G.R. No. L-41555 July 27, 1977 C.R.

SANCHEZ LAW OFFICE

INDUSTRIAL FINANCE CORPORATION, petitioner,  SGD. CATALINO R. SANCHEZ. 3

vs.
CASTOR TOBIAS, respondent. At the time the foregoing letter was written, respondent Tobias
was in arrear in the payment of more than two (2) installments. 4
Santos S. Carlos for petitioner.
On May 27, 1970, respondent Tobias wrote petitioner's counsel
Amado J. Garcia for respondent. the following letter:

Dear Sir:

MARTIN, J:
This is a petition for review of the decision of the Court of
Appeals * in CA-G.R. No. 53916, entitled "Industrial Finance
Corporation vs. Castor Tobias", affirming that of the Court of First
Instance of Manila with a slight modification.
On June 16, 1968, respondent Castor Tobias bought on
installment one (1) Dodge truck from Leelin Motors, Inc. To
answer for his obligation he executed a promissory note in favor
of the latter, for the sum of P29.070.28 payable in thirty-six (36)
equal installments with interest at the rate of 12% per annum
payable in the amounts and dates indicated in said promissory
note. 1 To secure payment of the promissory note, respondent
Tobias executed in favor of Leelin Motors, Inc. a chattel mortgage
on the Dodge truck.
On June 19, 1969, Leelin Motors, Inc. indorsed the promissory
note and assigned the chattel mortgage to petitioner Industrial
Finance Corporation. As a consequence respondent Tobias paid
six (6) installments on the promissory note directly to the
petitioner Industrial Finance Corporation the last of which was
made on February 19, 1970. 2
On May 14, 1970, the petitioner's counsel wrote to respondent
Tobias the following letter:
xxx xxx xxx
Dear Mr. Tobias:
My client, the INDUSTRIAL FINANCE CORPORATION, has
referred to me for appropriate legal action your account with it
(LCI-690) which is in arrears in the amount of P4,254.65 and a
balance of P25,249.65 as of May 16, 1970. In view of your default
in the payment of your installments due pursuant to the
Promissory Note and Chattel Mortgage you executed in favor of
Leelin Motors, Inc. and assigned to Industrial Finance
Corporation, demand is- hereby made upon you to pay the
amount of P25,249.65 on or before May 24, 1970 or to surrender
within the same period the following described personality:
This is in response to your letter of demand dated May 14, 1970
asking me to surrender Dodge Truck with engine no. CPC-4007
Serial No. 1589070794. I am now voluntarily and willingly
surrendering said truck due to the ff. reasons:
1. That said truck has been with Leelin Motors ever since the
later part of February when it met an accident.
2. That there is too much delay in the repair of said truck because
until now the truck is not yet completely finished.
3. That upon seeing said truck, I am not satisfied with the repair
of the finished portions.
I am now giving full authority to your client Industrial Finance
Corporation to get said truck at Leelin Motors, Inc.
I am hoping that due to the ff. good reasons my name will not be
blacklisted in your credit division.
Very truly yours,
Castor Tobias 5
Upon learning that the truck met an accident, petitioner decided
not to get the truck anymore from Leelin Motors, Inc.
On February 16, 1971, petitioner filed in the Court of First
Instance of Manila an action against respondent Tobias to
recover the unpaid balance of the promissory note.- The lower
court dismissed the complaint on the ground that "(I)nasmuch as
the defendant voluntarily and willingly surrendered the truck
and gave the Industrial Finance Corporation full authority to get
said truck from Leelin Motors, Inc. (Exhibit 2) pursuant to the
demand to surrender (Exhibit B) the defendant complied with
the demands of the plaintiff. 6
On appeal, the Court of Appeals affirmed the decision of the lower
court dismissing the complaint of petitioner Industrial Finance
Corporation but modifying the same by ordering respondent
Tobias to pay the cost of repairs of the damaged truck in the
amount of P5,396.78 plus interest.

One (1) Unit 1969 Motor Vehicle Dodge The main thrust of the petitioner's argument is that the
D-600 FFC 197 "WB" respondent Court of Appeals erred in affirming the dismissal of
Engine No. CPC4007 the complaint of the petitioner in the lower court by not
Serial No. 1589070794 considering his right as an unpaid vendor of the truck in question
under Art. 1484 of the New Civil Code. 7 Petitioner claims that
otherwise, the corresponding action will be filed against you plus
under Art. 1484 of the New Civil Code, an unpaid vendor may
damages and attorney's fees.
choose any of the remedies provided therein and that as an
Please consider this a final demand. unpaid vendor, it has chosen to exact fulfillment of the obligation
for failure of the vendee to pay. Respondent Tobias, however,
Very truly yours, claims that petitioner is estopped to insist on its claim on the
balance of the promissory note when it demanded the return or
1
surrender of the truck in its letter of May 14, 1970, to which
demand, respondent acceded in his letter dated May 27, 1970.
The claim of respondent cannot be sustained. Art. 1484 is clear
that "should the vendee or purchaser of a personal property be in
default in the payment of two or more of the agreed installments,
the vendor or seller has the option to either exact fulfillment by
the purchaser of -the obligation, or to cancel the sale, or to
foreclose the mortgage on the purchased personal property, if
one was constituted.8 Since the case involves the sale of personal
property on installments Art. 1484 of the Civil Code should apply.
The remedies provided for in Art. 1484 are considered
alternative, not cumulative 9 such that the exercise of one would
bar the exercise by the others. 10 Here, petitioner has not
cancelled the sale, nor has it exercised the remedy of foreclosure.
Foreclosure, judicial or extra-judicial, presupposes something
more than a mere demand to surrender possession of the object
of the mortgage. 11 Since the petitioner has not availed itself of
the remedy of cancelling the sale of the truck in question or of
foreclosing the chattel mortgage on said truck, petitioner is still
free to avail of the remedy of exacting fulfillment ' of the
obligation of respondent Tobias, the vendee of the truck in
question. In Radiowealth Inc. vs. Lavin, 12 the facts of which are
similar to the 'present case, the issue was "whether the plaintiff is
precluded to press for collection of an account secured by a
chattel mortgagee after it shall have informed the defendants of
its intention to foreclose said mortgage, and the voluntary
acceptance of such step (foreclosure) by defendant mortgagor,"
the Supreme Court ruled in favor of the plaintiff mortgagee. Said
the Court:
The contract being a sale of machinery payable in installments,
the applicable provision of law is Article 1484 of the Civil Code,
which gives the vendor the option to exercise any one of the
alternative remedies therein mentioned: exact fulfillment of the
obligation, cancel the sale, or foreclose the chattel mortgage. But
the vendor- mortgagor in the present case desisted, on its own
initiative, from consummating the auction sale, without gaining
any advantage or benefit, and without causing any disadvantage,
or harm to the vendees-mortgagees. The least that could be said
is that such desistance of the plaintiff from proceeding with
auction sale was a timely disavowal that cancelled and rendered
useless its previous choice to foreclose; its acts, being extra-
judicial, brought no trouble upon any court, and were harmless to
the defendants. For this reason, the plaintiff can not be
considered as having "exercised" (the Code uses the word
"exercise") the remedy of foreclosure because of its incomplete
implementation, and, therefore, the plaintiff is not barred from
suing on the unpaid account.
plausible thing it would have asked the respondent is to ask for
the balance on the promissory note. Besides the allegation of
petitioner that it had no knowledge of the accident is a negative
allegation and needs no evidence to support it, not being an
essential part of the statement of the right on which the cause of
action is founded.14 It is therefore the respondent Tobias who has
the burden of disproving the claim of petitioner that he has no
knowledge of the accident when it made the offer to respondent
either to pay the balance on the promissory note or to surrender
the truck. Respondent failed in this.
It is claimed by respondent Tobias that he has surrendered the
truck to petitioner in his letter dated May 27, 1970. But the
alleged surrender was ineffectual as far as the petitioner is
concerned because petitioner could not take possession of the
truck in question as it was in the custody of Leelin Motors, Inc.,
which had a mechanic's lien over it. Even respondent Tobias
cannot expect petitioner to accept the term of surrender because
aside from the fact that the truck being surrendered met an
accident petitioner was not satisfied with the repair of the
finished portion of the truck in question. Petitioner therefore was
justified refusing to accept such surrender and in bringing suit to
recover the balance of the purchase price.
IN VIEW OF THE FOREGOING, the judgment of the respondent
Court of Appeals and of the lower court are hereby set aside and
a new one rendered ordering respondent Tobias to pay
petitioner the balance of the purchase price of the truck in
question in the amount of P27,210.77 plus legal rate of interest
from the time of the filing of the complaint. Costs against the
respondent.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muñoz-Palma and Guerrero, JJ.,
concur.
Fernandez, J., took no part.

In effect this ruling answers the issue of estoppel raised by

respondent Tobias. Besides, to hold the petitioner in estoppel, it
must be shown that when it gave the respondent the choice of
either paying the balance of the purchase price or of surrending
the truck, it had already knowledge of the accident and the
consequent damage to the truck. In the present case petitioner
claims it had no knowledge of the accident 13 when it gave the
respondent the choice of either paying the balance of the
promissory note or of surrendering the truck. It is hard to believe
that petitioner would make such offer to respondent either to pay
the balance on the promissory, note or to surrender the truck in
question if it knew that the truck has had an accident. The more
2
G.R. Nos. L-27680-81 February 27, 1970
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  nature thereof, Dr. Angel Tan, municipal health officer of Las
vs.
OPENIANO PAJENADO @ PEMING, defendant-appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant
Solicitor General Isidro C. Borromeo and Solicitor Octavio R.
Ramirez for plaintiff-appellee.
Ramon C. Aquino as counsel de officio for defendant appellant.
DIZON, J.:
In the Court of First Instance of Samar appellant Openiano
Pajenado was charged with murder (Criminal Case No. 3492, now
G.R. No. L-27680) and with illegal possession of a firearm
(Criminal Case No. 3558, now G.R. No. L-27681). Upon
arraignment he pleaded not guilty in both cases, and after a joint
trial thereof he was convicted and sentenced as follows:
Wherefore, in view of the foregoing considerations, the Court
finds the accused Openiano Pajenado alias Peming, guilty beyond
reasonable doubt of the crime of murder and he is hereby
condemned to suffer the penalty of Reclusion Perpetua, to
indemnify the heirs of Carlos Tapong in the amount of P6,000.00
and to pay the cost of suit.
The same accused Openiano Pajenado is likewise guilty beyond
reasonable doubt of illegal possession of firearm and is hereby
sentenced to suffer imprisonment of not less than One (1) year
nor more than Five (5) years and to pay the cost of suit.
The facts established conclusively by the evidence are the
following:
At about 12:00 o'clock noon on December 31, 1965 while
prosecution witness Epifanio Cabe was walking along one of the
streets of barrio Dapdap, municipality of Las Navas, North Samar,
and arrived in front of the house of one Pablo Jazmines, he saw
appellant holding the now deceased Carlos Tapong by the neck.
As the two were apparently wrestling with each other, Carlito
Pajenado, appellant's cousin, intervened and the two Pajenados
were able to throw Tapong to the ground. Carlito Pajenado held
Tapong by the shoulder and pinned him down to the ground,
while appellant held him by one leg. As they thus held Carlos
Tapong helpless, appellant drew his gun and fired at him.
Thereupon, Carlito Pajenado stood up and ran away, while
appellant remained at the scene of the crime with his drawn gun
until a policeman, another Pajenado (Ernesto), arrived and took
the firearm from him. Carlos Tapong, mortally wounded, was
thereafter carried home by his father and other relatives.
Another prosecution witness, Pelagia Tapong, testified that at
noon on the day in question, while she was at the window of the
house of her elder brother, Angel, along the street where the
incident took place, she saw appellant standing on the street; that
when Carlos Tapong appeared, appellant immediately met him
and held him by the neck; that thereafter Carlito Pajenado
intervened and with his help appellant was able to fell Carlos to
the ground.
It is not denied that Carlos Tapong died as a result of the gun-shot
wound inflicted upon him on that occasion. Testifying on the
Navas, said that he conducted a  post mortem examination of the
cadaver on January 1, 1966 and found that the deceased
sustained three gun-shot wounds which, in his opinion, were
caused by a single shot from a .45 caliber pistol. The wounds are
described by him in his autopsy report, Exhibits A, A-1 and A-2 as
follows:
Gun shot wound with entrance at the postero-medial portion of
the distal third of the thigh making an exit at its upper promixmal
third in the antero-lateral margin, making another entrance at
the right hypogastric region, penetrating the abdominal cavity.
Perforating the intestines, penetrating the left dome of the
diaphragm to enter the left thoracic cavity.
Dr. Tan also testified that considering the presence of powder
burns in the body of the deceased, he must have been shot at a
distance of less than one meter, and that the cause of his death
was shock due to external and internal hemorrhage.
The issues raised in the assignments of error made in appellant's
brief call for the resolution of: firstly, the question of whether
appellant should be convicted only of homicide instead of
murder, and whether, upon the evidence of record, he should also
be found guilty of the crime of illegal possession of a firearm.
The Solicitor General agrees with appellant's view that the latter
should be convicted merely of homicide committed with one
aggravating circumstance not offset by any mitigating
circumstance, because the qualifying circumstances of evident
premeditation and treachery alleged in the information have not
been proved.
We disagree.
The testimony of prosecution witness Pelagia Tapong clearly
shows that, for sometime before the incident, appellant had been
waiting for Carlos Tapong to appear, and that as soon as the latter
showed up and arrived in front of the house of Pablo Jazmines,
appellant met him and held him by the neck; that thereafter his
cousin Carlito helped him throw their victim to the ground. This,
We believe, is sufficient evidence of premeditation.
We agree, however, that treachery was not proved. On the other
hand, the aggravating circumstance of abuse of superior strength,
admitted by appellant's counsel (p. 8, appellant's brief), must be
considered in the imposition of the corresponding penalty.
Upon the question of whether or not appellant should also be
convicted of the crime of illegal possession of a firearm, We agree
with both appellant's counsel and the Solicitor General that the
appealed decision should be reversed.
It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos,
8 SCRA 758 could be invoked to support the view that it is
incumbent upon a person charged with illegal possession of a
firearm, to prove the issuance to him of a license to possess the
firearm, but We are, of the considered opinion that under the
provisions of Section 2, Rule 131 of the Rules of Court which,
provide that in criminal cases the burden of proof as to the
offense charged lies on the prosecution and that a negative fact
alleged by the prosecution must be proven if "it is an essential
3
ingredient of the offense charged", the burden of proof was with maximum degree, We only affirm the penalty of reclusion
the prosecution in this case to prove that the firearm used by perpetua imposed upon him by the trial court. However, the
appellant in committing the offense charged was not properly indemnity appellant must pay the heirs of Carlos Tapong is
licensed. increased to P12,000.00.

It cannot be denied that the lack or absence of a license is an (2) The appealed decision is reversed and set aside in so far as it
essential ingredient of the offense of illegal possession of a finds appellant guilty of illegal possession of a firearm, with the
firearm. The information filed against appellant in Criminal Case result that he is hereby acquitted of said charge.
No. 3558 of the lower court (now G.R. No. 27681) specifically
alleged that he had no "license or permit to possess" the .45 MODIFIED AS ABOVE INDICATED, the appealed decision is
caliber pistol mentioned therein. Thus it seems clear that it was affirmed in all other respects, with costs.
the prosecution's duty not merely to allege that negative fact but
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
to prove it. This view is supported by similar adjudicated cases.
Fernando, Teehankee, Barredo and Villamor, JJ., concur.
In U.S. vs. Tria, 17 Phil. 303, the accused was charged with having
criminally inscribed himself as a voter knowing that he had none
of the qualifications required to be a voter. It was there held that
the negative fact of lack of qualification to be a voter was an
essential element of the crime charged and should be proved by
the prosecution. In another case (People vs. Quebral, 68 Phil.
564) where the accused was charged with illegal practice of
medicine because he had diagnosed, treated and prescribed for
certain diseases suffered by certain patients from whom he
received monetary compensation, without having previously
obtained the proper certificate of registration from the Board of
Medical Examiners, as provided in Section 770 of the
Administrative Code, this Court held that if the subject of the
negative averment like, for instance, the act of voting without the
qualifications provided by law is an essential ingredient of the
offense charged, the prosecution has the burden of proving the
same, although in view of the difficulty of proving a negative
allegation, the prosecution, under such circumstance, need only
establish a prima facie case from the best evidence obtainable. In
the case before Us, both appellant and the Solicitor General agree
that there was not even a  prima facie case upon which to hold
appellant guilty of the illegal possession of a firearm. Former
Chief Justice Moran upholds this view as follows:

The mere fact that the adverse party has the control of the better
means of proof of the fact alleged, should not relieve the party
making the averment of the burden of proving it. This is so,
because a party who alleges a fact must be assumed to have
acquired some knowledge thereof, otherwise he could not have
alleged it. Familiar instance of this is the case of a person
prosecuted for doing an act or carrying on a business, such as, the
sale of liquor without a license. How could the prosecution aver
the want of a license if it had acquired no knowledge of that fact?
Accordingly, although proof of the existence or non-existence of
such license can, with more facility, be adduced by the defendant,
it is, nevertheless, incumbent upon the party alleging the want of
the license to prove the allegation. Naturally, as the subject
matter of the averment is one which lies peculiarly within the
control or knowledge of the accused  prima facie evidence thereof
on the part of the prosecution shall suffice to cast the onus upon
him. (6 Moran, Comments on the Rules of Court, 1963 edition, p.
8.)

WHEREFORE, judgment is hereby rendered as follows:

(1) Appellant is found guilty of murder, with the aggravating

circumstance of use of superior strength, without any mitigating
circumstance to offset the same, but for lack of the required
number of votes to impose the corresponding penalty in its

4
G.R. No. 153743. March 18, 2005
NORMA B. DOMINGO, Petitioners,  Transfer Certificate of Title No. 53412 had already been cancelled
vs.
YOLANDA ROBLES; and MICHAEL MALABANAN ROBLES,
MARICON MALABANAN ROBLES, MICHELLE MALABANAN
ROBLES, All Minors Represented by Their Mother, YOLANDA
ROBLES, Respondents.
DECISION
PANGANIBAN, J.:
Forgery must be proven by the party alleging it; it cannot be
presumed. To prevent a forged transfer from being registered,
the Torrens Act requires, as a prerequisite to registration, the
production of the owner’s certificate of title and the instrument
of conveyance. A registered owner who places in the hands of
another an executed document of transfer of registered land
effectively represents to a third party that the holder of such
document is authorized to deal with the property.1
The Case
Before us is a Petition for Review2 under Rule 45 of the Rules of
Court, challenging the May 27, 2002 Decision3 of the Court of
Appeals (CA) in CA-GR CV No. 53842. The decretal portion of the
assailed Decision reads:
"IN VIEW OF ALL THE FOREGOING, [there being] no reversible
error in the challenged decision, the same is
hereby AFFIRMED, in toto, and the instant appeal
ordered DISMISSED. Costs against the [petitioner]."4
On the other hand, the affirmed Decision5 of the Regional Trial
Court (RTC), Branch 272 of Marikina, disposed as follows:
"WHEREFORE, premises considered, the complaint subject of this
decision is hereby DISMISSED."6
The Facts
The facts are narrated by the CA as follows:
"The historical backdrop shows that [petitioner] and her
husband, Valentino Domingo, were the registered owners of Lot
19, Block 1, subdivision plan (LRC) Psd-15706 located at Cristina
Subdivision, Concepcion, Marikina and covered by Transfer
Certificate of Title No. 53412. On this lot, [Petitioner] Norma B.
Domingo discontinued the construction of her house allegedly for
failure of her husband to send the necessary financial support. So,
she decided to dispose of the property.
"A friend, Flor Bacani, volunteered to act as [petitioner’s] agent in
selling the lot. Trusting Bacani, [petitioner] delivered their
owner’s copy of Transfer Certificate of Title No. 53412 to him
(Bacani). Later, the title was said to have been lost. In the petition
for its reconstitution, [petitioner] gave Bacani all her receipts of
payment for real estate taxes. At the same time, Bacani asked
[petitioner] to sign what she recalled was a record of exhibits.
Thereafter, [petitioner] waited patiently but Bacani did not show
up any more.
"On November 1, 1994, [Petitioner] Norma Domingo visited the
lot and was surprised to see the [respondents] (Robles, for
short) starting to build a house on the subject lot. A verification
with the Register of Deeds revealed that the reconstituted
with the registration of a Deed of Absolute Sale dated May 9,
1991 signed by Norma B. Domingo and her husband Valentino
Domingo, as sellers, and [Respondent] Yolanda Robles, for herself
and representing the other minor [respondents], as buyers. As a
consequence, Transfer Certificate of Title No. 201730 was issued
on June 10, 1991 in the name of [Respondent] Robles.
"Claiming not to have met any of the [respondents] nor having
signed any sale over the property in favor of anybody (her
husband being abroad at the time), [petitioner] assumed that the
Deed of Absolute Sale dated May 9, 1991 is a forgery and,
therefore, could not validly transfer ownership of the lot to the
[respondents]. Hence, the case for the nullity thereof and its
reconveyance.
"[Respondents] Robles responded alleging to be buyers in good
faith and for value. They narrate that the subject lot was offered
to them by Flor Bacani, as the agent of the owners; that after
some time when they were already prepared to buy the lot,
Bacani introduced to them the supposed owners and agreed on
the sale; then, on May 9, 1991, Bacani and the introduced seller
presented a Deed of Absolute Sale already signed by Valentino
and Norma Domingo needing only her (Robles’) signature.
Presented likewise at that meeting, where she paid full purchase
price, was the original of the owner’s duplicate of Transfer
Certificate of Title No. 53412.
"Then sometime later, [Respondents] Robles contracted to sell
the lot in issue in favor of spouses Danilo and Herminigilda Deza
for ₱250,000.00. [Respondent] Yolanda Robles even had to
secure a guardianship authority over the persons and properties
of her minor children from the Regional Trial Court of Pasig in
JDRC No. 2614. When only ₱20,000.00 remained unpaid of the
total purchase price under the contract to sell, payment was
stopped because of the letter received by Yolanda Robles that
[petitioner] intends to sue her.
"After due proceedings, the [Regional Trial Court] rendered its
Decision dated May 13, 1996, dismissing the complaint."7
Ruling of the Court of Appeals
The CA held that respondents were purchasers in good faith and
for value. According to its findings, (a) the sale was admittedly
made through petitioner’s agent; (b) as Domingo’s agent, Bacani
brought with him the original of the owner’s duplicate Certificate
of Title of the property and some receipts; (c) the reconstituted
title presented to the buyers was free from any liens,
encumbrances or adverse interests of other persons; and (d) the
land was unoccupied. Petitioner was not able to present, against
these established facts, any evidence to prove that respondents
had prior knowledge of any other person’s right to or interest
over the property in question.
Hence, this Petition.8
Issue
Petitioner submits this sole issue for our consideration:
5
"To determine whether or not the petitioner is entitled to her certificate of title and the instrument of conveyance. The
claims, the issue worthy of consideration by the Honorable Court registered owner who places in the hands of another an executed
in the instant case is WHO IS A PURCHASER IN GOOD FAITH?"9 document of transfer of registered land effectively represents to a
third party that the holder of such document is authorized to deal
The Court’s Ruling with the property.17
The Petition has no merit. WHEREFORE, the Petition is DENIED and the assailed Decision
AFFIRMED. Costs against petitioner.
Sole Issue:
SO ORDERED.
Acquisition of Valid Title
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ.,
It is a well-established principle that factual findings of the trial
concur.
court, when affirmed by the Court of Appeals, are binding on this
Court.10 Petitioner has given this Court no cogent reason to
deviate from this rule; on the contrary, the findings of the courts
a quo are amply supported by the evidence on record.

Petitioner claims that her signature and that of her husband were
forged in the Deed of Absolute Sale transferring the property
from the Domingo spouses to respondent. Relying on the general
rule that a forged deed is void and conveys no title, 11 she assails
the validity of the sale.

It is a well-settled rule, however, that a notarized instrument

enjoys a prima facie presumption of authenticity and due
execution.12 Clear and convincing evidence must be presented to
overcome such legal presumption. Forgery cannot be presumed;
hence, it was incumbent upon petitioner to prove it.13 This, she
failed to do. On this point, the CA observed:

"x x x. What surprises the Court is that a comparison of the

signature of appellant Norma Domingo in the Deed of Absolute
Sale in favor of the appellees and the signature in the verification
of the complaint manifest a striking similarity to the point that
without any contrary proof, it would be safe to conclude that said
signatures were written by one and the same person. Sadly,
appellant left that matter that way without introducing
counteracting evidence. x x x"14

Petitioner also failed to convince the trial court that the person
with whom Respondent Yolanda Robles transacted was in fact
not Valentino Domingo. Except for her insistence that her
husband was out of the country, petitioner failed to present any
other clear and convincing evidence that Valentino was not
present at the time of the sale. Bare allegations, unsubstantiated
by evidence, are not equivalent to proof.15

Petitioner now stresses the issue of good faith on the part of

respondents. In the absence of a finding of fraud and a
consequent finding of authenticity and due execution of the Deed
of Absolute Sale, a discussion of whether respondents were
purchasers in good faith is wholly unnecessary. Without a clear
and persuasive substantiation of bad faith, a presumption of good
faith in their favor stands.16

The sale was admittedly made with the aid of Bacani, petitioner’s
agent, who had with him the original of the owner’s duplicate
Certificate of Title to the property, free from any liens or
encumbrances. The signatures of Spouses Domingo, the
registered owners, appear on the Deed of Absolute Sale.
Petitioner’s husband met with Respondent Yolanda Robles and
received payment for the property. The Torrens Act requires, as a
prerequisite to registration, the production of the owner’s

6
G.R. No. L-35022 December 21, 1977
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  extra-judicial confession of September 29, 1969, the following
vs.
RICARDO VERZOLA & JOSEFINA MOLINA, accused-appellants.
ANTONIO, J.:
Appeal by Ricardo Verzola and Josefina Molina from the decision
of the Court of First Instance of Abra, finding them guilty of the
crime of Murder and sentencing them, respectively, viz.: Verzola,
as principal, to suffer the penalty of life imprisonment, to
indemnify the offended party in the amount of P12,000.00
without subsidiary imprisonment in case of insolvency, and to
pay 3/4 of the costs; and Molina, as an accessory after the fact, to
suffer an indeterminate penalty of six (6) years of prision
correccional as maximum, and to pay 1/4 of the indemnity and
costs.
At about 10:00 o'clock on the night of September 28, 1969,
Bernardo Molina was clubbed to death by Ricardo Verzola in the
presence of appellant Josefina Molina inside Molina's house at
Barrio Lipcan, Bangued, Abra. The body of the victim was
subsequently carried by the two appellee to the ground and left
at the foot of the stairs. Appellant Verzola then went to his house,
changed his clothes and threw his bloodstained sweater
undershirt and underwear, including the piece of wood be used
in clubbing the deceased, inside their toilet. Afterwards, he went
to the municipal building and reported to the police authorities
that Bernardo had died in an accident. The police authorities.
together with the Municipal Health Officer, the Municipal Judge
and a photographer went to Lipcan to conduct the investigation.
They found the body of the deceased Bernardo Molina sprawled
at the foot of the bamboo ladder (Exhibit "I"). Blood had oozed
from the mouth, nose and ears. There were bloodstains on the
floor of the bedroom of the house, on the mat, as well as on the
beddings of the deceased. The bloodstains led to the bamboo
ladder where some of the stains could be found on the steps of
the ladder. When questioned by the police, Josefina revealed that
the assailant of her husband was Ricardo Verzola. Upon her
request, she was brought to the Office of the Chief of Police of
Bangued, where at about 2:00 o'clock in the morning of
September 29, 1969 she gave a written statement narrating the
circumstances surrounding the incident in question and pointing
to appellant Verzola as the assailant of her husband (Exhibits 'K"
and "9"). In that extra-judicial statement, she stated that
immediately after 10:00 o'clock in the evening of September 28.
1969, appellant Ricardo Verzola went to their house in Barrio
Lipcan, Bangued Abra. entered the room where she was sleeping
with her husband, Bernardo Molina, woke her up and had carnal
knowledge of her; that when Bernardo Molina woke up and
attempted to rise from the floor, that was the moment when
Verzola clubbed Bernards, hitting him on the head several times
that afterwards, she heard the sound of a body being dragged
downstairs and the voice of Verzola saying that he was leaving
and warning her not to say anything about the incident. She
looked out of the door and saw her husband already lying
prostrate at the foot of the stairs. This statement was sworn to by
her before Municipal Judge Francisco T. Valera.
At about 4:00 o'clock that same morning, appellant Verzola was
picked up by the police and brought to the municipal building,
and there he also executed a written statement (Exhibit "L")
admitting that he clubbed the victim several times. Thus, in his
statements appear
6. Q:—You stated that you killed Bernardo Molina inside his
house, will (you) relate the true events or what happened when
you killed him?
A:—Yes, sir.
Last night at the stated hour in Barrio Lipcan, Bangued, Abra,
inside the house of Bernardo Molina I went and when I was
under their house that was the time when I pricked with a
bamboo twig just under the place where Josephina Molina, wife
of Bernardo Molina was laying down, and I noticed that she was
awake, and not long afterwards she came down and came to my
place, and that was the time when we did everything that wanted
both of us to do, but before that in the night, Josephina Molina
told me 'THAT HER HUSBAND WAS PLANNING TO KILL ME and
just after we were through what both of us did, Josephina went
upstairs inside (the) house, and because I cannot withstand
anymore the plan of her husband to kill me that was why I went
upstairs and I went direct inside their room and I saw Bernardo
Molina lying down sleeping, and that was the time when I
clubbed him three times at the nape, and when he did not move
anymore that was the time when we both with Josephine Molina
throw him downstairs of their house. After that I went home.
7. Q:-What is the weapon that you used in clubbing Berno Molina'
A:—-A wooden club which is rounded and about two palms in
length, Sir.
Q:—You stated that while you were under the house of Bernardo
Molina and you pricked with bamboo twig in awakening
Josephina Molina and not long afterwards she came down and
went to you hat is your relationship with Josephina Molina the
wife of Bernardo Molina?
A:—Josephina Molina is my paramour.
Q:—How long have you been in that relationship with Josephina
Molina?
A:—What I know is that it is already about 10 years, Sir. Because
her daughter who is already 12 years old was still small.
Q:—With this relationship that you have with Josephina Molina
did not her husband Bernardo Molina notice, so that Josephina
told you that her husband was planning to kill you?
A:—Probably he had already, Sir. Because that is what his wife
told me.
Q:—Who witnessed when you killed Bernardo Molina that you
know'
A:—It was only Josephina the wife of Bernardo Molina, Sir.
Q:—What did Josephina say when you delivered club blows at
her husband?
A:—'That is enough he is dead, let us bring him down', that is
what she said, Sir.
7
Q:—Therefore, you want to say that you and Josephina Molina
the wife of Bernardo helped each other in this killing?
A—I told her when she was going up, I'LL GO AHEAD OF HIM and
what she answered to me, IT IS UP TO YOU', Sir.
Q:—And where was Josephina while you were clubbing
Bernardo, if you remember?
A:—She was there lying down, and when Bernardo did not move
she said that is enough.
Q:—What was your clothing when you went to club Bernardo
Molina and also your trousers that you used?
A:—-Sweater with long sleeves colored light gray and white
shorts, Sir.
Q:—Where are these sweater and shorts?
A—I dropped it inside our toilet, Sir.
Q:-And where is that club that you said you used in clubbing
Bernardo Molina?
A—I also dropped it inside our toilet, Sir.
Q:—Is it not correct that you kill Bernardo Molina because he
surprised you while you were beside his wife inside their room
that night?
A:—No, Sir.
Q:—So that in this where you clubbed to death Bernardo Molina
you admit as your guilt?
A:—Yes, Sir.
Q:—Do you have something more to add to this statement of
yours?
A:—-No more, Sir. Unless there are more questions to me.
Q:—Were you forced, intimated, instructed or you were mauled
in this where you made your statement?
A:—No, Sir.
Q:-Do You want to sign this statement of yours?
A—Yes. Sir." (Exhibit "Translation")
After execution his aforesaid written statement, he was brought
to the residence of Judge Francisco T. Valera. Judge Valera sent
the n out of his house, a Verzola of his constitutional rights, then
read to him the contents of his aforementioned extrajudicial
confession After satisfying himself that the statement was given
voluntarily, he administered the oath to all appellant. Appellant
Verzola then guided the po authorities to his house where, in
their presence, he retrieved from the toilet his bloodstained
clothes as well as the piece of wood which he used in clubbing the
deceased.
Dr. Luis P. Bringas Municipal Health Officer of Bangued, Abra,
who conducted the autopsy, testified that the died not
instantaneously as a result of cardio-respiratory failure caused by
"cerebral compressions and hemorrhages". The deceased
sustained the following wounds:
LACERATED WOUND NO. I:—7 Cm. in length with irregular
borders or edges extremities, the deeper tissues unevenly
divided with tags of tissues showing in the wound. The edges and
surrounding parts bruised and some hairs were found in the
wound. Situated 6 Cm. in level of the posterior outer upper part
of left Helix of the left ear, extending slantingly downwards below
to middle portion of Occipital region.
LACERATED WOUND NO. II:-6 Cm. in length situated 3 Cm. lateral
to Lacerated Wound No. I, placed horizontally form mid point of
the Lacerated Wound. The characteristics of the wound is the
same as the above wounds.
LACERATED WOUND NO. III:-Same characteristics as of the
above wounds. 5 Cm. in length situated 2 Cm. below Lacerated
Wound No. II, extending slightly to the right side.
LACERATED WOUND NO. IV:-4.5 Cm. in length same as the
characteristics of the other wounds above, but extending
opposite Lacerated Wound No. I only from the right side."
(Exhibit 'A").
He also declared that on the basis of the tion and direction of the
w the t must have been behind the victim and said wounds were
while the victim was lying in prone position, face downwards.
Both appellants admit that ft was appellant Verzola who the fatal
blows on the victim. Versola, however, after impugning the
(Exhibit "L'), claims that he did so in self- defense. Thus, V
veracity of the facts contained in his extrajudicial confession
testified that while he was feeding his two cows in front of his
house at about 10:00 o'clock on the night of September 28, 1969,
he heard cries for help coming from the direction of the house of
Bernardo Molina- Upon recognize it to be the voice of the wife of
Bernardo, he proceeded to the couples house. Upon reaching the
yard of said house he heard the loud voice of a man. Thus that
some intruder had entered the Molina's residence, he to am
himself. At the threshold of the ladder, he picked up a pan of a
plow (Exhibit B) At the door of the room, he heard the man say:
'Vulva of your mother, I will kill you." As he entered the room, he
saw his co-appellant Josefina Mo in a comer, being maltreated by
Bernardo Molina. After noticed his presence, he said: "Vulva of
your mother, I will kill all of you." At that juncture, Bernardo
stooped to pick up a bolo from the floor. As Bernardo was still
bending towards the Mm V struck him twice with the piece of
wood, hitting the head of the victim, causing him to fall. After he
had fallen, he tried to revive the victim by ng the head of the
latter on his lap will it, saying: "Hoy, Hoy, Hoy". He explained that
this was the reason why there were bloodstains on his clothes.
When Josefina asked him what happened, he replied that
Bernardo met an accident. At his suggestion, they both carried
the body of the victim down the stairs because according to him
they wanted to bring the body to the hospital. As the hospital was
too far and it was too dark, they left the body on the ground. After
instructing Josefina to go and summon persons to help the
victim , he went home. After changing his clothes and throwing
his bloodstained clothing inside their toilet, he went to the
municipal building in Bangued, Abra, and reported to the guard
that there was a person who met an accident in Lipcan.
8
His co-appellant, Josefina Molina, also testified that during the
first week of September, 1969 she had a quarrel with her
husband because of Bernardo's o theft men, namely, Bocarile
Santos Beloy and appellant Ricardo Verzola; that on the night in
question, she and her husband had another quarrel and in the
course thereof, she was boxed and strangled by her husband,
causing her. to shout for help; that after a while, as she was
crouching in a comer of the house, with her face covered, she
heard a thud As she looked up, she noticed that Verzola was
already inside their room, squatting on the floor and holding on
his lap the head of her husband, that while Verzola was shaking
the head of the deceased, he was saying: "Hoy, Hoy, Hoy." She c
that out of fear, she assisted Verzola in carrying the body of
Bernardo at the foot of the stairs where Verzola left her. After
looking at the wounds of her husband, she became afraid and
went up the house where her children were sleeping.
Both appellants c that they were not aware of the contents of
their extra- judicial confessions as they were made to sign them
by the police authorities without being able to read their
contents.
There can be no question that once an accused has admitted the
killing of a human being, the burden is on him to establish the
existence of any circumstance which may justify the killing or at
least attenuate the offense committed. To establish his
exculpation, or the justification for the act, he must prove such
affirmative allegation by clear, satisfactory and convincing
evidence. 1 He must rely on the strength of his own evidence and
not on the weakness of that for the prosecution for even if that
were weak, it could not be disbelieved after the accused himself
had admitted the killing. 2It is evident that no such proof was
adduced by appellant Verzola.
To begin with, the conduct of appellant Verzola lately after he
committed the crime is incompatible with the reaction of one
who killed another in legitimate self-defense. Although he claims
that he brought the victim down the stairs in order to bring him
to the hospital, yet when he was able to get a jeep he did not
utilize it for that purpose but instead used it in going to town.
Moreover, although appellant Verzola was present at the scene of
the crime when the police authorities were investigating the case,
he kept quiet about the incident. It was only from Josefina Molina
that the police learned for the first time that Verzola was the
assailant of the deceased. Even then, Josefina had to request the
police authorities to bring her to the poblacion so that she could
talk more freely about the killing For his part, Verzola attempted
to conceal his participation in the crime by hiding inside his toilet
his bloodstained clothes and the weapon that he used in clubbing
the deceased . These actuations of appellant Verzola reveal a
behaviour which is incompatible with the reaction of one who
acted in legitimate self-defense. 3 More significant however, are
the undisputed physical facts of the case, such as nature,
character and location of the wounds sustained by the deceased
and the presence of the bloodstains on the beddings of the victim.
These facts and circumstances belie the claim of the appellant
that he clubbed the victim in self- defense. On the contrary, they
sufficiently indicate that the fatal injuries were inflicted upon the
victim when the latter was lying defenseless on the floor, as he
was either sleeping or was just beginning to wake up.
Although appellant Josefina Molina admitted in her extra-judicial
statement (Exhibits "K", "K- 1 " to "K-91) that she was the
paramour of her co- appellant for over a year, there is no proof
that she had knowledge of the criminal design of her co-
appellant. Neither has she cooperated with him by previous or
simultaneous acts, much less is there any showing that she
supplied the principal with material or moral aid. Her only
participation was in assisting her co-appellant in bringing the
body of the deceased to the ground. The question, therefore, is
whether or not by said overt act she could be held criminally
responsible as an accessory.
An accessory does not participate in the criminal design, nor
cooperate in the commission of the felony, but, with knows of the
commission of the crime, he subsequently takes part in three (3)
ways: (a) by profiting from the effects of the crime; (b) by
concealing the body, effects or instruments of the crime in order
to prevent its discovery; and (c) by assisting in the escape or
concealment of the principal of the crime, provided he acts with
abuse of his public functions or the principal is guilty of treason,
parricide, murder, or an attempt to take the life of the Chief
Executive or is known to be habitually guilty of some other crime.
The main difference separating accessories after the fact the
responsibility of the accessories is subsequent to the
consummation of the crime and subordinate to that of the
principal.
According to the trial court, " the bringing down of the body of
the victim ... was to destroy the body of the crime, or its effect
that as to make it appear that the death of the victim was caused
by an accident. We disagree. There is no iota of proof that
Josefina Molina ever attempted "to destroy the body of the crime"
or to make it appear that death of the victim was accidental. It
must be noted that Josefina testified that she helped her co-
appellant bring the body of the deceased down the stairs because
of fear. Even if she assisted her co-appellant without duress,
simply Verzola in bringing the body down the house to the foot of
the stairs and leaving said body for anyone to see, cannot be
classified as an attempt to or destroy the body of the crime the
effects or instruments thereof, must be done to prevent the
discovery of the crime. In the case at bar, the body was left at the
foot of the stairs at a place where it was easily visible to the
public. Under such circumstances there could not have been any
attempt on the part of Josefina to conceal or destroy the body of
the crime-
WHEREFORE, in view of the foregoing, the judgment, insofar as
appellant Verzola is concerned, is hereby AFFIRMED. The
judgment against Josefina Molina is, however, reversed and said
appellant is ACQUITTED with proportionate costs de oficio.
Barredo, Aquino, Concepcion Jr. and Guerrero, JJ., concur.
9
G.R. No. L-14524            October 24, 1960
FELIX MOLINA, petitioner, 
vs.
COURT OF APPEALS and BASILISA MANJON, respondents.
Tabora and Concon for petitioner.
Manuel S. Tiuseco for respondent.
REYES, J.B.L., J.:
In Civil Case No. 2796 of the Court of First Instance of Camarines
Sur, plaintiff Basilisa Manjon, claiming ownership over a parcel of
land described in the complaint, sought to recover the possession
thereof from defendant Felix Molina. Defendant Felix Molina filed
his answer denying the material avernments of the compolaint,
and by way of affirmative defense and "cross- complaint"
(counterclaim) alleged that the land in question was sold to him
by plaintiff around the year 1938 (which was formalized before a
Notary in 1943), and that he has been in continued possession
thereof since 1938. Defendant, therefore, prayed that the
complaint be dismissed; that plaintiff's supposed title be declared
void; and that defendant be given such other relief as might be
found to be just and equitable under the premises. Plaintiff
answering the counterclaim, denied the due execution of the
alleged sale to defendant and urged the dismissal of the
counterclaim.
At the trial, the parties submitted evidence that the trial judge
summarized as follows (Decision, Rec. on Appeal, pp. 7-8):
The plaintiff admitted having executed the said deed of sale, but
she claimed that it was fictitious. Recounting the circumstances
leading to its execution, she testified that on November 2, 1943,
the defendant, then her overseer, informed her that some guerilla
soldiers would arrest her for investigation, because one Conchita
Cuba complained to them against her for having illegally
encroached on her property. Afraid to be taken to the guerilla
camp since previously her nephew was killed there, the plaintiff
asked the defendant what was best for her to do. He suggested
that she execute a fictitous deed of sale in his favor for the
portion in question which was the one claimed by Conchita Cuba,
in order that he could defend her rights in his name against the
claim of Conchita Cuba. Plaintiff accepted the suggestion and
asked the defendant to have the corresponding deed of the sale
prepared. Later in the day Exh. 1 was prepared and plaintiff
signed it when it was brought to her. For her protection,
however, because she did not fully trust him, she made the
defendant sign a statement in which he expressly admitted that
the transaction was only a simulated sale (Exh. D).
The defendant denied the whole story and affirmed in turn that
Exh. D was a foregery. He denied having made and signed the
said statement, offering samples of his geniune signature (Exhs.
6, 7, 8, 9, 10, 11, 12, 13, 14 and 15) for comparison with the
questioned signature in (Exh. D).
But after hearing, the court, without passing upon the question of
whether or not the sale to the defendant was merely simulated,
as claimed by the plaintiff, declared the latter as the lawful owner
of the property on the ground that she could not have validly
disposed of the said land in 1938, or in 1943 when the deed of
sale was allegedly executed in a public document, since it still
then formed part of the public domain, a sales patent having been
issued to plaintiff by the government only on June 4, 1948.
On appeal, Molina expressly assigned, as one of the errors
committed by the trial court, its failure to pass upon the question
whether the sale, as evidenced by Exhibit 1, was simulated or not.
Nevertheless, the Court of Appeals affirmed the decision and
accepted substantially the reasoning of the trial court. Like the
latter, it neither made any definite finding as to whether or not
the alleged sale to defendant was fictitious, believing it was
unnecessary, because in its opinion, Manjon could not validly sell
to Molina, in 1938 or 1943, the land that she acquired in
ownership only in 1948. Against the judgment of the Court of
Appeals, Felix Molina filed the instant petition for review.
We find the appeal meritorious. It is the settled rule in this
jurisdiction, deprived from the common law doctrine of estoppel
by deed, that "when a person who is not the owner of a thing sells
or alienates and delivers it and later the seller or grantor acquires
title thereto, such title passes by operation of law to the buyer or
grantee" (Art. 1435, Civil Code of the Philippines). This particular
rule of estoppel was applied in this jurisdiction as early as 1908,
in the case of Llacer vs. Muñoz de Bustillo, et al., 12 Phil., 328,
wherein this Court said:
The plaintiff in his brief undertakes to show that the defendant
had not obtained title to the land in question, by virtue of Exhibits
7 and 8, by the fact that his father had not obtained title to a
portion of the said land until 1881, or some years after the
alleged deed of Antonio Muñ oz. Exhibit F and the note to Exhibit
B seem to support this contention. Granting, however, that he did
not obtain a portion of the land until some years after he had sold
such land to Antonio Mu ¤ oz, this subsequent acquisition of the
land would have the effect of making his conveyance of the same
to Muñ oz valid.
The rule was reaffirmed in Pang Lim and Galvez vs. Lo Seng, 42
Phil., 282, 289.
Hence, the decisive issue in this litigation appears to be whether
cor not the alleged sale in 1938 (or in 1943 when the parties
supposedly executed a formal deed of sale) was in fact fictitious
as petitioner insist. If genuine, the sale is undoubtedly operative
in law, pursuant to the doctrines heretofore discussed.
Unfortunately, we are not in a position to decide this question of
fact (that was neither resolved by the trial court nor by the Court
of Appeals), for the reason that the parties have not discussed it
in this Court nor is the evidence now before us. We are thus
constrained to remand the record to the Court of Appeals for
consideration and decision of the issue whether or not (1) the
deed of sale (Exh. 1) was simulated and (2) the statement, Exhibit
D, is a foregery.
Wherefore, the decisions under appeal are reversed and set
aside, and the case is ordered remanded to said Court of Appeals
for further proceedings in conformity with this opinion.
10
G.R. No. 107951 June 30, 1994
SPOUSES EPIFANIO FIGE and MARTINA FIGE, petitioners, 
vs.
THE COURT OF APPEALS, HON. MARCELINO E. BAUTISTA, Jr.,
in his capacity as Presiding Judge, Regional Trial Court,
Parañaque, Metro Manila, FELICITACION CAMARILLO,
WILFREDO CAMARILLO, and IRMA CORONEL, respondents.
Edgardo Q. Galope for petitioners.
Sunico, Malabanan & Associates for private respondents.
PUNO, J.:
The case 1 originated from a simple action for unlawful detainer.
Private respondents are the registered co-owners of a 401-
square meter parcel of land with some improvements thereon
located at 634 Quirino Avenue, Tambo, Parañ aque, Metro
Manila. 2 Their ownership is evidenced by Transfer Certificate of
Title No. 36798.
One of the improvements on the land is a store built in 1972. 3 In
September 1984, one of the co-owners, Antonio Camarillo,
verbally leased the store in favor of petitioners. The agreed rental
was SEVEN HUNDRED PESOS (P700.00) a month.
On February 21, 1989, private respondents wrote to petitioners
terminating the verbal lease by the end of the said month. 4 The
petitioners were given fifteen (15) days to vacate the store.
In response, petitioners sent a postal money order in the amount
of ONE THOUSAND FOUR HUNDRED PESOS (P1,400.00)
representing the rental for the months of January and February
1989.
On March 2, 1989, private respondents reiterated their demand
of terminating the lease. Conciliation efforts at the barangay level
failed, hence a complaint for Unlawful Detainer was filed by
private respondents against petitioners before the Metropolitan
Trial Court, NCJR, Parañ aque, Branch 78.
Petitioners contested the complaint. In their answer, they
averred that the lot of private respondents as described in their
Transfer Certificate of Title No. 36798 is different from the parcel
of land denominated as No. 634 Quirino Avenue, Tambo,
Parañ aque, Metro Manila upon which the store stood. 5 They
further claimed that they bought the latter lot from a certain Elsie
Periquet.
After trial, the Metropolitan Trial Court dismissed the case for
lack of cause of action. 6 On appeal to the Regional Trial Court,
NCJR, Parañ aque, Metro Manila, the controverted decision was
reversed on February 27, 1992, viz:
WHEREFORE, judgment is hereby rendered REVERSING the
decision appealed from and a new one is entered ordering:
a) defendants-appellees and all persons claiming rights under
them to immediately vacate the premises in question and
peaceably surrender possession thereof to herein plaintiffs-
appellants; and
b) defendants-appellees to pay plaintiffs-appellants the
following:
1) The sum of P700.00 monthly from March 15, 1989 until they
have vacated the premises in question, representing the
reasonable value for the use and occupation thereof;
2) The sum of P15,000.00 as and for attorney’s fees; and
3) The costs of suit.
SO ORDERED. 7
Petitioners appealed to the respondent Court of Appeals. On
August 27, 1992, respondent court affirmed the questioned
decision but deleted the award of attorney’s fees. On November
20, 1992, petitioners’ motion for reconsideration was denied for
lack of merit.
Hence, this petition faulting the respondent court, as follows:
(1) In disregarding petitioners’ Exhibits "1", "2" to "2-5", "4", "5",
and "6" as well as the testimony of Geodetic Engineer Cresencio
Supleo despite the weight accorded thereon by the Metropolitan
Trial Court who under the law is in a better position to assess the
same;
(2) In its failure to consider that private respondents’ complaint
states no cause of action; and
(3) In affirming with modification the decision of the Regional
Trial Court of Parañ aque.
The petition lacks merit.
The petition hinges mainly on the allegation by petitioners that
the lot they are occupying is different from the lot described in
the title of private respondents. This submission, petitioners urge
in their first assigned error, is supported by their Exhibits "1",
"2", "2-5", "4", "5", and "6" and the testimony of witness Engineer
Cresencio Supleo, which allegedly, were misappreciated by the
respondent court. As a rule, it is not appropriate to raise factual
questions in petitions for certiorari before this tribunal but
nonetheless, we have carefully examined the evidence presented
in view of the contradictory rulings between the trial court and
the appellate courts. We find no reason to reverse the respondent
court in its ruling refusing to give probative value to Exhibit "1,"
Location Plan of Lot 2560; Exhibit "2," Field Notes Cover; Exhibits
"2-5," Geodetic Engineer’s Certificate, Survey Notification Letter,
Technical Description of Lot 2560, Traverse Computation, and
Lot Data Computation; Exhibit "4," Sales Application No. 13-1;
and Exhibit "6," Survey Verification Report because they were not
verified and approved by the Bureau of Lands as required by
paragraph 5, Section 28 of Act No. 2259, otherwise known as the
"Cadastral Act" as amended by Section 1862 of Act No. 2711.
Under the said law, it is the duty of private surveyors to send
their original field notes, computations, reports, surveys, maps,
and plots of the property to the Bureau of Lands for verification
and approval. Since the authenticity of these documents was not
established, they cannot be given any consideration. 8 On the
other hand, Exhibit "5," is an uncertified xerox copy of the
Technical Description of Lot 2560 Cad. 299, Parañ aque Cadastre.
It was not also authenticated and attested under the seal of the
Bureau of Lands. Worse, petitioners submitted an entirely
11
different document from what was marked as Exhibit "5" in the
trial court on November 21, 1991. Needless to state, it is
inadmissible in evidence. 9

We also stress that the juridical relation between petitioners and

private respondents is that of lessee and lessor. Considering this
jural relationship, petitioners cannot claim that they purchased
the questioned lot from Elsie Periquet. Well settled is the rule
that a tenant cannot, in an action involving the possession of the
leased premises, controvert the title of his landlord. 10 Nor can a
tenant set up any inconsistent right to change the relation
existing between himself and his landlord, without first
delivering up to the landlord the premises acquired by virtue of
the agreement between themselves. 11

In an action for unlawful detainer, the question of possession is

primordial while the issue of ownership is generally unessential.
The long settled rule is that the issue of ownership should be
raised by the affected party in an appropriate action 12 for a
certificate of title cannot be the subject of a collateral attack. In
this light, the testimony of Engineer Supleo which has hardly any
relevance to the issue of possession is of little solace to the
petitioners. 13Apropos is the ruling in Tiu vs. Court of
Appeals, 14 to wit:

The fact of lease having been admitted by the private respondent

as well as the expiration of the term thereof, there can be no
question that the issue of ownership is foreign to the action.
Indeed, it matters not that private respondent was already an
occupant of the leased premises when he executed and signed the
contract of lease, because the basis of the ejectment suit is the
very contract of lease. Private respondent cannot now be heard
to impugn what he had previously admitted, which includes that
petitioner is the owner of the premises. Neither can be confuse
the issue by raising the question of title to defeat the right of
petitioner to the possession of the premises and to eject him
therefrom.

The second and third assignment of errors must necessarily fail.

As discussed above, petitioners’ evidence that the title of private
respondents does not include the lot they are occupying is far
from convincing. Their charge that private respondents
committed fraud and misrepresentation about their ownership of
the lot is bereft of competent evidence. Allegations of fraud must
be proved by clear and convincing evidence. We are satisfied that
private respondents proved their cause of action.

WHEREFORE, the Decision of the respondent Court of Appeals in

CA-G.R. SP No. 27760 is AFFIRMED. Costs against petitioners.

SO ORDERED.

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

12
G.R. No. L-37284 February 27, 1976
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  accused that she surrender to the police authorities of San Juan,
vs.
NONA SALAZAR PADIERNOS, defendant-appellant.
Prospero A. Crescini for appellant.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General
Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for appellee.
CONCEPCION, JR., J.:
Appeal from the decision of the Court of First Instance of Rizal,
Branch XXII, in Criminal Case No. 5084, finding the accused Nona
Salazar Padiernos guilty of the crime of parricide, and sentencing
her to life imprisonment with the corresponding accessory
penalties provided by law, and to indemnify the heirs of the
deceased in the amount of P20,000.00 and the costs. 1
The accused, Nona Salazar Padiernos and the deceased, Rodolfo
Padiernos were husband and wife, having been married at Cainta,
Rizal, on December 24, 1960. 2 Out of their marriage, they had
four (4) children, namely: Ronald, Rommel, Racquel, and
Rosemarie. At the time of the incident in question, they were
living at 188 Montoya St., San Juan, Rizal.
During his lifetime, the deceased a tall, big and robust man was
an agent of the Bureau of Customs and as such was issued a gun,
which he used to keep under the mattress of their bed.
On the night of October 22, 1968, the accused waited for the
deceased, but the latter came home only at 4:00 o'clock in the
morning of October 23, 1968-drunk. The accused helped him
change his clothes, after which he went to bed by himself. At
about 6:30 in the morning of the same day, the accused brought
her son Ronald to the Lourdes School in Mandaluyong, Rizal,
using the family car driven by Roberto Valeriano, the family
driver. Upon her return to the house half an hour later she went
directly to their bedroom. A few minutes later, she came out of
the room and asked Letty Basa, a cousin of the deceased: "Letty,
nasaan ang gamit ng Kuya mo?" At that time, the deceased was
already awake and was on the bed lying on his stomach, reading a
newspaper. Having been informed that the things of the deceased
were in their bedroom, the accused returned inside and closed
the door.
Shortly, thereafter, the accused and the deceased came out of the
room, at which instant the former called for help, shouting: "Vale,
Vale". Vale (Roberto Valerians), the family driver, responded to
the call, and when he entered the house, he saw the accused
holding with her' right hand, a blood-stained knife, and the
deceased sprawled in a bloody mess on the floor, groaning and
moaning in pain. The accused was very angry and said: "Ganyan
na lang ang pagmamahal ko sa iyo, niloloko mo pa ako."
Thereupon, Roberto Valeriano together with the other members
of the household, including the accused, carried the deceased
inside the car, and proceeded to the hospital (Waterous Clinic) at
Mandaluyong, Rizal. On the way, the accused was still mad at the
deceased and cursed him, saying: "Putang ina mo, iyan ang
nababagay sa iyo, pag namatay ka magpapakamatay na din ako."
When they reached the hospital, the deceased was pronounced
"dead on arrival". Roberto Valeriano then suggested to the
Rizal, but she refused. Instead, upon her request, Roberto
Valeriano brought the accused to her uncle's house at San Juan.
He left her there, and did not see her anymore. Then he went to
Fort Bonifacio, where he fetched Romeo Padiernos brother of the
deceased.
Meanwhile, the authorities of Waterous Clinic notified the San
Juan Police Department. Immediately, thereafter, Capt. Enrique
Aguinaldo and Pat. Arsenio Santos arrived, and then proceeded to
the residence of the deceased at San Juan, Rizal, where they
conducted an investigation. After interviewing Letty Basa, Pat.
Arsenio Santos entered the bedroom where the stabbing took
place-followed by Letty Basa-and searched the place. The room
was well arranged, but the bedspread was "spilled with blood".
When the policeman lifted the mattress of the bed, Letty saw
thereunder the gun of the deceased, and gave it to the officer. The
knife u by the accused in stabbing the deceased was likewise
taken by Pat. Arsenio Santos. However, they were not able to
investigate the accused as she could no longer be located. She had
fled and gone into hiding.
In the meantime, Romeo Padiernos brother of the d who was
fetched by Roberto Valeriano at Fort Bonifacio, arrived at the
Waterous Clinic. He followed the funeral car carrying the body of
his deceased brother to Funeraria Popular in Manila.
Dr. Enrique Jimenez, under the direct supervision of Dr. Ernesto
Brion, both of the N.B.I., performed an autopsy on the cadaver of
the deceased. The Necropsy Report 3 shows that the deceased
sustained one (1) lacerated wound and three (3) stab wounds,
which cause his death.
The accesed admitted that she killed the deceased. However, she
claims that she did it in self defense According to her, after taking
Ronald to school, she returned to their house at about 7:15 or
7:30 in the morning and went directly to their M. Inside, she
found that the deceased was already awake and was on the bed
reading a newspaper. While she and the deceased were in the
room, the latter accused her of stealing P1,000.00 from his brief
case, which she allegedly gave to her brother Jose Salazar. After a
heated argument, the deceased pulled her hair and slapped her
on the face. She held the clothes of the deceased, and when the
latter pushed her back, they fell on the floor together. The
deceased stood up first, and then, kicked her on the stomach,
saying: "Putang ina mo, papatayin kita." Then, he got his gun
under the mattress and pointed it at her. Believing that the
deceased would kill her, she grabbed, with her left hand, the knife
under the bed. Then she stood up and with the deceased in front
of her, covered her eyes with her right hand, and began swinging
the knife from left to right and from right to left. to prevent the
deceased from coming near her. After awhile, she opened her
eyes and seeing that the deceased was about two (2) meters
away from her, she opened the door and ran out fast. The
deceased followed her but he fell on the floor in a bloody mess.
The foregoing version of the accused was disbelieved by the trial
court. The accused, now appellant, maintains and insists in this
appeal that the trial court erred in rejecting her claim of self-
13
defense, and,, likewise, assails the trial court in admitting and in
giving 'weight to the testimonies of the prosecution witnesses.
Appellant's plea of self-defense is untenable. If she really inflicted
the wounds sustained by the deceased in the manner claimed and
demonstrated by her during the trial, that is, by swinging the
knife sidewise from left to right and from right to left, then the
deceased would have sustained "slash wounds and not stab
wounds". The autopsy report, 4 however, shows that the deceased
sustained three (3) stab wounds, one of which, the fatal wound,
being located at the left part of the back of the
deceased. 5 Moreover, these stab wounds, specially the fatal
wound at the back, could not have been sustained by the
deceased if he had been facing the appellant. The nature and
location of the stab wounds indicate that the appellant inflicted
those wounds while she was behind or at the back of the
deceased. These physical facts belie and negate the appellant's
claim of self-defense.
Besides, appellant's version of the indent is highly incredible and
improbable. Thus, as aptly observed by the court below, if the
appellant covered her eyes with her right hand when she began
to swing the knife from left to right and from right to left, how
was she able to hit her husband without seeing him? Why did her
husband remain standing in front of her, immobile like a post
without avoiding the knife and allowed himself to be killed? If it
were true that the deceased was standing in front of her with a
gun pointed at her and angry enough to kill her, why didn't he
shoot her?
Furthermore, after the stabbing incident, the appellant did not
surrender to the authorities, but fled and went into hiding and
surrendered only after almost four (4) years from the
commission of the crime. Such conduct of the appellant is
inconsistent with and casts doubt upon her claim of self defense.
On the Contrary, it tends to establish her guilt.
"It is now a well-settled rule that one who admits the infliction of
injuries which caused the death of another has the burden of
proving self-defense with sufficient and convincing evidence. If
such evidence is of doubtful veracity, and is not clear and
convincing, the defense must necessarily fail, for having admitted
that he was the author of the death of the deceased. it was
incumbent upon appellant, in order to avoid criminal liability, to
prove the justifying circumstance claimed by him without relying
on the weakness of that of the prosecution but on the strength of
his own evidence, for even if the evidence of the prosecution
were weak it could not be disbelieved after the accused himself
admitted the killing." 6 Having failed to prove by clear and
convincing evidence her plea of self-defense, the appellant must
suffer the consequences of her unlawful act.
Upon a review of the records, We find no reason to reject the
findings and conclusions of the trial court. To begin with, the
appellant's contention that prosecution witness Letty Basa is
biased because she is the cousin of the deceased, is without merit.
While witnesses may be said to be interested by reason of their
relationship with one of the parties, their declarations should not
be disregarded or rejected capriciously on the ground of bias
alone where-as in the present case-they are reasonable,
consistent and supported by facts and circumstances. 8 Nor do
We find merit in the contention that the non-presentation of the
written statement of this witness to the police which she
allegedly did not sign, gave rise to the presumption that it
"contained declarations disastrous to the prosecution case". The
presumption that suppressed evidence is unfavorable does not
apply where the evidence was at the disposal of both the defense
and the prosecution. 9 In the case at bar, the alleged statement of
prosecution witness Letty Basa was in the possession of the
police authorities. Hence, the defense could have requested the
court below to issue a subpoena requiring the police to produce
such statement, but as the defense failed to do that, they cannot
now argue that said statement if produced would have been
adverse to the prosecution.
Again, appellant would impugn the competency and credibility of
prosecution witness Dr. Ernesto Brion by arguing that it was Dr.
Enrique Jimenez and not Dr. Brion, who conducted the autopsy
examination on the body of the deceased. This contention is
equally devoid of merit. As correctly pointed out in the appellee's
brief, Dr. Ernesto Brion was presented as an expert witness, and
his competency as such was admitted by the appellant's counsel.
Besides, he testified that the autopsy examination of the body of
the deceased was conducted under his direct supervision. Hence,
he was competent to testify on the nature, extent, and location of
the wounds sustained by the deceased, and on the basis thereof
could, with some degree of certainty, deduce the possible relative
positions of the appellant and the deceased during the stabbing
incident. Our own perceptive review of the records show that his
testimony is, as held by the trial court, fully supported and
corroborated by the testimonies of the prosecution witnesses.
WHEREFORE, finding no reversible error, the judgment of the
court a quo  is hereby affirmed in toto. With costs against the
appellant.
Fernando, Barredo, Antonio and Aquino, JJ., concur.

Coming now to the question of credibility, "the rule consistently

adhered to by this Court is to give due respect to the finding of
the trial court on the matter, the latter tribunal having had the
opportunity to observe the demeanor and conduct of witnesses
while testifying and, therefore, is in a better position to properly
gauge their credibility. Thus, appellate tribunals will not disturb
the findings of fact of the trial court unless there is proof that said
court, in making the findings, had failed to appreciate some fact
or circumstance of weight and substance that would have altered
the results of the case. 7

14
G.R. No. 91129 August 25, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  evidence.
vs.
ANTONIO PABLO Y DOLLOSO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Biterbo D. Tagarda for accused-appellant.
DAVIDE, JR., J.:
Accused Antonio Pablo y Dolloso was charged before the
Regional Trial Court (RTC) of Cavite City on 29 January 1986 for
violating Section 4, Article II of Republic Act No. 6425, as
amended, otherwise known as the Dangerous Drugs Act of
1972. 1 The accusatory portion of the information reads:
That on or about January 29, 1986, in the City of Cavite, Republic
of the Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without legal authority, did,
then and there, willfully, unlawful and knowingly deliver and sell
to a poseur buyer one (1) slice of marijuana cake and one (1)
aluminum foil of dried marijuana leaves.
The case was docketed as Criminal Case No. 21-86.
Accused entered a plea of not guilty when arraigned on 17 March
1986. 2 At the trial, the prosecution established its case through
the testimonies of P/Sgt. Rodrigo Espiritu and T/Sgt Jacinto de la
Cruz, both members of the Narcotics Command (NARCOM) Unit
stationed at Noveleta, Cavite, and Constancia Franco-Salonga, a
forensic chemist of the National Bureau of Investigation (NBI).
The accused through his and his friend Rodymir Calalang's
testimony, set up the defense of denial.
On 4 May 1987, the trial court promulgated its judgment
convicting the appellant of the crime charged and sentencing
him:
. . . to undergo imprisonment of from twelve (12) years and one
(1) day of reclusion temporal as minimum to twenty (20) years
and one (1) day of reclusion temporal as maximum, to pay a fine
of P5,000.00 without subsidiary imprisonment in case of
insolvency and to pay the costs. 3
Accused appealed from said decision through a notice of appeal
which does not indicate the court to which he is
appealing. 4 Considering the penalty imposed, the Branch Clerk of
Court transmitted the records of the case to the Court of
Appeals 5 which then docketed the same as C.A.-G.R. No. 05265.
In the Appellant's Brief filed with the Court of Appeals, 6 the
accused makes the following assignment of errors:
1. . . . the Trial Court erred in finding accused guilty of violation
(sic) of Section 4, Article II of Republic Act No. 6425 as amended
without the prosecution presenting the "Informer" who was
alleged to be the buyer of marijuana cake from the accused.
xxx xxx xxx
. . . the Trial Court erred in finding accused guilty of the crime
charged unsupported by positive facts and contrary to law and
xxx xxx xxx
. . . the Trial Court erred in giving full credit to the testimonies of
Police Sgts. Rodrigo Espiritu and Jacinto de la Cruz who were not
buyers of the marijuana cake nor heard (sic) the conversation
that took place between accused and informer.
xxx xxx xxx
. . . the Trial Court erred in disregarding and discrediting the
testimony of accused and his corroborating witness and without
giving exculpatory weight to the evidence of the defense. 7
After the Appellee filed its Brief through the Office of the Solicitor
General, the Court of Appeals rendered a decision on 23
November 1989 8 affirming the appealed decision with a
modification of the penalty imposed for being incorrect. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, the decision appealed from is
modified in the sense that the accused-appellant Antonio Pablo y
Dolloso is found guilty beyond reasonable doubt of violation (sic)
of Section 4, Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act of 1972, and is sentenced to life
imprisonment, and to pay a fine of P20,000.00, and the cost.
However, the judgment herein shall not be entered and the case
shall be, as it is hereby certified to the Supreme Court and the
entire records thereof elevated thereto for review (Section 12, of
Rule 124 of the Rules of Court; People vs. Daniel, 86 SCRA 511;
People vs. Ramos, 88 SCRA 486; People vs. Centeno, 108 SCRA
710).
SO ORDERED. 9
Pursuant to the last paragraph of the dispositive portion, the
Clerk of Court of the Court of Appeals forwarded to this Court the
entire records of this case, together with the transcript of the
stenographic notes and exhibits, on 8 December 1989. 10
This Court required the accused to file his Brief, which he did on
13 March 1990. He merely reiterated the errors and arguments
raised in the Brief he filed with the Court of Appeals. The Solicitor
General filed the Appellee's Brief on 21 June 1990.
The facts of the case, as summarized by the Court of Appeals, are
as follows:
At the trial the prosecution has established that at about 8:00
o'clock in the morning of January 28, 1986 an informer by the
name of "Bobby" told Sgt. Jacinto dela Cruz of the NARCOM Unit
stationed at Noveleta, Cavite that a certain "Boy Roberts" whose
real name is Antonio Pablo y Dolloso (herein accused-appellant)
of Cavite City was selling marijuana. Immediately Lt. Jorge
Corpuz, Officer-in-Charge, designated Sgt. Jacinto dela Cruz and
Sgt. Rodrigo Espiritu to form a team and conduct a "buy-bust
operation." At 8:30 that same morning, the team together with
Bobby proceeded to Cavite City and arrived at around 9:00
o'clock at Dubai Street near San Sebastian College, Cavite City.
From there, they went to Ejercito St., Sta Cruz, Cavite, where
Bobby pointed to the house of the accused. After closely watching
15
the accused's place for some time, the team and Bobby returned
to the place of the rendezvous near San Sebastian College. Sgt.
dela Cruz instructed Bobby to buy from the accused one (1) slice
of marijuana cake and one (1) foil of marijuana leaves by using
four (4) marked P5.00 bills. Sgt. dela Cruz supplied the amount of
P20.00 in marked bills. They told Bobby to give a pre-arranged
signal, by lifting his shirt, after the marijuana cake and marijuana
leaves had been handed to him. Sgts. dela Cruz and Espiritu saw
Bobby stop in front of the accused's house and called for "Boy
Roberts." The latter appeared and after a short conversation, the
aforenamed officers saw Bobby hand the P20.00 marked bills to
the accused who entered his residence and after a while returned
with something wrapped in a tin foil and gave it to Bobby. Upon
seeing the pre-arranged signal, the two (2) officers swooped
down on the accused and arrested him. On the spot, the officers
recovered from the accused the marked bills and from Bobby one
slice of marijuana cake and one (1) foil of marijuana leaves. The
accused did not resist arrest. Sgt. dela Cruz and Sgt. Espiritu went
inside the house of the accused. Upon further investigation the
accused brought out three (3) cakes of marijuana which he kept
inside the refrigerator and five (5) foils of marijuana leaves which
he took from a yellow plastic can near the water tank outside the
house. The officers together the (sic) accused passed by the
Cavite Police Station before returning to their headquarters at
Noveleta, Cavite. Thereafter, the accused without the assistance
of counsel was investigated by Sgt. Manolo.
On the same date, January 28, 1986, Lt. Jose Jorge E. Corpuz,
Officer-In-Charge of the Narcotic Command, Cavite District Office,
Noveleta, Cavite submitted to the Director, National Bureau of
Investigation, Manila a written request for laboratory
examination to determine the presence of prohibited or
regulated drugs of the following: one (1) foil of marijuana dried
leaves, three (3) bricks of brownies cake (marijuana cakes), and
five (5) foils of marijuana dried leaves (Exh. A). The
aforementioned specimens were received by Research Chemist
Constancia Franco Salonga (Exh. B). After conducting the
microscopic, chemical, and chromatographic examinations on (1)
one small brick of brownie cake allegedly containing marijuana
and (2) one foil containing dried leaves suspected to be
marijuana, Research Chemist Ms. Salonga found that said
specimens gave positive results of marijuana (Exh. C-2). Ms.
Salonga testified on the examinations she conducted and the
findings she made on the aforementioned specimens.
The defense of the accused-appellant, 34, consists of denials.
According to him, he does not know Bobby but knew the
informer as Andoy. At about 10:00 in the morning of January 28,
1986, while he was fixing his bed on the lawn inside the gate of
his house, Sgt. dela Cruz, Sgt. Espiritu and Andoy arrived in a
motor vehicle. Immediately after having alighted, Sgt. dela Cruz
and Sgt. Espiritu pointed their guns at him and told him to run.
Andoy who was carrying a brown paper bag went up his house.
With ihis (sic) gun, Sgt. dela Cruz hit him (accused) three times
while at standing (sic) position and two times while lying
prostrate on the drive way. Sgt. Espiritu was pointing a gun at
him. A little later, Andoy came down from the house carrying an
orange colored bag which was the same bag presented to the trial
court by Fiscal Fred Aguilar. Andoy told the officers that the bag
contained marijuana cake (sic). Sgt. dela Cruz then told him to go
up the house and show them the bedroom. Sgt. dela Cruz directed
Andoy to search the room, but they did not find any marijuana
there. Fifteen (15) minutes thereafter, Sgt. Espiritu came up,
carrying a yellow plastic container which, according to the
officer, was found near the water tank, and contained marijuana.
Andoy also searched the bedroom of his mother, but he did not
find anything. The accused knew Andoy as a NARCOM informer.
The gas stove presented by Fiscal Aguilar was taken from their
house which they utilized whenever there is no electricity.
Accused-appellant also declared that Andoy nursed ill-feelings
against him, because he bested Andoy in their courtship of a
certain Grace who was a waitress at Violy's refreshment parlor at
San Antonio.
Accused-appellant denied that Sgt. dela Cruz had taken from him
four (4) P5.00 marked bills. He stated that while he was being
investigated at the NARCOM headquarters at Noveleta, Sgt. dela
Cruz took out from his wallet a P20.00 bill, which he asked to be
changed into four P5.00 bills upon which Sgt. dela Cruz placed
markings.
However, on cross-examination, accused-appellant declared that
he does not know of any reason why Sgt. dela Cruz and Sgt.
Espiritu would falsely accuse him of selling prohibited drugs
except what had happened between him and Andoy, and that he
would not know if the two (2) officers would connive with Andoy
to falsely accuse him of selling marijuana.
Corroborating the accused was Rodimar Calalang, 21, a friend of
five (5) years and neighbor at Ejercito St. 11
The first three (3) assigned errors raise the issue of whether or
not the evidence for the prosecution has established beyond
reasonable doubt that the accused sold marijuana in violation of
Section 4, Article II of R.A. No. 6425, as amended. It is the thesis of
the accused that without having presented the informer who
posed as buyer, the fact of sale could not be established.
In disposing of these assigned errors and issue, the Court of
Appeals held:
We do not agree. It has been established that Sgt. dela Cruz gave
Bobby, their informer, four (4) P5.00 marked bills with which to
buy marijuana cake and one (1) foil of marijuana dried leaves
from accused-appellant. Sgt. dela Cruz instructed Bobby that as
soon as the accused should have given or delivered the marijuana
cake and marijuana dried leaves to him, he would lift his shirt
which was the signal for them to make the arrest. Sgt. dela Cruz
and Sgt. Espiritu testified that they saw Bobby talk to the
accused-appellant and thereafter hand the P20.00 bill to him.
Thereafter, accused appellant went inside his house and
immediately came back with the marijuana cake and one
marijuana leaves (sic) in a tin foil. When Bobby lifted his shirt, the
two (2) officers swooped down on accused-appellant and
arrested him. The fact that the two (2) officers did not hear what
conversation transpired between Bobby and the accused-
appellant is immaterial for the purpose of establishing the sale.
Considering the fact that money was handed by Bobby to the
accused-appellant and immediately thereafter the latter
delivered to the former the subject marijuana cake and marijuana
leaves, there can be no transaction established other than that of
a sale. The burden of proof that it was not a sale was shifted to
the accused-appellant. In the case at bar, the accused-appellant
did not overcome that burden. He did not present any evidence to
16
disprove that it was a sale either by himself or by the informer
whom he knew by the name of Andoy. Consequently, the fact of
sale stood unrebutted. Indeed, Section 2 of Republic Act 6425, as
amended par. (o) defines "sale" to mean the act of giving a
dangerous drug whether for money or any other material
consideration. 12
As to the fourth assigned error, the Court of Appeals ruled that
the trial court properly rejected the version of the accused. Thus:
The defense which accused-appellant set up at the trial is that the
marijuana cake and the marijuana dried leaves submitted by the
prosecution to the lower court were planted evidence. The trial
court who has observed the demeanor of the witnesses
presented by both the prosecution and the defense gave credence
to the witnesses for the prosecution and concluded that the crime
charged in the information was proven beyond reasonable doubt.
Aside from the settled rule that the findings of fact of the trial
court which depend upon the proper evaluation of credibility of
witnesses are given great weight on appeal and are not usually
disturbed unless there is a showing of strong and cogent reasons
therefore, 13 it is really incredible that Sgt. dela Cruz and Sgt.
Espiritu who have not been shown to have any personal motive
of falsely charging the accused with a capital offense would do so
merely to satisfy the alleged humiliation of Andoy, the informer,
whom the accused-appellant had allegedly bested in the
courtship of a certain Grace assuming such courtship to be true.
And to what extent of moral influence or ascendency (sic) has
Andoy over the two officers who testified against him, the
accused-appellant has not even attempted to show. It has been
repeatedly held that there is no test of the truth of human
testimony except its conformity to the knowledge and common
experience of mankind. 14 To be believed the testimony must not
only proceed from the mouth of a credible witness, but must be
credible in itself. 15 Measured by this criteria, We cannot believe
that Sgt. dela Cruz and Sgt. Espiritu would have taken time and
effort to drive from their headquarters at Noveleta, Cavite to
Ejercito St., Sta. Cruz, Cavite City and planted as evidence the
marijuana cake and marijuana leaves that were submitted to the
National Bureau of Investigation for examination and which were
found to be positive as to the presence of marijuana just to satisfy
the whims of a certain Andoy, who was known to the officers as
Bobby, their informer. We hold that no reasonable prudent man
would believe appellant's theory of defense, which was easy to
concoct, but hard to believe. 16
After a painstaking examination of the records of this case,
evaluation of the evidence adduced and review of the decision of
the Court of Appeals certified to Us, We find the latter to be fully
supported by the evidence; moreover, We rule that the
modification of the sentence is correct, except that the portion on
subsidiary imprisonment should have been likewise deleted.
Notwithstanding the sufficiency of the findings and conclusions
of the Court of Appeals, however, We wish to amplify certain
points.
In support of his three (3) assigned errors, accused stresses that:
(a) there was no reason to withhold the testimony of the poseur-
buyer because the latter was known to him, hence, the danger to
the poseur-buyer's person sought to be avoided by not revealing
his identity does not exist; the non-presentation then of the
poseur-buyer gives rise to the presumption that his testimony
would be adverse to the prosecution; 17 (b) it was improbable
that he would commit the offense because it is contrary to human
experience for a drug pusher to sell marijuana in the open; and
(c) there is no showing that the slice of marijuana cake and one
foil of dried marijuana leaves are the same items allegedly taken
from him.
We find these contentions to be bereft of merit.
There was no suppression of evidence when the poseur-buyer
was not presented. Firstly, his testimony would at best be
corroborative because Sgt. Dela Cruz and Sgt. Espiritu were
themselves eyewitnesses to the delivery of the marked P5.00 bills
by Bobby, the informer, to the accused and the subsequent
delivery of the marijuana cake and marijuana leaves by the latter
to the former. His non-presentation was not fatal to the
prosecution's case. Secondly, having admitted that Bobby is
known to him, accused could have called him to the witness stand
as a hostile witness. Of course, if he chose this strategy he would
be doing so at his own risk. As held by this Court in People
vs. Raul Fernandez: 18
There is as well no merit in the claim of the accused that the non-
presentation of the poseur-buyer as a witness is a clear
suppression of evidence. The testimony of the poseur-buyer, if it
were given, would at best be corroborated because Navarro and
Feliciano sufficiently established how the crime was committed.
Thus his non-presentation was not fatal to the prosecution's
case. 19 Of course, it would be different if the police officers were
unable to see the actual sale of marijuana. In such a situation, an
exception arises and the poseur-buyer should be presented as a 
witness. 20 Besides, there is no showing in this case that the
poseur-buyer was not available for examination. If the accused
honestly believed that the testimony of such poseur-buyer would
be adverse to the prosecution, the former should have availed of
the compulsory process to have such poseur-buyer produced as
witness, or even as a hostile witness.
The presumption laid down in Section 3(e), Rule 131 of the Rules
of Court, to wit:
(e) That evidence willfully suppressed would be adverse if
produced;
does not apply when the testimony of the witness is merely
corroborative. As early as 1912, in United States
vs. Gonzales,  21 this Court already held:
When an act has been witnessed by several persons, the
prosecution has no need, nor is it obliged, to present all such
witnesses, but only those it deems necessary; it is enough that it
employ such witnesses as in its opinion may be sufficient to
prove the facts alleged in the complaint.
In United States vs. Dinola,22 this Court pointedly ruled that:
The presumption that the evidence omitted by a party would, if
presented, be adverse to him, is not applicable to merely
corroborative evidence.
Neither does it apply in cases where the witness, as in this case, is
available to the accused 23 because then, the evidence would have
the same weight against one party as against the other. 24
17
In People vs.  Andiza,  25 We had the occasion to state that although
Patrolman Hernandez and the civilian informer could have been
highly competent witnesses, being themselves the poseur-buyers,
their testimonies were not, however, indispensable in view of the
declarations of not only one (1), but two (2) other eyewitnesses.
Their non-presentation as witnesses does not mean suppression
of testimony that is adverse to the prosecution. Besides, the
matter of presenting witnesses is the prerogative of the
Prosecutor.
And in the more recent case of People vs. Bati,  26 this Court held:
In the case at bar, there were other prosecution witnesses who
testified and positively identified appellant as the principal
participant in the illegal transaction. Both Patrolmen Luciano and
Caraan actually witnessed the same and their testimonies were
based on their actual and personal knowledge of the events that
took place leading to appellant's arrest. They may not have been
within hearing distance, specially since conversation would
expectedly be carried on in hushed tones, but they were certainly
near enough to observe the movements of the appellant and the
buyer. Moreover, these prosecution witnesses are all law
enforcers and are, therefore, presumed to have regularly
performed their duties in the absence of proof to the contrary.
(People vs. Agapito, G.R. No. 73786, Oct. 12, 1987).
As to the second point, We have held in a number of cases that
drug pushing, when done on a small level, belongs to that class of
crimes which may be committed at any time and at any place. The
fact that the parties are in a public place and in the presence of
other people may not always discourage them from pursuing
their illegal trade as these facts may even serve to camouflage the
same. 27
As to the third point, the prosecution, via the testimony of Sgt.
Espiritu, sufficiently established that the slice of marijuana cake
and the foil of dried marijuana leaves were the items taken from
the accused. Thus, Sgt. Espiritu testified:
Q Now, in a plastic evidence bag identified as Exh. E-6 the
contents is (sic) a brick of marijuana cake as testified to by the
Forensic Chemist, what connection has that to the brick which
was the subject matter of the buy-bust operation?
A This was the brick that he sold.
Q Why do you say so?
A We asked him also to sign and his signature appears here.
Q Where?
A (witness pointing to a signature over the brick)
x x x           x x x          x x x
Q Now, what about that foil of marijuana cigarettes that was the
result of the buy-bust operation, where is it now?
A (witness pointing to a foil of marijuana which was previously
marked as Exh. E-5)
Q Why are you sure that that is the foil of marijuana that was the
result of that buy-bust operation?
A We also have him signed, (sic) sir.
x x x           x x x          x x x
FISCAL AGUILAR:
Q I am showing to you a receipt dated January 8, 1986 certifying
that the undersigned has seized and taken possession of the
property herein described from Antonio Pablo y Dolloso, what
connection has that receipt with the receipt you issued?
A This is the receipt of the property seized and that was prepared
by Jacinto dela Cruz.
FISCAL AGUILAR:
We request that the same be marked as Exh. G.
Q Whose signature is this, reading Jacinto dela Cruz?
A To him (sic), sir.
Q Are you (sic) present when it was signed by him?
A Yes, sir.
Q Below Sgt. dela Cruz's signature is the signature of one Antonio
Pablo, whose signature is that?
A That is Antonio Pablo's signature, sir.
Q Were you also present when he signed it?
A Yes, sir.
FISCAL AGUILAR:
I request that these two signatures be marked as Exh. G-1.
COURT:
Mark it.
FISCAL AGUILAR:
Immediately after these items were confiscated or recovered
from the accused, where did you take it (sic)?
A It was (sic) brought to the NBI for laboratory examination, sir.
Q Who brought it there?
A CIC Roberto Genido, sir. 28
Moreover, Constancia Franco Salonga, the forensic chemist who
examined the contents of the foil and brick of brownie cake
obtained from the accused, testified that after conducting
miscroscopic, chemical and chromatographic examinations
thereon, she concluded that the same were positive for
marijuana. 29
Finally, We come to the penalty imposed by the trial court which
is imprisonment "of from twelve (12) years and one (1) day
of reclusion temporal as minimum to twenty (20) years and one
(1) day of reclusion temporal as maximum," and a fine of
P5,000.00.
We are unable to trace the legal basis of this penalty. According to
the Court of Appeals, the trial court applied the provisions of
18
Section 4, Article II of R.A. No. 6425 before it was amended by
P.D. No. 1675 which took effect on 17 February 1980. Before such
amendment, the penalty provided for in said section was
"imprisonment ranging from twelve years and one day to twenty
years and a fine ranging from twelve thousand to twenty
thousand pesos;" however, should a prohibited drug involved in
any offense under said section be the proximate cause of the
death of the victim thereof, the penalty imposable was life
imprisonment to death and a fine ranging from twenty thousand
(P20,000.00) to thirty thousand (P30,000.00) pesos.

Thus, even under the pre-amendment provision, the penalty

imposed is still incorrect for the trial court exceeded the
maximum by one (1) day and fixed the fine at an amount very
much less than the minimum provided therein. It likewise
designated the penalty as reclusion temporal; nowhere in the law
does such a designation appear. Perhaps, it thought all along that
since the range is that for reclusion temporal,  it might be best to
so designate the penalty as such. Furthermore, considering that
the penalty imposed is higher than prision correccional, no
subsidiary imprisonment could be imposed pursuant to
paragraph 3, Article 39 of the Revised Penal Code.

As amended by P.D. No. 1675, the penalty provided for Section 4,

Article II of R.A. No. 6425 is life imprisonment to death and a fine
ranging from P20,000.00 to P30,000.00. However, the death
penalty can no longer be imposed pursuant to the 1987
Constitution. 30

Accordingly, the proper penalty to be imposed should be life

imprisonment and a fine of P20,000.00, without any subsidiary
imprisonment in case of insolvency.

WHEREFORE, judgment is hereby rendered AFFIRMING the

decision appealed from finding the accused ANTONIO PABLO y
DOLLOSO guilty beyond reasonable doubt of a violation of
Section 4, Article II of R.A. No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972, and sentencing him,
as above modified, to suffer the penalty of life imprisonment and
to pay a find of P20,000.00.

Costs against the accused.

SO ORDERED.

Gutierrez, Jr., Bidin and Romero, JJ., concur.

Feliciano, J., is on leave.

19
[G.R. No. 126947. July 15, 1999.]
HARRY ANG PING, petitioner, vs. THE HONORABLE COURT OF
APPEALS, RTC-MAKATI, BRANCH 149 AND UNI-BANCARD
CORPORATION, respondents.
Aquilino Q. Pimentel, Jr., and Associate Law Office for petitioner.
Perez and Calima Law Offices for private respondent.
SYNOPSIS
Ang Ping was a co-obligor in the credit card issued by Unibancard
Corp. to Tingson. Thus, when the latter defaulted in the payment
of his monthly charges, the Corporation filed a collection suit
against the two. The summonses for both of them were allegedly
served and received by a certain Umali. Then, Atty. Salazar filed
an answer on their behalf; and, at the pre-trial, Atty. Sandoval
represented the two. During the trial, defendants' counsel did not
present any evidence on their behalf and the trial court deemed
that the defendants had waived their right to present evidence.
The Court ruled in favor of the Corporation and a writ of
execution was subsequently issued. The same was enforced
against Ang Ping, who filed a petition to annul the judgment of
the trial court on the ground that the same was rendered without
the court acquiring jurisdiction over his person. However, the
Court of Appeals dismissed the petition ruling that Ang Ping was
properly placed under the jurisdiction of the trial court.
The rule is that summons must be served upon the defendant
himself. If served by substituted service, the requirements
thereof must be followed strictly to be effective. Here, there was
no explanation justifying resort to substituted service, the
process server did not file any proof of service, and there was no
report indicating that the person who received the summons in
behalf of Ang Ping was one with whom he had relation of
confidence that would ensure that Ang Ping will receive or be
notified of the summons issued. As regards the alleged
appearance of a lawyer in behalf of Ang Ping, the same cannot be
considered as voluntary appearance contemplated by the rules.
The records were bereft of any showing that Ang Ping personally
appeared at any stage in the proceedings of the trial court, and
there was no document whatsoever vesting authority in the
lawyer who purportedly represented him.
On the delay in filing the petition for annulment of judgment, it is
enough to say that where the ground invoked as basis for
annulment of judgment is lack of jurisdiction, the petition may be
filed at anytime before it is barred by estoppel or laches, neither
of which obtains in the present case. Hence, the decision of the
Court of Appeals was REVERSED and the decision of the RTC was
SET ASIDE. IcSADC
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION
OVER THE PERSON OF THE DEFENDANT; HOW ACQUIRED. —
Jurisdiction over the person of the defendant in civil cases is
acquired either by his voluntary appearance in court and his
submission to its authority or by service of summons. CTSDAI
2. ID.; ID.; ID.; ID.; SERVICE OF SUMMONS; IMPORTANCE
THEREOF. — It should be emphasized that the service of
summons is not only required to give the court jurisdiction over
the person of the defendant, but also to afford the latter an
opportunity to be heard on the claim made against him. Thus,
compliance with the rules regarding the service of summons is as
much an issue of due process as of jurisdiction.
3. ID.; ID.; SUMMONS; SUBSTITUTED SERVICE. — Well
settled is the rule that summons must be served upon the
defendant himself. It is only when the defendant cannot be
served personally within a reasonable time that substituted
service may be resorted to and such impossibility of prompt
service should be shown by stating that efforts have been made
to find the defendant personally and that such efforts have failed.
This is necessary because substituted service is in derogation of
the usual method of service. It is a method extraordinary in
character and hence may be used only as prescribed and in the
circumstances authorized by statute. The statutory requirements
of substituted service must be followed strictly, faithfully and
fully, and any substituted service other than that authorized by
statute is considered ineffective.
4. ID.; EVIDENCE; PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF PUBLIC FUNCTIONS; NOT APPLICABLE
WHEN THERE IS NO SHOWING OF SUBSTANTIAL COMPLIANCE
WITH THE REQUIREMENT OF THE LAW; CASE AT BAR. — The
presumption of regularity in the performance of public functions
finds no application in the case at bar. Surely, there must be, at
the very least, compliance with the procedure of law applicable.
Here, the process server did not file any proof of service. And
since substituted service was resorted to, there should have been
a report indicating that the person who received the summons in
Ang Ping's behalf was one with whom petitioner had a relation of
confidence that would ensure that the latter will receive or be
notified of the summons issued in his name. Certainly, it was
never intended that the presumption of regularity in the
performance of official duty will be applied even in cases where
there is no showing of substantial compliance with the
requirements of the rules of procedure. This is all the more so in
the present case where the duty to be performed has a direct
bearing on the acquisition of jurisdiction of the trial court over
the person of the defendant. aDIHTE
5. ID.; CIVIL PROCEDURE; JURISDICTION ACQUIRED
THROUGH VOLUNTARY APPEARANCE; NOT PRESENT. — As
regards the alleged appearance of a lawyer in behalf of the
petitioner during the proceedings in the trial court, the same
cannot be considered as the voluntary appearance contemplated
by the rules. In the first place, the records are bereft of any
showing that petitioner Ang Ping personally appeared at any
stage in the proceedings of the trial court. Second, no document
vesting authority in the lawyer who purportedly represented him
appears on record. Although the proceedings in the trial court
were conducted under the old rules of civil procedure, the same
procedural requirement applies to the case at bar since well
settled is the rule that remedial rules have retroactive
application. In any case, the aforecited new rule is merely a
crystallization of a procedure long established by jurisprudence
and practice.
6. ID.; ID.; PETITION FOR ANNULMENT OF JUDGMENT
FOR LACK OF JURISDICTION; PERIOD OF FILING. — With respect
to the appellate court's holding that because of petitioner's delay
in filing the petition for annulment of judgment, he is deemed to
20
have forfeited his opportunity to present his side, it is enough to
say that where the ground invoked as basis for annulment of
judgment is lack of jurisdiction, the petition may be filed anytime
before it is barred by estoppel or laches, neither of which obtains
in the present case. As held by this Court before, it is the better
rule that courts, under the principle of equity, will not be guided
or bound strictly by the statute of limitations or the doctrines of
laches when to do so, manifest wrong or injustice would result.
7. ID.; ID.; WHEN JUDGMENT SOUGHT TO BE EXECUTED
WAS RENDERED WITHOUT JURISDICTION. — The judgment
sought to be executed against Ang Ping was indeed rendered
without jurisdiction as he was not properly served with
summons and neither did he voluntarily submit himself to the
authority of the trial court. The essence of due process is to be
found in the reasonable opportunity to be heard and submit any
evidence one may have in support of his defense. It is elementary
that before a person can be deprived of his property, he should
first be informed of the claim against him and the theory on
which such claim is premised. Not having been duly accorded his
day in court, petitioner cannot thus be bound by the judgment in
the collection suit. DHEaTS
DECISION
ROMERO, J p:
Before us is a petition for review on certiorari assailing the
Decision 1 of the Eleventh Division of the Court of Appeals dated
June 14, 1996 dismissing petitioner's prayer for annulment of the
judgment of the Regional Trial Court of Makati Branch 149 in
Civil Case No. 18843 entitled "Unibancard Corporation vs.
Tiongson and Ang Ping." Likewise under review is the Court of
Appeals' Resolution 2 dated September 16, 1996 denying the
petitioner's motion for re-consideration. cdphil
The antecedent facts are as follows:
In April 1987, Juan Tiongson applied for and was issued a
Unicard credit card by respondent Corporation with petitioner
Harry Ang Ping as co-obligor. As part of the terms and conditions
governing the issuance and use of the credit card, Tingson and
Ang Ping agreed to jointly and severally pay Unibancard all
purchases and charges made through the said credit card within
twenty (20) days from receipt of the monthly statement without
necessity of demand. Tingson and Ang Ping likewise bound
themselves to pay interest and penalty fees on any unpaid
balance and attorney's fees in case of suit.
Tingson defaulted on his monthly charges which amounted to
P49,988.42 as of December 5, 1987 and despite repeated
demands, failed or refused to settle his accounts with respondent
Corporation prompting the latter to file a collection suit with the
Regional Trial Court of Makati.
The summonses for both Tingson and Ang Ping were allegedly
served on February 15, 1988 at 189 I. Lopez St., Mandaluyong,
Metro Manila and 34 Coolidge St., Greenhills West, San Juan,
Metro Manila, respectively. In both cases, the person who
received the summons was a certain Jonas Umali.
On May 12, 1988, a certain Atty. Benito Salazar filed an answer
purportedly on behalf of defendants Tingson and Ang Ping,
denying the substantial averments in the complaint and alleging
inter alia that the unpaid charges were much less than
P49,988.42 and that no proper demand was made on the
defendants. At the pre-trial, on the other hand, a certain Atty.
Lauro Sandoval represented Tingson and herein petitioner. Later,
during trial, defendant's counsel did not present any evidence on
their behalf; hence, the trial court deemed that the defendants
had waived their right to present evidence and submitted the
case for decision on the basis solely of the respondent
Corporation's evidence. cdll
The trial court rendered judgment on June 11, 1990, holding
Tingson and Ang Ping jointly and severally liable for "the sum of
P35,233.62 plus 3% interest and 5% penalty charge from August
3, 1987 until the entire amount is fully paid" plus 25% attorney's
fees. 3
A writ of execution was subsequently issued and the same was
enforced on May 3, 1993 at Ang Ping's Greenhills address where
Ruth Ang Ping, petitioner's sister, informed the sheriff that
petitioner was no longer residing at the said address. The writ
was later returned unsatisfied since a third party claim over the
properties attached was filed and successfully proven.
Thereafter, on November 5, 1993 and on motion of respondent
Corporation, an alias writ of execution was issued and a notice of
garnishment was served on San Lorenzo Bus Service Co. covering
shares believed to be owned by Ang Ping. Another alias writ of
execution was issued on August 29, 1994 by virtue of which, the
sheriff levied on certain personal properties found inside
Harrod's Haberdashery at SM Megamall, the Certificate of
Business Name of which was issued to herein petitioner. During
the enforcement of the writ on September 15, 1994, Ang Ping
tried to stop the sheriff from carrying away personalty from the
establishment and a scuffle between them ensued. The records
show that the petitioner grabbed the sheriff by the neck while
pulling him to the door, causing injury to the latter.
On October 27, 1994, Ang Ping filed with the Court of Appeals a
petition 4 to annul the judgment of the trial court which was the
basis of the various writs of execution issued against him. He
alleged that the judgment in question was rendered without due
process of law as he was not given his day in court. Petitioner
argued that since there was no valid service of summons upon
him and he never appeared before the court by himself or by
counsel, the trial court never acquired jurisdiction over his
person, thus, the judgment cannot be enforced against him.
LibLex
The Court of Appeals dismissed the petition after finding that
petitioner Ang Ping was properly placed under the jurisdiction of
the trial court which rendered the assailed judgment. First, the
appellate court said, the petitioner was duly represented by
counsel who, aside from filing a responsive pleading, had
religiously appeared for him and his co-defendant before the
lower court and petitioner's claim that said counsel was not duly
authorized by him was never satisfactorily substantiated. Second,
respondent Court noted that there was a valid service of
summons on petitioner Ang Ping because the copy of the
summons addressed to him was signed by a certain Jonas Umali.
The Court of Appeals likewise pointed out that the delay in filing
the petition to nullify the judgment of the lower court buttressed
private respondent's contention that the same was just a ploy
21
resorted to by petitioner to stymie the enforcement of the alias
writ of execution issued against him.
Hence, this petition.
Petitioner insists that the trial court never acquired jurisdiction
over his person since he was never validly served with summons
and neither did he appear in court. In particular, he assails the
substituted service resorted to by the process server on the
ground that he never actually received the summons. He pointed
to the irregularities in the conduct of the substituted service of
summons such as: the fact that the same person, a certain Jonas
Umali, received the summonses for both Tingson and petitioner
Ang Ping on the same date at different addresses and the failure
of the process server to file the proof of service together with the
return thus dispensing with the explanation as to why
substituted service was resorted to. He further claims that he
never authorized the lawyers who filed an answer and appeared
in court purportedly in his behalf.
In its comment, private respondent Corporation, on the other
hand, prayed for the dismissal of the present petition reiterating
that the trial court properly acquired jurisdiction over the person
of petitioner Ang Ping.
Jurisdiction over the person of the defendant in civil cases is
acquired either by his voluntary appearance in court and his
submission to its authority or by service of summons. 5 In this
case, the records show that the summons addressed to petitioner
Ang Ping was delivered by substituted service, with a certain
Jonas Umali signing as the one who received the summons. As
correctly pointed out by the petitioner, however, there was no
explanation in the proof of service justifying the resort to
substituted service. In fact, the records are bereft of any showing
that a proof of service was even filed after such substituted
service. cdll
Well settled is the rule that summons must be served upon the
defendant himself. It is only when the defendant cannot be
served personally within a reasonable time that substituted
service may be resorted to and such impossibility of prompt
service should be shown by stating that efforts have been made
to find the defendant personally and that such efforts have failed.
This is necessary because substituted service is in derogation of
the usual method of service. It is a method extraordinary in
character and hence may be used only as prescribed and in the
circumstances authorized by statute. The statutory requirements
of substituted service must be followed strictly, faithfully and
fully, and any substituted service other than that authorized by
statute is considered ineffective. 6
It should be emphasized that the service of summons is not only
required to give the court jurisdiction over the person of the
defendant, but also to afford the latter an opportunity to be heard
on the claim made against him. 7 Thus, compliance with the rules
regarding the service of summons is as much an issue of due
process as of jurisdiction.
Moreover, as likewise pointed out by the petitioner, the
presumption of regularity in the performance of public functions
finds no application in the case at bar. Surely, there must be, at
the very least, compliance with the procedure outlined in
Sections 6 and 20 of Rule 14 of the rules of civil procedure then
applicable (now Sections 4 and 18, Rule 14 of the new rules), to
wit:
SECTION 6. Return. — When the service has been
completed, the server shall give notice thereof, by registered
mail, to plaintiff or his counsel, and shall return the summons to
the clerk who issued it, accompanied with the proof of service.
SECTION 20. Proof of Service. — The proof of service of
summons shall be made in writing by the server and shall set
forth the manner, place, and date of service; shall specify any
papers which have been served with the process and the name of
the person who received the same; and shall be sworn to when
made by a person other than a sheriff or his deputy.
A cursory examination of the records shows that the process
server did not file any proof of service in Civil Case No. 18843. In
this case, since substituted service was resorted to, there should
have been a report indicating that the person who received the
summons in Ang Ping's behalf was one with whom petitioner had
a relation of confidence that would ensure that the latter will
receive or be notified of the summons issued in his name.
Certainly, it was never intended that the presumption of
regularity in the performance of official duty will be applied even
in cases where there is no showing of substantial compliance
with the requirements of the rules of procedure. This is all the
more so in the present case where the duty to be performed has a
direct bearing on the acquisition of jurisdiction of the trial court
over the person of the defendant. llcd
As regards the alleged appearance of a lawyer in behalf of the
petitioner during the proceedings in the trial court, the same
cannot be considered as the voluntary appearance contemplated
by the rules. In the first place, the records are bereft of any
showing that petitioner Ang Ping personally appeared at any
stage in the proceedings of the trial court. Second, no document
vesting authority in the lawyer who purportedly represented him
appears on record. At the pre-trial, for instance, Atty. Sandoval
who claimed to be the counsel for the defendants did not present
any special power of attorney executed by the petitioner herein.
The rules require that the party-litigant himself must appear for
pre-trial but if he chooses to be represented thereat, he should
grant a special power of attorney to his counsel or
representative. Thus, Section 4 of Rule 18 of the 1997 Rules of
Civil Procedure requires:
SECTION 4. Appearance of parties. — It shall be the duty of
the parties and their counsel to appear at the pre-trial. The non-
appearance of a party may be excused only if a valid cause is
shown therefor or if a representative shall appear in his behalf
fully authorized in writing to enter into an amicable settlement,
to submit to alternative modes of dispute resolution, and to enter
into stipulations or admissions of facts and of documents.
Although the proceedings in the trial court were conducted under
the old rules of civil procedure, the same procedural requirement
applies to the case at bar since well settled is the rule that
remedial rules have retroactive application. In any case, the
aforecited new rule is merely a crystallization of a procedure long
established by jurisprudence and practice. cda
With respect to the appellate court's holding that because of
petitioner's delay in filing the petition for annulment of judgment,
22
he is deemed to have forfeited his opportunity to present his side,
it is enough to say that where the ground invoked as basis for
annulment of judgment is lack of jurisdiction, the petition may be
filed anytime before it is barred by estoppel or laches, 8 neither
of which obtains in the present case. As held by this Court before,
it is the better rule that courts, under the principle of equity, will
not be guided or bound strictly by the statute of limitations or the
doctrine of laches when to do so, manifest wrong or injustice
would result. 9

All told, the judgment sought to be executed against Ang Ping was
indeed rendered without jurisdiction as he was not properly
served with summons and neither did he voluntarily submit
himself to the authority of the trial court. The essence of due
process is to be found in the reasonable opportunity to be heard
and submit any evidence one may have in support of his defense.
10 It is elementary that before a person can be deprived of his
property, he should first be informed of the claim against him and
the theory on which such claim is premised. 11 Not having been
duly accorded his day in court, petitioner cannot thus be bound
by the judgment in the collection suit.

WHEREFORE, the instant petition is hereby GRANTED and the

decision of the Court of Appeals is REVERSED. Accordingly, the
decision of the Regional Trial Court in Civil Case No. 18843 is SET
ASIDE as to herein petitioner Ang Ping. No costs. cdll

SO ORDERED.

Vitug, Panganiban and Purisima, JJ., concur.

Gonzaga-Reyes, J., took no part; signatory to CA decision.

23
G.R. Nos. L-3087 and L-3088, July 31, 1954
IN RE: TESTATE ESTATE OF THE DECEASED JOSE B. SUNTAY.
SILVINO SUNTAY, PETITIONER AND APPELLANT.
IN RE: INTESTATE ESTATE OF THE DECEASED JOSE B.
SUNTAY, FEDERICO C, SUNTAY, ADMINISTRATOR AND
APPELLEE.
DECISION
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance of
Bulacan disallowing the alleged will and testament executed in
Manila on November 1929, and the alleged last will and
testament executed in Kulangsu, Amoy, China, on 4 January 1931,
by Jose B. Suntay. The value of the estate left by the deceased is
more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of
the Philippines, died in the city of Amoy, Fookien province,
Republic of China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province, China, and
children by the first marriage had with the late Manuela T. Cruz
namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana,
Aurora, Emiliano and Jose, Jr. and a child named Silvino by the
second marriage had with Maria Natividad Lim Billian who
survived him. Intestate proceedings were instituted in the Court
of First Instance of Bulacan (special proceedings No. 4892) and
after hearing letters of administration were issued to Apolonio
Suntay. After the latter's death Federico C. Suntay was appointed
administrator of the estate. On 15 October 1934 the surviving
widow filed a petition in the Court of First Instance of Bulacan for
the probate of a last will and testament claimed to have been
executed and signed in the Philippines on November 1929 by the
late Jose B. Suntay. This petition was denied because of the loss of
said will after the filing of the petition and before the hearing
thereof and of the insufficiency of the evidence to establish the
loss of the said will- An appeal was taken from said order denying
the probate of the will and this Court held the evidence before the
probate court sufficient to prove the loss of the will and
remanded the case to the Court of First Instance of Bulacan for
further proceedings (63 Phil., 793). In spite of the fact that a
commission from the probate court was issued on 24 April 1937
for the taking of the deposition of Go Toh, an attesting witness to
the will, on 7 February 1938 the probate court denied a motion
for continuance of the hearing sent by cablegram from China by
the surviving widow and dismissed the petition. In the meantime
the Pacific War supervened. After liberation, claiming that he had
found among the files, records and documents of his late father a
will and testament in Chinese characters executed and signed by
the deceased on 4 January 1931 and that the same was filed,
recorded and probated in the Amoy district court, Province of
Fookien, China, Silvino Suntay filed a petition in the intestate
proceedings praying for the probate of the will executed in the
Philippines on November 1929 (Exhibit B) or of the will executed
in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino
Suntay and his mother Maria Natividad Lim Billian are estopped
from asking for the probate of the lost will or of the foreign will
because of the transfer or assignment of their share right, title
and interest in the estate of the late Jose B. Suntay to Jose G.
Gutierrez and the spouses Ricardo Gutierrez and Victoria Gofio
and the subsequent assignment thereof by the assignees to
Francisco Pascual and by the latter to Federico C. Suntay, for the
validity and legality of such assignments cannot be threshed out
in this proceedings which is concerned only with the probate of
the will and testament executed in the Philippines on November
1929 or of the foreign will allegedly executed in Amoy on 4
January 1931 and claimed to have been probated in the
municipal district court of Amoy, Fookien province, Republic of
China.
As to prescription, the dismissal of the petition for probate of the
will on 7 February 1938 was no bar to the filing of this petition
on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the"
execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the
testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge,
nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are
Go Toh, an attesting witness, Anastacio Teodoro and Ana Suntay.
Manuel Lopez, who was an attesting witness to the lost will, was
dead at the time of the hearing of this alternative petition. In his
deposition Go Toh testifies that he was one of the witnesses to
the lost will consisting of twenty-three sheets signed by Jose B.
Suntay at the bottom of the will and each and every page thereof
in the presence of Alberto Barretto, Manuel Lopez and himself
and underneath the testator's signature the attesting witnesses
signed and each of them signed the attestation clause and each
and every page of the will in the presence of the testator and of
the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th,
55th and 63rd interrogatories, Exhibit D-1), but did not take part
in the drafting thereof (answer to the 11th interrogatory, Id.);
that he knew the contents of the will written in Spanish although
he knew very little of that language (answers to the 22nd and
23rd interrogatories and to X-2 cross-interrogatory, Id.) and all
he knows about the contents of the lost will was revealed to him
by Jose B. Suntay at the time it was executed (answers to the 25th
interrogatory and to X—1 and X-8 cross-interrogatories, Id.); that
Jose B. Suntay told him that the contents thereof are the same as
those of the draft (Exhibit B) (answers to the 33rd interrogatory
and to X-8 cross-interrogatory, Id.) which he .saw in the office of
Alberto Barretto in November 1929 when the will was signed
(answers to the 69th, 72nd, and 74th interrogatories, Id) ; that
Alberto Barretto handed the draft and said to Jose B; Suntay:
"You had better see if you want any correction" (answers to the
81st, 82nd and 83rd interrogatories, Id.); that "after checking
Jose B. Suntay put the 'Exhibit B' in his pocket and had the
original signed and executed" (answers to the 91st interrogatory,
and to X-18 cross-interrogatory, Id.) ; that Mrs. Suntay had the
draft of the will (Exhibit B) translated into Chinese and he read
24
the translation (answers to the 67th interrogatory, Id.); that he
did not read the will and did not compare it (check it up) with the
draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories,
Id.).
Ana Suntay testifies that sometime in September 1934 in the
house of her brother Apolonio Suntay she learned that her father
left a will "because of the arrival of my brother Manuel Suntay,
who was bringing along with him certain document and he told
us or he was telling us that it was the will of our father Jose B.
Suntay which was taken from Go Toh. . . ." (p. 524, t. s. n., hearing
of 24 February 1948); that she saw her brother Apolonio Suntay
read the document in her presence and of Manuel and learned of
the adjudication made in the will by her father of his estate, to
wit: one-third to his children, one-third to Silvino and his mother
and the other third to Silvino. Apolonio, Concepcion and Jose, Jr.
(pp. 526-8, 530-1, 542, t. s. n. Id.) ; that "after Apolonio read that
portion, then he turned over the document to Manuel, and he
went away," (p. 528, t. s. n., Id.). On cross-examination, she
testifies that she read the part of the will on adjudication to know
what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on
redirect she testifies that she saw the signature of her father, Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p.
273, t. s. n., hearing of 19 January 1948), before the last
postponement of the hearing granted by the Court, Go Toh
arrived at his law office in the De los Reyes Building and left an
envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n.,
hearing of 13 October 1947); that he checked up the signatures
on the envelope Exhibit A with those on the will placed in the
envelope (p. 33, t. s. n., Id.); that the will was exactly the same as
the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to
Anastacio Teodoro and returned by the latter to the former
because they could not agree on the amount of fees, the former
coming to the latter's office straight from the boat (p. 315, t. s. n.,
hearing of 19 January 1948) that brought him to the Philippines
from Amoy, and that delivery took place in November 1934 (p.
273, t. s. n., Id.), then the testimony of Ana Suntay that she saw
and heard her brother Apolonio Suntay read the will sometime in
September 1934 (p. 524, t. s. n., hearing of 24 February 1948),
must not be true.
Although Ana Suntay would be a good witness because she was
testifying against her own interest, still the fact remains that she
did not read the whole will but only the adjudication (pp. 526-8,
530-1, 542, t. s. n., Id.) and saw only the signature, of her father
and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto
(p. 546, t. s. nM Id.). But her testimony on cross-examination that
she read the part of the will on adjudication is inconsistent with
her testimony in chief that after Apolonio had read that part of
the will he turned over or handed the document to Manuel who
went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of
Alberto Barretto in November 1929 when the will was signed,
then the part of his testimony that Alberto Barretto handed the
draft to Jose B. Suntay to whom he said: "You had better see if you
want any correction" and that "after checking Jose B. Suntay put
the 'Exhibit B' in his pocket and had the original signed and
executed" cannot be true, for it was not the time for correcting
the draft of the will, because it must have been corrected before
and all corrections and additions written in lead pencil must have
been inserted and copied in the final draft of the will which was
signed on that occasion. The bringing in of the draft (Exhibit B)
on that occasion is just to fit it within the framework of the
appellant's theory. At any rate, all of Go Toh's testimony by
deposition on the provisions of the alleged lost will is hearsay,
because he came to know or he learned of them from information
given him by Jose B. Suntay and from reading the translation of
the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who
testifies that he read the supposed will or the alleged will of his
father and that the share of the surveying widow, according to
the will, is two-thirds of the estate (p. 229, t s. n;, hearing of 24
October 1947). But this witness testified to oppose the
appointment of a co-administrator of the estate, for the reason
that he had acquired the interest of the surviving widow not only
in the estate of her deceased husband but also in the conjugal
property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he
read the original will or just the copy thereof (Exhibit B) is not
clear. For him the important point was that he had acquired all
the share, participation and interest of the surviving widow and
of the only child by the second marriage in the estate of his
deceased father. Be that as it may, his testimony that under the
will the surviving widow would take two-thirds of the estate of
the late Jose B. Suntay is at variance with Exhibit B and the
testimony of Anastacio Teodoro. According to the latter, the third
for strict legitime is for the ten children; the third for betterment
is for Silvino, Apolonio, Conception and Jose Jr.; and the third for
free disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B.
Suntay placed in the envelope (Exhibit A) and that it was in
existence at the time of, and not revoked before, his death, still
the testimony of Anastacio Teodoro alone falls short of the legal
requirement that the provisions of the lost will must be "clearly
and distinctly proved by at least two credible witnesses."
Credible witnesses mean competent witnesses and those who
testify to facts from or upon hearsay are neither competent nor
credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part
of 1929 he prepared or drew up two wills for Jose B. Suntay at
the latter's request, the rough draft of the first will was in his own
handwriting, given to Manuel Lopez for the final draft or typing
and returned to him; that after checking up the final with the
rough draft he tore it and returned the final draft to Manuel
Lopez; that this draft was in favor of all the children and the
widow (pp. 392-4, 449, t. s. n., hearing of 21 February 1948); that
two months later Jose B. Suntay and Manuel Lopez called on him
and the former asked him to draw up another will favoring more
his wife and child Silvino; that he had the rough draft of the
second will typed (pp. 395. 449 t. s. n., Id.) and gave it to Manuel
Lopez (p. 396. t. s. n,, Id.); that he did not sign as witness the
second will of Jose B. Suntay copied from the typewritten draft
[Exhibit B] (p. 420, t. s. n., Id.) ; that the handwritten insertions or
additions in lead pencil to Exhibit B are not his (pp. 415—7 435-
6, 457, t. s. n.f Id.) ; that the final draft of the first will made up of
four or five pages (p. 400, t. s. n., Id.) was signed and executed,
two or three months after Suntay and Lopez had called on him
25
(pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland
Cement in the China Banking Building on Dasmarinas street by
Jose B. Suntay, Manuel Lopez and a Chinaman who had all come
from Hagonoy (p. 398, t. s. n., Id.) ; that on that occasion they
brought an envelope (Exhibit A) where the following words were
written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n.,
Id.) ; that after the signing of the will it was placed inside the
envelope (Exhibit A) together with an inventory of the properties
of Jose B. Suntay and the envelope was sealed by the signatures of
the testator and the attesting witnesses (pp. 398, 401, 441, 443,
461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his
house one Saturday in the later part of August 1934, brought by
Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-
2, t. s. n., Id.) ; that on the following Monday Go Toh went to his
law office bringing along with him the envelope (Exhibit A) in the
same condition; that he told Go Toh that he would charge
P25,000 as fee for probating the will (pp. 406, 440-2, Id.) ; that Go
Toh did not leave the envelope (Exhibit A) either in his house or
in his law office (p. 407, t. s. n., Id.) ; that Go Toh said he wanted to
keep it and on no occasion did Go Toh leave it to him (pp. 409,
410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B.
Albert in connection with the complaint for estafcu filed against
Manuel Suntay for the alleged snatching of the envelope (Exhibit
A), corroborates the testimony of Alberto Barretto to the effect
that only one will was signed by Jose B. Suntay at his office in
which he (Alberto Barretto), Manuel Lopez and Go Toh took part
as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified
before the same assistant fiscal that he did not leave the will in
the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said,
quoting his own words, "Because I can not give him this envelope
even though the contract (on fees) was signed. I have to bring
that document to court or to anywhere else myself." (p. 27, t. s. n.,
Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in
Amoy, China, the law on the point is Rule 78. Section 1 of the rule
provides:
Wills proved and allowed in a foreign country, according to the
laws of such country, may be allowed, filed, and recorded by the
proper Court of First Instance in the Philippines.
Section 2 provides:
When a copy of such will and the allowance thereof, duly
authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the
Philippines, the court shall so allow it, and a certificate of its
allowance, signed by the Judge, and attested by the seal of the
court, to which shall be attached a copy of the will, shall be filed
and recorded by the clerk, and the will shall have the same effect
as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a
probate court must be proved. The law of China on procedure in
the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931
should also be established by competent evidence. There is no
proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of
the Republic of China set forth in Exhibits R-l and R-2, objected to
by counsel for the appellee, are inadmissible, because apart from
the fact that the office of Consul General does not qualify and
make the person who holds it an expert on the Chinese law on
procedure in probate matters, if the same be admitted, the
adverse party would be deprived of his right to confront and
cross-examine the witness. Consuls are appointed to attend to
trade matters. Moreover, it appears that all the proceedings had
in the municipal district court of Amoy were for the purpose of
taking the testimony of two attesting witnesses to the will and
that the order of the municipal district court of Amoy does not
purport to probate the will. In the absence of proof that the
municipal district court of Amoy is a probate court and on the
Chinese law of procedure in probate matters, it may be presumed
that the proceedings in the matter of probating or allowing a will
in the Chinese courts are the same as those provided for in our
laws on the subject. It is a proceedings in rent and for the validity
of such proceedings personal notice or by publication or both to
all interested parties must be made. The interested parties in the
case were known to reside in the Philippines. The evidence
shows that no such notice was received by the interested parties
residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n.,
hearing of 24 February 1948). The proceedings had in the
municipal district court of Amoy, China, may be likened to a
deposition or to a perpetuation of testimony, and even if it were
so it does not measure or come up to the standard of such
proceedings in the Philippines for lack of notice to all interested
parties and the proceedings were held at the back of such
interested parties.
The order of the municipal district court of Amoy, China, which
reads, as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the
interrogated parties, who declare that there are no errors, after
said minutes were loudly read and announced actually in the
court.
Done and subscribed on the Nineteenth day of the English month
of the 35th year of the Republic of China in the Civil Section of the
Municipal District Court of Amoy, China.
HUANG KUANG CHENG     
Clerk of Court     
CHIANG TENG HWA     
Judge     
(Exhibit N-13, p. 89 Folder of Exhibits.)
does not purport to probate or allow the will which was the
subject of the proceedings. In view thereof, the will and the
alleged probate thereof cannot be said to have been done in
26
accordance with the accepted basic and fundamental concepts
and principles followed in the probate and allowance of wills.
Consequently, the authenticated transcript of proceedings held in
the municipal district court of Amoy, China, cannot be deemed
and accepted as proceedings leading to the probate or allowance
of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this country. .
The decree appealed from is affirmed, without pronouncement as
to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.
DISSENTING:
PARAS, C. J.:
As a preliminary statement we may well refer to the case of Maria
Natividad Lim Billian, petitioner and appellant, vs. Apolonio
Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors
and appellees, 63 Phil., 793-797, in which the following decision
was rendered by this Court on November 25, 1936, holding that
the will executed by Jose B. Suntay who died in the City of Amoy,
China, on May 14, 1934, was lost under the circumstances
pointed out therein, and ordering the return of the case to the
Court of First Instance of Bulacan for further proceedings:
"On May 14, 1934, Jose B. Suntay died in the City of Amoy, China.
He married twice, the first time to Manuela T. Cruz with whom he
had several children now residing in the Philippines, and the
second time to Maria Natividad Lim Billian with whom he had a
son.
"On the same date, May 14, 1934, Apolonio Suntay, eldest son of
the deceased by his first marriage, filed the latter's intestate in
the Court of First Instance of Manila (civil case No. 4892).
"On October 15, 1934, and in the same court, Maria Natividad Lim
Billian also instituted the present proceedings for the probate of
a will allegedly left by the deceased.
"According to the petitioner, before the deceased died in China he
left with her a sealed envelope (Exhibit A) containing his will and,
also another document (Exhibit B of the petitioner) said to be a
true copy of the original contained in the envelope. The will in the
envelope was executed in the Philippines, with Messrs. Go Toh,
Alberto Barreto and Manuel Lopez as attesting witnesses. On
August 25, 1934, Go Toh, as attorney-in-fact of the petitioner,
arrived in the Philippines with the will in the envelope and its
copy Exhibit B. While Go Toh was showing this envelope to
Apolonio Suntay and Angel Suntay, children by first marriage of
the deceased, they snatched and opened it and, after getting its
contents and throwing away the envelope, they fled."
'Upon this allegation, the petitioner asks in this case that the
brothers Apolonio, Angel, Manuel and Jose Suntay, children by
the first marriage of the deceased, who allegedly have the
document contained in the envelope which is the will of the
deceased, be ordered to present it in court, that a day be set for
the reception of evidence on the will, and that the petitioner be
appointed executrix pursuant to the designation made by the
deceased in the will.
"In answer to the court's order to present the alleged will, the
brothers Apolonio, Angel, Manuel and Jose Suntay stated that
they did not have the said will and denied having snatched it
from Go Toh.
"In view of the allegations of the petition and the answer of the
brothers Apolonio, Angel, Manuel and Jose Suntay, the questions
raised herein are: The loss of the alleged will of the deceased,
whether Exhibit B accompanying the petition is an authentic copy
thereof, and whether it has been executed with all the essential
and necessary formalities required by law for its probate.
"At the trial of the case on March 26, 1934, the petitioner put two
witnesses upon the stand, Go Toh and Tan Boon Chong, who
corroborated the allegation that the brothers Apolonio and Angel
appropriated the envelope in the circumstances above-
mentioned. The oppositors have not adduced any evidence
counter to the testimony of these two witnesses. The court, while
making no express finding on this fact, took it for granted in its
decision; but it dismissed the petition believing that the evidence
is insufficient to establish that the envelope seized from Go Toh
contained the will of the deceased, and that the said will was
executed with all the essential and necessary formalities required
by law for its probate.
"In our opinion, the evidence is sufficient to establish the loss of
the document contained in the envelope. Oppositors' answer
admits that, according to Barretto, he prepared a will of the
deceased to which he later become a witness together with Go
Toh and Manuel Lopez, and that this will was placed in an
envelope which was signed by the deceased and by the
instrumental witnesses. In court there was presented and
attached to the case an open and empty envelope signed by Jose
B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is thus
undeniable that this envelope Exhibit A is the same one that
contained the will executed by the deceased—drafted by Barretto
and with the latter, Go Toh and Manuel Lopez as attesting
witnesses. These tokens sufficiently point to the loss of the will of
the deceased, a circumstance justifying the presentation of
secondary evidence of its contents and of whether it was
executed with all the essential and necessary legal formalities.
"The trial of this case was limited to the proof of loss of the will,
and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her,
the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and
whether the latter was executed with all the formalities required
by law for its probate. The testimony of Alberto Barreto bears
importantly in this connection.
"Wherefore, the loss of the will executed by the deceased having
been sufficiently established, it is ordered that this case be
remanded to the court of origin for further proceedings in
obedience to this decision, without any pronouncement as to the
costs. So ordered"
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a
petition in the Court of First Instance of Bulacan praying "that an
order be issued (a) either directing the continuation of the
proceedings in the case remanded by the Supreme Court by
virtue of its decision in G. R. No. 44276 and fixing a date for the
reception of evidence of the contents of the will declared lost, or
27
the allowance, filing and recording of the will of the deceased
which had been duly probated in China, upon the presentation of
the certificates and authentications required by Section 41, Rule
123 (Yu Chengco vs. Tiaoqui supra), or both proceedings
concurrently and simultaneously; (b) that letters of
administration be issued to herein petitioner as co-administrator
of the estate of the deceased together with Federico Suntay; and
(c) that such other necessary and proper orders be issued which
this Honorable Court deems appropriate in the premises." While
this petition was opposed by Federico C. Suntay, son of the
deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the
other children of the first marriage, namely, Ana Suntay, Aurora
Suntay, Conception Suntay, Lourdes Guevara Vda. de Suntay,
Manuel Suntay and Emiliano Suntay, filed the following answer
stating that they had no opposition thereto; "Come now the heirs
Conception Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara
Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through
their^ undersigned attorney, and, in answer to the alternative
petition filed in these proceedings by Silvino Suntay, through
counsel, dated June 18, 1947, to this Honorable Court respectfully
state that, since said alternative petition seeks only to put into
effect the testamentary disposition and wishes of their late
father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on
April 19,1948, the following decision:
"This action is for the legalization of the alleged will of Jose B.
Suntay, deceased.
"In order to have a comprehensive understanding of this case, it
is necessary to state the background on which the alternative
petition of the herein petitioner Silvino Suntay has been based.
"The decision of the Supreme Court (Exhibit O), in re will of the
deceased Jose B. Suntay, 63 Phil., 793-797, is hereunder
produced:
(As quoted above)
"The above quoted decision of the Supreme Court was
promulgated on November 25, 1936 (Exhibit 0).
"The Clerk of the Court of Court of First Instance of Bulacan
notified the parties of the decision on December 15, 1936; and
the case was set for hearing on . February 12, 1937, but it was
transferred to March 29, 1937 (Exhibit C), on motion of the then
petitioner Maria Natividad Lim Billian (Exhibit F). Again, it was
postponed until 'further setting' in the order of court dated
March 18, 1937, upon motion of the petitioner (Exhibit H).
"In the meantime, the deposition of Go Ton was being sought
(Exhibit H).
"The hearing of the case was again set for February 7, 1936, by
order of the court dated January 5, 1938, upon motion of
Emiliano Suntay and Jose Suntay, Jr. On the same day of the
hearing which had been set, the petitioner, then, Maria Natividad
Lim Billian, sent a telegram from Amoy, China, addressed to the
Court of First Instance of Bulacan moving for the postponement
of the hearing on the ground that Atty. Eriberto de Silva who was
representing her died (Exhibit K). The court, instead of granting
the telegraphic motion for postponement, dismissed the case in
the order dated February 7, 1938 (Exhibit L).
"On July 3, 1947, the petitioner Silvino Suntay filed a motion for
the consolidation of the intestate Estate of the deceased Jose B.
Suntay, Special Proceeding No. 4892 and the Testate Estate of
Jose B. Suntay, Special Proceeding No. 4952, which latter case is
the subject of the said alternative petition. The motion for the
merger and consolidation of the two cases was1 granted on July
3, 1947.
"The oppositor, Federico C. Suntay, in the Testate Proceeding
filed a motion to dismiss the alternative petition on November
14, 1947, which was denied by the court in its resolution of
November 22, 1947. The said oppositor not being satisfied with
the ruling of this court denying the motion to dismiss, filed before
the Supreme Court a petition for a writ of certiorari with
preliminary injunction, which was dismissed for lack of merit on
January 27, 1948.
"In obedience to the decision of the Supreme Court (Exhibit O)
and upon the alternative petition of Silvino Suntay, and, further,
upon the dismissal of the petition for a writ of certiorari with
preliminary injunction, the court was constrained to proceed
with the hearing of the probate of the lost will, the draft of which
is Exhibit B, or the admission and recording of the will which had
been probated in Amoy, China.
"The evidence for the petitioner, Silvino Suntay, shows that Jose
B. Suntay married twice; first to Manuela T. Cruz who died on
June 15, 1920 and had begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora,
Emiliano and Jose, Jr., all surnamed Suntay, and second, to Maria
Natividad Lim Billian with whom he had as the only child Silvino
Suntay, the petitioner herein.
"Some time in November 1929, Jose B. Suntay executed his last
will and testament in the office of Atty. Alberto Barretto in
Manila, which was witnessed by Alberto Barretto, Manuel Lopez
and Go Toh. The will was prepared by said Alberto Barretto upon
the instance of Jose B. Suntay, and it was written in the Spanish
language which was understood and spoken by said testator;
After the due execution of the will, that is signing every page and
the attestation clause by the testator and the witnesses in the
presence of each other, the will was placed inside the envelope
(Exhibit A), sealed and on the said envelope the testator and the
three subscribing witnesses also signed, after which it was
delivered to Jose B. Suntay.
"A year or so after the execution of the will, Jose B. Suntay
together with his second wife Maria Natividad Lim Billian and
Silvino Suntay who was then of tender age went to reside in
Amoy, Fookien, China, where he died on May 14, 1934. The will
was entrusted to the widow, Maria Natividad Lim Billian.
"Upon the death of Jose B. Suntay on May 14, J.934, Apolonio
Suntay, the oldest son now deceased, instituted the Intestate
Proceedings No. 4892, upon the presumption that no will existed.
Maria Natividad Lim Billian who. remained in Amoy, China, had
with her the will and she engaged the services of the law firm of
Barretto and Teodoro for the probate of the will. Upon the
request of the said attorneys the will was brought to the
Philippines by Go Toh who was one of the attesting witnesses,
and it was taken to the law office of Barreto and Teodoro. The
law firm of Barreto and Teodoro was composed of Atty. Alberto
Barreto and Judge Anastacio Teodoro. The probate of the will was
28
entrusted to the junior partner Judge Anastacio Teodoro; and,
upon the presentation of the sealed envelope to him, he opened it
and examined the said will preparatory to the filing of the
petition for probate. There was a disagreement as to the fees to
be paid by Maria Natividad Lim Billian, and as she (through Go
Toh) could not agree to pay, P20,000 as fees, the will was
returned to Go Toh by Judge Anastacio Teodoro after the latter
had kept it in his safe, in his office, for three days.
"Subsequently, the will inside the envelope was snatched from Go
Toh by Manuel Suntay and Jose, Jr., which fact has been
established in the decision of the Supreme Court at the beginning
of this decision. Go Toh could recover the envelope (Exhibit A)
and the piece of cloth with which the envelope was wrapped
(Exhibit C).
"The Testate Proceeding was filed nevertheless and in lieu of the
lost will a draft of the will (Exhibit B) was presented as secondary
evidence for probate. It was disallowed by this court through
Judge Buenaventura Ocampo, but on appeal the Supreme Court
remanded the case to this court for further proceeding (Exhibit
C).
"In the meantime, a Chinese will which was executed in Amoy
Fookien, China, on January 4, 1931, by Jose B. Suntay, written in
Chinese characters (Exhibit P) was discovered in Amoy, China,
among the papers left by Jose B. Suntay, and said will had been
allowed to probate in the Amoy District Court, China, which is
being also presented by Silvino Suntay for allowance and
recording in this court.
"The said petition is opposed by Federico G. Suntay on the main
ground that Maria Natividad Lim Billian and Silvino Suntay have
no more interest in the, properties left by Jose B. Suntay, because
they have already sold their respective shares, interests and
participations. But such a ground of opposition is not of moment
in the instant case, because the proposition involved herein in the
legalization of the lost will or the allowance and recording of the
will which had been probated in Amoy, China.
"It is now incumbent upon this court to delve into the evidence
whether or not Jose B. Suntay, deceased, left a will (the draft of
which is Exhibit. B) and another will which was executed and
another will which was executed and probated in Amoy, China.
"There is no longer any doubt that Jose B. Suntay while he was
still residing in the Philippines, had executed a will; such is the
conclusion of the Supreme Court in its decision (Exhibit O). That
the will was snatched and it has never been produced in court by
those who snatched it, and consequently considered lost, is also
an established fact.
"The contention of the oppositor, Federico C. Suntay, is that the
will that was executed by Jose B. Suntay in the Philippines
contained provisions which provided for equal distribution of the
properties among the heirs; hence, the draft (Exhibit B) cannot be
considered as secondary evidence, because it does not provide
for equal distribution, but it favors Maria Natividad Lim Billian
and Silvino Suntay. He relies on the testimony of Atty. Alberto
Barretto who declared that the first will wfiich he drafted and
reduced into a plain copy was the will that was executed by Jose
B. Suntay and placed inside the envelope (Exhibit A).
"Granting that the first will which Atty. Alberto Barretto had
drafted became the will of Jose B. Suntay and it was snatched by,
and, therefore, it had fallen into the hands of, Manuel Suntay and
the brothers of the first marriage, it stands to reason that said
Manuel Suntay and brothers would have been primarily
interested in the production of said will in court, for obvious
reasons, namely, that they would have been favored. But it was
suppressed and 'evidence willfully suppressed would be adverse
if produced' (Section 69 (e), Rule 123 of the Rules of Court). The
contention, therefore, that the first will which was drafted by
Atty. Barretto was the one placed inside the envelope (Exhibit A)
is untenable.
"It might be said in this connection that the draft of the will
(Exhibit B) has been admitted by Atty. Alberto Barretto as
identical in substance and form to the second draft which he
prepared in typewriting; it differs only, according to him, in style.
He denied that the insertions in long hand in the said draft are in
his own handwriting; however, Judge Anastacio Teodoro averred
that the said insertions are the handwriting of Atty. Alberto
Barretto. But when Atty. Alberto Barretto was asked to show any
manuscript of his for purposes of comparison, he declined to do
so alleging that he did not have any document in his possession
showing his handwriting notwithstanding the fact that he was
testifying in his own house at 188 Sta. Mesa Boulevard, Manila.
He further testified that the first will he drafted contained four or
five pages, but the second draft contained twenty-three pages;
that he declared in one breath that he did not read the will any
more when it was signed by the testator and the attesting
witnesses because it would take up much time, and in the same
breath he declared that he checked it before it was signed; and
that he destroyed the draft of the first will which was in his own
handwriting, but he delivered the draft of the second will which
he prepared to Jose B. Suntay in the presence of Manuel Lopez,
now deceased.
"Whether or not the final plain copy of the draft of the will
(Exhibit B) was executed by the testator, Jose B. Suntay, and
attested by the subscribing witnesses, Atty. Alberto Barretto,
Manuel Lopez and Go Toh, is the pivotal point in this instant case.
Judge Anastacio Teodoro testified that he opened the sealed
envelope when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said will. As the
lawyer entrusted with that task, he had to examine the will and
have it copied to be reproduced or appended to the petition. He
could not do otherwise if he is worth his salt as a good lawyer; lie
could not perform the stunt of "blind flying" in the judicial
firmament. Every step must be taken with certainty and precision
under any circumstances. He could not have talked about the
attorney's fees with Go Toh, unless he has not examined the will
beforehand. And, declaring that it was the exact draft of the will
that was inside the envelope (Exhibit A), the testimony of Atty.
Alberto Barretto to the contrary notwithstanding.
"The testimony of Judge Anastacio Teodoro is corroborated by Go
Toh, one of the attesting witnesses, in his deposition (Exhibit D-l).
"Ana Suntay, one of the heirs and who would be affected
adversely by the legalization of the will in question, also testified
on rebuttal that she saw the original will in the possession of
Manuel Suntay, immediately after the snatching. She read it and
she particularly remembers the manner in which the properties
29
were to be distributed. Exhibit B was shown to her on the witness
stand and she declared that the provision regarding the
distribution of the properties in said Exhibit B is the same as that
contained in the original will. Said testimony of Ana Suntay,
therefore, belies the testimony of Atty. Alberto Barretto.
"With respect to the proof of lost or destroyed will, Section 6 of
Rule 77 provides as follows:
'No will shall be proved as a lost or destroyed will unless the
execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the
testator, or it is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge,
nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate must be filed
and recorded as other wills are filed and recorded.'
"Section 8 of the same Rule provides as follows:
'If it appears at the time fixed for the hearing that the subscribing
witnesses are dead or insane, or that none of them resides in the
Philippines the court may admit the testimony of other witnesses
to prove the sanity of the testator, and the due execution of the
will; and as evidence of the due execution of the will, it may admit
proof of the handwriting of the testator and of the subscribing
witnesses, or any of them.'
"Manuel Lopez as one of the subscribing witnesses is dead. Atty.
Alberto Barretto and Go Toh are still living. The former testified
during the hearing, while Go Toh's deposition was introduced in
evidence which was admitted. In the absence of the testimony of
Manuel Lopez, deceased, the testimony of Judge Anastacio
Teodoro and Ana Suntay was received.
"It is an established fact that the will, draft of which is Exhibit B,
was lost or destroyed; that it was executed and valid and that it
existed at the time of the death of Jose B. Suntay. These
circumstances also apply to the will (Exhibit P) which was
executed in Amoy, China.
"The contents of the Chinese will is substantially the same as the
draft (Exhibit B). Granting that the will executed in the
Philippines is non-existent as contended by the oppositor,
although the findings of this court is otherwise, the will executed
and probated in China should be allowed and recorded in this
court. All the formalities of the law in China had been followed in
its execution, on account of which it was duly probated in the
Amoy District Court. There is no cogent reason, therefore, why it
should not be admitted and recorded in this jurisdiction.
"The said will (Exhibit P) in Chinese characters is presented as an
alternate in case the will executed in the Philippines would not be
allowed to probate, or as a corroborative evidence that the will,
the draft of which is Exhibit B, has been duly executed in the
Philippines by Jose B. Suntay.
"Rule 78 of the Rules of Court covers the allowance of will proved
outside of the Philippines and administration of estate
thereunder.
"Section 1 of said rule provides:
'Wills proved and allowed in the United States, or any state or
territory thereof, or in foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines.'
"Section 2 of the. same rule provides:
'When a copy of such will and the allowance thereof, duly
authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an
original will presented for allowance.'
"This court has delved deep into the evidence adduced during the
hearing with that penetrating scrutiny in order to discover the
real facts; it has used unsparingly the judicial scapel; and it has
winnowed the evidenced to separate the grain from the chaff. All
the facts lead to the inevitable conclusion that Jose B. Suntay, in
his sound and disposing mind and not acting under duress or
undue influence, executed the will which is lost, the draft of
which is Exhibit B, with all the necessary formalities prescribed
by law. He, likewise, executed the second will (Exhibit P) in
Amoy, China, which has been duly probated in Amoy District
Court,—a corroborative evidence that the testator really
executed the will. Copies of the said wills duly certified and under
the seal of the court are appended hereto, marked Exhibits B and
P, and they form part of this decision.
"In view of the foregoing considerations, the court is of the
opinion and so declares that the draft of the will (Exhibit B) is, to
all legal intents and purposes, and testament of the deceased Jose
B. Suntay. With costs against the oppositor, Federico C. Suntay."
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for
new trial and to set aside the decision rendered on April 19,
1948, to which the petitioner filed an opposition, followed by a
reply filed by the oppositor and an answer on the part of the
petitioner. Without reopening the case and receiving any new or
additional evidence, the Court of First Instance of Bulacan, oh
September 29, 1948, promulgated the following resolution
setting aside his first decision and disallowing the wills sought to
be probated by the petitioner in his alterative petition filed on
June 18, 1947:
"This is a motion for new trial and to set aside the decision
legalizing the will of Jose B. Suntay and allowing and recording
another will executed by him in Amoy, China.
"By virtue of this motion, this court is constrained to go over the
evidence and the law applicable thereto with the view of
ascertaining whether or not the motion is well founded;. Both
parties have presented extensive memoranda in support of their
respective contentions.
"This court has gone over the evidence conscientiously, and it
reiterates its findings of the same facts in this resolution, whether
or not the facts established by the petitioner, Silvino Suntay,
warrant the legalization of the lost will and the allowance and
recording of the will that was executed in Amoy, China, is
therefore, the subject of this instant motion.
"A. As to the legalization of the Lost Will.—There is no question in
the mind of this court that the original will which Jose B. Suntay,
30
deceased executed in the Philippines in the year 1929 was lost
(Exhibit 0, Decision of the Supreme Court). The evidence adduced
by the petitioner during the hearing has established through the
testimony of Judge Anastacio Teodoro and that of Go Toh (an
attesting witness) that the will was executed by Jose B. Luntay,
deceased, with all the formalities required by law. For the
purpose of legalizing an original and existing will, the evidence
on record is sufficient as to the execution and attesting in the
manner required by law.
"Section 8 of Rule 77 provides as follows:
'SEC. 8. Proof when witnesses dead or insane or do not reside in the
Philippines.—If it appears at the time fixed for the hearing that
the subscribing witnesses are dead or insane, or that none of
them resides in the Philippines, the court may admit the
testimony of other witnesses to prove the sanity of the testator,
and the due execution of the will; and as evidence of the
execution of the will, may admit proof of the handwriting of the
testator and of the subscribing witnesses, or any of them.'
"Section 11 of said rule also provides as follows:
'SEC. 11. Subscribing witnesses produced or accounted for where
contest.—If the will is contested, all the subscribing, witnesses
present in the Philippines and not insane, must be produced and
examined, and the death, absence, or insanity of any of them
must be satisfactorily shown to the court. If all or some of the
subscribing witnesses are present in the Philippines, but outside
the province where the will has been filed, their deposition must
be taken. If all or some of the subscribing witnesses produced
and examined testify against the due execution of the will, or do
not remember having attested to it, or are otherwise of doubtful
credibility, the will may be allowed if the court is satisfied from
the testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the manner
required by law."
"The three attesting witnesses were Manuel Lopez, deceased
Alberto Barreto and Go Toh. The last two witnesses are still
living; the former testified against and the latter in favor. In other
words, the attesting witness, Go Toh, only, testified in his
deposition in favor of the due execution of the will. Hence, the
petitioner presented another witness, Judge Anastacio Teodoro,
to establish and- prove the due execution of the said will. Ana
Suntay was also presented as a witness in rebuttal evidence. The
testimony of Go Toh in his deposition as an attesting witness,
coupled with the testimony of Judge Anastacio Teodoro who was
able to examine the original will that was executed by Jose B.
Suntay, deceased, when it was given to him by Go Toh for the
purpose of filing the petition in court for its legalization, and
could recognize the signatures of the testator as well as of the
three attesting witnesses on the said original will is sufficient to
convince the court that the original will was executed by the
deceased Jose B. Suntay with all the formalities required by law.
The original will, therefore, if it was presented in court to probate
would be allowed to all legal intents and purposes. But it was not
the original will that was presented, because it was lost, but an
alleged draft (Exhibit B) of the said original will which does not
bear the signature of the testator and any of the attesting witness.
The original will was duly executed with all the formalities
required by law, but it was unfortunately lost; and the curtain
falls for the next setting.
"The Court is now confronted with the legalization of the lost will
—whether or not the draft (Exhibit B) should be admitted as
secondary evidence in lieu of the lost will and allowed to probate.
"Section 6 of Rule 77 provides as follows:
'SEC. 6. Proof of lost or destroyed will—Certificate thereupon.— No
will shall be proved as a lost will or destroyed will unless the
execution and validity of the same be established, and the will is
proved to have been in existence at the time of the death of the
testator, or is shown to have been fraudulently or accidentally
destroyed in the lifetime of the testator without his knowledge,
nor unless its "provisions are clearly and distinctly proved by at
least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the
Judge, under the seal of the court and the certificate must be filed
and recorded as other wills are filed and recorded1.' (Italic
Court's)
"From the above quoted provision of the law, it is clear that the
petitioner should not only establish the execution and validity of
the will, its existence at the time of the death of the testator or its
fraudulent and accidental destruction in the lifetime of the
testator without his knowledge, but also must prove its provisions
clearly and distinctly by at least two credible witnesses. The exact
language of the clause in the above quoted provision of the law is
'nor unless its provisions are clearly and distinctly proved by at
least two credible witnesses.' The legalization of a lost will is not
so easy, therefore, as that of an original will. The question,
therefore, is boiled down to, and projected on the screen, in a
very sharp focus; namely, the execution and validity must be
established and the provisions must be clearly and distinctly
proved by at least credible witnesses.
"Granting that the execution and validity of the lost will have
been established through the testimony of Judge Anastacio
Teodoro and Go Toh, and perhaps superficially by the rebuttal
witness, Ana Suntay, does it follow that the provisions of the lost
will have been clearly and distinctly proved by at least two
credible witnesses? A careful review of the evidence has revealed
that at most the only credible witness who testified as to the
provisions of the will was Judge Anastacio Teodoro, and yet he
testified on the provisions of the lost will with the draft (Exhibit
B) in his hands while testifying. It may be granted, however, that
with or without the draft of the will (Exhibit B) in his hands, he
could have testified clearly and distinctly on the provisions of the
said lost will, because he had kept the will in his safe, in his office,
for three days, after opening it, and he is well versed in Spanish
language in which the will as written. But did the attesting
witness Go Toh, testify in his deposition and prove clearly and
distinctly the provisions of the lost will? He did not, and he could
not have done so even if he tried because the original will was not
read to him nor by him before or at the signing of the same. It
was written in Spanish and he did not and does not understand
the Spanish language. Neither was there any occasion for him to
have the contents of the said will, after its execution and sealing
inside the envelope (Exhibit A), read' to him because it was
opened only when Judge Teodoro had examined it and then
subsequently snatched from Go Toh. Ana Suntay on rebuttal did
31
not, likewise, prove clearly and distinctly the provisions of the
said lost will because she has not had enough schooling and she
does possess adequate knowledge of the Spanish language as
shown by the fact that she had to testify in Tagalog on the witness
stand.
"It is evident, therefore, that although the petitioner has
established the execution and validity of the lost will, yet he has
not proved clearly and distinctly the provisions of the will by at
least two credible witnesses.
"B. As to the Allowance and Recording of the will Executed in
Amoy, China.—Jose B. Suntay, while he was residing in China
during the remaining years of his life, executed also a will,
written in Chinese characters, the translation of which is marked
Exhibit P. It was allowed to probate in the District Court of Amoy,
China. The question is whether or not the said will should be
allowed and recorded in this jurisdiction.
"Section 1 of Rule 78 provides as follows:
'SEC. 1. Will proved outside Philippines may be allowed here.—
Will proved and allowed in the United States, or any state or
territory thereof, or in a foreign country, according to the laws of
such state, territory, or country, may be allowed, filed, and
recorded by the proper court of First Instance in the Philippines.'
"Section 2 of the same Rule also provides:
'SEC. 2. Notice of hearing for allowance.—When a copy of such
will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines by the executor or other
person interested, in the Court having jurisdiction, such court
shall fix a time and place for the hearing, and cause notice thereof
to be given as in case of an original will presented for allowance.'
"Sections 41 and 42 of Rule 123 provides as follows:
'SEC. 41. Proof of Public or official record.—An. official record or
an entry therein, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested
by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If
the office in which the record is kept is within the United States
or its territory, the certificate may be made by a judge of a court
of record of the district or political subdivision in which the
record is kept, authenticated by the seal of the court, or may be
made by any public officer having a seal of the office and having
official duties in the district or political subdivision in which the
record is kept, authenticated by the seal of his office. If the office
in which the record is kept is in a foreign country, the certificate
may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in
the foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal
of his office'
'SEC. 42. What attestation of copy must state.—Whenever a copy
of writing is attested for the purpose of evidence, the attestation
must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer,
if there be any, or if he be the clerk of a court having a seal, under
the seal of such court.'
"In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our
Supreme Court said:
'Section 637 of the Code of Civil Procedure says that wills proved
and allowed in a foreign country, according to the laws of such
country, may be allowed, filed, and recorded in the Court of First
Instance of the province in which the testator has real or
personal estate on which such will may operate; but section 638
requires that the proof of the authenticity of a will executed in a
foreign country must be duly "authenticated". Such
authentication, considered as a foreign judicial record, is
prescribed by section 304, which requires the attestation of the
clerk or of the legal keeper of the records with the seal of the
court annexed, if there be a seal, together with a certificate of the
chief judge or presiding magistrate that the signature of either of
the functionaries attesting the will is genuine, and, finally, the
certification of the authenticity of the signature of such judge or
presiding magistrate, by the ambassador, minister, consul, vice
consul or consular agent of the United States in such foreign
country. And, should the will be considered, from an
administrative point of view, as a mere official document "of a
foreign country", it may be proved, "by the original, or by a copy
certified by the legal keeper thereof, with a certificate, under the
seal of the country or sovereign, that the document is a valid and
subsisting document of such country, and that the copy is duly
certified by the officer having the legal custody of the original".
(Sec. 313, par. 8).'
"In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613,
our Supreme Court said:
'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. 1690, and as
certified to by the Director of the National Library. But this was
far from 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.
'It was also necessary for the petitioner to prove that the testator
had his domicile in West Virginia and not in the Philippine
Islands. The only evidence introduced to establish this fact
consisted of the recitals in the alleged will and the testimony of
the petitioner.
32
'While the appeal was pending submission in this court, the
attorney for the appellant presented an unverified petition asking
the court to accept as part of the evidence the documents
attached to the petition. One of these documents discloses that a
paper writing purporting to be the last will and testament of
Edward Randolph Hix, deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph County, State of West
Virginia, in vacation, and was duly proven by the oaths of Dana
Vansley and Joseph L. Madden, the subscribing witnesses thereto,
and ordered to be recorded and, filed. It was shown by another
document that in vacation, on June 8, 1929, the clerk of court of
Randolph County, West Virginia, appointed Claude E. Maxwell as
administrator, cum testamento annexo, of the estate of Edward
Randolph Hix, deceased . . . However this may be no attempt has
been made to comply with, the provisions of sections 637, 638,
and 639 of the Code of Civil Procedure, for no hearing on the
question of the allowance of a will said to have been proved and
allowed in West Virginia has been requested. * * *.'
"Granting that the will of Jose B. Suntay which was executed in
Amoy, China, was validly done in accordance with the law of the
Republic of China on the matter, is it necessary to prove in this
jurisdiction the existence of such law in China as a prerequisite to
the allowance and recording of said will? The answer is in the
affirmative as enunciated in Fluemer vs. Hix, supra, and in Yañ ez
de Barnuevo vs. Fuster, 29 Phil., 606. In the latter case, the
Supreme Court said:
'A foreign law may be proved by the certificate of the officer
having in charge of the original, under the seal of the state or
country. It may also be proved by an official copy of the same
published under the authority of the particular state and
purporting to contain such law. (Sees. 300 and 301, Act No. 190.),
(Syllabus.)
"The provisions of section 300 and 301 of the Code of Civil
Procedure (Act No. 190) are as follows:
'SEC 300. Printed laws of the State or Country.—Books printed or
published under the authority of the United States, or one of the
States of the United States, or a foreign country, and purporting
to contain statutes, codes, or other written law of such State or
country or proved to be commonly admitted in the tribunals of
such State or country an evidence of the written law thereof, are
admissible in the Philippine Islands are evidence of such law.'
'SEC. 301. Attested copy of foreign laws.—A copy of the written
law or other public writing of any state or country, attested by
the certificate of the officer having charge of the original, under
the seal of the state or country, is admissible as evidence of such
law or writing.'
"The petitioner has presented in evidence the certification of the
Chinese Consul General, Tsutseng T. Shen, of the existence of the
law in China (Exhibit B-3), relative to the execution and probate
of the will executed by Jose B. Suntay in Amoy, China (Exhibit P).
Is that evidence admissible, in view of the provisions of Sections
41 and 42 of the Rules of the Rules of Court. Is the said
certification of the Chinese Consul General in the Philippines a
substantial compliance with the provisions of the above
mentioned section 41 ..and 42 of our Rules of Court?
"This court has its doubts as to the admissibility in evidence of
the Chinese Consul General in the Philippines of the existence of
the laws of Republic of China relative to the execution and
probate of a will executed in China. Such law may exist in China,
but,
'An official record or an entry therein, when admissible for any
purpose, may be evidence by an official publication thereof or by
a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such officer has the
custody. * * * If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service of the
United States stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office.' (Sec. 41 of
Rule 123.)
"The law of the Republic of China is a public or official record and
it must be proved in this jurisdiction through the means
prescribed by our Rules of Court. It is, therefore, obvious that the
Chinese Consul General in the Philippines who certified as to the
existence of such law is not the officer having the legal custody of
the record, nor is he a deputy of such officer. And, if the office in
which the record is kept is in a foreign country, the certificate
may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in
the foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal
of his office.
It is clear, therefore, that the above provisions of the Rules of
Court (Rule 123, sec. 41) not having been complied with, the
doubt of this court has been dissipated, and it is of the opinion
and so holds that the certification of the Chinese Consul General
alone is not admissible as evidence in the jurisdiction.
"The evidence of record is not clear as to whether Jose B. Suntay,
who was born in China, but resided in the Philippines for a long
time, has become a Filipino citizen by naturalization, or he
remained a citizen of the Republic of China. The record does not,
likewise, show with certainty whether or not he had changed his
permanent domicile from the Philippines to Amoy, China. His
change of permanent domicile could only be inferred. But the
question of his permanent domicile pales into insignificance in
view of the overtowering fact that the law of China pertinent to
the allowance and recording of the said will in this jurisdiction
has been satisfactorily established by the petitioner.
"Both the petitioner and the oppositor have extensively urged in
their respective memorandum and in the oral argument in behalf
of the oppositor the question of estoppel. The consideration of
the points raised by them would open the door to the
appreciation of the intrinsic validity of the provisions of the will
which is not of moment at the present stage of the proceeding.
While the probate of a will is conclusive as to the compliance with
all formal requisites necessary to the lawful execution of the will,
such probate does not affect the intrinsic validity of the
provisions of the will. With respect to the latter the will is
governed by the substantive law relative to descent and
distribution. (In re Johnson, 39 Phil., 157).
33
"IN VIEW OF THE FOREGOING, and upon reconsideration, the
previous decision rendered in this case allowing the will (Exhibit
B) and allowing and recording the foreign will (Exhibit P) is set
aside; and this court is of the opinion and so holds that the said
two wills should be, as they are hereby disallowed. Without
special pronouncement as to costs."
It is very significant that in the foregoing resolution, the Court of
First Instance of Bulacan "reiterates its finding of the same facts
in this resolution" and merely proceeds to pose the sole question
"whether or not the facts established by the petitioner, Silvino
Suntay, warrant the legalization of the lost will and allowance
and recording of the will that was executed in Amoy, China." The
somersault executed by the trial court is premised on the ground
that "although the petitioner has established the execution and
validity of the lost will, yet he has not proved clearly and
distinctly the provisions of the will by at least two credible
witnesses"; and that, assuming that the will of Jose B. Suntay
executed in Amoy, China, was in accordance with the law of the
Republic of China, the certification of the Chinese Consul General
in the Philippines as the existence of such law is not admissible
evidence in this jurisdiction. In effect the resolution on the
motion for reconsideration promulgated by the trial court, and
the decision of the majority herein, adopt the position that the
testimony of Judge Anastacio Teodoro as to the provisions of the
lost will, while credible and perhaps sufficient in extent, is not
corroborated by the witnesses Go Toh and Ana Suntay and,
therefore, falls short of the requirement in section 6, Rule 77, of
the Rules of Court that the provisions of the lost will must be
"clearly and distinctly proved by at least two witnesses." That
this requirement was obviously construed to mean that the exact
provisions are to be established, may be deduced from the
following dialogue between his Honor, Judge Potenciano Pecson,
and Attorney Teofilo Sison, new counsel for oppositor Federico C.
Suntay, who appeared for the first time at the ex parte hearing of
oppositor's motion for new trial on September 1,1949:
"COURT: However, Rule 77, Section 6, provides in proving a lost
will, the provisions of the lost will mast be distinctly stated and
certified by the Judge.
"ATTY. TEOFILO SISON: Yes, Your Honor.
"COURT: That presupposes that the judge could only certify to
the exact provisions of the will from the evidence presented.
"ATTY. TEOFILO SISON: That is our contention, provided that
provision is clearly established by two credible witnesses so that
the Court could state that in the decision, we agree, that is the
very point.
(t s. n. 75, Session of Sept. 1, 1948)"
The sound rule, however, as we have found it to be, as to the
degree of proof required to establish the contents of a lost or
destroyed will, is that there is sufficient compliance if two
witnesses have substantiated the provisions affecting the
disposition of the testator's properties; and this is especially
necessary to prevent the "perpetration of fraud by permitting a
presumption to supply the suppressed proof," to keep a wrong-
doer from utilizing the rule as his "most effective weapon," or to
avoid the enjoyment of a "premium from the rascality of one
whose interests might suggest the destruction of a will."
"Section 1865 of the Code requires that the provisions of a lost
will must be clearly and distinctly proved by at least two credible
witnesses before it can be admitted to probate; but this section
must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-
109) and its spirit is complied with by holding that it applies only
to those provisions which affect the disposition of the testator's
property and which are of the substance of the will."
"The allegations of the contents of the will are general, and under
ordinary circumstances, would be in sufficient; but the fact
alleged, if proven as alleged, would certainly authorize the
establishment of the will so far as its bequests are concerned. To
require that a copy of the will or the language of the bequests, in
detail, should be pleaded, where no copy has been preserved, and
where the memory of the witnesses does not hold the exact
words, would not only deny the substance for mere form, but
would offer a premium upon the rascality of one whose interests
might suggest the destruction of a will. As said in Anderson vs.
Irwin, 101 111. 411: 'The instrument in controversy having been
destroyed without the fault of the defendant in error * * * and
there not appearing to be any copy of it in existence, it would be
equivalent to denying the complainant relief altogether to require
her to prove the very terms in which it was conceived. All that
could reasonably be required of her under the circumstances could
be to show in general terms the disposition which the testator
made of his property by the instruments; that it purported to be
his will and was duly attested by the requisite number of
witnesses.' In Allison vs. Allison, 7 Dana 91, it was said in
speaking of the character and extent of proof required in such a
case:' nor is there any just ground to object to the proof because
the witnesses have not given the language of the will or the
substance thereof. They have given the substance of the different
devises as to the property or interest devised, and to whom devised
and we would not stop, in the case of a destroyed will, to scan with
rigid scrutiny the form of the proof, provided we are satisfied of the
substance of its provisions.'" (Joses vs. Casler 139 Ind. 392, 38 N. E.
812).
"The evidence in the case falls short of establishing the existence
of such a writing, except as it may be presumed, under the maxim
Omnia preasumuntur in odium spoliateris." There was evidence
tending to show that the second will of Anne Lambie was in the
possession of Francis Lambie, and that it came to the hands of the
proponents, warranting the inference that it has been suppressed
or destroyed. If from this evidence the jury found such paper
destroyed the law permits the presumption that it was legally
drawn and executed, notwithstanding the terms of the statute,
which requires the revoking instrument to be formally executed.
If a will be lost, secondary evidence may be given of its contents; if
suppressed or destroyed, the same is true; and, if necessary the law
will prevent the perpetration of a fraud by permitting a
presumption to supply the suppressed proof. We cannot assent to
the proposition that the statute is so right as to be the wrong-
doer's most effective weapon. The misconduct once established to
the satisfaction of the jury, it is no hardship to the wrongdoer to
say. 'Produce the evidence in your possession, or we will presume
that your opponent's contention is true.' When one deliberately
destroys, or purposely induces another to destroy, a written
instrument subsequently become a matter of judicial inquiry
between the spoliator and an innocent party, the latter will not be
required to make strict proof of the contents of such instrument in
order to establish a right founded thereon. Brook, Leg. Max. 576,
34
Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate, 97 Mich.
55, 56 N. W. 225)"
Judged from the standard set forth in the foregoing authorities,
and bearing in mind that the circumstances of this case lead to
the only conclusion that the loss of the will in question is of
course imputable to those whose interests are adverse to the
petitioner and the widow Lim Billian, we have no hesitancy in
holding the view that the dispositions of the properties left by the
deceased Jose B. Suntay as provided in his will which was lost or
snatched in the manner recited in the decision of this Court in the
case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more
than sufficiently proved by the testimony of Judge Anastacio
Teodoro, Go Toh, and Ana Suntay, supported conclusively by the
draft of the lost will presented in evidence as Exhibit "B", and
even by the testimony of oppositor Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April
19, 1948, made the following express findings with respect to the
testimony of Judge Teodoro: "Judge Anastacio Teodoro testified
that he opened the sealed envelope when it was given to him by
Go Toh preparatory to the presentation of the petition for the
probate of the said will. As the lawyer entrusted with that task, he
had to examine the will and have it copied1 to be reproduced or
appended to the petition. He could not do otherwise if he is worth
his salt as a good lawyer. He could not perform the stunt of 'blind
flying' in the judicial firmament. Every step must be taken with
certainty and precision under any circumstances. He could not
have talked about the attorney's fees with Go Toh, unless he has
not examined the will beforehand. And, when he was shown
Exhibit B, he did not hesitate in declaring that it was the exact
draft of the will that was inside the envelope (Exhibit A), the
testimony of Atty. Alberto Barretto to the contrary
notwithstanding."
We should not forget, in this connection, that in the resolution on
the motion for reconsideration the trial Judge reiterated the
findings in his decision, although as regards the testimony of
Judge Teodoro admittedly "the only credible witness who
testified as to the provisions of the will," he observed that Judge
Teodoro had the draft Exhibit "B" in his hands while testifying.
We cannot see any justification for the observation, assuming
that Judge Teodoro consulted the draft, since even the trial Judge
granted that he "could have testified clearly and distinctly on the
provisions of the said lost will, because he had kept the will in his
safe, in his office, for three days, after opening it, and he is well
versed in Spanish language in which the will was written." As a
matter of fact, however, it is not true that Judge Teodoro had the
draft in question before him while testifying as may be seen from
the following passages of the transcript:
And, have you read that will which was inside this
"Q.
envelope, Exhibit A?—
"A. Yes.
Do you remember more or less the contents of the
"Q.
will?
"ATTY. With our objection, the best evidence is original will
FERRIN: itself, Your Honor.
"ATTY. We are precisely proving by means of secondary
RECTO: evidence, the contents of the will, because according
to the Supreme Court, and that is a fact already
decided, that the will of Jose B. Suntay was lost and
that is res adjudicata.
"COURT: Witness may answer.
I remember the main features of the will because as I
said I was the one fighting for the postponement of
the hearing of the intestate case because I was asked
by Don Alberto Barretto to secure the postponement
until the will that was executed by the deceased is
"WITNESS: sent here by the widow from China, with whom we
communicated with several letters, and when the
will arrived I had to check the facts as appearing in
the will, and examined fully in connection with the
facts alleged in the intestate, and there was a striking
fact in the intestate that Apolonio Suntay has.
(Interrupting) May we ask that the witness answer
"ATTY.
categorically the questions of Atty. Recto, it seems
FERRIN:
that the answers of the witness are kilometric . . .
"ATTY. Sometimes the question cannot be answered fully
RECTO: unless the witness would relate and give all the facts.
The Attorney for the Administrator may move for the
"COURT: striking out of any testimony that is not responsive
to the question.
"ATTY. That is why, our objection, the answer is out of the
FERRIN: question.
"COURT: Atty. Recto may propound another question.
I heard the witness was saying something and he has
"ATTY.
not finished the sentence, and I want to ask the Court
RECTO:
just to allow the witness to finish his sentence.
"COURT: You may finish.
"A. There was a sentence, the point I was trying to
check first was whether the value of the estate left by
the deceased was sixty thousand pesos (P60,000.00)
as Apolonio Suntay made it appear in his petition,
and when I looked at the original will, I found out
"WITNESS: that it was several hundred thousand pesos, several
thousands of pesos, hundreds of pesos, that was very
striking fact to me because the petition for intestate
was for sixty thousand pesos (P60,000.00), and I
came to know that it was worth more than SEVEN
HUNDRED THOUSAND (P700,000.00) PESOS.
Do you remember, Judge, the disposition of the will,
"Q.
the main disposition of the will?—
Yes, because our client were the widow, Maria
Natividad Lim Billian, and his son, Silvino, the only
"A.
son in the second marriage, that was very important
for me to know.
How were the properties distributed according to
"Q.
that will?—
"A. The properties were distributed into three (3) parts,
one part which we call legitima corta, were equally
distributed to the ten (10) children, nine (9) in the
first marriage, and one (1) in the second marriage
with Maria Natividad Lim Billian. The other third, the
betterment was given to four (4) children,
Conception, and Apolonio getting a quite substantial
share in the betterment, around sixty thousand
(P60.000.00) for Concepcion, Apolonio the amount of
seventy thousand (70,000.00) pesos or little over,
and then about ONE HUNDRED THOUSAND
35
 (P100,000.00) PESOS of the betterment in favor of
Silvino, the minor of the second marriage, and to Jose
equal to Concepcion.
So the betterment, as I understand from you went to
"Q.
four (4) children?—
"A. Yes.
Silvino in the second mariage, Concepcion, Apolonio
"Q.
and Jose in the first mariage?—
"A. Yes.
"Q. What about the free disposal?—
The free disposal was disposed in favor of the widow,
"A. Maria Natividad Lim Billian and Silvino, his minor
son in equal parts.
What about, if you remember, if there was something
"Q. in the will in connection with that particular of the
usufruct of the widow?—
It was somewhat incorporated into the assets of the
''A.
estate left by the deceased.
Do you remember the number of pages of which that
"Q.
will consisted?—
"A. Twenty-three (23) pages.
Do you remember if the pages were signed by the
"Q.
testator?—
"A. Yes, sir, it was signed.
And the foot of the testament or the end of the
"Q.
testament, was it signed by the testator?—
Yes, sir, and the attestation clause was the last page
signed by the three instrumental witnesses, Alberto
"A.
Barreto, one Chinaman Go Toh, and Manuel Lopez,
my former Justice of the Peace of Hagonoy.
Do you remember if these witnesses signed on the
"Q.
different pages of the will?—
"A. Yes, sir, they signed with their name signatures."
Showing you this document consisting of twenty-
three (23) pages in Spanish and which document
appears already attached to this same testamentary
proceedings and already marked as EXHIBIT B, will
you please tell the Court if and for instance on page
"Q.
eight (8) of this document, pagina octavo, it says,
there are handwritings in pencil, some of which read
as follows: 'Los cinco-octavos (5|8) partes
corresponds a mi hijo Emiliano', can you recognize
whose handwriting is that?—
From my best estimate it is the handwriting of Don
"A.
Alberto Barretto.
About the end of the same page eight (8) pagina
octavo, of the same document Exhibit B, there is also
"Q. the handwriting in pencil which reads: 'La otra sexta
parte (6.a) corresponde a Bonifacio Lopez', can you
recognize that handwriting?—
Yes, sir, this is the handwriting of Don Alberto
Barretto, and I wish to call the attention of the Court
to compare letter "B" which is in capital letter with
"A.
the signature of Don Alberto Barretto in the
envelope, 'Alberto Barretto' and stroke identifies one
hand as having written those words.
"Q. Will you please go over cursorily this document,
Exhibit B composed of twenty-three (23) pages and
please tell the Court if this document had anything to
do with the will which according to you was contained
in the envelope, Exhibit A?—
This is exactly the contents of the original will which
I received and kept in my office inside the safe for
three (3) days, and I precisely took special care in the
credits left by the deceased, and I remember among
"A.
them, were the De Leon family, and Sandiko, well
known to me, and then the disposition of the estate,
divided into three (3) equal parts, and I noticed that
they are the contents of the will read."
His Honor, Judge Pecson, was positive in his first decision that
"the testimony of Judge Anastacio Teodoro is corroborated by Go
Toh, one of the attesting witnesses, in his deposition (Exhibit D-
l)." Yet in setting aside his first decision, he remarked that Go
Ton's testimony did not prove clearly and distinctly the provision
of the lost will, because: "He did not, and he could not have done
so even if he tried because the original will was not read to him
nor by him before or at the signing of the same. It was written in
Spanish and he did not and does not understand the Spanish
language. Neither was there any occasion for him to have the
contents of the said will, after its execution and sealing inside the
envelope (Exhibit A), read to him, because it was opened only
when Judge Teodoro had examined it and then subsequently
snatched from Go Ton."
The later position thus taken by Judge Pecson is palpably
inconsistent with the following unequivocal statements of Go Toh
contained in his desposition taken in Amoy, China, on April 17,
1938, and in oppositor's Exhibit "6":
"26. State what you know of the contents of that will.
". . . .Regarding (1) expenditures (2) Philippine citizenship; (3)
Distribution of estates among children (4) Taking care of grave
lot; (5) guardianship of Silvinb Suntay and (6) after paying his
debts he will have approximately 720,000 pesos left. This amount
will be divided into three equal parts of 240,000 pesos each. The
first part is to be divided equally among the ten children born by
the first and second wives and the second part among the three
sons Silvino Suntay, 75,000 approximately; Apolonio Suntay,
50,000 pesos approximately; Jose Suntay and Concepcion Suntay,
36,000 each approximately. The third part is to be divided
between Maria Lim Biliian and Silvino Suntay; each will get
approximately 110,000 pesos. Silvino Suntay will get a total of
210,000 pesos approximately, Maria Natividad Lim Biliian a total
of 290,000 approximately, and Apolonio Suntay a total of 80,000
approximately, Concepcion Suntay and Jose Suntay will get
60,000 pesos each approximately. The rest of the children will get
approximately 29,000 each. The way of distribution of the
property of Jose B. Suntay, movable and immovable, and the
outstanding debts to be collected was arranged by Jose B.
Suntay."
*******
"78. On the occasion of the execution of the testament of Jose B.
Suntay, state whether or not you say Exhibit B— . . . Yes.
"79. In the affirmative case, state if you know who had the
possession of Exhibit B and the testament the first time you saw
36
them on that occasion.— . . . Yes, I know who had possession of
them.
"80. Can you say whether or not Jose B. Suntay happened to get
those documents later on, on that same occasion?— ... He got
them after the execution.
"81. Please name the person who gave those documents to Mr.
Suntay.— ... Alberto Barretto gave the documents to Jose B.
Suntay,
"82. Did the person who gave those documents to Suntay say
anything to him (Suntay) at the time of giving them?— . . . Yes.
"83. If so what was it that he said, if he said any?— ... He said, 'You
had better see if you want any correction.'
"84. What did Mr. Suntay do after those documents were given to
him?— . . . Jose B. Suntay looked at them and then gave one copy
to Manuel Lopez for checking.
"85. State whether or not Mr. Suntay gave one of those
documents to another man.— . . . Yes.
"86. In the affirmative case, can you say which of the two
documents was given and who the man was?— . . . Yes he gave
Exhibit B to Manuel Lopez.
"87. State whether or not Mr. Suntay said something to the man
to whom he gave one of those documents.— . . . Yes.
"88. In the affirmative case can you repeat more or less what Mr.
Suntay said to that man?— ... He told him to read it for checking.
"89. State if you know what did the man do with one of those
documents given to him.— . . . He took it and read it for checking.
"90. What did in turn Mr. Suntay do with the other one left with
him?— . . . Jose B. Suntay looked at the original and checked them.
"91. What was done with those documents later on if there was
anything done with them?— . . . After checking, Jose B. Suntay put
Exhibit B in his pocket and had the original signed and executed.
"92. What was done with the testament of Jose B. Suntay after it
was signed by the testator and its witnesses?— ... It was taken
away by Jose B. Suntay." (Exhibit D, D-1.)
"Q. Did you know the contents of this envelope?—
"A. I knew that it was a will.
"Q. But did you know the provisions of the will?—
"A. It is about the distribution of the property to the heirs.
Did you know how the property was distributed according to
"Q.
the will?—
I know that more than P500,000 was for the widow and her
"A. son, more than P100,000 for the heirs that are in the family."
(Exhibit "6" p. 28).
You stated that you were one of the witnesses to the will
"Q. and that the will was written in Spanish. Was it written in
typewriting or in handwriting of somebody?—
''A. That will was written in typewriting.
Did you read the contents of that will, or do you know the
"Q.
contents of that will?—
"A. No, sir, because I do not know Spanish.
"Q. How do you know that it was the will of Jose B. Suntay?—
Because I was one of the signers and I saw it." (Exhibit "6",
"A.
p. 19.).
Do you understand the language in which that will was
"22.
written?— ... I know a little Spanish."
Do you talk or write that language? I can write and talk a
"23.
little Spanish." (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly
made the following findings: "Ana Suntay, one of the heirs and
who would be affected adversely by the legalization of the will in
question, also testified on rebuttal that she saw the original will
in the possession of Manuel Suntay immediately after the
snatching. She read it and she particularly remembers the
manner in which the properties were to be distributed. Exhibit B
was shown to her on the witness stand and she declared that the
provision regarding the distribution of the properties in said
Exhibit B is the same as that contained in the original will. Said
testimony of Ana Suntay, therefore, belies the testimony of Atty.
Alberto Barretto." And yet in the resolution on the motion for
new trial, the trial Judge had to state that "Ana Suntay on rebuttal
did not, likewise, prove clearly and distinctly the provisions of
the said lost will, because she has not had enough schooling and
she does not possess adequate knowledge of the Spanish
language as shown by the fact that she had to testify in Tagalog
on the witness stand." The potent error committed by Judge
Pecson in reversing his views as regards Ana's testimony, is
revealed readily in the following portions of the transcript:
Cuantas paginas tenia aquel documento a que usted se
"P. refiere?—"R. Probablemente seria mas de veinte (20)
paginas.
No serian treinta (30) paginas?—"Abogado Recto: La
"P.
testigo ha contestado ya que mas de veinte (20).
"Juzgado: Se estima
"Abogado
Mejia:
Usted personalmente leyo el documento?—"R. Yo leyo
"P.
mi hermano en presencia mia.
La pregunta es, si usted personalmente ha leido el
"P.
documento?—"R. Si, lo he visto.
No solamente le pregunto a usted si Vd. ha visto el
testamento sino si usted ha leido personalmente el
"P. testamento?—"R. Si la parte de la adjudication lo he
leido para asegurarme a que porcion corresponder a
cada uno de nosotros.
Puede usted repetir poco mas o menos esa porcion a
que se hacia la distribucion del alegado testamento?
—"R. Como ya he declarado, que las propiedadtes de
mi difunto padre se habian dividido en tres partes, una
"P. tercera parte se nos adjudica a nosotros diez (10)
hijos en primeros nupcias y segunda nupcia, la
segunda tercera parte los adjudica a la viuda y a
Silvino, y la otra tercera parte se lo adjudica a sus hijos
como mejora a Silvino, Apolonio, Concepcion y Jose.
Eso, tal como listed personalmente to leyo en el
"P.
documento?—
"R. Si Senor,
"P. Quiere usted tener la bondad, seiiora, de repetir poco
37
 mas o menos las palabras en ese documento que se
distribuia las propiedades del defundo padre usted
como usted relata aqui? "Abogado Recto: Objetamos a
la pregunta por falta de base, porque elle solamente se
fijo en la parte como se distribuian las propiedades
pero no ha dicho la testigo que ella lo ha puesto de
memorin, ni Vd. ha preguntado en que lenguaje estaba
escrito el testamento . . .
"Juzgado: Se estima.
"Abogado
Mejia:
Sabe usted en que lenguaje estaba redactado el
"P. documento que usted leyo personalmente?—"R. En
Castellano.
Puede usted repetirnos ahora en Castellano algunas
"P. frases o palabras como se hizo la distribucion en aquel
supuesto testamento?—
Objecion, por falta de base, uno puede entender el
"Abogado espafiol y sin embargo no podra repetir lo que ha
Recto: leido, y no se sabe todavia si ha estudiado el espafiol
bastante hasta el punto de poder hablarlo.
"Juzgado: Se estima.
"Abogado
 
Mejia
Usted dijo que estaba puesto en castellano el supuesto
testamento que Vda. leyo, usted poso el castellano?
"P.
—"R. Yo entiendo el castellano, pero no puedo Iiablar
bien.
Usted estudio el castellano en algun coleglo?—"R. Si,
"P.
senor, en Sta. Catalina
Cuantos anos?—"'R. Nuestros estudios no han sido
continuous porque mi padre nos ingresaba en el
"P.
colegio y despues nos sacaba para estar afuera, y no
era continuo nuestro estudio.
Pero en total, como cuantos meses o aiios estaba usted
"P. en el colegio aprendiendo el castellano?—"R. Unos
cuatro o cinco anos.
Entonces usted puede leer el castellano con facilidad,
"P.
senora?—
"R. Si, castellano sencillo puedo entender y lo puedo leer.
Usted entiende las preguntas que se le dirigian aqul en
"P. castellano sin interpretacion o sin el interprete?—"R.
Si, Senor.
Puede usted contestar en castellano?—"R. Bueno, pero
como usted debe comprender quisiera asegurarme del
"P. significado antes de contestar, por eso quiero que la
pregunta se me traduzca antes. asi puedo contestar
debidaraente." (t, s. n. pp. 533-534.)
We are really at a loss to understand why, without any change
whatsoever in the evidence, the trial Judge reversed his first
decision, particularly when he announced therein that "it is now
incumbent upon this court to delve into the evidence whether or
not Jose B. Suntay, deceased, left a will (the draft of which is
Exhibit B) and another will which was executed and probated in
Amoy, China." His action is indeed surprising when we take into
account the various circumstantial features presently to be
stated, that clearly confirm the testimony of Judge Anastacio
Teodoro, Go Toh and Ana Suntay, or otherwise constitute visible
indicia of oppositor's desire to frustrate the wishes of his father,
Jose B. Suntay.
In our opinion the most important piece of evidence in favor of
the petitioner's case is the draft of the lost will, Exhibit "B." Its
authenticity cannot be seriously questioned, because according
to the trial Judge himself, oppositor's own witness, Atty. Alberto
Barretto, admitted it to be "identical in substance and form to the
second draft which he prepared in typewriting." Indeed, all the
"A's" and "B's" in the handwritten insertions on the draft are very
similar to those in Barretto's admittedly genuine signature on the
envelope, Exhibit "A." The finding of Judge Pecson on the point in
his first decision (reiterated expressly in the resolution on the
motion for new trial), should control, not only because it is in
accordance with the evidence but because the oppositor had
failed and did not even attempt to have the trial Judge reconsider
or reverse his factual conclusions. The draft, Exhibit "B," having
been positively identified by the witnesses for the petitioner to
be an exact copy of the lost will of Jose B. Suntay, is therefore
conclusive. Oppositor's effort to show that said draft was never
signed in final form, and was thought of merely to deceive
petitioner's mother, Lim Billian, and that the will actually
executed and put in the envelope, Exhibit "A", provided that the
testator's estate would be" divided equally among his heirs, as in
the case of intestacy, was necessarily futile because, if this
allegation is true, the will would not have been "snatched" from
Go Ton— and the loss certainly cannot be imputed to the widow
Lim Billian or the petitioner; the snatched will would have been
produced to put an end to petitioner's and his mother's claim for
greater inheritance or participation under the lost will; and the
envelope containing the first will providing for equal shares,
would not have been entrusted to the care and custody of the
widow Lim Billian.
It is very noteworthy that out of the nine children of the first
marriage, only Angel, Jose and Federico Suntay had opposed the
probate of the will in question; the rest, namely, Ana, Aurora,
Concepcion, Lourdes, Manuel and Emiliano Suntay, having
expressly manifested in their answer that they had no opposition
thereto, since the petitioner's alternative petition "seeks only to
put into effect the testamentary disposition and wishes of their
late father." This attitude is significantly an indication of the
justness of petitioner's claim, because it would have been to their
greater advantage if they had sided with oppositor Federico
Suntay in his theory of equal inheritance for all the children of
Jose B. Suntay. Under the lost will or its draft Exhibit "B", each of
the Suntay children would receive only some P25,000.00,
whereas in case of intestacy or under the alleged will providing
for equal shares, each of them would receive some P100,000.00.
And yet the Suntay children other than Angel, Jose and Federico
had chosen to give their conformity to the alternative petition in
this case.
Another unequivocal confirmation of the lost will is the will
which Jose B. Suntay executed in Amoy, Fookien, China, on
January 4, 1931, and probated in Amoy District Court, China,
containing virtually the same provisions as those in the draft
Exhibit "B". What better evidence is there of an man's desire or
insistence to express his last wishes than the execution of a will
reiterating the same provisions contained in an earlier will.
Assuming that the Chinese will cannot be probated in the
38
jurisdiction, its probative value as corroborating evidence cannot
be ignored.
Oppositor himself had admitted having read the will in question
under which the widow Lim Billian was favored; and this again in
a way goes to corroborate the evidence for the petitioner as to
the contents of the will sought to be probated.
"Court:   PADILLA, J.:
Have you read the supposed will or the alleged will of
"Q.
your father?—"A. Yes, sir.
"Court:   Instance of Bulacan which disallowed the alleged last will and
Can you tell the court the share or participation in the
"Q. inheritance of Maria Natividad IAm Billian according to
the will?—
Yes sir, she will inherit, I think, two-thirds (2/3) of the
estate, in other words she is the most favored in the will,
"A. so when they sold that, they sold everything, they are
selling everything even the conjugal property." (t. s. n.
228-229.)
The decision of the majority leans heavily on the testimony of
Atty. Alberto Barretto, forgetful perhaps of the fact that the trial
Judge gave no credence to said witness. It should be repeated that
Judge Pecson reiterated in the resolution on the motion for new
trial all his findings in the first decision. If as Atty. Barretto
testified, Lim Billian was entitled under the will actually signed
by Jose Suntay only to P10,000.00, in addition to properties in
China valued at P15,000.00, the fees of P25,000.00 admittedly
asked by him would absorb her entire inheritance; and this
would normally not be done by any law practitioner. Upon the
other hand, there is evidence to the effect that Atty. Barretto
might have become hostile to the petitioner and his mother Lim
Billian in view of the latter's refusal to agree to the amount of
P25,000.00 and her offer to pay only P100.00. There is also
evidence tending to show that as early as 1942, Atty. Barretto
was paid by oppositor Federico Suntay the sum of P16,000.00
which, although allegedly for services in the testate proceedings,
was paid out of the personal funds of said oppositors to supply
Atty. Barretto's needs. This circumstances perhaps further
explains why the latter had to support the side of Federico
Suntay.
We have quoted in full the decision of this court in the
"snatching" case and the first decision of Judge Pecson in this
case, both in the hope and in the belief (1) that the first would
reveal the manner by which those adversely affected had planned
to prevent the last wishes of the deceased Jose B. Suntay from
being carried out, and (2) that the second, by the facts correctly
recited therein and by the force and accuracy of its logic would
amply show the weakness and utter lack of foundation of the
resolution on the motion for reconsideration. We have set forth
at length pertinent portions of the testimony of various witnesses
to demonstrate more plainly the plausibility of the original
decision of Judge Pecson, and the latter's consequent bad
judgment in having forced himself to accomplish a somersault, a
feat which the majority, in my opinion, have mistakenly
commended. We have found this to be one of the cases of this
court in which we have had occasion to participate, where there
can be absolutely no doubt as to the result—outright reversal—
for which, with due respect to the majority opinion, we vote
without hesitancy.
Montemayor and Jugo, JJ., concur.
RESOLUTION
5 November 1954
This is a motion for reconsideration of the decision promulgated
on 31 July 1954, affirming the decree of the Court of First
testament executed in November 1929 and the alleged last will
and testament executed in Kulangsu, Amoy, China, on 4 January
1931, by Jose B. Suntay, without pronouncement as to costs, on
grounds that will presently be taken up and discussed.
Appellant points to an alleged error in the decision where it
states that—
* * * This petition was denied because of the loss of said will after
the filing1 of the petition and before the nearing thereof, * * *
because according to him the "will was lost before not after (the)
filing of the petition." This slight error, if it is an error at all, does
not, and cannot, after the conclusions and pronouncements made
in the judgment rendered in the case. In his alternative petition
the appellant alleges:
4. That on October 15, 1934, Maria Natividad Lim Billian, the
mother of herein petitioner filed a petition in this court for the
allowance and probate of a last will and testament executed, an
signed in the Philippines in the year 1929 by said deceased Jose
B. Suntay. (P. 3, amended record on appeal.)
If such last will and testament was already lost or destroyed at
the time of the filing of the petition by Maria Natividad Lim
Billian (15 October 1934), the appellant would have so stated and
alleged. If Anastacio Teodoro, a witness for the appellant, is to be
believed when he testified—
* * * that one day in November 1934 (p. 273, t. s. n., hearing of 19
January 1948), * * * Go Toh arrived at his law office in the De los
Reyes Building and left an envelope wrapped in red handkerchief
[Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); * * * and—
If the will was snatched after the delivery thereof by Go Toh to
Anastacio Teodoro and returned by the latter to the former
because they could not agree on the amount of fees, * * *
then on 15 October 1934, the date of the filing of the petition, the
will was not yet lost. And if the facts alleged in paragraph 5 of the
appellant's alternative petition which states:
That this Honorable Court, after hearing, denied the aforesaid
petition for probate filed by Maria Natividad Lim Billian in view
of the loss and/or destruction of said will subsequent to the filing
of said petition and prior to the hearing thereof, and the alleged
insufficiency of the evidence adduced to established the loss
and/or destruction of the said will, (Italics supplied. P. 3,
amended record on appeal.)
may be relied upon, then the alleged error pointed out by the
appellant, if it is an error, is due to the allegation in said
39
paragraph of his alternative petition. Did the appellant allege the
facts in said paragraph with reckless abandon? Or, did the
appellant make the allegation rs erroneously as that which he
made in paragraph 10 of the alternative petition that "his will
which was lost and ordered probated by our Supreme Court in G.
R. No. 44276, above referred to?" (P. 7, amended record on
appeal.)
This Court did not order the probate of the will in said case
because if it did, there would have been no further and
subsequent proceedings in the case after the decision of this
Court referred to had been rendered and had become final. Be
that as it may, whether the loss of the will was before or
subsequent to the filing of the petition, as already stated, the fact
would not affect in the slightest degree the conclusions and
pronouncements made by this Court.
The appellant advances the postulate that the decision of this
Court in the case of Lim Billian vs. Suntay, G. R. No. 44276, 63
Phil., 793, constitutes res judicata on these points: (a) that only
one will was prepared by attorney Baretto, and (b) that the issue
to be resolved by the trial court was whether the draft (Exhibit B)
is a true copy or draft of the snatched will, and contends that
these points already adjudged were overlooked in the majority
opinion. The decision of this Court in the case referred to does
not constitute res judicata on the points adverted to by the
appellant. The only point decided in that case is that "the
evidence is sufficient to establish the loss of the document
contained in the envelope." In the opinion of this Court, this
circumstance justified "the presentation of secondary evidence of
its contents and of whether it was executed with all the essential
and necessary legal formalities." That is all that was decided. This
Court further said:
The trial of this case was limited to the proof of loss of the will,
and from what has taken place we deduce that it was not
petitioner's intention to raise, upon the evidence adduced by her,
the other points involved herein, namely, as we have heretofore
indicated, whether Exhibit B is a true copy of the will and
whether the latter was executed with all the formalities required
by law for its probate. The testimony of Alberto Barretto bears
importantly in this connection. (V. 796, supra.)
Appellant's contention that the question before the probate court
was whether the draft (Exhibit B) is a true copy or draft of the
snatched will is a mistaken interpretation and view of the
decision of this Court in the case referred to, for if this Court did
make that pronouncement, which, of course, it did not, such
pronouncement would be contrary to law and would have been a
grievous and irreparable mistake, because what the Court passed
upon and decided in that case, as already stated, is that there was
sufficient evidence to prove the loss of the will and that the next
step was to prove by secondary evidence its due execution in
accordance with the formalities of the law and its contents,
clearly and distinctly, by the testimony of at least two credible
witnesses.[1]
The appellant invokes Rule 133 to argue that Rule 77 should not
have been applied to the case but the provisions of section 623 of
the Code of Civil Procedure (Act No. 190), for the reason that this
case had been commenced before the Rules of Court took effect.
But Rule 133 cited by the appellant provides:
These rules shall take effect on July 1, 1940. They shall govern all
cases brought after they take effect, and also all further
proceedings in cases then pending, except to the extent that in the
opinion of the court their application would not be feasible or
would work injustice, in which event the former procedure shall
apply. (Italics supplied.) So, Rule 77 applies to this case because it
was a further proceedings in a case then pending. But even if
section 623 of the Code of Civil Procedure were to be applied, still
the evidence to prove the contents and due execution of the will
and the fact of its unauthorized destruction, cancellation, or
obliteration must be established "by full evidence to the
satisfaction of the Court." This requirement may even be more
strict and exacting than the two- witness rule provided for in
section 6, Rule 77. The underlying reason for the exacting
provisions found in section 623 of Act No. 190 and section 6, Rule
77, the product of experience and wisdom, is to prevent
imposters from foisting, or at least to make for them difficult to
foist, upon probate courts alleged last wills or testaments that
were never executed.
In commenting unfavorably upon the decree disallowing the lost
will, both the appellant and the dissenting opinion suffer from an
infirmity born of a mistaken premise that all the conclusions and
pronouncements made by the probate court in the first decree
which allowed the probate of the lost will of the late Jose B.
Suntay must be accepted by this Court. This is an error. It must be
borne in mind that this is not a petition for a writ of certiorari to
review a judgment of the Court of Appeals on questions of law
where the findings of fact by said Court are binding upon this
Court. This is an appeal from the probate court, because the
amount involved in the controversy exceeds P50,000, and this
Court in the exercise of its appellate jurisdiction must review the
evidence and the findings of fact and legal pronouncements made
by the probate court. If such conclusions and pronouncements
are unjustified and erroneous this Court is in duty bound to
correct them. Not long after entering the first decree the probate
court was convinced that it had committed a mistake, so it set
aside the decree and entered another. This Court affirmed the
last decree not precisely upon the facts found by the probate
court but upon facts found by it after a careful review and
scrutiny of the evidence, parole and documentary. After such
.review this Court has found that the provisions of the will had
not been established clearly and distinctly by at least two
credible witnesses and that conclusion is unassailable be- cause it
is solidly based on the established facts and in accordance with
law.
The appellant and the dissent try to make much out of a pleading
filed by five (5) children and the widow of Apolonio Suntay,
another child of the deceased by the first marriage, wherein they
state that—
* * * in answer to the alternative petition filed in these
proceedings by Silvino Suntay, through counsel, dated June 18,
1947, to this Honorable Court respectfully state that, since said
alternative petition seeks only to put into effect the testamentary
disposition and wishes of their late father, they have no
opposition thereto. (Pp. 71-72, amended record on appeal.)
Does that mean that they were consenting to the probate of the
lost will? Of course not. If the lost will sought to be probated in
the alternative petition was really the will of their late father,
40
they, as good children, naturally had, could have, no objection to
its probate. That is all that their answer implies and means. But
such lack of objection to the probate of the lost will does not
relieve the proponent thereof or the party interested in its
probate from establishing its due execution and proving clearly
and distinctly the provisions thereof by at least two credible
witnesses. It does not mean that they accept the draft Exhibit B as
an exact and true copy of the lost will and consent to its probate.
Far from it. In the pleading copied in the dissent, which the
appellant has owned and used as argument in the motion for
reconsideration, there is nothing that may bolster up his
contention. Even if all the children were agreeable to the probate
of said lost will, still the due execution of the lost will must be
established and the provisions thereof proved clearly and
distinctly by at least two credible witnesses, as provided for in
section 6, Rule 77. The appellant's effort failed to prove what is
required by the rule. Even if the children of the deceased by the
first marriage, out of generosity, were willing to donate their
shares in the estate of their deceased father or parts thereof to
their step mother and her only child, the herein appellant, still
the donation, if validly made, would not dispense with the
proceedings for the probate of the will in accordance with section
6, Rule 77, because the former may convey by way of donation
their shares in the state of their deceased father or parts thereof
to the latter only after the decree disallowing the will shall have
been rendered and shall have become final. If the lost will is
allowed to probate there woud be no room for such donation
except of their respective shares in the probated will.
The part of the deposition of Go Toh quoted in the motion for
reconsideration which appellant underscores does not refer to
Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel Lopez
read the draft (Exhibit B) for the purpose of checking it up with
the original held and read by Jose B. Suntay, Go Toh should not
have understood the provisions of the will because he knew very
little of the Spanish language in which the will was written
(answer to 22nd and 23rd interrogatories and to X-2 cross-
interrogatory). In fact, he testifies in his deposition that all he
knows about the contents of the lost will was revealed to him by
Jose B. Suntay at the time it was executed (answers to 25th
interrogatory and to X-4 and X-8 cross-interrogatories); that Jose
B. Suntay told him that the contents thereof are the same as those
of the draft [Ehhibit B] (answers to 33rd interrogatory and to X-8
cross-interrogatory); that Mrs. Suntay had the draft of the will
(Exhibit B) translated into Chinese and he read the translation
(answer to the 67th interrogatory) I that he did not read the will
and did not compare it (check it up) with the draft [Exhibit B]
(answers to X-6 and X-20 cross-interrogatories). We repeat that
— with regard to our case in the testamentaria but he also
* * * all of Go Toh's testimony by deposition on the provisions of
the alleged lost will is hearsay, because he came to know or he
learned of them from information given him by Jos6 B. Suntay
and from reading the translation of the draft (Exhibit B) into
Chinese. This finding cannot be contested and assailed.
The appellant does not understand how the Court came to the
conclusion that Ana Suntay, a witness for the appellant could not
have read the part of the will on adjudication. According to her
testimony "she did not read the whole will but only the
adjudication," which, this Court found, "is inconsistent with her
testimony in chief (to the effect) that 'after Apolonio read that
portion, then he turned over the document to Manuel, "and he
went away.'" (P. 528, t. s. n., hearing of 24 February 1948.) And
appellant asks the question: "Who went away? Was it Manuel or
Apolonio?" In answer to his own question the appellant says:
"The more obvious inference is that it was Apolonio and not
Manuel who went away." This inference made by the appellant
not only is not obvious but it is also illogical, if it be borne in mind
that Manuel came to the house of Apolonio and it happened that
Ana was there, according to her testimony. So the sentence "he
went away" in Ana's testimony must logically and reasonably
refer to Manuel, who was a caller or visitor in the house of his
brother Apolonio and not to the latter who was in his house. If it
was Apolonio who "went away," counsel for the appellant could
have brought that out by a single question. As the evidence
stands could it be said that the one who went away was Apolonio
and not Manuel? The obvious answer is that it was Manuel. That
inference is the result of a straight process of reasoning and clear
thinking.
There is a veiled insinuation in the dissent that Alberto Barretto
testified as he did because he had been paid by Federico C. Suntay
the sum of P16,000. Federico C. Suntay testifies on the point thus
—
You mentioned in your direct testimony that you paid
certain amount to Atty. Alberto Baretto for services
Q.
rendered, how much did you pay?—A. Around sixteen
thousand (P16,000.00).
When did you make the payment?—A. During the Japanese
Q.
time.
Did you state that fact in any accounts you presented to the
Q.
Court?—A. I do not quite remember that.
* * * (P. 180, t. s. n., hearing of 24 October 1947.)
When you made that payment, was (it) your intention to
Q. charge it to the state or to collect it later from the estate?—
A. Yes, sir.
More or less when was such payment made, during the
Q. Japanese time, what particular month and year, do you
remember?—A. I think in 1942.
And you said you paid him because of services he rendered?
Q.
—A. Upon the order to the Court.
And those services were precisely because he made a will
and he made a will which was lost, the will of Jose B.
Suntay? * * * (P. 181, t. s, n., supra.)—-A. I think I remember
correctly according to ex-Representative Vera who is the
Q.
administrator whom I followed at that time, that was paid
according to the services rendered by Don Alberto Barretto
rendered services to my father.
At least your Counsel said that there was an order of the
Court ordering you to pay that, do you have that copy of the
Q.
order?—A. Yes, sir, I have, but I think that was burned. (P.
184, t. s. n., supra.)
So the sum of P16,000 was paid upon recommendation of the
former administrator and order of the probate court for services
rendered by Alberto Baretto not only in the probate proceedings
but also for services rendered to his father. But if this sum of
P16,000 paid to Alberto Barretto upon recommendation of the
previous administrator and order of the probate court for
professional services rendered in the probate proceedings and to
41
the deceased in his lifetime be taken against his truthfulness and
veracity as to affect adversely his testimony, what about the
professional services of Anastacio Teodoro who appeared in this
case as one of the attorneys for the petitioner-appellant? (P. 2, t.
s. n., hearing of 13 October 1947.) Would that not likewise or by
the same token affect his credibility? Is not the latter's interest
more compelling than the former's?

For the foregoing reasons, the motion for reconsideration is

denied.

Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.

42