with the other heirs of her
deceased husband. There being no basis for the Complaint of the heirs of Maximino in
Civil Case No. CEB-5794, the same should have been dismissed.

Respondents move for the reconsideration of the Decision of this Court raising still the
arguments that Donata committed fraud in securing the Court of First Instance Order, dated 2
October 1952, which declared her as the sole heir of her deceased husband Maximino and
authorized her to have Maximinos properties registered exclusively in her name; that respondents
right to succession to the disputed properties was transmitted or vested from the moment
of Maximinos death and which they could no longer be deprived of; that Donata merely possessed
and held the properties in trust for her co-heirs/owners; and that, by virtue of this Courts ruling
in Quion v. Claridad[12] and Sevilla, et al. v. De Los Angeles,[13] respondents action to recover title to
and possession of their shares in Maximinos estate, held in trust for their benefit by Donata, and
eventually, by petitioners as the latters successors-in-interest, is imprescriptible. Respondents also
advance a fresh contention that the CFI Order, dated 2 October 1952, being based on the fraudulent
misrepresentation of Donata that she was Maximinos sole heir, was a void order, which produced no
legal effect. Lastly, respondents asseverate that, by relying on certain procedural presumptions in its
Decision, dated 10 March 2006, this Court has sacrificed their substantive right to succession, thus,
making justice subservient to the dictates of mere procedural fiats. [14]

While this Court is persuaded to reexamine and clarify some points in its previous Decision in
this case, it does not find any new evidence or argument that would adequately justify a change in its
previous position.

On the finding of fraud

As this Court declared in its Decision, the existence of any trust relations between petitioners and
respondents shall be examined in the light of Article 1456 of the New Civil Code, which provides that,
[i]f property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the property
comes. Hence, the foremost question to be answered is still whether an implied trust under Article
1456 of the New Civil Code had been sufficiently established in the present case.

In the Decision, this Court ruled in the negative, since there was insufficient evidence to establish
that Donata committed fraud. It should be remembered that Donata was able to secure certificates of
title to the disputed properties by virtue of the CFI Order in Special Proceedings No. 928-R (the
proceedings she instituted to settle Maximinos intestate estate), which declared her
as Maximinos sole heir. In the absence of proof to the contrary, the Court accorded to Special
Proceedings No. 928-R the presumptions of regularity and validity. Reproduced below are the
relevant portions[15] of the Decision

At the onset, it should be emphasized that Donata was able to secure

the TCTs covering the real properties belonging to the estate of Maximino by virtue of a
CFI Order, dated 2 October 1952. It is undisputed that the said CFI Order was issued by
the CFI in Special Proceedings No. 928-R, instituted by Donata herself, to settle the
intestate estate of Maximino. The petitioners, heirs of Donata, were unable to present a
copy of the CFI Order, but this is not surprising considering that it was issued 35 years
prior to the filing by the heirs of Maximino of their Complaint in Civil Case No. CEB-5794
on 3 March 1987. The existence of such CFI Order, nonetheless, cannot be denied. It
was recorded in the Primary Entry Book of the Register of Deeds on 27 June 1960,
at 1:10 p.m., as Entry No. 1714. It was annotated on the TCTs covering the real
properties as having declared Donata the sole, absolute, and exclusive heir
of Maximino. The non-presentation of the actual CFI Order was not fatal to the cause of
the heirs of Donata considering that its authenticity and contents were never
questioned. The allegation of fraud by the heirs of Maximino did not pertain to the CFI
Order, but to the manner or procedure by which it was issued in favor
of Donata. Moreover, the non-presentation of the CFI Order, contrary to the declaration
by the RTC, does not amount to a willful suppression of evidence that would give rise to
the presumption that it would be adverse to the heirs of Donata if produced. x x x.

xxxx
 The CFI Order, dated 2 October 1952, issued in Special Proceedings No. 928-R,
effectively settled the intestate estate of Maximino by declaring Donata as the sole,
absolute, and exclusive heir of her deceased husband. The issuance by the CFI of the
said Order, as well as its conduct of the entire Special Proceedings No. 928-R, enjoy
the presumption of validity pursuant to the Section 3(m) and (n) of Rule 131 of the
Revised Rules of Court, reproduced below

SEC. 3. Disputable presumptions. The following presumptions are

satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:

xxxx

(m) That official duty has been regularly performed;

(n) That a court, or judge acting as such, whether in

the Philippines or elsewhere, was acting in the lawful exercise of
jurisdiction.
By reason of the foregoing provisions, this Court must presume, in the absence
of any clear and convincing proof to the contrary, that the CFI in Special Proceedings
No. 928-R had jurisdiction of the subject matter and the parties, and to have rendered a
judgment valid in every respect; and it could not give credence to the following
statements made by the Court of Appeals in its Decision.

xxxx

There was totally no evidentiary basis for the foregoing pronouncements. First of all, the
Petition filed by Donata for Letters of Administration in Special Proceedings No. 928-R
before the CFI was not even referred to nor presented during the course of the trial of
Civil Case No. CEB-5794 before the RTC. How then could the Court of Appeals make a
finding that Donata willfully excluded from the said Petition the names, ages, and
residences of the other heirs of Maximino? Second, there was also no evidence
showing that the CFI actually failed to send notices of Special Proceedings No. 928-R to
the heirs of Maximino or that it did not require presentation of proof of service of such
notices. It should be remembered that there stands a presumption that the CFI Judge
had regularly performed his duties in Special Proceedings No. 928-R, which included
sending out of notices and requiring the presentation of proof of service of such notices;
and, the heirs of Maximino did not propound sufficient evidence to debunk such
presumption. They only made a general denial of knowledge of Special Proceedings
No. 928-R, at least until 1985. There was no testimony or document presented in which
the heirs of Maximinocategorically denied receipt of notice from the CFI of
the pendency of Special Proceedings No. 928-R. The only evidence on record in
reference to the absence of notice of such proceedings was the testimony of
Aurelia Briones (Aurelia), one of the heirs of Maximino, x x x.

xxxx

Aurelias testimony deserves scant credit considering that she was not testifying on
matters within her personal knowledge. The phrase I dont think is a clear indication that
she is merely voicing out her opinion on how she believed her uncles and aunts would
have acted had they received notice of Special Proceedings No. 928-R.
 It is worth noting that, in its foregoing ratiocination, the Court was proceeding from an
evaluation of the evidence on record, which did not include an actual copy of the CFI Order in Special
Proceedings No. 928-R. Respondents only submitted a certified true copy thereof on 15 June 2006,
annexed to their Supplemental Reply to petitioners opposition to their motion for reconsideration of
this Courts Decision. Respondents did not offer any explanation as to why they belatedly produced a
copy of the said Order, but merely claimed to have been fortunate enough to obtain a copy thereof
from the Register of Deeds of Cebu.[16]

Respondents should be taken to task for springing new evidence so late into the proceedings
of this case. Parties should present all their available evidence at the courts below so as to give the
opposing party the opportunity to scrutinize and challenge such evidence during the course of the
trial. However, given that the existence of the CFI Order in Special Proceedings No. 928-R was never
in issue and was, in fact, admitted by the petitioners; that the copy submitted is a certified true copy of
the said Order; and that the said Order may provide new information vital to a just resolution of the
present case, this Court is compelled to consider the same as part of the evidence on record.

The CFI Order[17] in question reads in full as

ORDER
This is with reference to the Motion of the Administratrix, dated January 5, 1960,
that she be declared the sole heir of her deceased husband, Maximino Suico Briones,
the latter having died without any legitimate ascendant nor descendant, nor any
legitimate brother or sister, nephews or nieces.

At the hearing of this incident today, nobody appeared to resist the motion, and
based on the uncontradicted testimony of Donata G. Ortiz that she was the nearest
surviving relative of the deceased Maximino Suico Briones at the time of the latters
death, and pursuant to the pertinent provisions of the new Civil Code of the Philippines,
the Court hereby declares the aforesaid Donata G. Ortiz the sole, absolute and
exclusive heir of the estate of the deceased Maximino Suico Briones, and she is hereby
entitled to inherit all the residue of this estate after paying all the obligations thereof,
which properties are those contained in the Inventory, dated October 2, 1952.

Cebu City, January 15, 1960.

From the contents of the afore-quoted Order, this Court is able to deduce that the CFI Order
was in fact issued on 15 January 1960 and not 2 October 1952, as earlier stated in the Decision. It
was the inventory of properties, submitted by Donata as administratrix of Maximinos intestate estate,
which was dated 2 October 1952.[18] Other than such observation, this Court finds nothing in the CFI
Order which could change its original position in the Decision under consideration.

While it is true that since the CFI was not informed that Maximino still had surviving siblings
and so the court was not able to order that these siblings be given personal notices of the intestate
proceedings, it should be borne in mind that the settlement of estate, whether testate or intestate, is a
proceeding in rem,[19] and that the publication in the newspapers of the filing of the application and of
the date set for the hearing of the same, in the manner prescribed by law, is a notice to the whole
world of the existence of the proceedings and of the hearing on the date and time indicated in the
publication. The publication requirement of the notice in newspapers is precisely for the purpose of
informing all interested parties in the estate of the deceased of the existence of the settlement
proceedings, most especially those who were not named as heirs or creditors in the petition,
regardless of whether such omission was voluntarily or involuntarily made.

This Court cannot stress enough that the CFI Order was the result of the intestate proceedings
instituted by Donata before the trial court. As this Court pointed out in its earlier Decision, the manner
by which the CFI judge conducted the proceedings enjoys the presumption of regularity, and
encompassed in such presumption is the order of publication of the notice of the intestate
proceedings. A review of the records fails to show any allegation or concrete proof that the CFI also
failed to order the publication in newspapers of the notice of the intestate proceedings and to require
proof from Donata of compliance therewith. Neither can this Court find any reason or explanation as
to why Maximinos siblings could have missed the published notice of the intestate proceedings of
their brother.

In relying on the presumptions of the regular performance of official duty and lawful exercise of
jurisdiction by the CFI in rendering the questioned Order, dated 15 January 1960, this Court is not, as
counsel for respondents allege, sacrificing the substantive right of respondents to their share in the
inheritance in favor of mere procedural fiats. There is a rationale for the establishment of rules of
procedure, as amply explained by this Court in De Dios v. Court of Appeals[20]

Procedural rules are designed to insure the orderly and expeditious

administration of justice by providing for a practical system by which the parties to a
litigation may be accorded a full and fair opportunity to present their respective positions
and refute each other's submissions under the prescribed requirements, conditions and
limitations. Adjective law is not the counterfoil of substantive law. In fact, there is a
symbiotic relationship between them. By complying faithfully with the Rules of Court, the
bench and the bar are better able to discuss, analyze and understand substantive rights
and duties and consequently to more effectively protect and enforce them. The other
alternative is judicial anarchy.

Thus, compliance with the procedural rules is the general rule, and abandonment thereof should only
be done in the most exceptional circumstances. The presumptions relied upon by this Court in the
instant case are disputable presumptions, which are satisfactory, unless contradicted or overcome by
evidence. This Court finds that the evidence presented by respondents failed to overcome the given
presumptions.

Although Donata may have alleged before the CFI that she was her husbands sole heir, it was
not established that she did so knowingly, maliciously and in bad faith, so as for this Court to
conclude that she indeed committed fraud. This Court again brings to the fore the delay by which
respondents filed the present case, when the principal actors involved,
particularly, Donata and Maximinos siblings, have already passed away and their lips forever sealed
as to what truly transpired between them. On the other hand, Special Proceedings No. 928-R took
place when all these principal actors were still alive and each would have been capable to act to
protect his or her own right to Maximinosestate. Letters of Administration of Maximinos estate were
issued in favor of Donata as early as 8 July 1952, and the CFI Order in question was issued only
on 15 January 1960.The intestate proceedings for the settlement of Maximinos estate were thus
pending for almost eight years, and it is the burden of the respondents to establish that their parents
or grandparents, Maximinos surviving siblings, had absolutely no knowledge of the said proceedings
all these years. As established in Ramos v. Ramos ,[21] the degree of proof to establish fraud in a
case where the principal actors to the transaction have already passed away is proof beyond
reasonable doubt, to wit

"x x x But length of time necessarily obscures all human evidence; and as it
thus removes from the parties all the immediate means to verify the nature of the
original transactions, it operates by way of presumption, in favor of innocence,
and against imputation of fraud. It would be unreasonable, after a great length of
time, to require exact proof of all the minute circumstances of any transaction, or to
expect a satisfactory explanation of every difficulty, real or apparent, with which it may
be encumbered. The most that can fairly be expected, in such cases, if the parties are
living, from the frailty of memory, and human infirmity, is, that the material facts can be
given with certainty to a common intent; and, if the parties are dead, and the cases rest
in confidence, and in parol agreements, the most that we can hope is to arrive at
probable conjectures, and to substitute general presumptions of law, for exact
knowledge. Fraud, or breach of trust, ought not lightly to be imputed to the living;
for, the legal presumption is the other way; as to the dead, who are not here to
answer for themselves, it would be the height of injustice and cruelty, to disturb
their ashes, and violate the sanctity of the grave, unless the evidence of fraud be
clear, beyond a reasonable doubt (Prevost vs. Gratz, 6 Wheat. [U.S.], 481, 498).

Moreover, even if Donatas allegation that she was Maximinos sole heir does constitute fraud, it
is insufficient to justify abandonment of the CFI Order, dated 15 January 1960, [ 2 2 ] considering the
nature of intestate proceedings as being in rem and the disputable presumptions of the regular
performance of official duty and lawful exercise of jurisdiction by the CFI in rendering the questioned
Order, dated 15 January 1960, in Special Proceedings No. 928-R.

On prescription of the right to recover based on implied trust

Assuming, for the sake of argument, that Donatas misrepresentation constitutes fraud that
would impose upon her the implied trust provided in Article 1456 of the Civil Code, this Court still
cannot sustain respondents contention that their right to recover their shares in Maximinos estate
is imprescriptible. It is already settled in jurisprudence that an implied trust, as opposed to an express
trust, is subject to prescription and laches.

The case of Ramos v. Ramos[23] already provides an elucidating discourse on the matter, to wit
 "Trusts are either express or implied. Express trusts are created by the intention
of the trustor or of the parties. Implied trusts come into being by operation of law" (Art.
1441, Civil Code). "No express trusts concerning an immovable or any interest therein
may be proven by oral evidence. An implied trust may be proven by oral evidence" ( Ibid;
Arts. 1443 and 1457).

"No particular words are required for the creation of an express trust, it being
sufficient that a trust is clearly intended" (Ibid; Art. 1444; Tuason de Perez vs. Caluag,
96 Phil. 981; Julio vs. Dalandan, L-19012, October 30, 1967, 21 SCRA 543, 546).
"Express trusts are those which are created by the direct and positive acts of the
parties, by some writing or deed, or will, or by words either expressly or impliedly
evincing an intention to create a trust" (89 C.J. S. 122).

"Implied trusts are those which, without being expressed, are deducible from the
nature of the transaction as matters of intent, or which are superinduced on the
transaction by operation of law as matters of equity, independently of the particular
intention of the parties" (89 C.J.S. 724). They are ordinarily subdivided into resulting and
constructive trusts (89 C.J.S. 722).

"A resulting trust is broadly defined as a trust which is raised or created by the act
or construction of law, but in its more restricted sense it is a trust raised by implication of
law and presumed always to have been contemplated by the parties, the intention as to
which is to be found in the nature of their transaction, but not expressed in the deed or
instrument of conveyance" (89 C.J.S. 725). Examples of resulting trusts are found in
Article 1448 to 1455 of the Civil Code. See Padilla vs. Court of Appeals, L-
31569, September 28, 1973, 53 SCRA 168, 179).

On the other hand, a constructive trust is a trust "raised by construction of law,

or arising by operation of law." In a more restricted sense and as contradistinguished
from a resulting trust, a constructive trust is "a trust not created by any words, either
expressly or impliedly evincing a direct intention to create a trust, but by the
construction of equity in order to satisfy the demands of justice. It does not arise by
agreement or intention but by operation of law." (89 C.J.S. 726-727). "If a person
obtains legal title to property by fraud or concealment, courts of equity will impress upon
the title a so-called constructive trust in favor of the defrauded party." A constructive
trust is not a trust in the technical sense (Gayondato vs. Treasurer of the P.I., 49 Phil.
244; See Art. 1456, Civil Code).

There is a rule that a trustee cannot acquire by prescription the ownership of

property entrusted to him (Palma vs. Cristobal, 77 Phil. 712), or that an action to compel
a trustee to convey property registered in his name in trust for the benefit of
the cestui qui trust does not prescribe (Manalang vs. Canlas, 94 Phil. 776; Cristobal vs.
Gomez, 50 Phil. 810), or that the defense of prescription cannot be set up in an action
to recover property held by a person in trust for the benefit of another (Sevilla vs.
De los Angeles, 97 Phil. 875), or that property held in trust can be recovered by the
beneficiary regardless of the lapse of time (Marabilles vs. Quito, 100 Phil.
64; Bancairen vs. Diones, 98 Phil. 122, 126; Juan vs. Zuiga, 62 O.G. 1351; 4 SCRA
1221; Jacinto vs. Jacinto, L-17957, May 31, 1962. See Tamayo vs. Callejo, 147 Phil. 31,
37).
 That rule applies squarely to express trusts. The basis of the rule is that the
possession of a trustee is not adverse. Not being adverse, he does not acquire by
prescription the property held in trust. Thus, Section 38 of Act 190 provides that the law
of prescription does not apply "in the case of a continuing and subsisting trust" (Diaz
vs. Gorricho and Aguado, 103 Phil. 261, 266; Laguna vs. Levantino, 71 Phil.
566; Sumira vs. Vistan, 74 Phil. 138; Golfeo vs. Court of Appeals, 63 O.G. 4895, 12
SCRA 199; Caladiao vs. Santos, 63 O.G. 1956, 10 SCRA 691).

The rule of imprescriptibility of the action to recover property held in trust may
possibly apply to resulting trusts as long as the trustee has not repudiated the trust
(Heirs of Candelaria vs. Romero, 109 Phil. 500, 502-3; Martinez vs. Grao, 42 Phil.
35; Buencamino vs. Matias, 63 O. G. 11033, 16 SCRA 849).

The rule of imprescriptibility was misapplied to constructive

trusts (Geronimo and Isidoro vs. Nava and Aquino, 105 Phil. 145, 153. Compare
with Cuison vs. Fernandez and Bengzon, 105 Phil. 135, 139; De Pasion vs. De Pasion,
112 Phil. 403, 407).

Acquisitive prescription may bar the action of the beneficiary against the trustee
in an express trust for the recovery of the property held in trust where (a) the trustee has
performed unequivocal acts of repudiation amounting to an ouster of the cestui qui trust;
(b) such positive acts of repudiation have been made known to the cestui qui trust and
(c) the evidence thereon is clear and conclusive (Laguna vs. Levantino, supra; Salinas
vs. Tuason, 55 Phil. 729. Compare with the rule regarding co-owners found in the last
paragraph of Article 494, Civil Code; Casaas vs. Rosello, 50 Phil. 97; Gerona vs. De
Guzman, L-19060, May 29, 1964, 11 SCRA 153, 157).

With respect to constructive trusts, the rule is different.

The prescriptibility of an action for reconveyance based on constructive trust is
now settled (Alzona vs. Capunitan, L-10228, February 28, 1962, 4 SCRA 450; Gerona
vs. De Guzman, supra; Claridad vs. Henares, 97 Phil. 973; Gonzales vs. Jimenez, L-
19073, January 30, 1965, 13 SCRA 80; Boaga vs. Soler, 112 Phil. 651; J. M. Tuason &
Co., vs. Magdangal, L-15539, January 30, 1962, 4 SCRA 84). Prescription may
supervene in an implied trust (Buenovs. Reyes, L-22587, April 28, 1969, 27 SCRA
1179; Fabian vs. Fabian, L-20449, January 29, 1968; Jacinto vs. Jacinto, L-17957, May
31, 1962, 5 SCRA 371).

And whether the trust is resulting or constructive, its enforcement may be

barred by laches (90 C.J.S. 887-889; 54 Am Jur. 449-450; Diaz
vs. Gorricho and Aguado, supra; Compare with Mejia vs. Gampona, 100 Phil. 277).
[Emphases supplied.]

A present reading of the Quion[24] and Sevilla[25] cases, invoked by respondents, must be made
in conjunction with and guided accordingly by the principles established in the afore-quoted
case. Thus, while respondents right to inheritance was transferred or vested upon them at the time
of Maximinos death, their enforcement of said right by appropriate legal action may be barred by the
prescription of the action.
 Prescription of the action for reconveyance of the disputed properties based on implied trust is
governed by Article 1144 of the New Civil Code, which reads

ART. 1144. The following actions must be brought within ten years from the time
the right of action accrues:

(1) Upon a written contract;

(2) Upon an obligation created by law;

(3) Upon a judgment.

Since an implied trust is an obligation created by law (specifically, in this case, by Article 1456 of the
New Civil Code), then respondents had 10 years within which to bring an action for reconveyance of
their shares in Maximinos properties. The next question now is when should the ten-year prescriptive
period be reckoned from. The general rule is that an action for reconveyance of real property based
on implied trust prescribes ten years from registration and/or issuance of the title to the property,
[26]
not only because registration under the Torrens system is a constructive notice of title, [27] but also
because by registering the disputed properties exclusively in her name, Donata had already
unequivocally repudiated any other claim to the same.

By virtue of the CFI Order, dated 15 January 1960, in Special Proceedings No. 928-
R, Donata was able to register and secure certificates of title over the disputed properties in her name
on 27 June 1960. The respondents filed with the RTC their Complaint for partition, annulment, and
recovery of possession of the disputed real properties, docketed as Civil Case No. CEB-5794, only
on 3 March 1987, almost 27 years after the registration of the said properties in the name
of Donata. Therefore, respondents action for recovery of possession of the disputed properties had
clearly prescribed.

Moreover, even though respondents Complaint before the RTC in Civil Case No. CEB-5794
also prays for partition of the disputed properties, it does not make their action to enforce their right to
the said properties imprescriptible. While as a general rule, the action for partition among co-owners
does not prescribe so long as the co-ownership is expressly or impliedly recognized, as provided for
in Article 494, of the New Civil Code, it bears to emphasize that Donata had never recognized
respondents as co-owners or co-heirs, either expressly or impliedly. [28] Her assertion before the CFI in
Special Proceedings No. 928-R that she was Maximinos sole heir necessarily excludes recognition of
some other co-owner or co-heir to the inherited properties; Consequently, the rule on non-prescription
of action for partition of property owned in common does not apply to the case at bar.

On laches as bar to recovery

 Other than prescription of action, respondents right to recover possession of the disputed
properties, based on implied trust, is also barred by laches. The defense of laches, which is a
question of inequity in permitting a claim to be enforced, applies independently of prescription, which
is a question of time. Prescription is statutory; laches is equitable.[29]

Laches is defined as the failure to assert a right for an unreasonable and unexplained length of
time, warranting a presumption that the party entitled to assert it has either abandoned or declined to
assert it. This equitable defense is based upon grounds of public policy, which requires the
discouragement of stale claims for the peace of society. [30]

This Court has already thoroughly discussed in its Decision the basis for barring respondents
action for recovery of the disputed properties because of laches. This Court pointed out therein[31] that
In further support of their contention of fraud by Donata, the heirs
of Maximino even emphasized that Donata lived along the same street as some of the
siblings of Maximino and, yet, she failed to inform them of the CFI Order, dated [15
January 1960], in Special Proceedings No. 928-R, and the issuance in her name of
new TCTs covering the real properties which belonged to the estate of Maximino. This
Court, however, appreciates such information differently. It actually works against the
heirs of Maximino.Since they only lived nearby, Maximinos siblings had ample
opportunity to inquire or discuss with Donata the status of the estate of their deceased
brother. Some of the real properties, which belonged to the estate of Maximino, were
also located within the same area as their residences in Cebu City,
and Maximinos siblings could have regularly observed the actions and behavior
of Donata with regard to the said real properties. It is uncontested that from the time
of Maximinos death on 1 May 1952, Donata had possession of the real properties. She
managed the real properties and even collected rental fees on some of them until her
own death on 1 November 1977. After Donatas death, Erlinda took possession of the
real properties, and continued to manage the same and collect the rental fees
thereon. Donata and, subsequently, Erlinda, were so obviously exercising rights of
ownership over the real properties, in exclusion of all others, which must have already
put the heirs of Maximino on guard if they truly believed that they still had rights thereto.

The heirs of Maximino knew he died on 1 May 1952. They even attended his
wake. They did not offer any explanation as to why they had waited 33 years
from Maximinos death before one of them, Silverio, filed a Petition for Letters of
Administration for the intestate estate of Maximino on 21 January 1985. After learning
that the intestate estate of Maximino was already settled in Special Proceedings No.
928-R, they waited another two years, before instituting, on 3 March 1987, Civil Case
No. CEB-5794, the Complaint for partition, annulment and recovery of the real property
belonging to the estate of Maximino. x x x

Considering the circumstances in the afore-quoted paragraphs, as well as respondents

conduct before this Court, particularly the belated submission of evidence and argument of new
issues, respondents are consistently displaying a penchant for delayed action, without any proffered
reason or justification for such delay.

It is well established that the law serves those who are vigilant and diligent and not those who
sleep when the law requires them to act. The law does not encourage laches, indifference,
negligence or ignorance. On the contrary, for a party to deserve the considerations of the courts, he
must show that he is not guilty of any of the aforesaid failings. [32]

On void judgment or order

Respondents presented only in their Reply and Supplemental Reply to the petitioners
Opposition to their Motion for Reconsideration the argument that the CFI Order, dated 15 January
1960, in Special Proceedings No. 928-R is void and, thus, it cannot have any legal
effect. Consequently, the registration of the disputed properties in the name of Donata pursuant to
such Order was likewise void.

This Court is unconvinced.

In the jurisprudence referred to by the respondents, [33] an order or judgment is considered void
when rendered by the court without or in excess of its jurisdiction or in violation of a mandatory duty,
circumstances which are not present in the case at bar.

Distinction must be made between a void judgment and a voidable one, thus

"* * * A voidable judgment is one which, though not a mere nullity, is liable to be
made void when a person who has a right to proceed in the matter takes the proper
steps to have its invalidity declared. It always contains some defect which may become
fatal. It carries within it the means of its own overthrow. But unless and until it is duly
annulled, it is attended with all the ordinary consequences of a legal judgment. The
party against whom it is given may escape its effect as a bar or an obligation, but only
by a proper application to have it vacated or reversed. Until that is done, it will be
efficacious as a claim, an estoppel, or a source of title. If no proceedings are ever taken
against it, it will continue throughout its life to all intents a valid sentence. If emanating
from a court of general jurisdiction, it will be sustained by the ordinary presumptions of
regularity, and it is not open to impeachment in any collateral action. * * *"

But it is otherwise when the judgment is void. "A void judgment is in legal effect
no judgment. By it no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally worthless. It neither binds
nor bars any one. All acts performed under it and all claims flowing out of it are void.
The parties attempting to enforce it may be responsible as trespassers. The purchaser
at a sale by virtue of its authority finds himself without title and without redress."
(Freeman on Judgments, sec. 117, citing Campbell vs. McCahan, 41 Ill., 45;
Roberts vs. Stowers, 7 Bush, 295, Huls vs. Buntin, 47 Ill., 396; Sherrell vs. Goodrum, 3
Humph., 418; Andrews vs. State, 2 Sneed, 549; Hollingsworth vs. Bagley, 35 Tex., 345;
Morton vs. Root, 2 Dill., 312; Commercial Bank of Manchester vs. Martin, 9 Smedes &
M., 613; Hargis vs. Morse, 7 Kan., 259. See also Cornell vs. Barnes, 7 Hill, 35; Dawson
and Another vs. Wells, 3 Ind., 399; Meyer vs. Mintonye, 106 Ill., 414;
Olson vs. Nunnally, 47 Kan., 391; White vs. Foote L. & M. Co., 29 W. Va., 385.)
 It is not always easy to draw the line of demarcation between a void judgment
and a voidable one, but all authorities agree that jurisdiction over the subject-matter is
essential to the validity of a judgment and that want of such jurisdiction renders it void
and a mere nullity. In the eye of the law it is non-existent. (Fisher vs. Harnden, 1 Paine,
55; Towns vs. Springer, 9 Ga., 130; Mobley vs. Mobley, 9 Ga., 247; Beverly and
McBride vs. Burke, 9 Ga., 440; Central Bank of Georgia vs. Gibson, 11 Ga., 453;
Johnson vs. Johnson, 30 Ill., 215; St. Louis and Sandoval Coal and Mining Co. vs.
Sandoval Coal and Mining Co., 111 Ill., 32; Swiggart vs. Harber, 4 Scam., 364; Miller vs.
Snyder, 6 Ind., 1; Seely vs. Reid, 3 Greene [Iowa], 374.)[34]

The fraud and misrepresentation fostered by Donata on the CFI in Special Proceedings No.
928-R did not deprive the trial court of jurisdiction over the subject-matter of the case, namely, the
intestate estate of Maximino. Donatas fraud and misrepresentation may have rendered the CFI Order,
dated 15 January 1960, voidable, but not void on its face. Hence, the said Order, which already
became final and executory, can only be set aside by direct action to annul and enjoin its
enforcement.[35] It cannot be the subject of a collateral attack as is being done in this case. Note that
respondents Complaint before the RTC in Civil Case No. CEB-5794 was one for partition, annulment,
and recovery of possession of the disputed properties. The annulment sought in the Complaint was
not that of the CFI Order, dated 15 January 1960, but of the certificates of title over the properties
issued in Donatas name. So until and unless respondents bring a direct action to nullify the CFI
Order, dated 15 January 1960, in Special Proceedings No. 928-R, and attain a favorable judgment
therein, the assailed Order remains valid and binding.

Nonetheless, this Court also points out that an action to annul an order or judgment based on
fraud must be brought within four years from the discovery of the fraud. [36] If it is conceded that the
respondents came to know of Donatas fraudulent acts only in 1985, during the course of the RTC
proceedings which they instituted for the settlement of Maximinos estate, then their right to file an
action to annul the CFI Order, dated 15 January 1960, in Special Proceedings No. 928-R (earlier
instituted by Donata for the settlement of Maximinos estate), has likewise prescribed by present time.

In view of the foregoing, the Motion for Reconsideration is DENIED.

SO ORDERED.

G.R. No. L-8409 December 28, 1956

In the Matter of the Intestate of the deceased Andres Eusebio. EUGENIO EUSEBIO, petitioner-
appellee,
vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO, VICENTE EUSEBIO, and CARLOS
EUSEBIO,oppositors-appellants.

Francisco M. Ramos and Valeriano Silva for appellee.

Filemon Cajator for appellants.
CONCEPCION, J.:

This case instituted on November 16, 1953, when Eugenio Eusebio filed with the Court of First
Instance of Rizal, a petition for his appointment as administrator of the estate of his father, Andres
Eusebio, who died on November 28, 1952, residing, according to said petition, in the City of Quezon.
On December 4, 1953, Amanda, Virginia, Juan, Delfin, Vicente and Carlos, all surnamed Eusebio,
objected to said petition, stating that they are illegitimate children of the deceased and that the latter
was domiciled in San Fernando, Pampanga, and praying, therefore, that the case be dismissed upon
the ground that venue had been improperly filed. By an order, dated March 10, 1954, said court
overruled this objection and granted said petition. Hence, the case is before us on appeal taken, from
said order, by Amanda Eusebio, and her aforementioned sister and brothers.

The appeal hinges on the situs of the residence of Andres Eusebio on November 28, 1952, for Rule
75, section 1, of the Rules of Court, provides:

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

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

It is not disputed that up to, at least, October 29, 1952, Andres Eusebio was, and had always been,
domiciled in San Fernando, Pampanga, where he had his home, as well as some other properties.
Inasmuch as his heart was in bad condition and his son, Dr. Jesus Eusebio, who treated him, resided
at No. 41 P. Florentino St., Quezon City, on October 29, 1952, Andres Eusebio bought a house and
lot at 889-A España Extention, in said City (Exhibit 2). While transferring his belongings to this house,
soon thereafter, the decedent suffered a stroke (probably heart failure), for which reason Dr. Eusebio
took him to his (Dr. Eusebio's) aforementioned residence, where the decedent remained until he was
brought to the UST Hospital, in the City of Manila, sometimes before November 26, 1952. On this
date, he contracted marriage in articulo mortis with his common law wife, Concepcion Villanueva, in
said hospital. Two (2) days later, he died therein of "acute left ventricular failure secondary to
hypertensive heart disease", at the age of seventy-four (74) years (Exhibit A). Consequently, he never
stayed or even slept in said house at España Extention.

It being apparent from the foregoing that the domicile of origin of the decedent was San Fernando,
Pampanga, where he resided for over seventy (70) years, the presumption is that he retained such
domicile, and, hence, residence, in the absence of satisfactory proof to the contrary, for it is well-
settled that "a domicile once acquired is retained until a new domicile is gained" (Minor, Conflict of
Laws, p.70; Restatement of the Law on Conflict of Laws, p. 47; In re Estate of Johnson, 192 Iowa,
78). Under the circumstances surrounding the case at bar, if Andres Eusebio established another
domicile, it must have been one of choice, for which the following conditions are essential, namely:
(1) capacity to choose and freedom of choice; (2) physical presence at the place chosen; and (3)
intention to stay therein permanently (Minor, Conflict of Laws, pp. 109-110; Googrich, Conflict of
Laws, p. 169; Velilla vs. Posadas, 62 Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off. Gaz.
Suppl. No. 11, p. 220). Admittedly, the decedent was juridically capable of choosing a domicile and
had been in Quezon City several days prior to his demise. Thus, the issue narrows down to whether
he intended to stay in that place permanently.

There is no direct evidence of such intent. Neither does the decedent appears to have manifested his
wish to live indefinitely in said city. His son, petitioner-appellee, who took the witness stand, did not
testify thereon, despite the allegation, in his answer to the aforemention, opposition of the appellants
herein, that "the deceased (had) decided to reside . . . for the rest of his life, in Quezon City".
Moreover, said appellee did not introduce the testimony of his legitimate full brother and son of the
decedent, Dr. Jesus Eusebio, upon whose advice, presumably, the house and lot at No. 889-A
España Extention was purchased, and who, therefore, might have cast some light on his (decedent's)
purpose in buying said property. This notwithstanding, the lower court held that the decedent's intent
to stay permanently in Quezon City is "manifest" from the acquisition of said property and the transfer
of his belonging thereto. This conclusion is untenable.lawphil.net

The aforementioned house and lot were bought by the decedent because he had been adviced to do
so "due to his illness", in the very words of herein appellee. It is not improbable — in fact, its is very
likely — that said advice was given and followed in order that the patient could be near his doctor and
have a more effective treatment. It is well settled that "domicile is not commonly changed by presence
in a place merely for one's own health", even if coupled with "knowledge that one will never again be
able, on account of illness, to return home." (The Conflict of Laws, by Beale, Vol. I, pp. 172-173; see,
also, Shenton vs. Abbott, Md., 15., A. 2d. 906; U.S. vs. Knight, D. C. Mont., 291 Fed. 129).

Again, the decedent did not part with, or alienate, his house in San Fernando, Pampanga. Moreover,
some of his children, who used to live with him in San Fernando, Pampanga, remained in that
municipality. Then, again, in the deed Exhibit 2, by virtue of which said property at No. 889-A España
Extention, Quezon City, was conveyed to him, on October 29, 1952, or less than a month before his
death, the decedent gave San Fernando, Pampanga, as his residence. Similarly, the "A" and "B"
residence certificates used by the decedent in aknowledging said Exhibit 2, before a notary public,
was issued in San Fernando, Pampanga. Lastly, the marriage contract Exhibit 1, signed by the
deceased when he was married, in articulo mortis, to Concepcion Villanueva, at the UST Hospital, on
November 26, 1952, or two (2) days prior to his demise, stated that his residence is San Fernando,
Pampanga. It is worthy of notice that Alfonso Eusebio, one of the legitimate full brothers of the herein
appellee, was a witness to said wedding, thus indicating that the children of the deceased by his first
marriage, including said appellee, were represented on that occasion and would have objected to
said statement about his residence, if it were false. Consequently, apart from appellee's failure to
prove satisfactory that the decedent had decided to establish his home in Quezon City, the acts of the
latter, shortly and immediately before his death, prove the contrary. At any rate, the presumption in
favor of the retention of the old domicile 1— which is particularly strong when the domicile is one of
the origin 2as San Fernando, Pampanga, evidently was, as regards said decedent — has not been
offset by the evidence of record.

The lower court, however, rejected said Exhibits 1 and 2, upon being offered in evidence, and refused
to entertain the same in the order appealed from. The reason therefor are deducible from its
resolution in rejecting said documents during the hearing of the incident at bar. The court then held:

Exihibits "1" and "2" are rejecting but the same may be attached to the records for whatever
action oppositors may want to take later on because until now the personality of the oppositors
has not been established whether or not they have a right to intervene in this case, and the
Court cannot pass upon this question as the oppositors refuse to submit to the jurisdiction of
this Court and they maintain that these proceedings should be dismissed. (P. 10, t. s. n.)

In short, the lower court believed that said documents should not be admitted in evidence before
appellants had established their "personality" to intervene in the case, referring seemingly to their
filiation. When appellants, however, sought, during said hearing, to establish their relation with the
deceased, as his alleged illegitimate children, His Honor, the trial Judge sustained appellee's
objection thereto stating:

Your stand until now is to question the jurisdiction of this Court, and it seems that you are now
trying to prove the status of your client; you are leading so that. The main point here is your
contention that the deceased was never a resident of Quezon City and that is why I allowed
you to cross-examine. If you are trying to establish the status of the oppositors, I will sustain
the objection, unless you want to submit to the jurisdiction of the Court. This is not yet the time
to declare who are persons who should inherit. (p. 1, t. s. n.)

Thus, the lower court refused to consider appellant's evidence on the domicile of the decedent,
because of their alleged lack of "personality", but, when tried to establish such "personality", they
were barred from doing so on account of the question of venue raised by him. We find ourselves
unable to sanction either the foregoing procedure adopted by the lower court or the inference it drew
from the circumstances surrounding the case.

To begin with, His Honor, the trial Judge had taken inconsistent positions. While, on the one hand, he
declared that appellants could not be permitted to introduce evidence on the residence of the
decedent, for they contested the jurisdiction of court, on the other hand, he held, in the order
appealed from, that, by cross-examining the appellee, said appellants had submitted themselves to
the authority of the court.

What is more, this conclusion is refuted by the record. At the beginning of the hearing, in the lower
court, appellants' counsel announced that he would take part therein "only to question the jurisdiction,
for the purpose of dismissing this proceeding," (p. 2, t.s.n.). During the cross-examination of petitioner
herein, said counsel tried to elicit the relation between the decedent and the appellants. As, the
appellee objected thereto, the court said, addressing appellants' counsel: "Your stand until now is to
question the jurisdiction of the court. . . . It you are trying to establish the status of the oppositors, I
will sustain the objection, unless you want to submit to the jurisdiction of the court" (p. 7, t.s.n.).
Thereupon, appellants' counsel refused to do so, stating: "I will insist on my stand." Then, too, at the
conclusion of the hearing, the court rejected Exhibits 1 and 2, for the reason that appellants "refuse to
submit to the jurisdiction of this court and they maintain that these proceedings should be dismissed."
Thus, appellants specially made of record that they were not submitting themselves to the jurisdiction
of the court, except for the purpose only of assailing the same, and the court felt that appellants
were not giving up their stand, which was, and is, a fact.

At any rate, appellants were entitled to establish facts tending to prove, not only their right to object to
appellee's petition, but, also, that venue had been laid improperly. Such facts were: (a) their alleged
relationship with the decedent, 3 which, if true, entitle them to proceed him under the Civil Code of the
Philippines; and (b) his alleged residence is Pampanga. In other words, the lower court should have
admitted Exhibits 1 and 2 in evidence and given thereto the proper effect, in connection with the issue
under consideration.

Appellee, however, asks: "What will happen if this case be dismissed in the Court of First Instance of
Quezon City on the ground of lack of jurisdiction or improper venue?" In this connection, it appears
that on November 14, 1953, the Clerk of the Court of First Instance of Pampanga received a petition
of appellants herein, dated November 4, 1953, for the settlement of the "Intestate Estate of the late
Don Andres Eusebio". Attached to said petition was petition for the docketing thereof free charge,
pursuant to Rule 3, section 22, of the Rules of Court. The latter petition was granted by an order
dated November 16, 1953, which was received by the cashier of said court on November 17, 1953,
on which date the case was docketed as Special Proceedings No. 957. On December 14, 1953,
Jesus, Eugenio, Amando and Alfonso, all surnamed Eusebio (the children of the decedent by first
marriage, including petitioner herein), moved for the dismissal of said proceedings, owing to the
pendency of the present case, before the Court of First Instance of Rizal, since November 16, 1953.
This motion was granted in an order dated December 21, 1953, relying upon the above Rule 75,
section 1, of the Rules of Court, pursuant to which "the court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts."

Although said order is now final, it cannot affect the outcome of the case at bar. Said order did not
pass upon the question of domicile or residence of the decedent. Moreover, in granting the court first
taking cognizance of the case exclusive jurisdiction over the same, said provision of the Rules of
Court evidently refers to cases triable before two or more courts with concurrent jurisdiction. It could
not possibly have intended to deprive a competent court of the authority vested therein by law, merely
because a similar case had been previously filed before a court to which jurisdiction is denied by law,
for the same would then be defeated by the will of one of the parties. More specially, said provision
refers mainly to non-resident decedents who have properties in several provinces in the Philippines,
for the settlement of their respective estates may undertaken before the court of first instance of
either one of said provinces, not only because said courts then have concurrent jurisdiction — and,
hence, the one first taking cognizance of the case shall exclude the other courts — but, also, because
the statement to this effect in said section 1 of Rule 75 of the Rules of the Court immediately follows
the last part of the next preceding sentence, which deals with non-resident decedents, whose estate
may settled the court of first instance of any province in which they have properties.lawphil.net

In view, however, of the last sentence of said section, providing that:

. . . The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceedings,
except in an appeal from that court, in the original case, or when the want of jurisdiction
appears on the record.
if proceedings for the settlement of the estate of a deceased resident are instituted in two or more
courts, and the question of venue is raised before the same, the court in which the first case was filed
shall have exclusive jurisdiction to decide said issue, and we so held in the case of Taciana Vda. De
Borja vs. Tan, L-7792 (July 27, 1955). Should it be decided, in the proceedings before the said court,
that venue had been improperly laid, the case pending therein should be dismissed and the
corresponding proceedings may, thereafter, be initiated in the proper court.

In conclusion, we find that the decedent was, at the time of his death, domiciled in San Fernando,
Pampanga; that the Court of First Instance of Rizal had no authority, therefore, to appoint an
administrator of the estate of the deceased, the venue having been laid improperly; and that it should,
accordingly, have sustained appellants' opposition and dismissed appellee's petition.

Wherefore, the order appealed from is hereby reversed and appellee's petition is dismissed, with
costs against the appellee. It is so ordered.

SECTION 2 RULE 73

[G.R. No. 63145. October 5, 1999]

SULPICIA VENTURA, petitioner, vs. HON. FRANCIS J. MILITANTE, in His Capacity as Presiding
Judge, Regional Trial Court, 7th Judicial District, Branch XII, Cebu City; and JOHN
UY, respondents.

DECISION
PUNO, J.:

This is a Petition for Certiorari assailing the Order[1] of public respondent directing her to file an
Answer to the Complaint for a Sum of Money with Damages filed by private respondent after denying
her Motion to Dismiss.[2]
There is no dispute as to the following relevant facts:
Private respondent filed a Complaint for a Sum of Money and Damages against petitioner which
reads:

REPUBLIC OF THE PHILIPPINES

COURT OF FIRST INSTANCE OF CEBU

14th Judicial District

BRANCH ____

MR. JOHN UY, Proprietor of Cebu

Textar Auto Supply,

Plaintiff,

- versus - CIVIL CASE NO. R-21968

For: SUM OF MONEY AND DAMAGES

ESTATE OF CARLOS NGO as

represented by surviving

spouse Ms. SULPICIA VENTURA,

Defendant.

Oo - - - - - - - - - - - - - - - - - - - - - - - -///

COMPLAINT

PLAINTIFF, thru counsel, unto this Honorable Court, most respectfully states that:

1. He is of legal age, Filipino and proprietor of Cebu Textar Auto Supply whose postal address is at
177 Leon Kilat St., Cebu City, while the defendant is an estate of Carlos Ngo as represented by
surviving spouse Ms. Sulpicia Ventura with residence and postal address at-Back [sic] of Chong Hua
Hospital, Cebu City where summons and other processes of the Court could be effected;

2. During the lifetime of Carlos Ngo he was indebted with the plaintiff in the amount of P48,889.70 as
evidenced by the hereto attached statement marked as Annexes A and A-1 which account was
obtained by him for the benefit of his family;

3. Said obligation is already due and demandable and the defendant thru Ms. Ventura who is
ostensibly taking care of the properties/estate of deceased Carlos Ngo, refused, failed and neglected
and still continues to refuse, fail and neglect to pay despite repeated demands;

4. As a consequence of the refusal to pay the plaintiff was compelled to retain the services of counsel
with whom he contracted to pay P10,000.00 as attorney's fees. Upon institution of this complaint, he
has further incurred initial litigation expenditures in the sum of P4,000.00.

WHEREFORE, this Honorable Court is most respectfully prayed to render judgment for the plaintiff
by-

1. Ordering the defendant to pay the plaintiff the sum of P48,889.70 plus interest until the obligation is
fully paid;

2. Ordering the defendant to pay the plaintiff the amount of P10,000.00 as attorney's fees plus
P4,000.00 as reimbursement of the initial litigation expenditures.

FURTHER plaintiff prays for such other relief or remedy in accordance with law, justice and equity.

Cebu City, Philippines, March 29, 1982.

x x x[3]

Petitioner moved to dismiss the foregoing complaint on the ground that the estate of Carlos Ngo
has no legal personality, the same being neither a natural nor legal person in contemplation of law [4]
In his Opposition to Motion to Dismiss, [5] petitioner insisted that since the money claim subject of
this case actually represents the costs of automotive spare parts/replacements contracted by
deceased Carlos Ngo during his lifetime for the benefit/business of the family x x x the conjugal
partnership x x x shall be accountable for the payment thereof. [6] Subsequently, private respondent's
counsel manifested that he is poised to amend the complaint in order to state the correct party
defendant that he intends to sue in this case [7]. The public respondent gave private respondent fifteen
(15) days to make the amendment.
Petitioner filed a Motion for Reconsideration [8] of the order of public respondent permitting private
respondent to amend his complaint. First, she argued that the action instituted by the private
respondent to recover P48,889.70, representing the unpaid price of the automotive spare parts
purchased by her deceased husband during his lifetime, is a money claim which, under Section 21,
Rule 3 of the Revised Rules of Court, does not survive, the same having been filed after Carlos Ngo
had already died. Second, she claimed that the public respondent never acquired jurisdiction over the
subject matter of the case which, being an action to recover a sum of money from a deceased
person, may only be heard by a probate court.
Private respondent opposed the foregoing motion. [9] He insisted that petitioner, being the wife of
the deceased Carlos Ngo, is liable to pay the obligation which benefited their family.
 Public respondent issued an Order giving private respondent twenty four (24) hours to file his
amended complaint so that the Court can determine for itself whether there is really a cause of action
against the defendant who would be substituted to the Estate of Carlos Ngo, considering that it would
seem from the arguments of counsel for plaintiff x x x that the debt incurred by the deceased Carlong
[sic] Ngo was in behalf of the conjugal partnership so that the wife of Carlos Ngo might be liable to
pay the obligation.[10]
Private respondent then filed his Amended Complaint [11] with the new allegations underscored
therein as follows:

REPUBLIC OF THE PHILIPPINES

COURT OF FIRST INSTANCE OF CEBU

14th Judicial District

BRANCH XII

MR. JOHN UY, Proprietor of Cebu

Textar Auto Supply,

Plaintiff,

- versus - CIVIL CASE NO. R-21968

For: SUM OF MONEY AND

MS. SULPICIA VENTURA, DAMAGES

Defendant.

Oo - - - - - - - - - - - - - - - - - - - - - - -x

AMENDED COMPLAINT

PLAINTIFF thru counsel, unto this Honorable Court most respectfully states that:

1. x x x

2. During the lifetime of Carlos Ngo he and his wife, the defendant herein are indebted with the
plaintiff in the amount of P48,889.70 as evidenced by the hereto attached statement marked as
Annexes A and A-1 which account was obtained for the benefit of their family and is being confirmed
by their son Roy Ngo per his signature marked as Annex A-2;

3. x x x

4. For several times, the defendant had concealed herself in her house when the plaintiff's
representative went to her residence to collect payment of the said account;

5. x x x

x x x.[12]

Petitioner filed a Comment to Plaintiff's Amended Complaint. [13] She reiterated that whether the
unsecured debt was contracted by her husband alone or as a charge against the conjugal partnership
of gains, it cannot be denied that her husband was now deceased, the said debt does not survive
him, the conjugal partnership of gains is terminated upon the death of one of the spouses, and the
debts and charges against the conjugal partnership of gains may only be paid after an inventory is
made in the appropriate testate or intestate proceeding.
Private respondent filed a Rejoinder to Defendant's Comment. [14] He countered that the defendant
in his amended complaint was now petitioner and that she was not deceased, hence the
inapplicability of the legal rules on the abatement of money claims in case the defendant dies pending
their prosecution.
Public respondent issued the herein assailed order which reads as follows:

ORDER

This case is called today to deal on the motion for reconsideration of the order of this Court dated
November 16, 1982 denying the motion of the defendant to dismiss the complaint.

In its order of November 16, 1982, the Court in the interest of justice advised the plaintiff to make the
proper amendment so that the proper party defendant may be impleaded considering that the motion
to dismiss then was anchored on the ground that the estate of Carlos Ngo was not a natural nor
juridical person, hence it could not be sued. On December 23, 1982, the plaintiff amended its
complaint and this time the defendant is already Sulpicia Ventura. The defendant now argues that
even the amended complaint would show that this is really a collection of a debt of the conjugal
partnership of deceased Carlong [sic] Ngo and his wife.

Perusing the amended complaint, the Court finds that in Paragraph 2 the allegation states: During the
lifetime of Carlos Ngo, he and his wife, the defendant, are indebted with the plaintiff in the amount of
P48,689.70, (sic) etc., so that the indebtedness was incurred by Carlos Ngo and defendant Sulpicia
Ventura and since Carlos Ngo is now dead that will not preclude the plaintiff from filing a case against
the living defendant, Sulpicia Ventura.

WHEREFORE, the motion for reconsideration is hereby DENIED and the defendant may file her
answer within fifteen (15) days from today.

IT IS SO ORDERED.[15]

Petitioner scurried to this Court praying that the foregoing order of the public respondent be set
aside and the amended complaint of private respondent, ordered dismissed. [16]
We grant the petition.
First. Sec. 1, Rule 3 of the Revised Rules of Court provided that only natural or judicial persons,
or entities authorized by law may be parties in a civil action. This was the rule in 1982 at the time that
private respondent filed his complaint against petitioner. In 1997, the rules on civil procedure were
revised, but Sec. 1, Rule 3 remained largely unaltered, except for the change of the word, judicial to
juridical.
Parties may be either plaintiffs or defendants. The plaintiff in an action is the party complaining,
and a proper party plaintiff is essential to confer jurisdiction on the court. [17] In order to maintain an
action in a court of justice, the plaintiff must have an actual legal existence, that is, he, she or it must
be a person in law and possessed of a legal entity as either a natural or an artificial person, and no
suit can be lawfully prosecuted save in the name of such a person. [18]
The rule is no different as regards party defendants. It is incumbent upon a plaintiff, when he
institutes a judicial proceeding, to name the proper party defendant to his cause of action. [19] In a suit
or proceeding in personam of an adversary character, the court can acquire no jurisdiction for the
purpose of trial or judgment until a party defendant who actually or legally exists and is legally
capable of being sued, is brought before it. [20] It has even been held that the question of the legal
personality of a party defendant is a question of substance going to the jurisdiction of the court and
not one of procedure.[21]
The original complaint of petitioner named the estate of Carlos Ngo as represented by surviving
spouse Ms. Sulpicia Ventura as the defendant. Petitioner moved to dismiss the same on the ground
that the defendant as named in the complaint had no legal personality. We agree.
Neither a dead person nor his estate may be a party plaintiff in a court action. A deceased person
does not have such legal entity as is necessary to bring action so much so that a motion to substitute
cannot lie and should be denied by the court. [22] An action begun by a decedent's estate cannot be
said to have been begun by a legal person, since an estate is not a legal entity; such an action is a
nullity and a motion to amend the party plaintiff will not likewise lie, there being nothing before the
court to amend.[23] Considering that capacity to be sued is a correlative of the capacity to sue, to the
same extent, a decedent does not have the capacity to be sued and may not be named a party
defendant in a court action.[24]
Second. It is clear that the original complaint of private respondent against the estate of Carlos
Ngo was a suit against Carlos Ngo himself who was already dead at the time of the filing of said
complaint.At that time, and this, private respondent admitted, no special proceeding to settle his
estate had been filed in court. As such, the trial court did not acquire jurisdiction over either the
deceased Carlos Ngo or his estate.
To cure this fatal defect, private respondent amended his original complaint. In his amended
complaint, private respondent deleted the estate of Carlos Ngo and named petitioner as the
defendant. When petitioner, in her comment to the amended complaint, reasoned that the conjugal
partnership of gains between her and Carlos Ngo was terminated upon the latter's death and that the
debt which he contracted, assuming it was a charge against the conjugal property, could only be paid
after an inventory is made in the appropriate testate or intestate proceeding, private respondent
simply reiterated his demand that petitioner pay her husband's debt which, he insisted, redounded to
the benefit of everyone in her family.
It is true that amendments to pleadings are liberally allowed in furtherance of justice, in order that
every case may so far as possible be determined on its real facts, and in order to speed the trial of
causes or prevent the circuitry of action and unnecessary expense. [25] But amendments cannot be
allowed so as to confer jurisdiction upon a court that never acquired it in the first place. [26] When it is
evident that the court has no jurisdiction over the person and the subject matter and that the pleading
is so fatally defective as not to be susceptible of amendment, or that to permit such amendment
would radically alter the theory and the nature of the action, then the court should refuse the
amendment of the defective pleading and order the dismissal of the case. [27]
Moreover, as correctly argued by petitioner, the conjugal partnership terminates upon the death of
either spouse.[28] After the death of one of the spouses, in case it is necessary to sell any portion of
the conjugal property in order to pay outstanding obligations of the partnership, such sale must be
made in the manner and with the formalities established by the Rules of Court for the sale of the
property of deceased persons.[29] Where a complaint is brought against the surviving spouse for the
recovery of an indebtedness chargeable against said conjugal property, any judgment obtained
thereby is void.[30] The proper action should be in the form of a claim to be filed in the testate or
intestate proceedings of the deceased spouse.[31]
In many cases as in the instant one, even after the death of one of the spouses, there is no
liquidation of the conjugal partnership. This does not mean, however, that the conjugal partnership
continues.[32]And private respondent cannot be said to have no remedy. Under Sec. 6, Rule 78 of the
Revised Rules of Court, he may apply in court for letters of administration in his capacity as a
principal creditor of the deceased Carlos Ngo if after thirty (30) days from his death, petitioner failed
to apply for administration or request that administration be granted to some other person.
WHEREFORE, the instant petition for certiorari is GRANTED. The Amended Complaint filed by
private respondent is HEREBY DISMISSED.
SO ORDERED.

G.R. No. L-30491 March 2, 1929

DONATO CRUZ, ET AL., plaintiffs-appellants,

vs.
TEOFILO DE JESUS, ET AL., defendants-appellees.

Ignacio Nabong for appellants.

No appearance for appellees.

VILLA-REAL, J.:

The present appeal is taken by plaintiffs Donato Cruz and others, from an order of the Court of First
Instance of Neuva Ecija, denying the motion presented by them, praying that they be permitted to
amend their complaint as follows:

1. That instead of the title Partition the said complaint should be entitled Liquidation and
partition, and
 2. That the following should be inserted after par. 5 as paragraph 5A:

That Julian Nabong left no debt outstanding at her death nor any money or crdit payable to the
estate and that lands described from section (a) to section (m) inclusive of paragraph 4 are
free from all liens and incumbrances since then up to the present time.

The plaintiffs filed said motion in pursuant of the order dated May 2, 1928, the dispositive part of
which is as follows:

By virtue of the considerations, the court hold that the proper action for the partition of property
belonging to a conjugal partnership dissolved by the death of one of the spouses, one of the
participants being the surviving spouse, is the estate or the intestate proceeding for the
settlement of the estate of the deceased spouse, wherein said conjugal property must first be
liquidated before the partition is made. Five days are hereby given the plaintiff, from the receipt
hereof, to amend the complaint, if it admit of the same,in order to make it accord with the
theory sustained by the court in this order.

In support of their appeal, the appellants assigned the following alleged errors as committed by the
court below in its judgment, to wit:

The lower court erred:

1. In denying the partition of the lands in question among the parties concerened;

2. In being of opinion that liquidation and administration are necessary before partition when
there are no debts or credits to be liquidated;

3. In not admitting the amendment to the complaint; and

4. In refusing to hear the case fully and denying the motion for new trial.

The only question to determine in the present appeal is whether or not an action lies for the
liquidation and partition of the property of a conjugal partnership dissolved by the death of the wife,
said property having been in the possession of the surviving spouse for many years, without his
having made any inventory thereof, nor liquidated and partitioned it, and it not appearing that there is
any debt to pay.

Section 685 of Act No. 190, as amended by Act No. 3176, provides as follows:

SEC. 685. 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 shall be paid,
in the testamentary or intestate proceedings of the deceased spouse, in accordance with the
provisions of this Code relative to the administration and liquidation of the estates of deceased
persons, or in an ordinary liquidation and partition proceeding, unless the parties, being all of
age and legally capacitated, avail themselves of the right granted to them by this Code of
proceedings of the extrajudicial partition and liquidation of said property.

In case it is necessary to sell any portion of said community property in order to pay the
outstanding debts and obligations of the same, such sale shall be made in the manner and
with the formalities established by this Code for the sale of the property of deceased persons.
Any sale, transfer, alienation or disposition of said property effected without said formalities
shall be null and void, except as regards the portion that belonged to the vendor at the time the
liquidation and partition was made.

It is to be noted that this legal provision establishes two methods of liquidating the property of a
conjugal partnership, if the marriage is dissolved by the death of one of the spouses: the first by a
testate or intestate proceeding according to whether the deceased died with or without a will; and the
other by an ordinary proceeding for liquidation and partition.

According to the legal provision quoted above, when the marriage is dissolved by the death of the
wife, the legal power of management of the husband ceases, passing to the administrator appointed
by the court in the testate or intestate proceedings instituted to that end if there be any debts to be
paid, and when there is no debt pending, the liquidation and partition may be made in an ordinary
proceeding for that purpose.

Since the complaint for partition alleges that there are no debts to pay, and as it does not appear that
there are any, paid action will lie, for while it is true that it prays for a liquidation of the property of the
conjugal partnership dissolved by the death of Juliana Nabong, said liquidation is implied in the action
for partition (Remolino and Bautista vs. Peralta, G. R. No. 10834). 1

For the foregoing considerations, we are of the opinion and hold, that in accordance with section 685
of Act No. 190, as amended by Act No. 3176, when there are no debts to pay, the liquidation and
partition of the property of the conjugal partnership, dissolved by the death of one of the spouses,
may be made in an ordinary action instituted for that purpose.

By virtue whereof, the order appealed from is revoked, and it is ordered that the case be remanded to
the court of origin for further proceedings, without prejudice to the right of any creditor of the dissolved
conjugal partnership, and without special pronouncement as to costs.

Street, Malcolm, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

G.R. No. L-21309 December 29, 1967

BERNARDO PICARDAL and SEBASTIAN PICARDAL, petitioners,

vs.
CENON LLADAS, respondent.

Concordio C. Diel and C. Noel for petitioners.

F. T. Tamargo for respondent.

ZALDIVAR, J.:

Petition for review of the decision of the Court of Agrarian Relations, dated December 20, 1962, in
CAR Case No. 67, Lanao del Norte — 1960.

Sometime in 1950, petitioner Bernardo Picardal entrusted to respondent Cenon Lladas a piece of
land with an area of about seven hectares, planted to some 812 fruit-bearing coconut trees, located at
Samburan, Linamon, Lanao del Norte. This land formed part of the properties belonging to the
conjugal partnership between petitioner Bernardo Picardal and his wife, Aurea Burgos, who died in
1941, and was under judicial administration in Special Proceedings No. IL-227 of the Court of First
Instance of Lanao del Norte. As of the date of the decision of the lower court, appealed from, this
property was not yet partitioned among the heirs. When Bernardo Picardal entrusted the land to
Cenon Lladas they had a verbal agreement that they would divide the coconut produce from the land
on the basis of 1/3-2/3 in favor of the landowner and that Cenon Lladas, as tenant, would keep the
coconut plantation clean. Cenon Lladas entered the landholding, harvested the nuts, processed the
same into copra, and divided the harvest, after selling it, on the basis agreed upon.

On November 19, 1959, Demetrio P. Sira, Clerk of Court of the Court of First Instance of Lanao del
Norte, wrote a letter to respondent Cenon Lladas informing the latter of his appointment as special
administrator of the estate of the late Aurea Burgos, and advised said respondent take good care of
the coconut plantation, with a warning that should he fail to do so within 30 days from receipt of the
letter, he would be forced to take the corresponding action under the tenancy law.

In February, 1960, respondent Lladas harvested coconuts and processed them into copra. This was
sold by petitioner Bernardo Picardal to the Lian Hong Company in Iligan City on March 1, 1960. The
manager of said firm wrote on March 2, 1960 to petitioner Bernardo Picardal informing the latter that
the copra processed by respondent Cenon Lladas had been mixed with fresh coconut meat, because
of which 16% of the weight would be deducted for moisture content, and at the same time requested
Picardal to advise Lladas to stop the undesirable practice.

On March 3, 1960, herein respondent Lladas filed with the Court of Agrarian Relations a petition
against Bernardo Picardal, Cesar Montoya and Demetrio Sira, alleging in substance that he had been
a tenant since 1948 on the said coconut landholding owned by Bernardo Picardal, and planted to
about 800 fruit-bearing coconut trees, the produce of which was shared between them on a 1/3-2/3
basis; that on February 5, 1960, Bernardo Picardal, thru Cesar Montoya and Demetrio P. Sira, served
on him (Lladas) a notice to vacate one-half of said landholding in order that it might be given to
another tenant; that because of said act, he suffered damages in having been compelled to bring said
action.

On March 14, 1960, Bernardo Picardal, Cesar Montoya and Demetrio Sira filed their answer alleging,
among others, that the landholding in question was a part of the property of the late Aurea Burgos,
wife of Bernardo Picardal, and was the subject of administration proceedings, the administrator being
the special administrator; that they had no information about the notice of ejectment; and as special
defenses, they alleged never having notified Cenon Lladas to vacate the premises, and that the
landholding in question was under custodia legis.

In May, 1960, Cenon Lladas again harvested coconuts and processed them into copra. The copra
was sold by Bernardo Picardal to Lian Hong Company of Iligan City at P34.50 per 100 kilos in the
early part of June, 1960. From the proceeds of the sale, Bernardo Picardo delivered to Lladas the
sum of P645.00 representing the latter's share.

Herein respondent Lladas never made further harvests after May, 1960 although he still had his
house on the land and continued to raise short term crops therein.

On October 12, 1960, Cenon Lladas filed an amended petition eliminating Cesar Montoya as one of
the respondents and substituting Sebastian Picardal in his place, and alleging that he (Lladas) had
been ejected from the landholding in September, 1960 by Sebastian Picardal, with the knowledge and
consent of Bernardo Picardal. Cenon Lladas further claimed that he had planted on the land 2,000
banana hills and 24 fruit trees, the produce of which he shared on a 50-50 basis with Bernardo
Picardal, and that as a result of the ejectment, he suffered damages in not receiving his share of the
produce.

Bernardo Picardal, Sebastian Picardal and Demetrio Sira filed their answer on October 25, 1960
denying the ejectment and averring that Cenon Lladas had abandoned for quite a long time the
landholding in question, for which cause Sebastian Picardal had to post in the premises a notice
against trespassing.

Cenon Lladas filed a second amended petition dated July 24, 1961, the amendment consisting
principally in the substitution of Demetrio P. Sira, the former special administrator, by Rosalia P.
Penpeña the newly appointed administratrix of the Picardal estate.

After trial, the Court of Agrarian Relations rendered a decision, dated December 20, 1962, ordering
(1) Bernardo Picardal as landholder and Rosalia P. Penpeña as administrarix to reinstate Cenon
Lladas to the landholding; (2) ordering Bernardo Picardal and Sebastian Picardal to pay, jointly and
severally, the sum of four thousand five hundred fifteen (P4,515.00) pesos to Cenon Lladas, with
interest at 6% per annum from the date of the filing of the amended petition on October 12, 1960, until
fully paid; and (3) ordering said Bernardo Picardal and Sebastian Picardal to pay, jointly and severally,
to Cenon Lladas the further sum of six hundred forty-five (P645.00) pesos every four months from
January, 1963 during such period that said Cenon Lladas has not been actually reinstated to said
landholding, and to pay the costs.

The motion for reconsideration of the decision having been denied, appeal was made to this Court by
now petitioners Bernardo Picardal and Sebastian Picardal.

Herein petitioners have asserted in their petition the following grounds for review:

1. That the decision of the Court of Agrarian Relations in CAR Case No. 67 was not in
accordance with law;

2. That the proceeds of the estate is in the hands of the administratrix and not with herein
petitioners, hence, the damages assessed by the lower court should be levied against the
intestate estate; and

3. That the ejectment of Cenon Lladas was not supported by substantial evidence.

This appeal has no merit.

Petitioners claim that the lower court erred in finding that herein respondent had been ejected, said
finding not being supported by evidence. In support thereof, they quoted the testimony of Sebastian
Picardal,1 who testified that respondent Cenon Lladas voluntarily abandoned the landholding in June,
1960, without having been advised to leave either by the special administrator, Demetrio Sira, or by
his father, Bernardo Picardal; that Lladas left the land because he had already a piece of land in
Bualan, Tubud, Lanao del Norte, and also because he was ashamed to the special administrator who
had forbidden him from harvesting coconuts twice in three months.

This Court has consistently held that the findings of facts of the Court of Agrarian Relations will not be
disturbed on appeal where there is substantial evidence to support them, 2 and all that this Court is
called upon to do insofar as the evidence is concerned, is to find out if the conclusion of the lower
court is supported by substantial evidence. 3Substantial evidence in support of the findings of the
Court of Agrarian Relations does not necessarily import preponderant evidence, as is required in an
ordinary civil case. Substantial evidence has been defined to be such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, and its absence is not shown by
stressing that there is contrary evidence on record, direct or circumstantial, as petitioners herein have
done in quoting the contrary evidence consisting of the testimony of Sebastian Picardal, for the
appellate court cannot substitute its own judgment or criterion for that of the trial court in determining
wherein lies the weight of evidence or what evidence is entitled to belief. 4

Even a cursory reading of the decision appealed from would reveal that the lower court arrived at its
finding, that herein respondent Lladas had been ejected, after weighing the evidence of both parties
and it gave its reasons for its conclusion together with the supporting facts.itc-alf The relevant portion
of the decision reads thus:

Weighing the evidence of both parties, we find it easier to believe that respondent Bernardo
Picardal and his son Sebastian had a more compelling motive in ousting the petitioner from the
coconut plantation than had the latter in abandoning the same. As far back as March, 1960
when the copra harvest of February, 1960 was sold, respondent Bernardo Picardal had reason
to be irked by the petitioner's act of mixing fresh coconut meat with his dried copra, thereby
devaluating its quality. That the petitioner had been verbally told by the two Picardals, father
and son, to stop making copra after the May, 1960 harvest, is corroborated by the
circumstance that Sebastian Picardal, upon instructions by his father, put up a sign board
inside the petitioner's coconut holding with a notice that "it is prohibited to whoever he is to
take or to do anything with the coconuts, especially the squatters." A fair interpretation of the
contents of the notice would show that it was intended for everyone, and that was what the
petitioner understood by it, else he would not have put up his own sign board stating: "Do it
because the law is yours.lawphil.net I have no fault."

On the other hand, there is no cogent reason for the petitioner to want to vacate his coconut
holding The evidence shows that he is still raising short term corps and bananas inside said
coconut holding. Unless he was out of his mind — and there is no evidence that he was or is
— he would not voluntarily quit his coconut holding where he used to get an income of more
than P600.00 every four months or over P1,860.00 a year and, at the same time, spend his
efforts on his banana and corn holdings in the same land from which his income was
negligible. It is true that the petitioner had applied for a homestead in Bualan, Tubod, Lanao
del Norte. However, according to the evidence presented by the respondents themselves, the
petitioner had transferred his rights over said homestead to one Mangolima Cuidato. (See Exh.
"2" for respondents.) Furthermore, it should be noted that the instant case was instituted by the
petitioner when he was only being threatened with ejectment but was not yet actually ejected
from his coconut holding, and that he forthwith amended his complaint when his ouster
materialized. All these facts and circumstances negate respondents' claim that the petitioner
had abandoned his coconut holding.

It cannot be said, therefore, that the finding of the Court of Agrarian Relations that respondent Cenon
Lladas was ejected was not supported by substantial evidence.

In support of the other grounds for review of the decision of the lower court, herein petitioners aver
that when the alleged ejectment of Cenon Lladas took place sometime in September, 1960 (as stated
in the lower court's decision), the entire conjugal estate of herein petitioner Bernardo Picardal and his
deceased wife, which includes the landholding in question, was under the administration of the
special administrator, Demetrio P. Sira. Petitioners claim that, not being the administrators but only
overseers of the special administrator, they could not have ejected herein respondent, much less
should they be held exclusively liable for the damages since they were only two of the heirs to the
estate and they turned the proceeds of the landholding in question to the estate. They claim that the
estate should be the one liable for the damages.

In answer thereto, respondent Cenon Lladas argues that the administration of the estate of the late
Aurea Burgos covered only one-half of the estate, that is, the portion belonging to the deceased, and
did not cover the one-half interest of respondent Bernardo Picardal, who retained control and
management of his undivided share, and was, therefore, still the landholder, and that since it was
Bernardo Picardal, with the help of his son, Sebastian, who ejected the tenant, Cenon Lladas, they
alone should be responsible for the damages.

Petitioners are correct in saying that the entire conjugal partnership property of the marriage between
petitioner Bernardo and the late Aurea Burgos is under administration. 5 It follows that the estate was
really the landlord of the landholding subject of the instant action. 6 This fact does not justify, however,
petitioners' claim that the estate should be the one liable for the illegal dispossession of the tenant
perpetrated by herein petitioners, as found by the lower court.itc-alf Republic Act No. 1199, otherwise
known as the Agricultural Tenancy Act, does not hold the landlord liable for damage in case of
dispossession of the tenant under any and all circumstances. The landlord is liable when he is
responsible for the unlawful ejectment; otherwise, he is not. Thus, according to Section 27 (1) of
Republic Act No. 1199, it is the landlord who illegally dispossesses the tenant who is liable for
damages. Section 49 of the same Act renders the third party himself who unlawfully dispossesses a
tenant, liable for damages. Hence it is only when the dispossession is imputable to the landlord
should the latter be liable for damages.

Bernardo Picardal and Sebastian Picardal were the ones who ejected Cenon Lladas, according to the
finding of the lower court.lawphil.net They, therefore, Should be the ones to suffer the consequences
of their unlawful act.

Petitioners' responsibility for the damages cannot be shifted to the intestate estate for various
reasons, namely: .

First, petitioners' act of dispossessing the tenant was not the act of the estate, for they did not
represent the estate. Its representative was the special administrator and it was not the special
administrator who perpetrated the ejectment. Even if it be assumed, gratia argumenti, that the special
administrator acquiesced to the ejectment, the estate would still not be liable, because if Section 5,
Rule 85 of the Rules of Court makes the administrator himself liable for any waste committed in the
estate through his negligence, with more reason would he be personally responsible, and not the
estate, for the consequences of his unlawful act.

Second, the fact that the proceeds of the landholding in question, as claimed by petitioners, were
turned over to the estate, would neither render the estate liable, because the intestate estate did not
really benefit from the dispossession. Whether it was Cenon Lladas or petitioner Sebastian Picardal
who was the tenant, the estate would have received the 2/3 share of the proceeds. The estate not
having benefitted from the dispossession, besides not having been guilty of the unlawful act, it cannot
be ordered to pay the damages awarded by the lower court.

Third, the intestate estate before partition is owned in common by all the heirs (Article 1078, Civil
Code). A coownership should not suffer the consequences of the unlawful act of any of the coowners
(Article 501, Civil Code). Hence the estate should not suffer from the consequences of the
dispossession perpetrated by only two of the many heirs of the estate.

Fourth, Article 18 of the Civil Code, the application of which to the instant case is authorized both by
Section 55 of the Agricultural Tenancy Act and Article 20 of the Civil Code, provides that "every
person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the
latter for the same." Hence, herein petitioners themselves, and not the intestate estate, should
indemnify the respondent for the damages suffered by the latter on account of the unlawful
dispossession.

We find that the lower court has not committed any of the errors assigned by herein petitioners.
IN VIEW OF THE FOREGOING, the decision of the lower court should be, as it is hereby, affirmed,
with costs against the petitioners. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Sanchez, Castro and Angeles,
JJ., concur.

Dizon and Fernando, JJ., took no part.

G.R. No. L-44602 November 28, 1938

MARIA CALMA, as administratrix of the testamentary proceedings of Fausta

Macasaquit, plaintiff-appellant,
vs.
ESPERANZA TAÑEDO, assisted by her husband Felipe Mamaual, and BARTOLOME QUIZON,
Deputy Sheriff of Tarlac, defendants-appellees.

AVANCENA, C.J.:

The spouses Eulalio Calma and Fausta Macasaquit were the owners of the property described in the
complaint, being their conjugal property. They were also indebted to Esperanza Tañedo, chargeable
against the conjugal property, in the sums of P948.34 and P247, with interest thereon at 10 per cent
per annum. On October 10, 1933, Fausta Macasaquit died leaving a will wherein she appointed her
daughter, Maria Calma, as administratrix of her properties. Upon the commencement of the
corresponding probate proceedings in the Court of First Instance of Tarlac, the said daughter, Maria
Calma, was appointed judicial administratrix of the properties of the deceased.

While these probate proceedings of the deceased Fausta Macasaquit were pending, Esperanza
Tanedo, on January 27, 1934, filed a complaint against Eulalio Calma for the recovery of the sums of
P948.34 and P247. The Court of First Instance of Tarlac rendered judgment for the payment of this
sum. In the execution of this judgment, despite the third party claim filed by Fausta Macasaquit, the
property described in the complaint was sold by the sheriff.

Maria Calma, as administratrix of the estate of Fausta Macasaquit, now brings this action and asks
that the sale made by the sheriff of the property described in the complaint be annulled and that the
estate of Fausta Macasaquit be declared the sole and absolute owner thereof. lawphi1.net

The court absolved the defendants from this complaint.

The probate proceedings of the deceased Fausta Macasaquit were instituted in accordance with Act
No. 3176 reading:

SEC. 685. 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 shall be paid,
in the testamentary or intestate proceedings of the deceased spouse, in accordance with the
provisions of this Code relative to the administration and liquidation and partition proceeding,
unless the parties, being all of age and legally capacitated, avail themselves of the right
granted to them by this Code of proceeding to an extrajudicial partition and liquidation of said
property.

In case it is necessary to sell any portion of said community property in order to pay the
outstanding debts and obligations of the same, such sale shall be made in the manner and
with the formalities established by this Code for the sale of the property of deceased persons.
Any sale, transfer, alienation or disposition of said property effected without said formalities
shall be null and void, except as regards the portion that belonged to the vendor at the time the
liquidation and partition was made.

Prior to this Act, the liquidation of conjugal property was made under section 685 of the Code of Civil
Procedure. Interpreting the scope of Act No. 3176, this court, in the case of Caragay vs. Urquiza (53
Phil., 72), said that the amendment introduced by this Act consists in authorizing the institution of
testate or intestate proceedings for the settlement of the estate of a deceased spouse or of an
ordinary action for the liquidation and partition of the property of a conjugal partnership. It should be
understood that these remedies are alternative, and not cumulative, in he sense that they cannot be
availed of at he same time, inasmuch as an anomalous and chaotic situation would result if conjugal
property were administered, liquidated and distributed at the same time in a testamentary proceeding
and in an ordinary action for liquidation and partition of property. Consequently, the testamentary
proceedings of Fausta Macasaquit having been instituted, the liquidation and partition of the conjugal
property by reason of her marriage to Eulalio Calma should be made in these proceedings, to the
exclusion of any other proceeding for the same purpose.

Interpreting this same Act No. 3176 in another decision, this court, in the case of Cruz vs. De
Jesus (52 Phil., 870) said that when the marriage is dissolved by the death of the wife, the legal
power of management of the husband ceases, passing to the administrator appointed by the court in
the testate or intestate proceedings instituted to that end if there be any debts to be paid. This
doctrine has been confirmed in the other case of Ona vs. De Gala (58 Phil., 881).

From the foregoing it follows that when Esperanza Tanedo brought suit against Eulalio Calma for the
payment of the sums of P948.34 and P247, which wee debts chargeable against the conjugal
property, the power of Eulalio Calma. legal administrator of the conjugal property while Fausta
Macasaquit was living, had ceased and passed to the administratrix Maria Calma appointed in the
testamentary proceedings of Fausta Macasaquit. Hence, this being an indebtedness chargeable
against conjugal property, no complaint for its payment can be brought against Eulalio Calma, who
had already ceased as administrator of the conjugal property; the claim for this amount had to be filed
in the testamentary proceedings of Fausta Macasaquit.

Having to be filed according to Act No. 3176 under the provisions of the Code of Civil Procedure
relative to the administration and liquidation of properties of deceased persons, it should be filed
before the committee on claims in said testamentary proceedings and, at all events, thereafter, by
appeal to the corresponding Court of First Instance, in an ordinary action against the judicial
administratrix.

On the other hand, he property described in the complaint is included among the inventoried
properties subject to the testamentary proceedings of Fausta Macasaquit because, belonging as it
does to the conjugal property, it should, under Act No. 3176, be included among the properties of the
testamentary proceedings.

We conclude that, Eulalio Calma having ceased as legal administrator of the conjugal property had
with his wife Fausta Macasaquit, no complaint can be brought against him for the recovery of an
indebtedness chargeable against said conjugal property, and that the action should be instituted in
the testamentary proceedings of the deceased Fausta Macasaquit in the manner provided by law, by
filing it first with the committee on claims.

Wherefore, we hold that the sale of the property described in the complaint, made by the sheriff in
execution of the judgment rendered against Eulalio Calma for the collection of the indebtedness
chargeable against the conjugal property, is void and said property should be deemed subject to the
testamentary proceedings of the deceased Fausta Macasaquit for all the purposes of that case.

The appealed judgment is reversed, without special pronouncement as to the costs. So ordered.

Villa-Real, Abad Santos, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

[G.R. No. L-7495. September 30, 1955.]

EVARISTO CORPUZ, Petitioner, v. SUSANA CORPUZ, ET AL., Respondents.

Alfonso G. Espinosa for Petitioner.

Teodoro P. Santiago for Respondent.

SYLLABUS
1. HUSBAND AND WIFE; CONJUGAL PARTNERSHIP; SURVIVING SPOUSE CANNOT SELL
CONJUGAL PROPERTY WITHOUT THE FORMALITIES REQUIRED BY LAW. — The death of either
husband or wife does not make the surviving spouse the de facto administrator of the conjugal estate
or invest him or her with power to dispose of the same. The sale of conjugal property by the surviving
spouse without the formalities established for the sale of the property of deceased persons, shall be
null and void, except as to the portion that may correspond to the vendor in the partition.

DECISION

REYES, A., J.:

The property involved in this appeal is a parcel of land of about 1,854 square meters covered by
Original Certificate of Title No. 5980 of the land records of Nueva Ecija. By a deed executed on
November 12, 1934, some eleven years after Bernarda Mantile’s death, Francisco Corpuz conveyed
the land by way of sale to the spouses Domingo Cruz and Eugenia Rigal for the sum of P80. The
dispute is between an heir of the wife of the vendor and the heirs of the vendees.

It appears that the vendees had an only son named Isabelo Corpuz, who married Susana Santiago
and had three children with her. In 1943, with Domingo and his son Isabelo already deceased, their
widows Eugenio Rigal and Susana Santiago had a misunderstanding and, for that reason, the
certificate of title to the property in dispute was, together with other documents, entrusted by them to
the mayor of Rizal, Nueva Ecija; but upon the death of the latter during the Japanese occupation the
title was lost, and with a view to securing a duplicate thereof, Susana Santiago enlisted the help of
Evaristo Corpuz, one of the children of the vendors. Pretending to help Susana, what Evaristo did
was to secure a duplicate certificate of title for himself and once it was obtained, he refused to deliver
it to Susana, telling her that they had better litigate the matter in court. Hence the present action,
which was filed by Susana in her capacity as judicial guardian of her children, all minors, with the
deceased Isabelo Corpuz, as only heirs of the deceased Domingo Corpuz and Eugenia Rigal. The
complaint prays for judgment ordering the defendant Evaristo Corpuz to deliver to plaintiff the second
Owner’s Duplication Certificate of Title which defendant to be without right to possess the said
duplicate as the land covered by the same had already been conveyed to Domingo Corpuz; and
adjudging damages and costs to plaintiff.

Answering the complaint, defendant alleged that the deed of sale supposed to have been executed
Francisco Corpuz in favor of Domingo Corpuz and his wife was fictitious and void and, in any event,
the vendor had no authority to make the sale because the land sold was conjugal property, it being
alleged in this connection that Bernarda Mantile died intestate in 1923, long before the sale, and that
the defendant and his brothers and sisters, Daniel Inocencio, Narciso, Escolastica, Canuta, and
Felicidad, all surnamed Corpuz, had by operation of law become the owners of one-half of the land in
question through inheritance from their deceased mother.

After trial, the court rendered judgment in favor of plaintiff, ordering defendant to surrender the
second Owner’s Duplicate Certificate of Title No. 5980 to plaintiff and declaring defendant to have no
right to possess the same, but denying the claim for damages. On appeal to the Court of Appeals, the
judgment of the inferior court was confirmed and the case is now before us on appeal by certiorari.

We note at the outset that plaintiff’s title derives from the deed of sale executed by Francisco Corpuz
on November 12, 1934, which describes the lands sold as registered in the Office of the Register of
Deeds of Nueva Ecija "bajo el Certificado Original de Titulo No. 5980 a nombre de Francisco Corpuz
y Bernarda Mantile ya difunta." Such being the case, it is to be presumed stands because there
appears to be no proof to the contrary, It is significant that in the deed Francisco Corpuz declares
himself absolute owner of the land merely on the basis of the fact that his wife was already dead.

The Court of Appeals, however, took the view that, even supposing the property to be conjugal, still
"in accordance with the law in force at the time of the sale and decided cases, the surviving husband,
as administrator of the community property, had authority to sell conjugal property without the
concurrence of the children of the marriage." The assertion is inaccurate because, at the time of the
sale, Act No. 3176, which took effect in 1924, had already been approved. Said Act declared that
when the marriage is dissolved by the death of the husband or wife, the community property shall be
administered and liquidated in the testamentary or intestate proceedings of the deceased spouse, or
in an ordinary liquidation and partition proceeding. In the present case, there has been no liquidation
or partition on any kind and, under the Act, the death of the wife did not make the husband the de
facto administrator of the conjugal estate or invest him with power to dispose of the same. In fact, the
Act declares that a sale, without the formalities established for the sale of the property of deceased
person’s "shall be null and void, except as regards the portion that belongs to the vendor at the time
the liquidation and partition was made." The cases cited as authority by the Court of Appeals were
either decided before the approval of the Act or referred to sales antedating said approval and, are
therefore, not controlling in the present case. Thus in the case of Ocampo Et. Al., v. Potenciano Et.
Al., (89 Phil., 159) where the authority of a surviving spouse to dispose of the conjugal property was
put in issue, this Court said:jgc:chanrobles.com.ph

"The Court of Appeals erred in supposing that the surviving spouse has such authority as de facto
administrator of the conjugal estate. As pointed out by appellants, the decisions relied on by that court
in support of its view are now obsolete. Those decisions laid down the rule that, upon the dissolution
of the marriage by the death of the wife, the husband must liquidate the partnership affairs. But the
procedure has been changed by Act No. 3176 (approved on November 24, 1924), now section 2,
Rule 75, of the Rules of Court, which provides that when the marriage is dissolved by the death of
either husband or wife, the partnership affairs must be liquidated in the testate or intestate
proceedings of the deceased spouse." Moran, Comments on the Rules of Court, 3rd ed., Vol. II, p.
324.) Ocampo Et. Al., v. Potenciano Et. Al., promulgated May 30, 1951.)

Conformably to what has been said above, the sale made by Francisco Corpuz of the land covered
by Original Certificate of Title No. 5980 should be held to have conveyed title only to the vendors’s
share in said land, with the result that the legal heirs of the deceased Bernarda Mantile cannot be
deemed to have been divested of their title to her share of the property.

With the property jointly owned by the heirs of the vendor’s deceased wife and the heirs of the
vendees, the latter set of heirs are not entitled to have exclusive possession of the Torrens certificate
of title now said to be in the possession of the defendant, who is one of the other set of heirs.
Perhaps plaintiff’s remedy is to ask for other Owner’s Duplicate Certificate. But before that is done,
title to the property should first, through appropriate procedure, be recorded in the joint names of both
sets of heirs as co-owners.

In view of the foregoing, the judgment below is revoked in so far as it declares defendant without right
to possess the Owner’s Duplicate Certificate of Title herein involved and orders him to surrender it to
plaintiff. Defendant’s claim for damages, referring to the products of the land, may not be adequately
adjudicated in the present case because his co-heirs, who should have equal interest in such
damages, have not been made parties and cannot, therefore, be bound by any adjudication that may
be made on said claim.

The appellee shall pay costs.

Bengzon, Acting C.J., Padilla, Montemayor, Jugo, Bautista Angelo, Labrador and Reyes, J.B.L., JJ.,
concur.

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.

San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial Bank.

Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and
appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p

Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent
court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of
Iloilo) subsequent to the order of December 14, 1957 as null and void for having been issued without
jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or
abetting private respondent Avelina A. Magno to perform or do any acts of administration, such as
those enumerated in the petition, and from exercising any authority or power as Regular
Administratrix of above-named Testate Estate, by entertaining manifestations, motion and pleadings
filed by her and acting on them, and also to enjoin said court from allowing said private respondent to
interfere, meddle or take part in any manner in the administration of the Testate Estate of Charles
Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary
injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition
being particularly directed against the orders of the respondent court of October 12, 1966 denying
petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for
reconsideration of said order.

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

THE FACTS

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

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

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

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

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

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

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

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be

executor of this, my last will and testament, and direct that no bond or other security be
required of him as such executor.

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

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

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

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO

CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM
ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING

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

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

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

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

4. — That deceased Linnie Jane Hodges died leaving no descendants or ascendants,

except brothers and sisters and herein petitioner as executor surviving spouse, to inherit
the properties of the decedent.

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

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles

Newton Hodges) be allowed or authorized to continue the business in which he was
engaged and to perform acts which he had been doing while deceased Linnie Jane
Hodges was living.

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

which the respondent court immediately granted in the following order:

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

SO ORDERED.

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

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

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT

THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS
WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE
DECEASED LINNIE JANE HODGES.

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

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

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

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

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

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

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

5. — That it is respectfully requested, all the sales, conveyances leases and mortgages executed by
the Executor, be approved by the Hon. Court. and subsequent sales conveyances, leases and
mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of the
terms of the last will and testament, also be approved;
6. — That the Executor is under obligation to submit his yearly accounts, and the properties conveyed
can also be accounted for, especially the amounts received.

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

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

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

ORDER

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

So ordered.

Iloilo City. December 14, 1957.

(Annex "H", Petition.)

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

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

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

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

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

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order worded thus:
 Upon petition of Atty. Gellada, in representation of the Executor, the statement of net
worth of the estate of Linnie Jane Hodges, assets and liabilities, income and expenses
as shown in the individual income tax return for the estate of the deceased and marked
as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to
December 31, 1960 were submitted likewise accompanied by allegations identical mutatis
mutandis to those of April 14, 1959, quoted above; and the respective orders approving the same,
dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April
21, 1959. In connection with the statements of account just mentioned, the following assertions
related thereto made by respondent-appellee Magno in her brief do not appear from all indications
discernible in the record to be disputable:

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

xxx xxx xxx

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

xxx xxx xxx

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

Likewise the following:

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

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

"None, except for purposes of administering the Estate, paying debts,

taxes and other legal charges. It is the intention of the surviving husband
of deceased to distribute the remaining property and interests of the
deceased in their Community estate to the devisees and legatees named
in the will when the debts, liabilities, taxes and expenses of administration
are finally determined and paid."

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

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

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

The records of these cases do not show that anything else was done in the 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. Negros

Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
 Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of —

Pablo Manzano, Oton, Iloilo

Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma 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.

(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:

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

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

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

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

That on April 21, 1959 this Court approved the inventory and accounting submitted by
C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959 stating
therein that executor C. N. Hodges is the only devisee or legatee of Linnie Jane Hodges
in accordance with the last will and testament already probated by the Court.

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

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

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

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

That the PCIB and counsel are estopped from further questioning the determination of
heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early as
January 8, 1965 which filed a motion for official declaration of heirs of Linnie Jane
Hodges that the claim of any heirs of Linnie Jane Hodges can be determined only in the
administration proceedings over the estate of Linnie Jane Hodges and not that of C. N.
Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the
estate of C. N. Hodges.

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

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

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

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

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

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

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

b. Said last will and testament vested upon the said late Charles Newton
Hodges rights over said properties which, in sum, spell ownership,
absolute and in fee simple;
 c. Said late Charles Newton Hodges was, therefore, "not only part owner
of the properties left as conjugal, but also, the successor to all the
properties left by the deceased Linnie Jane Hodges.

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

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

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

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

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

1. The order of December 19, 1964 authorizing payment by respondent Magno of

overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders
of January 9, 1965, (pp. 231-232,id.) October 27, 1965, (pp. 227, id.) and February 15,
1966 (pp. 455-456, id.) repeatedly denying motions for reconsideration thereof.

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

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

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

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

6. The various orders hereinabove earlier enumerated approving deeds of sale

executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman,
Coronado, Barrido, Causing, Javier, Lucero and Batisanan, (see pp. 35 to 37 of this
opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-
308, and pp. 308-309, Yellow Record on Appeal) denying reconsideration of said
approval.
 7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving
similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of
appellees Pacaonsis and Premaylon, as to which no motion for reconsideration was
filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal,
directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito, Barrido,
Catedral, Causing, Guzman, and Coronado, the certificates of title covering the lands
involved in the approved sales, as to which no motion for reconsideration was filed
either.

Strictly speaking, and considering that the above orders deal with different matters, just as they affect
distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20
thereof, there are, therefore, 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.

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 AND
PROHIBITION CASES

As to the Alleged Tardiness

of 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 and

Prohibition 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 certiorariand 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 brothers
and sisters as her estate, of which respondent Magno is the
unquestioned 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
them6 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 Code7 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 numbers

LXXII, 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 LXVIII

to 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, XXXV
to 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, XIX

to 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) thepactum 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 error

Number LXII to LXVII.

SUMMARY

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

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

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

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

Nothing else appears to have been done either by the court a quo or Hodges until December 25,
1962. Importantly to be the provision in the will of Mrs. Hodges that her share of the conjugal
partnership was to be inherited by her husband "to have and to hold unto him, my said husband,
during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all
the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to
be equally divided among my brothers and sisters, share and share alike", which provision naturally
made it imperative that the conjugal partnership be promptly liquidated, in order that the "rest, residue
and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily
known and identified, no such liquidation was ever undertaken. The record gives no indication of the
reason for such omission, although relatedly, it appears therein:
 1. That in his annual statement submitted to the court of the net worth of C. N. Hodges
and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the
combined income of the conjugal partnership and then merely divided the same equally
between himself and the estate of the deceased wife, and, more importantly, he also, as
consistently, filed corresponding separate income tax returns for each calendar year for
each resulting half of such combined income, thus reporting that the estate of Mrs.
Hodges had its own income distinct from his own.

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

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

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

On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein
respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of
the Testate Estate of Linnie Jane Hodges, in Special Proceedings No. 1307 and as Special
Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of
said Charles Newton Hodges is still kept in his vault or iron safe and that the real and personal
properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is
appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on
December 29, 1962, a certain Harold K. Davies was appointed as her 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.

SECTION 4 , RULE 73

G.R. No. L-1780 August 31, 1948

Petition for the presumption of death of Nicolai Szatraw. CONSUELO SORS, petitioner-
appellant.

J. Rodriguez Serra for appellant.

PADILLA, J.:

Pleading under oath that she is the lawful wife of Nicolas Szatraw, a Polish citizen, to whom she was
married in Manila on November, 1936, whom she bore a child named Alexis Szatraw born on 8
September 1937, with whom she had lived from the time they were married until February, 1940,
when her husband, on the pretext that he would call on some friends, departed from the conjugal
abode carrying the child along with him and never returned, about whose whereabouts she made
inquiries from among her husband's friends and countrymen and learned that her husband and child
had left for Shanghai, where, according, however, to information obtained from Polish citizens who
had arrived from that place, he and the child had not been seen and could not be found; that all her
efforts to know the whereabouts of her husband and child were in vain; and that, because of her
husband's absence for more than seven years during which she has not heard any news from him
and about her child, she believes that he is dead, Consuelo Sors prays that her husband be declared
dead and that her parental authority over her child, should the latter be alive and later on appear, be
preserved.

The foregoing facts pleaded in the petition were proved. The evidence further shows that she and her
husband did not acquire any property during their marriage and that his life was not insured.

Upon the foregoing evidence the trial court dismissed the petition on the ground that it is not for the
settlement of the estate of the absentee, and because the rule of evidence establishing the
presumption that a person unheard from in seven years is dead, does not create a right upon which a
judicial pronouncement of a decree may be predicated. The petitioner has appealed.

The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that
he possessed property brought to the marriage and because he had acquired no property during his
married life with the petitioner. The rule invoked by the latter is merely one of evidence which permits
the court to presume that a person is dead after the fact that such person had been unheard from in
seven years had been established. This presumption may arise and be invoked and made in a case,
either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to,
a competent court. Independently of such an action or special proceeding, the presumption of death
cannot be invoked, nor can it be made the subject of an action or special proceeding. In this case,
there is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent
husband. Neither is there a prayer for the final determination of his right or status or for the
ascertainment of a particular fact (Hagans vs. Wislizenus, 42 Phil. 880), for the petition does not pray
for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be
presumed dead because he had been unheard from in seven years. If there is any pretense at
securing a declaration that the petitioner's husband is dead, such a pretension cannot be granted
because it is unauthorized. The petition is for a declaration that the petitioner's husband is
presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's
situation, because such a presumption is already established by law. A judicial pronouncement to that
effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It
is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the
only question or matter involved in a case, or upon which a competent court has to pass. The latter
must decide finally the controversy between the parties, or determine finally the right or status of a
party or establish finally a particular fact, out of which certain rights and obligations arise or may arise;
and once such controversy is decided by a final judgement, or such right or status determined, or
such particular fact established, by a final decree, then the judgement on the subject of the
controversy, or the decree upon the right or status of a party or upon the existence of a particular fact,
becomes res judicata, subject to no collateral attack, except in a few rare instances especially
provided by law. It is. therefore, clear that a judicial declaration that a person is presumptively dead,
because he had been unheard from in seven years, being a presumption juris tantum only, subject to
contrary proof, cannot reach the stage of finality or become final. Proof of actual death of the person
presumed dead because he had been unheard from in seven years, would have to be made in
another proceeding to have such particular fact finally determined. If a judicial decree declaring a
person presumptively dead, because he had not been heard from in seven years, cannot become
final and executory even after the lapse of the reglementary period within which an appeal may be
taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for
such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court
should not waste its valuable time and be made to perform a superfluous and meaningless act.

Little effort is necessary to perceive that a declaration such as the one prayed for by the petitioner, if
granted, may make or lead her to believe that the marital bonds which bind her to her husband are
torn asunder, and that for that reason she is or may feel free to enter into a new marriage contract.
The framers of the rules of court, by the presumption provided for in the rule of evidence in question,
did not intend and mean that a judicial declaration based solely upon that presumption may be made.
A petition for a declaration such as the one filed in this case may be made in collusion with the other
spouse. If that were the case, then a decree of divorce that cannot be obtained or granted under the
provisions of the Divorce Law (Act No. 2710) could easily be secured by means of a judicial decree
declaring a person unheard from in seven years to be presumptively dead. This is another strong
reason why a petition such as the one presented in this case should not be countenanced and
allowed. What cannot be obtained directly under the provisions of Divorce Law could indirectly be
secured under the provisions of Rule 123, section 69 (x). Obviously, the latter must not be made to
prevail over the former.

The order appealed from is affirmed. No pronouncement as to costs is made, because no adverse
party appeared in this Court and in the court below.

ANGELITA VALDEZ, G.R. No. 180863

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:
REPUBLIC OF THE PHILIPPINES,
Respondent. September 8, 2009

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

DECISION

NACHURA, J.:
 Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated November 12, 2007
dismissing petitioner Angelita Valdezs petition for the declaration of presumptive death of her
husband, Sofio Polborosa (Sofio).

The facts of the case are as follows:

Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971,
petitioner gave birth to the spouses only child, Nancy. According to petitioner, she and Sofio argued
constantly because the latter was unemployed and did not bring home any money. In March 1972,
Sofio left their conjugal dwelling. Petitioner and their child waited for him to return but, finally, in May
1972, petitioner decided to go back to her parents home in Bancay 1 st, Camiling, Tarlac. Three years
passed without any word from Sofio. In October 1975, Sofio showed up at Bancay 1 st. He and
petitioner talked for several hours and they agreed to separate. They executed a document to that
effect.[1] That was the last time petitioner saw him. After that, petitioner didnt hear any news of Sofio,
his whereabouts or even if he was alive or not. [2]

Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20, 1985.
[3]
Subsequently, however, Virgilios application for naturalization filed with the United States
Department of Homeland Security was denied because petitioners marriage to Sofio was subsisting.
[4]
Hence, on March 29, 2007, petitioner filed a Petition before the RTC of Camiling, Tarlac seeking the
declaration of presumptive death of Sofio.

The RTC rendered its Decision[5] on November 12, 2007, dismissing the Petition for lack of
merit. The RTC held that Angelita was not able to prove the well-grounded belief that her husband
Sofio Polborosa was already dead. It said that under Article 41 of the Family Code, the present
spouse is burdened to prove that her spouse has been absent and that she has a well-founded belief
that the absent spouse is already dead before the present spouse may contract a subsequent
marriage. This belief, the RTC said, must be the result of proper and honest-to-goodness inquiries
and efforts to ascertain the whereabouts of the absent spouse.

The RTC found that, by petitioners own admission, she did not try to find her husband
anymore in light of their mutual agreement to live separately. Likewise, petitioners daughter testified
that her mother prevented her from looking for her father. The RTC also said there is a strong
possibility that Sofio is still alive, considering that he would have been only 61 years old by then, and
people who have reached their 60s have not become increasingly low in health and spirits, and, even
assuming as true petitioners testimony that Sofio was a chain smoker and a drunkard, there is no
evidence that he continues to drink and smoke until now.

Petitioner filed a motion for reconsideration. [6] She argued that it is the Civil Code that applies
in this case and not the Family Code since petitioners marriage to Sofio was celebrated on January
11, 1971, long before the Family Code took effect. Petitioner further argued that she had acquired a
vested right under the provisions of the Civil Code and the stricter provisions of the Family Code
should not be applied against her because Title XIV of the Civil Code, where Articles 384 and 390 on
declaration of absence and presumption of death, respectively, can be found, was not expressly
repealed by the Family Code. To apply the stricter provisions of the Family Code will impair the rights
petitioner had acquired under the Civil Code.

The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007. [7]

Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion
for Reconsideration.

In its Manifestation and Motion, [8] the Office of the Solicitor General (OSG) recommended that
the Court set aside the assailed RTC Decision and grant the Petition to declare Sofio presumptively
dead. The OSG argues that the requirement of well-founded belief under Article 41 of the Family
Code is not applicable to the instant case. It said that petitioner could not be expected to comply with
this requirement because it was not yet in existence during her marriage to Virgilio Reyes in 1985.
The OSG further argues that before the effectivity of the Family Code, petitioner already acquired a
vested right as to the validity of her marriage to Virgilio Reyes based on the presumed death of Sofio
under the Civil Code. This vested right and the presumption of Sofios death, the OSG posits, could
not be affected by the obligations created under the Family Code. [9]

Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the
Family Code.[10] Title XIV of the Civil Code, the OSG said, was not one of those expressly repealed by
the Family Code. Moreover, Article 256 of the Family Code provides that its provisions shall not be
retroactively applied if they will prejudice or impair vested or acquired rights. [11]

The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state
that we are denying the Petition on grounds different from those cited in the RTC Decision.

Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal
to this Court from a decision of the trial court only on pure questions of law. A question of law lies, on
one hand, when the doubt or difference arises as to what the law is on a certain set of facts; on the
other hand, a question of fact exists when the doubt or difference arises as to the truth or falsehood of
the alleged facts. Here, the facts are not disputed; the controversy merely relates to the correct
application of the law or jurisprudence to the undisputed facts. [12]

The RTC erred in applying the provisions of the Family Code and holding that petitioner needed to
prove a well-founded belief that Sofio was already dead. The RTC applied Article 41 of the Family
Code, to wit:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger under the circumstances set forth in the provisions of Article 391
of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting a subsequent marriage under the preceding paragraph,
the spouse present must institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
 It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January
11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the Civil Code.

The pertinent provision of the Civil Code is Article 83:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the
first spouse of such person with any person other than such first spouse shall be illegal
and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being alive,
of if the absentee, though he has been absent for less than seven years, is generally
considered as dead and believed to be so by the spouse present at the time of
contracting such subsequent marriage, or if the absentee is presumed dead according
to Articles 390 and 391. The marriage so contracted shall be valid in any of the three
cases until declared null and void by a competent court.

Article 390 of the Civil Code states:

Art. 390. After an absence of seven years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for all purposes, except for those of
succession.

The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of seventy-
five years, an absence of five years shall be sufficient in order that his succession may
be opened.

The Court, on several occasions, had interpreted the above-quoted provision in this wise:

For the purposes of the civil marriage law, it is not necessary to have the former spouse
judicially declared an absentee. The declaration of absence made in accordance with
the provisions of the Civil Code has for its sole purpose to enable the taking of the
necessary precautions for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires that the former spouse has
been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that such former
spouse is generally reputed to be dead and the spouse present so believes at the time
of the celebration of the marriage.[13]

Further, the Court explained that presumption of death cannot be the subject of court proceedings
independent of the settlement of the absentees estate.

In re Szatraw[14] is instructive. In that case, petitioner contracted marriage with a Polish national
in 1937. They lived together as husband and wife for three years. Sometime in 1940, the husband, on
the pretext of visiting some friends, left the conjugal abode with their child and never returned. After
inquiring from friends, petitioner found that her husband went to Shanghai, China. However, friends
who came from Shanghai told her that the husband was not seen there. In 1948, petitioner filed a
petition for the declaration of presumptive death of her husband arguing that since the latter had been
absent for more than seven years and she had not heard any news from him and about her child, she
believes that he is dead. In deciding the case, the Court said:

The petition is not for the settlement of the estate of Nicolai Szatraw, because it
does not appear that he possessed property brought to the marriage and because he
had acquired no property during his married life with the petitioner. The rule invoked by
the latter is merely one of evidence which permits the court to presume that a person is
dead after the fact that such person had been unheard from in seven years had been
established. This presumption may arise and be invoked and made in a case, either in
an action or in a special proceeding, which is tried or heard by, and submitted for
decision to, a competent court. Independently of such an action or special
proceeding, the presumption of death cannot be invoked, nor can it be made the
subject of an action or special proceeding. In this case, there is no right to be
enforced nor is there a remedy prayed for by the petitioner against her absent husband.
Neither is there a prayer for the final determination of his right or status or for the
ascertainment of a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition
does not pray for a declaration that the petitioner's husband is dead, but merely asks for
a declaration that he be presumed dead because he had been unheard from in seven
years. If there is any pretense at securing a declaration that the petitioner's husband is
dead, such a pretension cannot be granted because it is unauthorized. The petition is
for a declaration that the petitioner's husband is presumptively dead. But this
declaration, even if judicially made, would not improve the petitioner's situation, because
such a presumption is already established by law. A judicial pronouncement to that
effect, even if final and executory, would still be a prima facie presumption only. It
is still disputable. It is for that reason that it cannot be the subject of a judicial
pronouncement or declaration, if it is the only question or matter involved in a
case, or upon which a competent court has to pass. The latter must decide finally
the controversy between the parties, or determine finally the right or status of a party or
establish finally a particular fact, out of which certain rights and obligations arise or may
arise; and once such controversy is decided by a final judgment, or such right or status
determined, or such particular fact established, by a final decree, then the judgment on
the subject of the controversy, or the decree upon the right or status of a party or upon
the existence of a particular fact, becomes res judicata, subject to no collateral attack,
except in a few rare instances especially provided by law. It is, therefore, clear that a
judicial declaration that a person is presumptively dead, because he had been
unheard from in seven years, being a presumption juris tantum only, subject to
contrary proof, cannot reach the stage of finality or become final. Proof of actual
death of the person presumed dead because he had been unheard from in seven years,
would have to be made in another proceeding to have such particular fact finally
determined. If a judicial decree declaring a person presumptively dead, because he had
not been heard from in seven years, cannot become final and executory even after the
lapse of the reglementary period within which an appeal may be taken, for such
presumption is still disputable and remains subject to contrary proof, then a petition for
such a declaration is useless, unnecessary, superfluous and of no benefit to the
petitioner.[15]

In Lukban v. Republic,[16] petitioner Lourdes G. Lukban contracted marriage with Francisco

Chuidian on December 10, 1933. A few days later, on December 27, Francisco left Lourdes after a
violent quarrel. She did not hear from him after that day. Her diligent search, inquiries from his
parents and friends, and search in his last known address, proved futile. Believing her husband was
already dead since he had been absent for more than twenty years, petitioner filed a petition in 1956
for a declaration that she is a widow of her husband who is presumed to be dead and has no legal
impediment to contract a subsequent marriage. On the other hand, the antecedents in Gue v.
Republic[17]are similar to Szatraw. On January 5, 1946, Angelina Gues husband left Manila where
they were residing and went to Shanghai, China. From that day on, he had not been heard of, had not
written to her, nor in anyway communicated with her as to his whereabouts. Despite her efforts and
diligence, she failed to locate him. After 11 years, she asked the court for a declaration of the
presumption of death of Willian Gue, pursuant to the provisions of Article 390 of the Civil Code of
the Philippines.

In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial
declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not
authorized by law.[18]

From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is
established by law[19] and no court declaration is needed for the presumption to arise. Since death is
presumed to have taken place by the seventh year of absence, [20] Sofio is to be presumed dead
starting October 1982.

Consequently, at the time of petitioners marriage to Virgilio, there existed no impediment to

petitioners capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil
Code.

Further, considering that it is the Civil Code that applies, proof of well-founded belief is not
required. Petitioner could not have been expected to comply with this requirement since the Family
Code was not yet in effect at the time of her marriage to Virgilio. The enactment of the Family Code in
1988 does not change this conclusion. The Family Code itself states:

Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws.

To retroactively apply the provisions of the Family Code requiring petitioner to exhibit well-
founded belief will, ultimately, result in the invalidation of her second marriage, which was valid at the
time it was celebrated. Such a situation would be untenable and would go against the objectives that
the Family Code wishes to achieve.

In sum, we hold that the Petition must be dismissed since no decree on the presumption of Sofios
death can be granted under the Civil Code, the same presumption having arisen by operation of law.
However, we declare that petitioner was capacitated to marry Virgilio at the time their marriage was
celebrated in 1985 and, therefore, the said marriage is legal and valid.

WHEREFORE, the foregoing premises considered, the Petition is DENIED.

SO ORDERED.
G.R. No. 74197 October 28, 1991

JOSEPHINE L. LUCERO, petitioner,

vs.
HON. NATIONAL LABOR RELATIONS COMMISSION and EASTERN SHIPPING LINES,
INC., respondents.

Linsangan Law Office for petitioner.

Jimenea, Dala & Zaragoza for private respondent.

MEDIALDEA, J.:
This is petition for certiorari under Rule 65 of the Rules of Court seeking to annul the resolution of the
National Labor Relations Commission, which dismissed the appeal of petitioner from the decision of
the Philippine Overseas Employment Administration (POEA) for having been filed out of time.

The antecedent facts of the case are as follows:

Julio Lucero was hired on October 31, 1979 by the Eastern Shipping Lines, Inc., respondent
company, as Master of the vessel M/V Eastern Minicon.

On February 16, 1980, while enroute from Hongkong to Manila, the said vessel encountered rough
weather which prompted Captain Lucero to send three urgent messages to respondent company in
Manila asking for immediate assistance and informing the latter that the ship's crew shall be
abandoning the vessel anytime. Thereafter, nothing more was heard or seen of the vessel and its
crew. When all search and rescue operations failed, the insurer of the M/V Eastern Minicon confirmed
the loss of the vessel. The bodies of Lucero and that of the other crew members were never
recovered. Hence, respondent company paid the death benefits to the heirs of the crew members.

Lucero's wife, petitioner herein, refused the payment by respondent company of the death benefits.
On July 16, 1980, she filed instead a complaint with the National Seamen Board for payment of
accrued monthly allotments and for continued payment thereof until the vessel shall have returned to
Manila.

On May 19, 1981, the National Seamen Board ruled in favor of the petitioner holding that the
presumption of death cannot be applied in the case of Julio Lucero because the four-year period
provided for by Article 391(1) of the Civil Code had not yet expired. On appeal to the National Labor
Relations Commission, the decision of the National Seamen Board was affirmed. Not satisfied with
the decision, respondent Eastern Shipping Lines, Inc. filed with the Court a petition for certiorari to set
aside the decision of the respondent Commission docketed as G.R. No. 60101. On August 31, 1983,
this Court in the said case, rendered a decision reversing and setting aside the ruling of the
respondent Commission. This Court however stated therein that petitioner, Josephine Lucero, is
entitled to death benefits.

Petitioner then filed her claim with the Philippine Overseas Employment Administration (POEA)
contending that although the loss of the vessel M/V Eastern Minicon occurred on February 16, 1980,
the presumption of death of Julio Lucero will occur only after four (4) years under the Civil Code so
that the death benefits that should be awarded to her should be in the amount based on the new
Standard Format for Filipino seamen which became effective on February 1, 1984.

On May 16, 1985, the POEA rendered a decision which ruled that petitioner's claim for death benefits
should be based on the Old Standard Format, which was the applicable rule in 1980 when the loss of
the vessel M/V Eastern Minicon and its crew occurred. The decision partly states:

Paragraph 2 of Section D of the Old Standard Format provides as follows:

2. In lieu of paragraph 1 above, the liability of employer of a Philippine registered vessel

and vessel bareboat chartered to a Philippine shipping company shall be governed by
existing Philippine laws over and above the benefits granted under Philippine laws on
social security and employees compensation benefits provided that Philippine
registered vessel and any vessel bareboat chartered to a Philippine company shall be
manned by full Filipino Crew.

xxx xxx xxx

We find that as to the contention of complainant that she had to wait for four (4) years before
she could file the present claim for death benefits because the presumption of death will only
occur after the lapse of four (4) years after the last voyage of the vessel which was on
February 16, 1980, this matter has been ruled upon by the Supreme Court in G.R. No. 60101
in its Decision of August 31, 1983, stating to wit:

There is thus enough evidence to show the circumstances attending the loss and
disappearance of the M/V Eastern Minicon and its crew. The foregoing facts, quite logically, are
sufficient to lead Us to a normal certainty that the vessel had sunk and that the persons aboard
 had perished with it. Upon this premise, the rule on presumption of death under Article 391(1)
of the Civil Code must yield to the rule of preponderance of evidence.

With this ruling, in relation to the ruling of the National Seamen Board in the cases filed by the
heirs of the other crewmembers of M/V EASTERN MINICON, as aforecited, we are left with no
other conclusion but that the accrual of the complainant's cause of action regarding her claim
for death benefits would legally be reckoned at the time of the loss of the vessel and her crew
which was on February 18, 1980. . . . There is similarly no basis for us to apply the New
Standard Format, as invoked by complainant, because the same does not provide of a case
whereby it can be given a retroactive effect. What the complainant therefore can only recover,
under the circumstances and under the facts of the case, is the sum of P12,000.00 and the
peso equivalent of US $500 as death compensation benefits and compensation for loss of
personal effects, respectively.

CONFORMABLY TO THE FOREGOING, judgment is rendered ordering the respondent

Company to pay to the complainant the sum of TWELVE THOUSAND (P12,000.00) PESOS
Philippine Currency as death benefits and the sum of FIVE HUNDRED DOLLARS (US
$500.00), or its peso equivalent at the time of actual payment, as compensation for loss of
personal effects; and to pay to complainant's counsel on record. Atty. Pedro L. Linsangan, the
amount equivalent to ten percent (10%) of the total award due the complainant in this case,
representing attorney's fees. Payment of these amounts should be coursed through this Office.

Complainant's claim for moral and exemplary damages is hereby DENIED for lack of
jurisdiction.

SO ORDERED. (pp. 35-36, Rollo)

Petitioner appealed to the respondent Commission. On October 23, 1985, the latter issued a
resolution which reads in part:

Records show that a copy of the assailed decision was received by complainant, through
counsel, on May 29, 1985, but the appeal was filed on June 11, 1985 (by registered mail)
which is beyond the reglementary period adverted to above.

Failure to comply with this requirement, which vitiates the appeal, this Commission cannot give
due course to the same.

WHEREFORE, the instant appeal is hereby dismissed for being filed out of time.

SO ORDERED. (p. 53, Rollo)

Hence, this petition was filed with the petitioner alleging grave abuse of discretion on the part of
respondent Commission.

The issues to be resolved in this petition are: 1) whether or not the appeal of petitioner was properly
dismissed by respondent Commission on ground of late filing and 2) whether or not petitioner is
entitled to death benefits in the amount based on the new Standard Format which became effective in
1984, four years after the loss of the vessel and death of petitioner's husband.

Anent the first issue, petitioner contends that although her counsel received a copy of the decision of
the POEA on May 29, 1985, the tenth or last day to appeal to the respondent Commission fell on a
Saturday, June 8, 1985; so that when petitioner's counsel filed the appeal on June 11, 1985, a
Tuesday, the appeal was filed only one (1) day late since it should have been filed on June 10, 1985
which was Monday. Petitioner also submits that the failure to file a timely appeal was due to fraud,
accident, mistake and excusable negligence since the lawyer handling the case was under
medication for hypertension during that time and therefore cannot properly attend to the appeal of the
case.

Petitioner's contention is devoid of merit. The ten (10)-day period for appeal to the NLRC
contemplates calendar days and not working days (Vir-jen Shipping v. NLRC, et al., G.R. Nos. 58011-
12, July 20, 1982, 115 SCRA 347; Firestone v. Lariosa, G.R. No. 70479, February 27, 1987, 148
SCRA 187). This general rule however is not without an exception. Where the 10th or last day to
appeal falls on a Sunday or legal holiday, the appeal may be filed on the next succeeding business
day (SM Agri and General Machineries v. NLRC, et al., G.R. No. 74806, January 9, 1989, 169 SCRA
20; Imperial Victory Shipping Agency v. NLRC, et al., G.R. No. 84672, August 5, 1991). However, we
noted in these cases the fact that Saturday, unless declared a holiday, is considered a business day
and therefore, if the last day to appeal falls on a Saturday, the act is still due on that day and not on
the next succeeding business day. In the case at bar, the last day for petitioner to appeal was June 8,
1985 which was a Saturday. When petitioner filed her appeal on June 11, 1985, which was already a
Tuesday, the decision of the POEA had become final and executory as the appeal was two days late
of the 10-day reglementary period. It is settled that the perfection of appeal is not only mandatory but
also jurisdictional (Narag v. NLRC, No. 69628, October 28, 1987, 155 SCRA 199).

The argument of petitioner that since the lawyer handling her case was sick during the time the
appeal should have been promptly filed, the procedural rules on appeal should be liberally construed
in her favor so as not to deny her due process, cannot be given credence. Firstly, petitioner's counsel
on record is the law firm itself and not only one of its lawyers. If the lawyer who was assigned to
handle the case became physically incapable to attend to it, then it is the duty and responsibility of
the law firm, being the counsel on record, to be vigilant of the developments of its clients' cases.
Secondly, the right to appeal is neither a natural right nor part of due process. It is a statutory right
and not a constitutional right (Tropical Homes Inc. v. National Housing Authority, No. L-48672, July
31, 1987, 152 SCRA 540; Victorias Milling v. Office of Presidential Assistant for Legal Affairs, No.
73705, August 27, 1987, 153 SCRA 317). Although this Court had allowed the filing of appeal in some
cases where a stringent application of the rules would have denied it, this liberal practice is done only
when it would serve the demands of substantial justice and in the exercise of the court's equity
jurisdiction. When the petitioner's case is unmeritorious, as in the case at bar, the relaxation of the
rules shall not be allowed.

This brings us to the second issue raised by petitioner as to the amount of death benefits to which
she is entitled. Petitioner submits that she is entitled to the amount of P220,000.00 as death benefits,
based on the Standard Format which became effective in 1984.

The rule is settled that the material date in determining the amount of death compensation benefits is
the date of death of the seaman, not the amount provided by law at the time of payment (Imperial
Victory Shipping Agency v. NLRC, et al., G.R. No. 84672, August 5, 1991). In the case at bar, the
amount pegged under the Standard Format at the time of the seaman's death which was computed
by the POEA as P12,000.00 as death benefits and the peso equivalent of US $500.00 as
compensation for loss of personal effects, should be the amount awarded to petitioner and not the
amount provided for in the new Standard Format which took effect after the death of petitioner's
husband. Besides, the delay in the recovery of the death compensation benefits is attributable to
petitioner and not to respondent corporation (Imperial Victory Shipping Agency v. NLRC, supra).

ACCORDINGLY, the petition is DISMISSED and the resolution of respondent National Labor
Relations Commission dated October 23, 1985 is hereby AFFIRMED.

SO ORDERED.