Professional Documents
Culture Documents
Delgado, Flores and Macapagal For Plaintiff-Appellant. Pelaez and Jalandoni For Defendant-Appellee
Delgado, Flores and Macapagal For Plaintiff-Appellant. Pelaez and Jalandoni For Defendant-Appellee
L-15499 February 28, 1962 Manila, and having received the same on December
10, 1958, said law office delivered them to plaintiff-
ANGELA M. BUTTE, plaintiff-appellant, appellant's son, Mr. Miguel Papa, who in turn
vs. personally handed the letters to his mother, Mrs.
MANUEL UY and SONS, INC., defendant-appellee. Butte, on December 11 and 12, 1958. Aside from this
letter of defendant-appellant, the vendor, thru her
Delgado, Flores and Macapagal for plaintiff-appellant. attorney-in-fact Mrs. Chambers, wrote said bank on
Pelaez and Jalandoni for defendant-appellee. December 11, 1958 confirming vendee's letter
regarding the sale of her 1/6 share in the Sta. Cruz
property for the sum of P500,000.00. Said letter was
REYES, J.B.L., J.:
received by the bank on December 15, 1958 and
having endorsed it to Mrs. Butte's counsel, the latter
Appeal from a decision of the Court of First instance received the same on December 16, 1958. Appellant
of Manila dismissing the action for legal redemption received the letter on December 19, 1958.
filed by plaintiff-appellant.
On January 15, 1959, Mrs. Angela M. Butte, thru Atty.
It appears that Jose V. Ramirez, during his lifetime, Resplandor Sobretodo, sent a letter and a Philippine
was a co-owner of a house and lot located at Sta. National Bank cashier's check in the amount of
Cruz, Manila, as shown by Transfer Certificate of Title P500,000.00 to Manuel Uy & Sons, Inc. offering to
No. 52789, issued in the name of the following co- redeem the 1/6 share sold by Mrs. Marie Garnier Vda.
owners: Marie Garnier Vda. de Ramirez, 1/6; Jose V. de Ramirez. This tender having been refused, plaintiff
Ramirez, 1/6; Jose E. Ramirez, 1/6; Rita de Ramirez, on the same day consigned the amount in court and
1/6; and Jose Ma. Ramirez, 1/6. filed the corresponding action for legal redemption.
Without prejudice to the determination by the court of
On October 20, 1951, Jose V. Ramirez died. the reasonable and fair market value of the property
Subsequently, Special Proceeding No. 15026 was sold which she alleged to be grossly excessive,
instituted to settle his estate, that included the one- plaintiff prayed for conveyance of the property, and for
sixth (1/6) undivided share in the aforementioned actual, moral and exemplary damages.
property. And although his last will and testament,
wherein he bequeathed his estate to his children and After the filing by defendant of its answer containing a
grandchildren and one-third (1/3) of the free portion to counterclaim, and plaintiff's reply thereto, trial was
Mrs. Angela M. Butte, hereinafter referred to as held, after which the court rendered decision on May
plaintiff-appellant, has been admitted to probate, the 13, 1959, dismissing plaintiff's complaint on the
estate proceedings are still pending up to the present grounds that she has no right to redeem the property
on account of the claims of creditors which exceed and that, if ever she had any, she exercised the same
the assets of the deceased. The Bank of the beyond the statutory 30-day period for legal
Philippine Islands was appointed judicial redemptions provided by the Civil Code. The
administrator. counterclaim of defendant for damages was likewise
dismissed for not being sufficiently established. Both
Meanwhile, on December 9, 1958, Mrs. Marie Garnier parties appealed directly to this Court.
Vda. de Ramirez, one of the co-owners of the late
Jose V. Ramirez in the Sta. Cruz property, sold her Based on the foregoing facts, the main issues posed
undivided 1/6 share to Manuel Uy & Sons, Inc. in this appeal are: (1) whether or not plaintiff-
defendant-appellant herein, for the sum of appellant, having been bequeathed 1/3 of the free
P500,000.00. After the execution by her attorney-in- portion of the estate of Jose V. Ramirez, can exercise
fact, Mrs. Elsa R. Chambers, of an affidavit to the the right of legal redemption over the 1/6 share sold
effect that formal notices of the sale had been sent to by Mrs. Marie Garnier Vda. de Ramirez despite the
all possible redemptioners, the deed of sale was duly presence of the judicial administrator and pending the
registered and Transfer Certificate of Title No. 52789 final distribution of her share in the testate
was cancelled in lieu of which a new one was issued proceedings; and (2) whether or not she exercised the
in the name of the vendee and the other-co-owners. right of legal redemption within the period prescribed
by law.
On the same day (December 9, 1958), Manuel Uy &
Sons, Inc. sent a letter to the Bank of the Philippine The applicable law involved in the present case is
Islands as judicial administrator of the estate of the contained in Articles 1620, p. 1, and 1623 of the Civil
late Jose V. Ramirez informing it of the above- Code of the Philippines, which read as follows:
mentioned sale. This letter, together with that of the
bank, was forwarded by the latter to Mrs. Butte c/o
her counsel Delgado, Flores & Macapagal, Escolta,
ART. 1620. A co-owner of a thing may officiousness of the donation inter vivos (Art. 771).
exercise the right of redemption in case the Similarly, the legacies of credit and remission are
shares of all the other-co-owners or of any of valid only in the amount due and outstanding at the
them, are sold to a third person. If the price of death of the testator (Art. 935),and the fruits accruing
the alienation is grossly excessive, the after that instant are deemed to pertain to the legatee
redemptioner shall pay only a reasonable one. (Art. 948).
4. On the hypothesis that it was proper to adjudicate In order to decide in the affirmative the court below
the property of this intestate estate to Paula Conde, has assigned the following as the only foundation:
as improperly found by the court below, the court
erred in not having declared that said property should In resolving a similar question Manresa says:
be reserved in favor of relatives of Casiano Abaya to "An acknowledgment can only be demanded
the third degree, and in not having previously by the natural child and his descendants
demanded securities from Paula Conde to guarantee whom it shall benefit, and should they be
the transmission of the property to those who might minors or otherwise incapacitated, such
fall within the reservation. person as legally represents them; the mother
may ask it in behalf of her child so long as he
As to the first error assigned, the question is set up as is under her authority." On this point no
to whether in special proceedings for the positive declaration has been made,
administration and distribution of an intestate estate, undoubtedly because it was not considered
an action might be brought to enforce the necessary. A private action is in question and
acknowledgment of the natural child of the person the general rule must be followed. Elsewhere
from whom the inheritance is derived, that is to say, the same author adds: "It may so happen that
whether one might appear as heir on the ground that the child dies before four years have expired
he is a recognized natural child of the deceased, not after attaining majority, or that the document
having been so recognized by the deceased either supporting his petition for acknowledgment is
voluntarily or compulsorily by reason of a preexisting discovered after his death, such death
judicial decision, but asking at the same time that, in perhaps occurring after his parents had died,
the special proceeding itself, he be recognized by the as is supposed by article 137, or during their
presumed legitimate heirs of the deceased who claim lifetime. In any case such right of action shall
to be entitled to the succession opened in the special pertain to the descendants of the child whom
proceeding. the acknowledgment may interest." (See
Commentaries to arts. 135 and 137, Civil
According to section 782 of the Code of Civil Code, Vol. I.)
Procedure —
The above doctrine, advanced by one of the most
If there shall be a controversy before the eminent commentators of the Civil Code, lacks legal
Court of First Instance as to who the lawful and doctrinal foundation. The power to transmit the
heirs of the deceased person are, or as to the right of such action by the natural child to his
distributive share to which each person is descendants can not be sustained under the law, and
entitled under the law, the testimony as to still less to his mother.
such controversy shall be taken in writing by
the judge, under oath, and signed by the
It is without any support in law because the rule laid 1. If the father or mother died during the
down in the code is most positive, limiting in form, maturity of the child, in which case the
when establishing the exception for the exercise of latter may institute the action before the
such right of action after the death of the presumed expiration of the first four years of its maturity.
parents, as is shown hereafter. It is not supported by
any doctrine, because up to the present time no 2. If, after the death of the father or mother,
argument has been presented, upon which even an some instrument, before unknown, should be
approximate conclusion could be based. discovered in which the child is expressly
acknowledged.
Although the Civil Code considerably improved the
condition of recognized natural children, granting In this case the action must be instituted with
them rights and actions that they did not possess the six months following the discovery of such
under the former laws, they were not, however, instrument.
placed upon the same place as legitimate ones. The
difference that separates these two classes of On this supposition the first difference that results
children is still great, as proven by so many articles between one action and the other consists in that the
dealing with the rights of the family and the right of action for legitimacy lasts during the whole
succession in relation to the members thereof. It may lifetime of the child, that is, it can always be brought
be laid down as legal maxim, that whatever the code against the presumed parents or their heirs by the
does not grant to the legitimate children, or in child itself, while the right of action for the
connection with their rights, must still less be acknowledgment of a natural child does not last his
understood as granted to recognized natural children whole lifetime, and, as a general rule, it can not be
or in connection with their rights. There is not a single instituted against the heirs of the presumed parents,
exception in its provisions. inasmuch as it can be exercised only during the life of
the presumed parents.
If legitimacy is the attribute that constitutes the basis
of the absolute family rights of the child, the With regard to the question at issue, that is, the
acknowledgment of the natural child is, among transmission to the heirs of the presumed parents of
illegitimate ones, that which unites him to the family of the obligation to admit the legitimate filiation, or to
the father or the mother who recognized him, and recognize the natural filiation, there exists the most
affords him a participation in the rights of the family, radical difference in that the former continues during
relatively advantageous according to whether they are the life of the child who claims to be legitimate, and he
alone or whether they concur with other individuals of may demand it either directly and primarily from the
the family of his purely natural father or mother. said presumed parents, or indirectly and secondarily
from the heirs of the latter; while the second does not
Thus, in order to consider the spirit of the Civil Code, endure for life; as a general rule, it only lasts during
nothing is more logical than to establish a comparison the life of the presumed parents. Hence the other
between an action to claim the legitimacy, and one to difference, derived as a consequence, that an action
enforce acknowledgment. for legitimacy is always brought against the heirs of
the presumed parents in case of the death of the
ART. 118. The action to claim its legitimacy latter, while the action for acknowledgment is not
may be brought by the child at any time of its brought against the heirs of such parents, with the
lifetime and shall be transmitted to its heirs, exception of the two cases prescribed by article 137
should it die during minority or in a state of transcribed above.
insanity. In such cases the heirs shall be
allowed a period of five years in which to So much for the passive transmission of the obligation
institute the action. to admit the legitimate filiation, or to acknowledge the
natural filiation.
The action already instituted by the child is
transmitted by its death to the heirs, if it has not As to the transmission to the heirs of the child of
lapsed before then. the latter's action to claim his legitimacy, or to obtain
the acknowledgment of his natural filiation, it is seen
ART. 137. The actions for the that the code grants it in the first case, but not in the
acknowledgment of natural children can be second. It contains provisions for the transmission of
instituted only during the life of the presumed the right of action which, for the purpose claiming his
parents, except in the following cases: legitimacy inheres in the child, but it does not say a
word with regard to the transmission of the right to
obtain the acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the two An action for the acknowledgment of a natural child
above-cited articles is: (1) That the right of action may, as an exception, be exercised against the heirs
which devolves upon the child to claim his legitimacy of the presumed parents in two cases: first, in the
under article 118, may be transmitted to his heirs in event of the death of the latter during the minority of
certain cases designated in the said article; (2) That the child, and second, upon the discovery of some
the right of action for the acknowledgment of natural instrument of express acknowledgment of the child,
children to which article 137 refers, can never be executed by the father or mother, the existence of
transmitted, for the reason that the code makes no which was unknown during the life of the latter.
mention of it in any case, not even as an exception.
But such action for the acknowledgment of a natural
It is most illogical and contrary to every rule of correct child can only be exercised by him. It can not be
interpretation, that the right of action to secure transmitted to his descendants, or his ascendants.
acknowledgment by the natural child should be
presumed to be transmitted, independently, as a rule, In support of the foregoing the following authorities
to his heirs, while the right of action to claim may be cited:
legitimacy from his predecessor is not expressly,
independently, or, as a general rule, conceded to the Sanchez Roman, in his Treatise of Civil Law,
heirs of the legitimate child, but only relatively and as propounds the question as to whether said action
an exception. Consequently, the pretension that the should be considered transmissive to the heirs or
right of action on the part of the child to obtain the descendants of the natural child, whether he had or
acknowledgment of his natural filiation is transmitted had not exercised it up to the time of his death, and
to his descendants is altogether unfounded. No legal decides it as follows:
provision exists to sustain such pretension, nor can
an argument of presumption be based on the lesser
There is an entire absence of legal provisions,
claim when there is no basis for the greater one, and
and at most, it might be deemed admissible
when it is only given as an exception in well-defined
as a solution, that the right of action to claim
cases. It is placing the heirs of the natural child on a
the acknowledgment of a natural child is
better footing than the heirs of the legitimate one,
transmitted by the analogy to his heirs on the
when, as a matter of fact, the position of a natural
same conditions and terms that it is
child is no better than, no even equal to, that of a
transmitted to the descendants of a legitimate
legitimate child.
child, to claim his legitimacy, under article
118, but nothing more; because on this point
From the express and precise precepts of the code nothing warrants placing the heirs of a natural
the following conclusions are derived: child on a better footing than those of the
legitimate child, and even to compare
The right of action that devolves upon the child to them would not fail to be a strained and
claim his legitimacy lasts during his whole life, while questionable matter, and one of
the right to claim the acknowledgment of a natural great difficulty for decision by the courts, for
child lasts only during the life of his presumed the simple reason that for the heirs of the
parents. legitimate child, the said article 118 exists,
while for those of the natural child, as we have
Inasmuch as the right of action accruing to the child to said, there is no provision in the code
claim his legitimacy lasts during his whole life, he may authorizing the same, although on the other
exercise it either against the presumed parents, or hand there is none that prohibits it. (Vol. V.)
their heirs; while the right of action to secure the
acknowledgment of a natural child, since it does not Diaz Guijarro and Martinez Ruiz in their work on "The
last during his whole life, but depends on that of the Civil Code as construed by the supreme court of
presumed parents, as a general rule can only be Spain," commenting upon article 137, say:
exercised against the latter.
Article 118, taking into account the privileges
Usually the right of action for legitimacy devolving due to the legitimacy of children, grants them
upon the child is of a personal character and pertains the right to claim said legitimacy during their
exclusively to him, only the child may exercise it at lifetime, and even authorizes the transmission
any time during his lifetime. As an exception, and in of said right for the space of five years to the
three cases only, it may be transmitted to the heirs of heirs thereof, if the child die during his
the child, to wit, if he died during his minority, or while minority or in a state of insanity. But as article
insane, or after action had been already instituted. 137 is based on the consideration that in the
case of a natural child, ties are less strong
and sacred in the eyes of the law, it does not In a decision like the present one it is impossible to
fix such a long and indefinite period for the bring forward the argument of analogy for the purpose
exercise of the action; it limits it to the life of of considering that the heirs of the natural child are
the parents, excepting in the two cases entitled to the right of action which article 118
mentioned in said article; and it does not concedes to the heirs of the legitimate child. The
allow, as does article 118, the action to pass existence of a provision for the one case and the
on to the heirs, inasmuch as, although it does absence thereof for the other is a conclusive
not prohibit it, and for that reason it might be argument that inclusio unius est exclusio alterius, and
deemed on general principles of law to it can not be understood that the provision of law
consent to it, such a supposition is should be the same when the same reason does not
inadmissible for the reason that a comparison hold in the one case as in the other.
of both articles shows that the silence of the
law in the latter case is not, nor it can be, an The theory of law of transmission is also entirely
omission, but a deliberate intent to establish a inapplicable in this case. This theory, which in the
wide difference between the advantages Roman Law expressed the general rule than an heir
granted to a legitimate child and to a natural who did not accept an inheritance during his lifetime
one. was incapacitated from transmitting it to his own heirs,
included at the same time the idea that if the
(Ibid., Vol. II, 171.) inheritance was not transmitted because the heir did
not possess it, there were, however, certain things
Navarro Amandi (Cuestionario del Código Civil) raises which the heir held and could transmit. Such was the
the question: "Can the heirs of a natural child claim law and the right to accept the inheritance, for the
the acknowledgment in those cases wherein the existing reason that all rights, both real and personal,
father or mother are under obligation to shall pass to the heir; quia haeres representat
acknowledge"? And says: defunctum in omnibus et per omnia. According to the
article 659 of the Civil Code, "the inheritance includes
Opinions are widely divergent. The court of all the property, rights, and obligations of a person,
Rennes held (on April 13, 1844) that the right which are not extinguished by his death." If the
of investigation forms a part of the estate of mother is the heir of her natural child, and the latter,
the child, and along with his patrimony is among other rights during his lifetime was entitled to
transmitted to his heirs. The affirmation is exercise an action of his acknowledgment against his
altogether too categorical to be admissible. If father, during the life of the latter, if after his death in
it were correct the same thing would happen some of the excepting cases of article 137, such right,
as when the legitimacy of a child is claimed, which is a portion of his inheritance, is transmitted to
and as already seen, the right of action to his mother as being his heir, and it was so understood
demand the legitimacy is not transmitted to by the court of Rennes when it considered the right in
the heirs in every case and as an absolute question, not as a personal and exclusive right of the
right, but under certain limitations and child which is extinguished by his death, but a any
circumstances. Now, were we to admit the other right which might be transmitted after his death.
doctrine of the court of Rennes, the result This right of supposed transmission is even less
would be that the claim for natural filiation tenable than that sought to be sustained by the
would be more favored than one for legitimate argument of analogy.
filiation. This would be absurd, because it can
not be conceived that the legislator should The right of action pertaining to the child to claim his
have granted a right of action to the heirs of legitimacy is in all respects superior to that of the child
the natural child, which is only granted under who claims acknowledgment as a natural child. And it
great limitations and in very few cases to is evident that the right of action to claim his
those of a legitimate one. Some persons insist legitimacy is not one of those rights which the
that the same rules that govern legitimate legitimate child may transmit by inheritance to his
filiation apply by analogy to natural child are heirs; it forms no part of the component rights of his
entitled to claim it in the cases prescribed by inheritance. If it were so, there would have been no
the article 118. The majority, however, are necessity to establish its transmissibility to heirs as an
inclined to consider the right to claim exception in the terms and conditions of article 118 of
acknowledgment as a personal right, and the code. So that, in order that it may constitute a
consequently, not transmissive to the heirs. portion of the child's inheritance, it is necessary that
Really there are no legal grounds to warrant the conditions and the terms contained in article 118
the transmission. (Vol. 2, 229.) shall be present, since without them, the right that the
child held during his lifetime, being personal and
exclusive in principle, and therefore, as a general rule
not susceptible of transmission, would and should a deceased resident Chinese merchant to enter the
have been extinguished by his death. Therefore, Philippine Islands as such widow and children; and,
where no express provision like that of article 118 second, the right of such widow, as a merchant and
exists, the right of action for the acknowledgment of a the successor to her husband, to enter the said
natural child is, in principle and without exception, Islands and to bring her children with her."
extinguished by his death, and can not be transmitted
as a portion of the inheritance of the deceased child. Counsel then says: "It would appear that the first part
of the foregoing questions has been resolved by this
On the other hand, if said right of action formed a part honorable tribunal against such right of entrance."
of the child's inheritance, it would be necessary to This statement is true. We have held in the case of
establish the doctrine that the right to claim such an Ng Hian vs. Collector of Customs (34 Phil. Rep., 248)
acknowledgment from the presumed natural father that the widow and minor children of a deceased
and from his heirs is an absolute right of the heirs of Chinese merchant resident and doing business in the
the child, not limited by certain circumstances as in Philippine Islands at the time of his death are not
the case of the heirs of a natural child with a entitled to enter the Philippine Islands solely by
legitimate one to place the heirs of a natural child and reason of such relationship. Counsel for the appellant
his inheritance on a better footing than those of a asks us to overrule that decision and admit the
legitimate child would not only be unreasonable, but, applicants in this case, setting forth with ability
as stated in one of the above citations, most absurd arguments to that end. We must say, however, that,
and illegal in the present state of the law and in after a careful consideration of such arguments, we
accordance with the general principles thereof. are unable to see our way clear to overrule the former
decision and accordingly decline to do so.
For all of the foregoing reasons we hereby reverse
the judgment appealed from in all its parts, without With regard to the second question, it may be said
any special ruling as to the costs of this instance. that it does not appear in the record of this case that
the applicant is a merchant. It appears simply that her
husband was, at the time of his death, a resident
Chinese merchant doing business in the Philippine
Islands, and that he died leaving property including a
G.R. No. L-12379 March 14, 1917
mercantile business. The assumption of the appellant
is that the mere fact of the death of a merchant makes
LAO HU NIU, petitioner-appellant, his wife and children also merchants, as it leaves to
vs. them as heirs and next of kin a mercantile business
THE INSULAR COLLECTOR OF as a part of their inheritance. We do not believe that
CUSTOMS, respondent-appellee. this necessarily follows. But if it does, the fact remains
that she is not a resident merchant. She is still outside
Williams, Ferrier and SyCip for appellant. of the Philippine Islands and has never held the status
Attorney-General Avanceña for appellee. of a resident merchant. She must, therefore, establish
her right to enter as a merchant in the first instance.
MORELAND, J.: This she did not do. She did not present the section
six certificate which is the only evidence upon which
This case involves the exclusion from the Philippine her right to enter can be based.
Islands of a Chinese woman and her minor children.
She claims to be the wife of a former resident From these observations it necessarily follows that
Chinese merchant who, prior to the attempt of the the applicant is not entitled to enter the Philippine
appellant to enter, died in the Philippine Islands Islands upon the status of her deceased husband;
owning property therein and leaving as his only heirs and that when she seeks to enter upon her own
at law and next of kin his widow, the appellant herein, personal status she must produce the evidence which
and her minor children. the law requires to establish that status. Not having
done this her application to enter was properly
The board of special inquiry refused them permission denied.
to enter and that refusal was affirmed by the Court of
First Instance of Manila. This appeal is from the action The judgment appealed from is affirmed, with costs.
taken by the Court of First Instance. So ordered.
Siguion Reyna, Montecillo & Ongsiako and Sycip, The non-acceptance of the insurance plan by Pacific
Salazar, Luna & Manalo for petitioner Company. Life was allegedly not communicated by petitioner
Mondragon to private respondent Ngo Hing. Instead,
on May 6, 1957, Mondragon wrote back Pacific Life
Voltaire Garcia for petitioner Mondragon.
again strongly recommending the approval of the 20-
year endowment insurance plan to children, pointing
Pelaez, Pelaez & Pelaez for respondent Ngo Hing. out that since 1954 the customers, especially the
Chinese, were asking for such coverage (Exhibit 4-
M).
DE CASTRO, J.: It was when things were in such state that on May 28,
1957 Helen Go died of influenza with complication of
The two above-entitled cases were ordered bronchopneumonia. Thereupon, private respondent
consolidated by the Resolution of this Court dated sought the payment of the proceeds of the insurance,
April 29, 1970, (Rollo, No. L-31878, p. 58), because but having failed in his effort, he filed the action for the
the petitioners in both cases seek similar relief, recovery of the same before the Court of First
through these petitions for certiorari by way of appeal, Instance of Cebu, which rendered the adverse
from the amended decision of respondent Court of decision as earlier refered to against both petitioners.
Appeals which affirmed in toto the decision of the
Court of First Instance of Cebu, ordering "the The decisive issues in these cases are: (1) whether
defendants (herein petitioners Great Pacific Ligfe the binding deposit receipt (Exhibit E) constituted a
Assurance Company and Mondragon) jointly and temporary contract of the life insurance in question;
severally to pay plaintiff (herein private respondent and (2) whether private respondent Ngo Hing
Ngo Hing) the amount of P50,000.00 with interest at concealed the state of health and physical condition
6% from the date of the filing of the complaint, and the of Helen Go, which rendered void the aforesaid
sum of P1,077.75, without interest. Exhibit E.
It appears that on March 14, 1957, private respondent 1. At the back of Exhibit E are condition precedents
Ngo Hing filed an application with the Great Pacific required before a deposit is considered a BINDING
Life Assurance Company (hereinafter referred to as RECEIPT. These conditions state that:
Pacific Life) for a twenty-year endownment policy in
the amount of P50,000.00 on the life of his one-year A. If the Company or its agent, shan
old daughter Helen Go. Said respondent supplied the have received the premium deposit ...
essential data which petitioner Lapulapu D. and the insurance application, ON or
Mondragon, Branch Manager of the Pacific Life in PRIOR to the date of medical
Cebu City wrote on the corresponding form in his own examination ... said insurance shan
handwriting (Exhibit I-M). Mondragon finally type- be in force and in effect from the date
wrote the data on the application form which was of such medical examination, for such
signed by private respondent Ngo Hing. The latter period as is covered by the
paid the annual premuim the sum of P1,077.75 going deposit ..., PROVIDED the company
over to the Company, but he reatined the amount of shall be satisfied that on said date the
P1,317.00 as his commission for being a duly applicant was insurable on standard
authorized agebt of Pacific Life. Upon the payment of rates under its rule for the amount of
the insurance premuim, the binding deposit receipt insurance and the kind of policy
(Exhibit E) was issued to private respondent Ngo requested in the application.
Hing. Likewise, petitioner Mondragon handwrote at
the bottom of the back page of the application form
D. If the Company does not accept agent, no liability shall attach until the principal
the application on standard rate for approves the risk and a receipt is given by the agent.
the amount of insurance and/or the The acceptance is merely conditional and is
kind of policy requested in the subordinated to the act of the company in approving
application but issue, or offers to issue or rejecting the application. Thus, in life insurance, a
a policy for a different plan and/or "binding slip" or "binding receipt" does not insure by
amount ..., the insurance shall not be itself (De Lim vs. Sun Life Assurance Company of
in force and in effect until the Canada, 41 Phil. 264).
applicant shall have accepted the
policy as issued or offered by the It bears repeating that through the intra-company
Company and shall have paid the full communication of April 30, 1957 (Exhibit 3-M), Pacific
premium thereof. If the applicant does Life disapproved the insurance application in question
not accept the policy, the deposit shall on the ground that it is not offering the twenty-year
be refunded. endowment insurance policy to children less than
seven years of age. What it offered instead is another
E. If the applicant shall not have been plan known as the Juvenile Triple Action, which
insurable under Condition A above, private respondent failed to accept. In the absence of
and the Company declines to approve a meeting of the minds between petitioner Pacific Life
the application the insurance applied and private respondent Ngo Hing over the 20-year
for shall not have been in force at any endowment life insurance in the amount of
time and the sum paid be returned to P50,000.00 in favor of the latter's one-year old
the applicant upon the surrender of daughter, and with the non-compliance of the
this receipt. (Emphasis Ours). abovequoted conditions stated in the disputed binding
deposit receipt, there could have been no insurance
The aforequoted provisions printed on Exhibit E show contract duly perfected between thenl Accordingly,
that the binding deposit receipt is intended to be the deposit paid by private respondent shall have to
merely a provisional or temporary insurance contract be refunded by Pacific Life.
and only upon compliance of the following conditions:
(1) that the company shall be satisfied that the As held in De Lim vs. Sun Life Assurance Company
applicant was insurable on standard rates; (2) that if of Canada, supra, "a contract of insurance, like other
the company does not accept the application and contracts, must be assented to by both parties either
offers to issue a policy for a different plan, the in person or by their agents ... The contract, to be
insurance contract shall not be binding until the binding from the date of the application, must have
applicant accepts the policy offered; otherwise, the been a completed contract, one that leaves nothing to
deposit shall be reftmded; and (3) that if the applicant be dione, nothing to be completed, nothing to be
is not ble according to the standard rates, and the passed upon, or determined, before it shall take
company disapproves the application, the insurance effect. There can be no contract of insurance unless
applied for shall not be in force at any time, and the the minds of the parties have met in agreement."
premium paid shall be returned to the applicant.
We are not impressed with private respondent's
Clearly implied from the aforesaid conditions is that contention that failure of petitioner Mondragon to
the binding deposit receipt in question is merely an communicate to him the rejection of the insurance
acknowledgment, on behalf of the company, that the application would not have any adverse effect on the
latter's branch office had received from the applicant allegedly perfected temporary contract (Respondent's
the insurance premium and had accepted the Brief, pp. 13-14). In this first place, there was no
application subject for processing by the insurance contract perfected between the parties who had no
company; and that the latter will either approve or meeting of their minds. Private respondet, being an
reject the same on the basis of whether or not the authorized insurance agent of Pacific Life at Cebu
applicant is "insurable on standard rates." Since branch office, is indubitably aware that said company
petitioner Pacific Life disapproved the insurance does not offer the life insurance applied for. When he
application of respondent Ngo Hing, the binding filed the insurance application in dispute, private
deposit receipt in question had never become in force respondent was, therefore, only taking the chance
at any time. that Pacific Life will approve the recommendation of
Mondragon for the acceptance and approval of the
Upon this premise, the binding deposit receipt (Exhibit application in question along with his proposal that the
E) is, manifestly, merely conditional and does not insurance company starts to offer the 20-year
insure outright. As held by this Court, where an endowment insurance plan for children less than
agreement is made between the applicant and the seven years. Nonetheless, the record discloses that
Pacific Life had rejected the proposal and
recommendation. Secondly, having an insurable insurance companies allegedly do.
interest on the life of his one-year old daughter, aside Until such a definite policy is however,
from being an insurance agent and an offense adopted by the company, it can hardly
associate of petitioner Mondragon, private respondent be said that it could have been bound
Ngo Hing must have known and followed the progress at all under the binding slip for a plan
on the processing of such application and could not of insurance that it could not have, by
pretend ignorance of the Company's rejection of the then issued at all. (Amended Decision,
20-year endowment life insurance application. Rollo, pp- 52-53).
At this juncture, We find it fit to quote with approval, 2. Relative to the second issue of alleged
the very apt observation of then Appellate Associate concealment. this Court is of the firm belief that
Justice Ruperto G. Martin who later came up to this private respondent had deliberately concealed the
Court, from his dissenting opinion to the amended state of health and piysical condition of his daughter
decision of the respondent court which completely Helen Go. Wher private regpondeit supplied the
reversed the original decision, the following: required essential data for the insurance application
form, he was fully aware that his one-year old
Of course, there is the insinuation that daughter is typically a mongoloid child. Such a
neither the memorandum of rejection congenital physical defect could never be ensconced
(Exhibit 3-M) nor the reply thereto of nor disguished. Nonetheless, private respondent, in
appellant Mondragon reiterating the apparent bad faith, withheld the fact materal to the
desire for applicant's father to have risk to be assumed by the insurance compary. As an
the application considered as one for insurance agent of Pacific Life, he ought to know, as
a 20-year endowment plan was ever he surely must have known. his duty and
duly communicated to Ngo; Hing, responsibility to such a material fact. Had he diamond
father of the minor applicant. I am not said significant fact in the insurance application fom
quite conninced that this was so. Ngo Pacific Life would have verified the same and would
Hing, as father of the applicant herself, have had no choice but to disapprove the application
was precisely the "underwriter who outright.
wrote this case" (Exhibit H-1). The
unchallenged statement of appellant The contract of insurance is one of perfect good faith
Mondragon in his letter of May 6, uberrima fides meaning good faith, absolute and
1957) (Exhibit 4-M), specifically admits perfect candor or openness and honesty; the absence
that said Ngo Hing was "our of any concealment or demotion, however slight
associate" and that it was the latter [Black's Law Dictionary, 2nd Edition], not for the alone
who "insisted that the plan be placed but equally so for the insurer (Field man's Insurance
on the 20-year endowment plan." Co., Inc. vs. Vda de Songco, 25 SCRA 70).
Under these circumstances, it is Concealment is a neglect to communicate that which
inconceivable that the progress in the a partY knows aDd Ought to communicate (Section
processing of the application was not 25, Act No. 2427). Whether intentional or
brought home to his knowledge. He unintentional the concealment entitles the insurer to
must have been duly apprised of the rescind the contract of insurance (Section 26, Id.: Yu
rejection of the application for a 20- Pang Cheng vs. Court of Appeals, et al, 105 Phil 930;
year endowment plan otherwise Satumino vs. Philippine American Life Insurance
Mondragon would not have asserted Company, 7 SCRA 316). Private respondent appears
that it was Ngo Hing himself who guilty thereof.
insisted on the application as originally
filed, thereby implictly declining the We are thus constrained to hold that no insurance
offer to consider the application under contract was perfected between the parties with the
the Juvenile Triple Action Plan. noncompliance of the conditions provided in the
Besides, the associate of Mondragon binding receipt, and concealment, as legally defined,
that he was, Ngo Hing should only be having been comraitted by herein private respondent.
presumed to know what kind of
policies are available in the company WHEREFORE, the decision appealed from is hereby
for minors below 7 years old. What he set aside, and in lieu thereof, one is hereby entered
and Mondragon were apparently trying absolving petitioners Lapulapu D. Mondragon and
to do in the premises was merely to Great Pacific Life Assurance Company from their civil
prod the company into going into the liabilities as found by respondent Court and ordering
business of issuing endowment the aforesaid insurance company to reimburse the
policies for minors just as other
amount of P1,077.75, without interest, to private share. 5 Not satisfied, the petitioner went to the Court of Appeals, ** which
affirmed the challenged decision in toto.6 The petitioner is now before us
respondent, Ngo Hing. Costs against private and faults the respondent court with grave abuse of discretion for upholding
respondent. the trial court.
The central figure in this case is Severino Geronimo, petitioner himself, and the several documents
who worked in the petitioner's land for twenty years presented by Atanacio in which his father was
until 1969 and died the following year at the age of described by the petitioner as his "kasama" to whom
86. The central question in this case is the nature of was being given his "bahagui" or share. 9
Petitioners fault respondent court for: 1) not private respondents that they have finished their
dismissing the case although moot and academic; Nursing course at the Lanting College of Nursing
and 2) ordering them to re-admit private respondents. even before the promulgation of the questioned
decision, this case has clearly been overtaken by
Petitioners allege that the private respondents, before events and should therefore be dismissed. However,
rendition of the questioned decision of respondent the case of Eastern Broadcasting Corporation (DYRE)
court, had already enrolled in the Lanting College of v. Dans, etc., et al. is the authority for the view that
8
Nursing, Tandang Sora, Quezon City and graduated even if a case were moot and academic, a statement
in October, 1990. Therefore, respondent court's of the governing principle is appropriate in the
directive to re-admit them is futile and illusory. resolution of dismissal for the guidance not only of the
Moreover, while the Manual of Regulations for private parties but of others similarly situated. We shall
9
Schools (Sections X, XII, and XIII thereof) is very adhere to this view and proceed to dwell on the merits
specific about 75% being the passing grade for the of this petition.
elementary and secondary courses (or stating with
Grade IV up to the intermediate grades), vocational Under Rule 65, Section 3 of the Rules of
courses, and in night school (secondary subjects), it is Court, mandamus lies under any of the following
silent with respect to the collegiate course. This can cases: (1) against any tribunal which unlawfully
only mean that the passing grade therein can be neglects the performance of an act which the law
based on school standards and policies, in specifically enjoins as a duty; (2) in case any
consonance with the principle of academic freedom. corporation, board or person unlawfully neglects the
With respect to the Nursing course in particular, it is performance of an act which the law enjoins as a duty
undeniable that Nursing as a profession involves the resulting from an office, trust or station; and (3) in
life and death of patients, and petitioners bear a case any tribunal, corporation, board or person
heavy responsibility to the local community, the unlawfully excludes another from the use and
nation, and the world to produce graduates of enjoyment of a right or office to which such other is
competence and high quality. The high standard of legally entitled; and there is no other plain, speedy
grading which they have set coupled with rigid training and adequate remedy in the ordinary course of law. 10
The nature of mandamus has been the subject of While petitioner questions the findings
discussions in several cases. It is settled of respondent school as to her
that mandamus is employed to compel the academic competence, the Court
performance, when refused, of a ministerial duty, this cannot find any legal jurisdiction to
being its main objective. It does not lie to require interfere in the exercise of judgment of
anyone to fulfill contractual obligations or to compel a the school on this matter. . . .
16
affords a similar right, although limited to citizens: Within the parameters thereof, they are competent to
determine who are entitled to admission and re-
Sec. 5 (3) Every citizen has a right to admission.
select a profession or course of
study, subject to fair, reasonable, and We find the challenged regulation of petitioner USA
equitable admission and academic reasonable and relevant to its objective, namely: . . .
requirements. (emphasis supplied). to produce graduates of proven competence and
aptitude in a demanding profession, for which it is
At the same time, educational institutions are entitled responsible to society-at-large, not only nationally but
to pursue their academic freedom and in the process also internationally, considering the good fame and
have the concomitant right to see to it that this reputation of Filipino nurses abroad. Although
26
On July 22, 1991, the Regional Trial Court came out SO ORDERED." 7
said obligation since 1985; and, the punitive 845 of the New Civil Code, the substitution should be
9
consequences enjoined by both the codicil and the deemed as not written.
Civil Code, of seizure of Lot No. 1392 and its
reversion to the estate of Aleja Belleza in case of The contentions of petitioner are untenable. Contrary
such non-compliance, this Court deems it proper to to his supposition that the Court of Appeals deviated
order the reconveyance of title over Lot No. 1392 from from the issue posed before it, which was the
the estates of Jorge Rabadilla to the estate of Aleja propriety of the dismissal of the complaint on the
Belleza. However, plaintiff-appellant must institute ground of prematurity of cause of action, there was no
separate proceedings to re-open Aleja Belleza's such deviation. The Court of Appeals found that the
private respondent had a cause of action against the Again, the contention is without merit.
petitioner. The disquisition made on modal institution
was, precisely, to stress that the private respondent Substitution is the designation by the testator of a
had a legally demandable right against the petitioner person or persons to take the place of the heir or
pursuant to subject Codicil; on which issue the Court heirs first instituted. Under substitutions in general,
of Appeals ruled in accordance with law. the testator may either (1) provide for the designation
of another heir to whom the property shall pass in
It is a general rule under the law on succession that case the original heir should die before him/her,
successional rights are transmitted from the moment renounce the inheritance or be incapacitated to
of death of the decedent and compulsory heirs are
10
inherit, as in a simple substitution, or (2) leave his/her
12
called to succeed by operation of law. The legitimate property to one person with the express charge that it
children and descendants, in relation to their be transmitted subsequently to another or others, as
legitimate parents, and the widow or widower, are in a fideicommissary substitution. The Codicil sued
13
moment of death of the decedent, Dr. Jorge under consideration, the provisions of subject Codicil
Rabadilla. do not provide that should Dr. Jorge Rabadilla default
due to predecease, incapacity or renunciation, the
Under Article 776 of the New Civil Code, inheritance testatrix's near descendants would substitute him.
includes all the property, rights and obligations of a What the Codicil provides is that, should Dr. Jorge
person, not extinguished by his death. Conformably, Rabadilla or his heirs not fulfill the conditions imposed
whatever rights Dr. Jorge Rabadilla had by virtue of in the Codicil, the property referred to shall be seized
subject Codicil were transmitted to his forced heirs, at and turned over to the testatrix's near descendants.
the time of his death. And since obligations not
extinguished by death also form part of the estate of Neither is there a fideicommissary substitution here
the decedent; corollarily, the obligations imposed by and on this point, petitioner is correct. In a
the Codicil on the deceased Dr. Jorge Rabadilla, were fideicommissary substitution, the first heir is strictly
likewise transmitted to his compulsory heirs upon his mandated to preserve the property and to
death. transmit the same later to the second heir. In the 15
noncompliance with the obligation to deliver the piculs descendants are not at all related to the instituted
of sugar to private respondent. heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the Jorge Rabadilla under subject Codicil is evidently
institution of Dr. Jorge Rabadilla under subject Codicil modal in nature because it imposes a charge upon
is in the nature of a modal institution and therefore, the instituted heir without, however, affecting the
Article 882 of the New Civil Code is the provision of efficacy of such institution.
law in point. Articles 882 and 883 of the New Civil
Code provide: Then too, since testamentary dispositions are
generally acts of liberality, an obligation imposed
Art. 882. The statement of the object of the institution upon the heir should not be considered a condition
or the application of the property left by the testator, unless it clearly appears from the Will itself that such
or the charge imposed on him, shall not be was the intention of the testator. In case of doubt, the
considered as a condition unless it appears that such institution should be considered as modal and not
was his intention. conditional.22
That which has been left in this manner may be Neither is there tenability in the other contention of
claimed at once provided that the instituted heir or his petitioner that the private respondent has only a right
heirs give security for compliance with the wishes of of usufruct but not the right to seize the property itself
the testator and for the return of anything he or they from the instituted heir because the right to seize was
may receive, together with its fruits and interests, if he expressly limited to violations by the buyer, lessee or
or they should disregard this obligation. mortgagee.
Art. 883. When without the fault of the heir, an In the interpretation of Wills, when an uncertainty
institution referred to in the preceding article cannot arises on the face of the Will, as to the application of
take effect in the exact manner stated by the testator, any of its provisions, the testator's intention is to be
it shall be complied with in a manner most analogous ascertained from the words of the Will, taking into
to and in conformity with his wishes. consideration the circumstances under which it was
made. Such construction as will sustain and uphold
23
The institution of an heir in the manner prescribed in the Will in all its parts must be adopted.24
his property, to take effect after his death. Since the 25 included as a party in this case.
Will expresses the manner in which a person intends
how his properties be disposed, the wishes and Aniceto left his children Lots 773 and 823. Teodora
desires of the testator must be strictly followed. Thus, cultivated only three hectares of Lot 823 as she could
a Will cannot be the subject of a compromise not attend to the other portions of the two lots which
agreement which would thereby defeat the very had a total area of around twenty-four hectares. The
purpose of making a Will. record does not show whether the children of Felipe
also cultivated some portions of the lots but it is
WHEREFORE, the petition is hereby established that Rufino and his children left the
DISMISSED and the decision of the Court of Appeals, province to settle in other places as a result of the
dated December 23, 1993, in CA-G.R. No. CV-35555 outbreak of World War II. According to Estelita, from
AFFIRMED. No pronouncement as to costs the "Japanese time up to peace time", they did not
visit the parcels of land in question but "after
liberation", when her brother went there to get their
G.R. No. L-68053 May 7, 1990
share of the sugar produced therein, he was informed
that Fortunato Santiago, Fuentebella (Puentevella)
LAURA ALVAREZ, FLORA ALVAREZ and and Alvarez were in possession of Lot 773. 2
RAYMUNDO ALVAREZ, petitioners,
vs.
It is on record that on May 19, 1938, Fortunato D.
THE HONORABLE INTERMEDIATE APELLATE
Santiago was issued Transfer Certificate of Title No.
COURT and JESUS YANES, ESTELITA YANES,
RF 2694 (29797) covering Lot 773-A with an area of
ANTONIO YANES, ROSARIO YANES, and
37,818 square meters. TCT No. RF 2694 describes
3
ILUMINADO YANES, respondents.
Lot 773-A as a portion of Lot 773 of the cadastral
survey of Murcia and as originally registered under
Francisco G. Banzon for petitioner. OCT No. 8804.
Renecio R. Espiritu for private respondents. The bigger portion of Lot 773 with an area of 118,831
square meters was also registered in the name of
Fortunato D. Santiago on September 6, 1938 Under
TCT No. RT-2695 (28192 ). Said transfer certificate
4
and 773-B of the cadastral survey of Murcia, Negros Occidental 1956, TCT Nos. T-19291 and T-19292 were issued in
and reversing the subject decision insofar as it awarded the sums of
P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages Fuentebella's name. 6
and attorney's fees, respectively and (b) the resolution of said appellate
court dated May 30, 1984, denying the motion for reconsideration of its
decision. After Fuentebella's death and during the settlement of
his estate, the administratrix thereof (Arsenia R. Vda.
The real properties involved are two parcels of land de Fuentebella, his wife) filed in Special Proceedings
identified as Lot 773-A and Lot 773-B which were No. 4373 in the Court of First Instance of Negros
originally known as Lot 773 of the cadastral survey of Occidental, a motion requesting authority to sell Lots
Murcia, Negros Occidental. Lot 773, with an area of 773-A and 773-B. By virtue of a court order granting
7
156,549 square meters, was registered in the name of said motion, on March 24, 1958, Arsenia Vda. de
8
the heirs of Aniceto Yanes under Original Certificate Fuentebella sold said lots for P6,000.00 to Rosendo
of Title No. RO-4858 (8804) issued on October 9, Alvarez. Hence, on April 1, 1958 TCT Nos. T-23165
9
1917 by the Register of Deeds of Occidental Negros and T-23166 covering Lots 773-A and 773-B were
(Exh. A). respectively issued to Rosendo Alvarez. 10
Two years later or on May 26, 1960, Teodora Yanes Lots 773-A and 773-B; that they were "in the name" of
and the children of her brother Rufino, namely, Rodolfo Siason who had purchased them from
Estelita, Iluminado and Jesus, filed in the Court of Alvarez, and that Lot 773 could not be delivered to the
First Instance of Negros Occidental a complaint plaintiffs as Siason was "not a party per writ of
against Fortunato Santiago, Arsenia Vda. de execution." 17
ordered to pay plaintiffs P500.00 as damages in the court required Rodolfo Siason to produce the
form of attorney's fees.
11
certificates of title covering Lots 773 and 823.
During the pendency in court of said case or on Expectedly, Siason filed a manifestation stating that
November 13, 1961, Alvarez sold Lots 773-A, 773-B he purchased Lots 773-A, 773-B and 658, not Lots
and another lot for P25,000.00 to Dr. Rodolfo 773 and 823, "in good faith and for a valuable
Siason. Accordingly, TCT Nos. 30919 and 30920
12
consideration without any knowledge of any lien or
were issued to Siason, who thereafter, declared the
13
encumbrances against said properties"; that the
two lots in his name for assessment purposes. 14
decision in the cadastral proceeding could not be
19
"renounce, forfeit and quitclaims (sic) any claim, manifestation to be well-founded, the cadastral court,
monetary or otherwise, against the defendant Arsenia in its order of September 4, 1965, nullified its previous
Vda. de Fuentebella in connection with the above- order requiring Siason to surrender the certificates of
entitled case."
15
title mentioned therein.
21
On October 11, 1963, a decision was rendered by the In 1968, the Yaneses filed an ex-parte motion for the
Court of First Instance of Negros Occidental in Civil issuance of an alias writ of execution in Civil Case No.
Case No. 5022, the dispositive portion of which reads: 5022. Siason opposed it. In its order of September
22
thereafter to deliver the possession of Rodolfo Siason, Laura Alvarez, Flora Alvarez,
said lots to the plaintiffs. No special Raymundo Alvarez and the Register of Deeds of
pronouncement as to costs. Negros Occidental. The Yaneses prayed for the
cancellation of TCT Nos. T-19291 and 19292 issued
SO ORDERED. 16 to Siason (sic) for being null and void; the issuance of
a new certificate of title in the name of the Yaneses
It will be noted that the above-mentioned "in accordance with the sheriffs return of service
manifestation of Jesus Yanes was not mentioned in dated October 20, 1965;" Siason's delivery of
the aforesaid decision. possession of Lot 773 to the Yaneses; and if, delivery
thereof could not be effected, or, if the issuance of a
new title could not be made, that the Alvarez and
However, execution of said decision proved
Siason jointly and severally pay the Yaneses the sum
unsuccessful with respect to Lot 773. In his return of
of P45,000.00. They also prayed that Siason render
service dated October 20, 1965, the sheriff stated that
an accounting of the fruits of Lot 773 from November
he discovered that Lot 773 had been subdivided into
13, 1961 until the filing of the complaint; and that the the defendants, Laura, Flora and
defendants jointly and severally pay the Yaneses Raymundo, all surnamed Alvarez is
moral damages of P20,000.00 and exemplary hereby dismissed.
damages of P10,000.00 plus attorney's fees of P4,
000.00. 25
D. Defendants, Laura, Flora and
Raymundo, all surnamed Alvarez are
In his answer to the complaint, Siason alleged that the hereby ordered to pay the costs of this
validity of his titles to Lots 773-A and 773-B, having suit.
been passed upon by the court in its order of
September 4, 1965, had become res judicata and the SO ORDERED. 29
estoppel." 27
it ordered defendants-appellants to pay jointly and
severally the plaintiffs-appellees the sum of
In its decision of July 8, 1974, the lower court found P20,000.00 representing the actual value of Lots Nos.
that Rodolfo Siason, who purchased the properties in 773-A and 773-B of the cadastral survey of Murcia,
question thru an agent as he was then in Mexico Negros Occidental, and is reversed insofar as it
pursuing further medical studies, was a buyer in good awarded the sums of P2,000.00, P5,000.00 and
faith for a valuable consideration. Although the P2,000.00 as actual damages, moral damages and
Yaneses were negligent in their failure to place a attorney's fees, respectively." The dispositive portion
31
3. Whether or not the late Rosendo There is no dispute that the rights of the Yaneses to
Alvarez, a defendant in Civil Case No. the properties in question have been finally
5022, supra and father of the adjudicated in Civil Case No. 5022. As found by the
petitioners become a privy and/or lower court, from the uncontroverted evidence
party to the waiver (Exhibit 4- presented, the Yaneses have been illegally deprived
defendant Siason) in Civil Case No. of ownership and possession of the lots in
8474, supra where the private question. In fact, Civil Case No. 8474 now under
37
respondents had unqualifiedly and review, arose from the failure to execute Civil Case
absolutely waived, renounced and No. 5022, as subject lots can no longer be
quitclaimed all their alleged rights and reconveyed to private respondents Yaneses, the
interests, if ever there is any, on Lots same having been sold during the pendency of the
Nos. 773-A and 773-B of Murcia case by the petitioners' father to Dr. Siason who did
Cadastre as appearing in their written not know about the controversy, there being no lis
manifestation dated November 6, pendens annotated on the titles. Hence, it was also
1962 (Exhibits "4" Siason) which had settled beyond question that Dr. Siason is a
not been controverted or even purchaser in good faith.
impliedly or indirectly denied by them.
Under the circumstances, the trial court did not annul
4. Whether or not the liability or the sale executed by Alvarez in favor of Dr. Siason on
liabilities of Rosendo Alvarez arising November 11, 1961 but in fact sustained it. The trial
from the sale of Lots Nos. 773-A and court ordered the heirs of Rosendo Alvarez who lost
773-B of Murcia Cadastre to Dr. in Civil Case No. 5022 to pay the plaintiffs (private
Rodolfo Siason, if ever there is any, respondents herein) the amount of P20,000.00
could be legally passed or transmitted representing the actual value of the subdivided lots in
by operations (sic) of law to the dispute. It did not order defendant Siason to pay said
petitioners without violation of law and amount. 38
due process . 33
become final and executory and with the possible party; it is entirely a different matter and one devoid of
exception of Dr. Siason, who was not a party to said justification if deceit would be rewarded by allowing
case, the decision in Civil Case No. 5022 is the law of the perpetrator to enjoy the fruits of his nefarious
the case between the parties thereto. It ended when decided As clearly revealed by the undeviating line of
Alvarez or his heirs failed to appeal the decision decisions coming from this Court, such an
against them. 34 undesirable eventuality is precisely sought to be
guarded against." 40
The binding effect of contracts upon WHEREFORE, subject to the clarification herein
the heirs of the deceased party is not above stated, the assailed decision of the Court of
altered by the provision of our Rules of Appeals is hereby AFFIRMED. Costs against
Court that money debts of a deceased petitioners.
must be liquidated and paid from his
estate before the residue is distributed SO ORDERED.
among said heirs (Rule 89). The
reason is that whatever payment is G.R. No. L-33187 March 31, 1980
thus made from the state is ultimately
a payment by the heirs or distributees, CORNELIO PAMPLONA alias GEMINIANO
since the amount of the paid claim in PAMPLONA and APOLONIA ONTE, petitioners,
fact diminishes or reduces the shares vs.
that the heirs would have been entitled VIVENCIO MORETO, VICTOR MORETO, ELIGIO
to receive. MORETO, MARCELO MORETO, PAULINA
MORETO, ROSARIO MORETO, MARTA MORETO,
Under our law, therefore. the general SEVERINA MENDOZA, PABLO MENDOZA,
rule is that a party's contractual rights LAZARO MENDOZA, VICTORIA TUIZA, JOSEFINA
and obligations are transmissible to MORETO, LEANDRO MORETO and LORENZO
the successors. MENDOZA, respondents.
E.P. Caguioa for petitioners. without the consent of the heirs of his said deceased
wife Monica, and before any liquidation of the
Benjamin C. Yatco for respondents. conjugal partnership of Monica and Flaviano could be
effected, executed in favor of Geminiano Pamplona,
married to defendant Apolonia Onte, the deed of
absolute sale (Exh. "1") covering lot No. 1495 for
P900.00. The deed of sale (Exh. "1") contained a
GUERRERO, J.:
description of lot No. 1495 as having an area of 781
square meters and covered by transfer certificate of
This is a petition for certiorari by way of appeal from title No. 14570 issued in the name of Flaviano Moreto,
the decision of the Court of Appeals in CA-G.R. No.
1
married to Monica Maniega, although the lot was
35962-R, entitled "Vivencio Moreto, et al., Plaintiff- acquired during their marriage. As a result of the sale,
Appellees vs. Cornelio Pamplona, et al., Defendants- the said certificate of title was cancelled and a new
Appellants," affirming the decision of the Court of First transfer certificate of title No. T-5671 was issued in
Instance of Laguna, Branch I at Biñan. the name of Geminiano Pamplona married to
Apolonia Onte (Exh. "A").
The facts, as stated in the decision appealed from,
show that: After the execution of the above-mentioned deed of
sale (Exh. "1"), the spouses Geminiano Pamplona
Flaviano Moreto and Monica Maniega were husband and Apolonia Onte constructed their house on the
and wife. During their marriage, they acquired eastern part of lot 1496 as Flaviano Moreto, at the
adjacent lots Nos. 1495, 4545, and 1496 of the time of the sale, pointed to it as the land which he
Calamba Friar Land Estate, situated in Calamba, sold to Geminiano Pamplona. Shortly thereafter,
Laguna, containing 781-544 and 1,021 square meters Rafael Pamplona, son of the spouses Geminiano
respectively and covered by certificates of title issued Pamplona and Apolonia Onte, also built his house
in the name of "Flaviano Moreto, married to Monica within lot 1496 about one meter from its boundary
Maniega." with the adjoining lot. The vendor Flaviano Moreto
and the vendee Geminiano Pamplona thought all the
The spouses Flaviano Moreto and Monica Maniega time that the portion of 781 square meters which was
begot during their marriage six (6) children, namely, the subject matter of their sale transaction was No.
Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all 1495 and so lot No. 1495 appears to be the subject
surnamed Moreto. matter in the deed of sale (Exh. "1") although the fact
is that the said portion sold thought of by the parties
Ursulo Moreto died intestate on May 24, 1959 leaving to be lot No. 1495 is a part of lot No. 1496.
as his heirs herein plaintiffs Vivencio, Marcelo,
Rosario, Victor, Paulina, Marta and Eligio, all From 1956 to 1960, the spouses Geminiano
surnamed Moreto. Pamplona and Apolonio Onte enlarged their house
and they even constructed a piggery corral at the
Marta Moreto died also intestate on April 30, 1938 back of their said house about one and one-half
leaving as her heir plaintiff Victoria Tuiza. meters from the eastern boundary of lot 1496.
La Paz Moreto died intestate on July 17, 1954 leaving On August 12, 1956, Flaviano Moreto died intestate.
the following heirs, namely, herein plaintiffs Pablo, In 1961, the plaintiffs demanded on the defendants to
Severina, Lazaro, and Lorenzo, all surnamed vacate the premises where they had their house and
Mendoza. piggery on the ground that Flaviano Moreto had no
right to sell the lot which he sold to Geminiano
Alipio Moreto died intestate on June 30, 1943 leaving Pamplona as the same belongs to the conjugal
as his heir herein plaintiff Josefina Moreto. partnership of Flaviano and his deceased wife and the
latter was already dead when the sale was executed
Pablo Moreto died intestate on April 25, 1942 leaving without the consent of the plaintiffs who are the heirs
no issue and as his heirs his brother plaintiff Leandro of Monica. The spouses Geminiano Pamplona and
Moreto and the other plaintiffs herein. Apolonia Onte refused to vacate the premises
occupied by them and hence, this suit was instituted
by the heirs of Monica Maniega seeking for the
On May 6, 1946, Monica Maniega died intestate in declaration of the nullity of the deed of sale of July 30,
Calamba, Laguna. 1952 above-mentioned as regards one-half of the
property subject matter of said deed; to declare the
On July 30, 1952, or more than six (6) years after the plaintiffs as the rightful owners of the other half of said
death of his wife Monica Maniega, Flaviano Moreto, lot; to allow the plaintiffs to redeem the one-half
portion thereof sold to the defendants. "After payment Transfer Certificate of Title No. 5671
of the other half of the purchase price"; to order the of the office of the Register of Deeds
defendants to vacate the portions occupied by them; of Laguna covering Lot No. 1495 and
to order the defendants to pay actual and moral registered in the name of Cornelio
damages and attorney's fees to the plaintiffs; to order Pamplona, married to Apolonia Onte,
the defendants to pay plaintiffs P120.00 a year from is by virtue of this decision ordered
August 1958 until they have vacated the premises cancelled. The defendants are
occupied by them for the use and occupancy of the ordered to surrender to the office of
same. the Register of Deeds of Laguna the
owner's duplicate of Transfer
The defendants claim that the sale made by Flaviano Certificate of Title No. 5671 within
Moreto in their favor is valid as the lot sold is thirty (30) days after this decision shall
registered in the name of Flaviano Moreto and they have become final for cancellation in
are purchasers believing in good faith that the vendor accordance with this decision.
was the sole owner of the lot sold.
Let copy of this decision be furnished
After a relocation of lots 1495, 1496 and 4545 made the Register of Deeds for the province
by agreement of the parties, it was found out that of Laguna for his information and
there was mutual error between Flaviano Moreto and guidance.
the defendants in the execution of the deed of sale
because while the said deed recited that the lot sold is With costs against the defendants. 2
2. That the trial court erred in holding that the Upon the institution of the intestate of the
property inherited by the defendants from their deceased Eusebio Quitco and the
appointment of the committee on claims and prescribed under section 43, No. 1, of the Code of
appraisal, the plaintiff Socorro Ledesma, on Civil Procedure.
August 26, 1935, filed before said committee
the aforequoted promissory note for payment, The first assignment of alleged error is, therefore,
and the commissioners, upon receipt of said well-founded.
promissory note, instead of passing upon it,
elevated the same to this court en consulta As to the second assignment of alleged error,
(Exhibit F), and as the Honorable Jose Lopez consisting in that the trial court erred in holding that
Vito, presiding over the First Branch, returned the properties inherited by the defendants from their
said consulta and refrained from giving his deceased grandfather by representation are subject
opinion thereon (Exhibit C), the aforesaid to the payment of debts and obligations of their
commissioners on claims and appraisal, deceased father, who died without leaving any
alleging lack of jurisdiction to pass upon the property, while it is true that under the provisions of
claim, denied he same (Exhibit H). articles 924 to 927 of the Civil Code, a children
presents his father or mother who died before him in
On November 14, 1933 (Exhibit I), the the properties of his grandfather or grandmother, this
court issued an order of declaration of heirs in right of representation does not make the said child
the intestate of the deceased Eusebio Quitco, answerable for the obligations contracted by his
and as Ana Quitco Ledesma was not included deceased father or mother, because, as may be seen
among the declared heirs, Socorro Ledesma, from the provisions of the Code of Civil Procedure
as mother of Ana Quitco Ledesma, asked for referring to partition of inheritances, the inheritance is
the reconsideration of said order, a petition received with the benefit of inventory, that is to say,
which the court denied. From the order the heirs only answer with the properties received
denying the said petition no appeal was taken, from their predecessor. The herein defendants, as
and in lieu thereof there was filed the heirs of Eusebio Quitco, in representation of their
complaint which gives rise to this case. father Lorenzo M. Quitco, are not bound to pay the
indebtedness of their said father from whom they did
The first question to be decided in this appeal, raised not inherit anything.
in the first assignment of alleged error, is whether or
not the action to recover the sum of P1,500, The second assignment of alleged error is also well-
representing the last installment for the payment of founded.
the promissory note Exhibit C, has prescribed.
Being a mere sequel of the first two assignments of
According to the promissory note Exhibit C, executed alleged errors, the third assignment of error is also
by the deceased Lorenzo M. Quitco, on January 21, well-founded.
1922, the last installment of P1,500 should be paid
two years from the date of the execution of said For the foregoing considerations, we are of the
promissory note, that is, on January 21, 1924. The opinion and so hold: (1) That the filing of a claim
complaint in the present case was filed on June 26, before the committee on claims and appraisal,
1934, that is, more than ten years after he expiration appointed in the intestate of the father, for a monetary
of the said period. The fact that the plaintiff Socorro obligation contracted by a son who died before him,
Ledesma filed her claim, on August 26, 1933, with the does not suspend the prescriptive period of the
committee on claims and appraisal appointed in the judicial action for the recovery of said indebtedness;
intestate of Eusebio Quitco, does not suspend the (2) that the claim for the payment of an indebtedness
running of the prescriptive period of the judicial action contracted by a deceased person cannot be filed for
for the recovery of said debt, because the claim for its collection before the committee on claims and
the unpaid balance of the amount of the promissory appraisal, appointed in the intestate of his father, and
note should no have been presented in the intestate the propertiesinherited from the latter by the children
of Eusebio Quitco, the said deceased not being the of said deceased do not answer for the payment of
one who executed the same, but in the intestate of the indebtedness contracted during the lifetime of said
Lorenzo M. Quitco, which should have been instituted person.
by the said Socorro Ledesma as provided in section
642 of the Code of Civil Procedure, authorizing a
Wherefore, the appealed judgment is reversed, and
creditor to institute said case through the appointment
the defendants are absolved from the complaint, with
of an administrator for the purpose of collecting his
the costs to the appellees. So ordered.
credit. More than ten years having thus elapsed from
the expiration of the period for the payment of said
debt of P1,500, the action for its recovery has G.R. No. 174727 August 12, 2013
ANTIPOLO INING (DECEASED), SURVIVED BY Restituto and Lenard Vega, the substituted
MANUEL VILLANUEVA, TEODORA VILLANUEVA- respondents.
FRANCISCO, CAMILO FRANCISCO, ADOLFO
FRANCISCO, LUCIMO FRANCISCO, JR., Gregoria, on the other hand, was survived by her six
MILAGROS FRANCISCO,* CELEDONIO children: petitioners Natividad Ining-Ibea (Natividad),
FRANCISCO, HERMINIGILDO FRANCISCO; Dolores Ining-Rimon (Dolores), Antipolo, and Pedro;
RAMON TRESVALLES, ROBERTO TAJONERA, Jose; and Amando. Natividad is survived by Edilberto
NATIVIDAD INING-IBEA (DECEASED) SURVIVED Ibea, Josefa Ibea, Martha Ibea, Carmen Ibea, Amparo
BY EDILBERTO IBEA, JOSEFA IBEA, MARTHA Ibea-Fernandez, Henry Ruiz and Pastor Ruiz. Dolores
IBEA, CARMEN IBEA, AMPARO IBEA- is survived by Jesus Rimon, Cesaria Rimon Gonzales
FERNANDEZ, HENRY RUIZ, EUGENIO RUIZ AND and Remedios Rimon Cordero. Antipolo is survived
PASTOR RUIZ; DOLORES INING-RIMON by Manuel Villanueva, daughter Teodora Villanueva-
(DECEASED) SURVIVED BY JESUS RIMON, Francisco (Teodora), Camilo Francisco (Camilo),
CESARIA RIMON GONZALES AND REMEDIOS Adolfo Francisco (Adolfo), Lucimo Francisco, Jr.
RIMON CORDERO; AND PEDRO INING (Lucimo Jr.), Milagros Francisco, Celedonio
(DECEASED) SURVIVED BY ELISA TAN INING Francisco, and Herminigildo Francisco (Herminigildo).
(WIFE) AND PEDRO INING, JR., PETITIONERS, Pedro is survived by his wife, Elisa Tan Ining and
vs. Pedro Ining, Jr. Amando died without issue. As for
LEONARDO R. VEGA, SUBSTITUTED BY Jose, it is not clear from the records if he was made
LOURDES VEGA, RESTONILO I. VEGA, party to the proceedings, or if he is alive at all.
CRISPULO M. VEGA, MILBUENA VEGA-
RESTITUTO, AND LENARD In short, herein petitioners, except for Ramon
VEGA, RESPONDENTS. Tresvalles (Tresvalles) and Roberto Tajonera
(Tajonera), are Gregoria’s grandchildren or spouses
DECISION thereof (Gregoria’s heirs).
Whether Leonardo’s claim has prescribed, or that he Declaring Lot 1786 covered by OCT No. RO-630
is barred by estoppel or laches.13 (24071) to be the common property of the heirs of
Gregoria Roldan Ining and by virtue whereof, OCT
In the meantime, Leonardo passed away and was No. RO-630 (24071) is ordered cancelled and the
duly substituted by his heirs, the respondents herein.14 Register of Deeds of the Province of Aklan is directed
to issue a transfer certificate of title to the heirs of
Natividad Ining, one-fourth (1/4) share; Heirs of
During the course of the proceedings, the following
Dolores Ining, one-fourth (1/4) share; Heirs of
additional relevant facts came to light:
Antipolo Ining, one-fourth (1/4) share; and Heirs of
Pedro Ining, one-fourth (1/4) share.
1. In 1995, Leonardo filed against petitioners
Civil Case No. 4983 for partition with the RTC
For lack of sufficient evidence, the counterclaim is
Kalibo, but the case was dismissed and
ordered dismissed.
referred to the Kalibo Municipal Trial Court
(MTC), where the case was docketed as Civil
Case No. 1366. However, on March 4, 1997, With cost against the plaintiffs.
the MTC dismissed Civil Case No. 1366 for
lack of jurisdiction and declared that only the SO ORDERED.23
The trial court found the April 4, 1943 and November Report (Supplementary) to the herein
25, 1943 deeds of sale to be spurious. It concluded plaintiffs;
that Leon never sold the property to Enriquez, and in
turn, Enriquez never sold the property to Lucimo Sr., 4. Ordering the cancellation of OCT No. RO-
hence, the subject property remained part of Leon’s 630 (24071) in the name of Leon Roldan and
estate at the time of his death in 1962. Leon’s the Register of Deeds of Aklan is directed to
siblings, Romana and Gregoria, thus inherited the issue transfer certificates of title to the
subject property in equal shares. Leonardo and the plaintiffs in accordance with paragraphs 8 and
respondents are entitled to Romana’s share as the 9 of the sketch plan as embodied in the
latter’s successors. Commissioner’s Report (Supplementary) and
the remaining portion thereof be adjudged to
However, the trial court held that Leonardo had only the defendants.
30 years from Leon’s death in 1962 – or up to 1992 –
within which to file the partition case. Since Leonardo Other claims and counterclaims are dismissed.
instituted the partition suit only in 1997, the same was
already barred by prescription. It held that under Costs against the defendants-appellees.
Article 1141 of the Civil Code,24 an action for partition
and recovery of ownership and possession of a parcel
SO ORDERED.28
of land is a real action over immovable property which
prescribes in 30 years. In addition, the trial court held
that for his long inaction, Leonardo was guilty of The CA held that the trial court’s declaration of nullity
laches as well. Consequently, the property should go of the April 4, 1943 and November 25, 1943 deeds of
to Gregoria’s heirs exclusively. sale in favor of Enriquez and Lucimo Sr., respectively,
became final and was settled by petitioners’ failure to
appeal the same. Proceeding from the premise that
Respondents moved for reconsideration25 but the
no valid prior disposition of the property was made by
same was denied by the RTC in its February 7, 2002
its owner Leon and that the property – which
Order.26
remained part of his estate at the time of his death –
passed on by succession to his two siblings, Romana
Ruling of the Court of Appeals and Gregoria, which thus makes the parties herein –
who are Romana’s and Gregoria’s heirs – co-owners
Only respondents interposed an appeal with the CA. of the property in equal shares, the appellate court
Docketed as CA-G.R. CV No. 74687, the appeal held that only the issues of prescription and laches
questioned the propriety of the trial court’s dismissal were needed to be resolved.
of Civil Case No. 5275, its application of Article 1141,
and the award of the property to Gregoria’s heirs The CA did not agree with the trial court’s
exclusively. pronouncement that Leonardo’s action for partition
was barred by prescription. The CA declared that
On March 14, 2006, the CA issued the questioned prescription began to run not from Leon’s death in
Decision,27 which contained the following decretal 1962, but from Lucimo Sr.’s execution of the Affidavit
portion: of Ownership of Land in 1979, which amounted to a
repudiation of his co-ownership of the property with
IN LIGHT OF ALL THE FOREGOING, this appeal is Leonardo. Applying the fifth paragraph of Article 494
GRANTED. The decision of the Regional Trial Court, of the Civil Code, which provides that "[n]o
Br. 8, Kalibo, Aklan in Civil Case No. 5275 is prescription shall run in favor of a co-owner or co-heir
REVERSED and SET ASIDE. In lieu thereof, against his co-owners or co-heirs so long as he
judgment is rendered as follows: expressly or impliedly recognizes the co-ownership,"
the CA held that it was only when Lucimo Sr.
1. Declaring 1/2 portion of Lot 1786 as the executed the Affidavit of Ownership of Land in 1979
share of the plaintiffs as successors-in-interest and obtained a new tax declaration over the property
of Romana Roldan; (TD 16414) solely in his name that a repudiation of his
co-ownership with Leonardo was made, which
2. Declaring 1/2 portion of Lot 1786 as the repudiation effectively commenced the running of the
share of the defendants as successors-in- 30-year prescriptive period under Article 1141.
interest of Gregoria Roldan Ining;
The CA did not consider Lucimo Sr.’s sole possession
3. Ordering the defendants to deliver the of the property for more than 30 years to the
possession of the portion described in exclusion of Leonardo and the respondents as a valid
paragraphs 8 and 9 of the Commissioner’s repudiation of the co-ownership either, stating that his
exclusive possession of the property and REVERSING THE DECISION OF THE TRIAL
appropriation of its fruits – even his continuous COURT ON THE GROUND THAT LUCIMO
payment of the taxes thereon – while adverse as FRANCISCO REPUDIATED THE CO-
against strangers, may not be deemed so as against OWNERSHIP ONLY ON FEBRUARY 9, 1979.
Leonardo in the absence of clear and conclusive
evidence to the effect that the latter was ousted or II
deprived of his rights as co-owner with the intention of
assuming exclusive ownership over the property, and THE APPELLATE COURT ERRED IN NOT
absent a showing that this was effectively made UPHOLDING THE DECISION OF THE TRIAL
known to Leonardo. Citing Bargayo v. Camumot29 and COURT DISMISSING THE COMPLAINT ON
Segura v. Segura,30 the appellate court held that as a THE GROUND OF PRESCRIPTION AND
rule, possession by a co-owner will not be presumed LACHES.33
to be adverse to the other co-owners but will be held
to benefit all, and that a co-owner or co-heir is in
Petitioners’ Arguments
possession of an inheritance pro-indiviso for himself
and in representation of his co-owners or co-heirs if
he administers or takes care of the rest thereof with Petitioners insist in their Petition and Reply34 that
the obligation to deliver the same to his co-owners or Lucimo Sr.’s purchase of the property in 1943 and his
co-heirs, as is the case of a depositary, lessee or possession thereof amounted to a repudiation of the
trustee. co-ownership, and that Leonardo’s admission and
acknowledgment of Lucimo Sr.’s possession for such
length of time operated to bestow upon petitioners –
The CA added that the payment of taxes by Lucimo
as Lucimo Sr.’s successors-in-interest – the benefits
Sr. and the issuance of a new tax declaration in his
of acquisitive prescription which proceeded from the
name do not prove ownership; they merely indicate a
repudiation.
claim of ownership. Moreover, petitioners’ act of
partitioning the property among themselves to the
exclusion of Leonardo cannot affect the latter; nor Petitioners contend that Leonardo’s inaction – from
may it be considered a repudiation of the co- Lucimo Sr.’s taking possession in 1943, up to 1995,
ownership as it has not been shown that the partition when Leonardo filed Civil Case No. 4983 for partition
was made known to Leonardo. with the RTC Kalibo – amounted to laches or neglect.
They add that during the proceedings before the
Lupon Tagapamayapa in 1980, Leonardo was
The CA held further that the principle of laches cannot
informed of Lucimo Sr.’s purchase of the property in
apply as against Leonardo and the respondents. It
1943; this notwithstanding, Leonardo did not take
held that laches is controlled by equitable
action then against Lucimo Sr. and did so only in
considerations and it cannot be used to defeat justice
1995, when he filed Civil Case No. 4983 – which was
or to perpetuate fraud; it cannot be utilized to deprive
eventually dismissed and referred to the MTC. They
the respondents of their rightful inheritance.
argue that, all this time, Leonardo did nothing while
Lucimo Sr. occupied the property and claimed all its
On the basis of the above pronouncements, the CA fruits for himself.
granted respondents’ prayer for partition, directing
that the manner of partitioning the property shall be
Respondents’ Arguments
governed by the Commissioner’s Report and Sketch
and the Supplementary Commissioner’s Report which
the parties did not contest. Respondents, on the other hand, argue in their
Comment35 that –
Petitioners filed their Motion for
Reconsideration31 which the CA denied in its assailed For purposes of clarity, if [sic] is respectfully submitted
September 7, 2006 Resolution.32 Hence, the present that eighteen (18) legible copies has [sic] not been
Petition. filed in this case for consideration in banc [sic] and
nine (9) copies in cases heard before a division in that
[sic] all copies of pleadings served to the offices
Issues
concern [sic] where said order [sic] was issued were
not furnished two (2) copies each in violation to [sic]
Petitioners raise the following arguments: the adverse parties [sic] to the clerk of court, Regional
Trial Court, Branch 8, Kalibo, Aklan, Philippines; to
I the Honorable Court of Appeals so that No [sic] action
shall be taken on such pleadings, briefs, memoranda,
THE APPELLATE COURT COMMITTED motions, and other papers as fail [sic] to comply with
GRAVE ABUSE OF DISCRETION IN the requisites set out in this paragraph.
The foregoing is confirmed by affidavit of MERIDON have the full ownership of their parts and of the fruits
F. OLANDESCA, the law secretary of the Petitioner and benefits pertaining thereto, and may alienate,
[sic] who sent [sic] by Registered mail to Court of assign or mortgage them, and even substitute another
Appeals, Twentieth Division, Cebu City; to Counsel person in their enjoyment, except when personal
for Respondent [sic] and to the Clerk of Court rights are involved.38 Each co-owner may demand at
Supreme Court Manila [sic]. any time the partition of the thing owned in common,
insofar as his share is concerned.39 Finally, no
These will show that Petitioner has [sic] violated all prescription shall run in favor of one of the co-heirs
the requirements of furnishing two (2) copies each against the others so long as he expressly or
concerned party [sic] under the Rule of Courts [sic].36 impliedly recognizes the co-ownership.40
(2) Between parents and children; Whether the heirs may bring suit to recover property
of the estate pending the appointment of an
(3) Among other ascendants and administrator is the issue in this case.
descendants; and
This Petition for Review on Certiorari, under Rule 45
(4) Among brothers and sisters, whether of of the Rules of Court, seeks to set aside
the full or half blood. the Decision1 of the Court of Appeals in CA-G.R. SP
No. 42053 dated January 31, 1997, as well as
In point of law, therefore, Lucimo Sr. is not a co-owner its Resolution2 dated March 26, 1997, denying
of the property; Teodora is. Consequently, he cannot petitioners’ motion for reconsideration.
validly effect a repudiation of the co-ownership, which
he was never part of. For this reason, prescription did On May 13, 1995, Alfonso P. Orfinada, Jr. died
not run adversely against Leonardo, and his right to without a will in Angeles City leaving several personal
seek a partition of the property has not been lost. and real properties located in Angeles City, Dagupan
City and Kalookan City.3 He also left a widow,
Likewise, petitioners’ argument that Leonardo’s respondent Esperanza P. Orfinada, whom he married
admission and acknowledgment in his pleadings – on July 11, 1960 and with whom he had seven
that Lucimo Sr. was in possession of the property children who are the herein respondents, namely:
since 1943 – should be taken against him, is Lourdes P. Orfinada, Alfonso "Clyde" P. Orfinada,
unavailing. In 1943, Leon remained the rightful owner Nancy P. Orfinada-Happenden, Alfonso James P.
of the land, and Lucimo Sr. knew this very well, being Orfinada, Christopher P. Orfinada, Alfonso Mike P.
married to Teodora, daughter of Antipolo, a nephew Orfinada (deceased) and Angelo P. Orfinada.4
of Leon. More significantly, the property, which is
registered under the Torrens system and covered by Apart from the respondents, the demise of the
OCT RO-630, is in Leon’s name. Leon’s ownership decedent left in mourning his paramour and their
ceased only in 1962, upon his death when the children. They are petitioner Teodora Riofero, who
property passed on to his heirs by operation of law. became a part of his life when he entered into an
extra-marital relationship with her during the
In fine, since none of the co-owners made a valid subsistence of his marriage to Esperanza sometime
repudiation of the existing co-ownership, Leonardo in 1965, and co-petitioners Veronica5, Alberto and
could seek partition of the property at any time. Rowena.6
WHEREFORE, the Petition is DENIED. The assailed On November 14, 1995, respondents Alfonso James
March 14, 2006 Decision and the September 7, 2006 and Lourdes Orfinada discovered that on June 29,
Resolution of the Court of Appeals in CA-G.R. CV No. 1995, petitioner Teodora Rioferio and her children
74687are AFFIRMED. executed an Extrajudicial Settlement of Estate of a
Deceased Person with Quitclaim involving the
properties of the estate of the decedent located in
SO ORDERED.
Dagupan City and that accordingly, the Registry of
Deeds in Dagupan issued Certificates of Titles Nos.
G.R. No. 129008 January 13, 2004 63983, 63984 and 63985 in favor of petitioners
Teodora Rioferio, Veronica Orfinada-Evangelista,
TEODORA A. RIOFERIO, VERONICA O. Alberto Orfinada and Rowena Orfinada-Ungos.
EVANGELISTA assisted by her husband ZALDY Respondents also found out that petitioners were able
EVANGELISTA, ALBERTO ORFINADA, and to obtain a loan of P700,000.00 from the Rural Bank
ROWENA O. UNGOS, assisted by her husband of Mangaldan Inc. by executing a Real Estate
BEDA UNGOS, petitioners,
Mortgage over the properties subject of the extra- The Court of Appeals rendered the
judicial settlement.7 assailed Decision19 dated January 31, 1997, stating
that it discerned no grave abuse of discretion
On December 1, 1995, respondent Alfonso "Clyde" P. amounting to lack or excess of jurisdiction by the
Orfinada III filed a Petition for Letters of public respondent judge when he denied petitioners’
Administration docketed as S.P. Case No. 5118 motion to set affirmative defenses for hearing in view
before the Regional Trial Court of Angeles City, of its discretionary nature.
praying that letters of administration encompassing
the estate of Alfonso P. Orfinada, Jr. be issued to A Motion for Reconsideration was filed by petitioners
him.8 but it was denied.20 Hence, the petition before this
Court.
On December 4, 1995, respondents filed a Complaint
for the Annulment/Rescission of Extra Judicial The issue presented by the petitioners before this
Settlement of Estate of a Deceased Person with Court is whether the heirs have legal standing to
Quitclaim, Real Estate Mortgage and Cancellation of prosecute the rights belonging to the deceased
Transfer Certificate of Titles with Nos. 63983, 63985 subsequent to the commencement of the
and 63984 and Other Related Documents with administration proceedings.21
Damages against petitioners, the Rural Bank of
Mangaldan, Inc. and the Register of Deeds of Petitioners vehemently fault the lower court for
Dagupan City before the Regional Trial Court, Branch denying their motion to set the case for preliminary
42, Dagupan City.9 hearing on their affirmative defense that the proper
party to bring the action is the estate of the decedent
On February 5, 1996, petitioners filed their Answer to and not the respondents. It must be stressed that the
the aforesaid complaint interposing the defense that holding of a preliminary hearing on an affirmative
the property subject of the contested deed of extra- defense lies in the discretion of the court. This is clear
judicial settlement pertained to the properties from the Rules of Court, thus:
originally belonging to the parents of Teodora
Riofero10 and that the titles thereof were delivered to SEC. 5. Pleadings grounds as affirmative
her as an advance inheritance but the decedent had defenses.- Any of the grounds for dismissal
managed to register them in his name.11 Petitioners provided for in this rule, except improper
also raised the affirmative defense that respondents venue, may be pleaded as an affirmative
are not the real parties-in-interest but rather the defense, and a preliminary hearing may be
Estate of Alfonso O. Orfinada, Jr. in view of the had thereon as if a motion to dismiss had
pendency of the administration proceedings.12 On been filed.22 (Emphasis supplied.)
April 29, 1996, petitioners filed a Motion to Set
Affirmative Defenses for Hearing13 on the aforesaid Certainly, the incorporation of the word "may" in the
ground. provision is clearly indicative of the optional character
of the preliminary hearing. The word denotes
The lower court denied the motion in its Order14 dated discretion and cannot be construed as having a
June 27, 1996, on the ground that respondents, as mandatory effect.23 Subsequently, the electivity of the
heirs, are the real parties-in-interest especially in the proceeding was firmed up beyond cavil by the 1997
absence of an administrator who is yet to be Rules of Civil Procedure with the inclusion of the
appointed in S.P. Case No. 5118. Petitioners moved phrase "in the discretion of the Court", apart from the
for its reconsideration15 but the motion was likewise retention of the word "may" in Section 6, 24 in Rule 16
denied.16 thereof.
This prompted petitioners to file before the Court of Just as no blame of abuse of discretion can be laid on
Appeals their Petition for Certiorari under Rule 65 of the lower court’s doorstep for not hearing petitioners’
the Rules of Court docketed as CA G.R. S.P. No. affirmative defense, it cannot likewise be faulted for
42053.17 Petitioners averred that the RTC committed recognizing the legal standing of the respondents as
grave abuse of discretion in issuing the assailed order heirs to bring the suit.
which denied the dismissal of the case on the ground
that the proper party to file the complaint for the Pending the filing of administration proceedings, the
annulment of the extrajudicial settlement of the estate heirs without doubt have legal personality to bring suit
of the deceased is the estate of the decedent and not in behalf of the estate of the decedent in accordance
the respondents.18 with the provision of Article 777 of the New Civil Code
"that (t)he rights to succession are transmitted from
the moment of the death of the decedent." The
provision in turn is the foundation of the principle that As the appellate court did not commit an error of law
the property, rights and obligations to the extent and in upholding the order of the lower court, recourse to
value of the inheritance of a person are transmitted this Court is not warranted.
through his death to another or others by his will or by
operation of law.25 WHEREFORE, the petition for review is DENIED. The
assailed decision and resolution of the Court of
Even if administration proceedings have already been Appeals are hereby AFFIRMED. No costs.
commenced, the heirs may still bring the suit if an
administrator has not yet been appointed. This is the SO ORDERED.
proper modality despite the total lack of advertence to
the heirs in the rules on party representation, namely
G.R. No. 156879 January 20, 2004
Section 3, Rule 326 and Section 2, Rule 8727 of the
Rules of Court. In fact, in the case of Gochan v.
Young,28 this Court recognized the legal standing of the FLORDELIZA CALPATURA FLORA, DOMINADOR
heirs to represent the rights and properties of the CALPATURA and TOMAS CALPATURA, JR., Heirs
decedent under administration pending the appointment of TOMAS CALPATURA, SR., Petitioners,
of an administrator. Thus: vs.
ROBERTO, ERLINDA, DANIEL, GLORIA,
The above-quoted rules,29 while permitting an PATRICIO, JR. and EDNA, all surnamed PRADO
executor or administrator to represent or to and NARCISA PRADO, Respondents.
bring suits on behalf of the deceased, do not
prohibit the heirs from representing the DECISION
deceased. These rules are easily applicable
to cases in which an administrator has YNARES-SANTIAGO, J.:
already been appointed. But no rule
categorically addresses the situation in The property under litigation is the northern half
which special proceedings for the portion of a residential land consisting of 552.20
settlement of an estate have already been square meters, more or less, situated at 19th Avenue,
instituted, yet no administrator has been Murphy, Quezon City and covered by Transfer
appointed. In such instances, the heirs Certificate of Title No. 71344 issued on August 15,
cannot be expected to wait for the 1963 by the Register of Deeds of Quezon City in the
appointment of an administrator; then wait name of Narcisa Prado and her children by her first
further to see if the administrator appointed husband, Patricio Prado, Sr., namely, Roberto,
would care enough to file a suit to protect the Erlinda, Daniel, Gloria, Patricio, Jr. and Edna,
rights and the interests of the deceased; and respondents herein.
in the meantime do nothing while the rights
and the properties of the decedent are The pertinent facts are as follows:
violated or dissipated.
On December 19, 1959, Patricio Prado, Sr. died.
Even if there is an appointed administrator, Narcisa subsequently married Bonifacio Calpatura. In
jurisprudence recognizes two exceptions, viz: (1) if order to support her minor children with her first
the executor or administrator is unwilling or refuses to husband, Narcisa and her brother-in-law, Tomas
bring suit;30 and (2) when the administrator is alleged Calpatura, Sr., executed on April 26, 1968
to have participated in the act complained of31 and he an Agreement of Purchase and Sale whereby the
is made a party defendant. 32 Evidently, the necessity former agreed to sell to the latter the northern half
for the heirs to seek judicial relief to recover property portion of the property for the sum of P10,500.00. On1
of the estate is as compelling when there is no July 28, 1973, Narcisa executed a Deed of Absolute
appointed administrator, if not more, as where there is Sale in favor of Tomas over the said property. 2
All told, therefore, the rule that the heirs have no legal half portion of the property. Respondents, who
standing to sue for the recovery of property of the occupied the southern half portion of the land, did not
estate during the pendency of administration object to the construction. Flordeliza Flora and her
proceedings has three exceptions, the third being husband Wilfredo declared the property for taxation
when there is no appointed administrator such as in purposes and paid the corresponding taxes
4
I
natural guardian of her children, had no authority to
sell the northern half portion of the property which she
and her children co-owned; and that only P5,000.00 THE HONORABLE COURT OF APPEALS
out of the consideration of P10,500.00 was paid by COMMITTED A GRAVE ABUSE OF
Tomas. DISCRETION IN MODIFYING THE
DECISION RENDERED BY THE REGIONAL
TRIAL COURT WITHOUT TAKING INTO
In their answer, petitioners countered that Narcisa
CONSIDERATION THAT, ASIDE FROM THE
owned 9/14 of the property, consisting of ½ as her
DECLARATION OF THE VALIDITY OF THE
share in the conjugal partnership with her first
SALE, THE PETITIONERS HEREIN HAVE
husband and 1/7 as her share in the estate of her
TAKEN ACTUAL POSSESSION OF THE
deceased husband; that the consideration of the sale
SAID ONE-HALF (1/2) TO THE EXCLUSION
in the amount of P10,500.00 had been fully paid as of
OF THE RESPONDENTS AND
April 1, 1968; that Narcisa sold her conjugal share in
INTRODUCED IMPROVEMENTS THEREON.
order to support her minor children; that Narcisa’s
claim was barred by laches and prescription; and that
the Philippine Homesite and Housing Corporation, not II
the respondents, was the real party in interest to
question the sale within the prohibited period. THE HONORABLE COURT OF APPEALS
COMMITTED A GRAVE ABUSE OF
On April 2, 1997, the court a quo dismissed the
8 DISCRETION IN MODIFYING THE
complaint. It found that the sale was valid; that DECISION RENDERED BY THE REGIONAL
the Agreement to Purchase and Sale and the Deed of TRIAL COURT WITHOUT TAKING INTO
Absolute Sale were duly executed; that the sum of CONSIDERATION THE CLEAR AND
P10,500.00 as selling price for the subject property UNEQUIVOCAL STATEMENT IN THE SALE
was fully paid there being no demand for the payment THAT THE SAME PERTAINS TO THE
of the remaining balance; that the introduction of CONJUGAL SHARE OF RESPONDENT
improvements thereon by the petitioners was without NARCISA PRADO AND THE OTHER
objection from the respondents; and that Roberto and RESPONDENTS HAD NO FINANCIAL
Erlinda failed to contest the transaction within four CAPACITY TO ACQUIRE THE SAID
years after the discovery of the alleged fraud and PROPERTY SINCE THEY WERE MINORS
reaching the majority age in violation of Article 1391 THEN AT THE ISSUANCE OF THE SAID
of the Civil Code.
9 TCT NO. 71344 ON AUGUST 15, 1963.
ONLY ON APRIL 8, 1991, THAT IS 18 Alfarero, et al. v. Spouses Sevilla, et al., it was held
22
YEARS AFTER THE SAID SALE WITH THE that a public document executed and attested through
PETITIONERS TAKING ACTUAL the intervention of a notary public is evidence of the
POSSESSION OF SAID PORTION OF THE facts in a clear, unequivocal manner therein
PROPERTY. expressed. Otherwise stated, public or notarial
documents, or those instruments duly acknowledged
IV or proved and certified as provided by law, may be
presented in evidence without further proof, the
THAT THE DECISION OF THE HON. COURT OF certificate of acknowledgment being prima facie
APPEALS WILL UNDULY ENRICH THE evidence of the execution of the instrument or
RESPONDENTS AT THE EXPENSE OF THE document involved. In order to contradict the
HEREIN PETITIONERS. 13 presumption of regularity of a public document,
evidence must be clear, convincing, and more than
merely preponderant.
At the outset, it must be stressed that only questions
of law may be raised in petitions for review before this
Court under Rule 45 of the Rules of Court. It was 14 It is well-settled that in civil cases, the party that
thus error for petitioners to ascribe to the Court of alleges a fact has the burden of proving it. Except for
23
Appeals grave abuse of discretion. This procedural the bare allegation that the transaction was one of
lapse notwithstanding, in the interest of justice, this mortgage and not of sale, respondents failed to
Court shall treat the issues as cases of reversible adduce evidence in support thereof. Respondents
error.
15 also failed to controvert the presumption that private
transactions have been fair and regular. 24
inherited one-seventh (1/7) of her husband's conjugal 2) the sale of the undivided one half portion
share in the said property and is the owner of one-half thereof by Narcisa Prado in favor of Tomas
(1/2) thereof as her conjugal share, she owns a total Calpatura, Sr. is valid.
of 9/14 of the subject property. Hence, Narcisa could
validly convey her total undivided share in the entire Furthermore, the case is REMANDED to the
property to Tomas. Narcisa and her children are court of origin, only for the purpose of
deemed co-owners of the subject property. determining the specific portion being
conveyed in favor of Tomas Calpatura, Sr.
Neither can the respondents invoke the proscription of pursuant to the partition that will be agreed
encumbering the property within 25 years from upon by the respondents.
acquisition. In Sarmiento, et al. v. Salud, et al., it was
27
c. ordering the plaintiffs to pay to the After a study of this case, we have
defendants the amount of P2,000.00 come to the conclusion that the
as reasonable attorney's fees and to appellants are entitled to recover the
pay the costs of the suit. ownership of the lots in question. We
so hold because although Exh. 1
concerning the sale made in 1951 of
The plaintiffs appealed the decision to the Court of
the disputed lots is, in Our
Appeals which rendered the following judgment:
opinion, not a forgery the fact is that
the sale made by Gimena Almosara is
PREMISES CONSIDERED, the invalid, having been executed without
decision appealed from is hereby the needed consent of her husband,
REVERSED and SET ASIDE, and a the lots being conjugal. Appellees'
new one is hereby RENDERED, argument that this was an issue not
ordering the defendants-appellees to raised in the pleadings is baseless,
surrender the lots in question as well considering the fact that the complaint
as the plaintiffs'-appellants' muniments alleges that the parcels 'were
of title thereof to said plaintiffs- purchased by plaintiff Gimena
appellants, to make an accounting of Almosara and her late husband
the produce derived from the lands Maximo Aldon' (the lots having been
including expenses incurred since purchased during the existence of the
1951, and to solidarity turn over to the marriage, the same are presumed
plaintiffs-appellants the NET monetary conjugal) and inferentially, by force of
value of the profits, after deducting the law, could not, be disposed of by a
sum of P1,800.00. No attorney's fees wife without her husband's consent.
nor moral damages are awarded for
lack of any legal justification therefor.
The defendants are now the appellants in this petition
No. costs.
for review. They invoke several grounds in seeking
the reversal of the decision of the Court of Appeals.
The ratio of the judgment is stated in the following One of the grounds is factual in nature; petitioners
paragraphs of the decision penned by Justice claim that "respondent Court of Appeals has found as
Edgardo L. Paras with the concurrence of Justices a fact that the 'Deed of Purchase and Sale' executed
Venicio Escolin and Mariano A. Zosa: by respondent Gimena Almosara is not a forgery and
therefore its authenticity and due execution is already
One of the principal issues in the case beyond question." We cannot consider this ground
involves the nature of the because as a rule only questions of law are reviewed
aforementioned conveyance or in proceedings under Rule 45 of the Rules of Court
transaction, with appellants claiming subject to well-defined exceptions not present in the
the same to be an oral contract of instant case.
mortgage or antichresis, the
redemption of which could be done The legal ground which deserves attention is the legal
anytime upon repayment of the effect of a sale of lands belonging to the conjugal
P1,800.00 involved (incidentally the partnership made by the wife without the consent of
only thing written about the transaction the husband.
is the aforementioned receipt re the
P1,800). Upon the other hand,
appellees claim that the transaction
It is useful at this point to re-state some elementary children could not likewise seek the annulment of the
rules: The husband is the administrator of the contract while the marriage subsisted because they
conjugal partnership. (Art. 165, Civil Code.) Subject to merely had an inchoate right to the lands sold.
certain exceptions, the husband cannot alienate or
encumber any real property of the conjugal The termination of the marriage and the dissolution of
partnership without the wife's consent. (Art. 166, the conjugal partnership by the death of Maximo
Idem.) And the wife cannot bind the conjugal Aldon did not improve the situation of Gimena. What
partnership without the husband's consent, except in she could not do during the marriage, she could not
cases provided by law. (Art. 172, Idem.) do thereafter.
In the instant case, Gimena, the wife, sold lands The case of Sofia and Salvador Aldon is different.
belonging to the conjugal partnership without the After the death of Maximo they acquired the right to
consent of the husband and the sale is not covered by question the defective contract insofar as it deprived
the phrase "except in cases provided by law." The them of their hereditary rights in their father's share in
Court of Appeals described the sale as "invalid" - a the lands. The father's share is one-half (1/2) of the
term which is imprecise when used in relation to lands and their share is two-thirds (2/3) thereof, one-
contracts because the Civil Code uses specific names third (1/3) pertaining to the widow.
in designating defective contracts,
namely: rescissible (Arts. 1380 et The petitioners have been in possession of the lands
seq.), voidable (Arts. 1390 et since 1951. It was only in 1976 when the respondents
seq.), unenforceable (Arts. 1403, et seq.), and void or filed action to recover the lands. In the meantime,
inexistent (Arts. 1409 et seq.) Maximo Aldon died.
The sale made by Gimena is certainly a defective Two questions come to mind, namely: (1) Have the
contract but of what category? The answer: it is a petitioners acquired the lands by acquisitive
voidable contract. prescription? (2) Is the right of action of Sofia and
Salvador Aldon barred by the statute of limitations?
According to Art. 1390 of the Civil Code, among the
voidable contracts are "[T]hose where one of the Anent the first question, We quote with approval the
parties is incapable of giving consent to the contract." following statement of the Court of Appeals:
(Par. 1.) In the instant case-Gimena had no capacity
to give consent to the contract of sale. The capacity to
We would like to state further that
give consent belonged not even to the husband alone
appellees [petitioners herein] could not
but to both spouses.
have acquired ownership of the lots by
prescription in view of what we regard
The view that the contract made by Gimena is a as their bad faith. This bad faith is
voidable contract is supported by the legal provision revealed by testimony to the effect
that contracts entered by the husband without the that defendant-appellee Vicente V.
consent of the wife when such consent is required, Felipe (son of appellees Eduardo
are annullable at her instance during the marriage Felipe and Hermogena V. Felipe)
and within ten years from the transaction questioned. attempted in December 1970 to have
(Art. 173, Civil Code.) Gimena Almosara sign a ready-made
document purporting to self the
Gimena's contract is not rescissible for in such disputed lots to the appellees. This
contract all the essential elements are untainted but actuation clearly indicated that
Gimena's consent was tainted. Neither can the the appellees knew the lots did not
contract be classified as unenforceable because it still belong to them, otherwise, why
does not fit any of those described in Art. 1403 of the were they interested in a document of
Civil Code. And finally, the contract cannot be void or sale in their favor? Again why did
inexistent because it is not one of those mentioned in Vicente V. Felipe tell Gimena that the
Art. 1409 of the Civil Code. By process of elimination, purpose of the document was to
it must perforce be a voidable contract. obtain Gimena's consent to the
construction of an irrigation pump on
The voidable contract of Gimena was subject to the lots in question? The only possible
annulment by her husband only during the marriage reason for purporting to obtain such
because he was the victim who had an interest in the consent is that the appellees knew the
contract. Gimena, who was the party responsible for lots were not theirs. Why was there an
the defect, could not ask for its annulment. Their attempted improvement (the irrigation
tank) only in 1970? Why was the WHEREFORE, respondent is hereby
declaration of property made only in ordered to pay complainant her
1974? Why were no attempts made to monthly allotments from March, 1980
obtain the husband's signature, up to the amount of P54,562.00 within
despite the fact that Gimena and ten (10) days from receipt of this
Hermogena were close relatives? An decision. Respondent is likewise
these indicate the bad faith of the further ordered to pay complainant her
appellees. Now then, even if we were future monthly allotment up to the
to consider appellees' possession in arrival of the M/V EASTERN
bad faith as a possession in the MINICON in the port of Manila or after
concept of owners, this possession at four (4) years when the presumptive
the earliest started in 1951, hence the death established by law takes effect.
period for extraordinary prescription
(30 years) had not yet lapsed when The material facts that gave rise to this petition are as
the present action was instituted on follows: On October 31, 1979, Capt. Julio J. Lucero,
April 26, 1976. Jr. was appointed by petitioner Eastern Shipping
Lines, Inc., Company for short, as master/captain to
As to the second question, the children's cause of its vessel M/V Eastern Minicon plying the
action accrued from the death of their father in 1959 HongkongManila route, with the salary of P5,560.00
and they had thirty (30) years to institute it (Art. 1141, exclusive of ship board allowances and other benefits.
Civil Code.) They filed action in 1976 which is well Under the contract, his employment was good for one
within the period. (1) round trip only, i.e., the contract would
automatically terminate upon arrival of the vessel at
WHEREFORE, the decision of the Court of Appeals is the Port of Manila, unless renewed. It was further
hereby modified. Judgment is entered awarding to agreed that part of the captain's salary, while abroad,
Sofia and Salvador Aldon their shares of the lands as should be paid to Mrs. Josephine Lucero, his wife, in
stated in the body of this decision; and the petitioners Manila.
as possessors in bad faith shall make an accounting
of the fruits corresponding to the share On February 16, 1980, while the vessel was enroute
aforementioned from 1959 and solidarity pay their from Hongkong to Manila where it was expected to
value to Sofia and Salvador Aldon; costs against the arrive on February 18, 1980, Capt. Lucero sent three
petitioners. (3) messages to the Company's Manila office:
By the aforequoted law, it is quite It is undisputed that on February 16, 1980, the
clear that the person to be presumed Company received three (3) radio messages from
dead should first "not been heard of Capt. Lucero on board the M/V Eastern Minicon the
for four years since the loss of the last of which, received at 9:50 p.m. of that day, was a
vessel" before he can be presumed call for immediate assistance in view of the existing
dead for all purposes. Applied to Capt. "danger": "sea water was entering the hatch"; the
LUCERO, it is evidently premature to vessel "was listing 50 to 60 degrees port," and they
presume him dead as four years has were "preparing to abandon the ship any time.' After
not yet expired. Thus, even in Judge this message, nothing more has been heard from the
Advocate General vs. Gonzales, et vessel or its crew until the present time.
al., (CA) 48 O.G. 5329, the very case
cited by the respondent herein, the There is thus enough evidence to show the
court Id. in the case of the missing circumstances attending the loss and disappearance
soldier that although nothing was of the M/V Eastern Minicon and its crew. The
heard of him since 7 May 1942, the foregoing facts, quite logically. are sufficient to lead
fact of his death is not presumed until Us to a moral certainty that the vessel had sunk and
seven years after 1942. that the persons aboard had perished with it. upon
this premise, the rule on presumption of death under
Since Capt. LUCERO cannot yet be Article 391 (1) of the Civil Code must yield to the rule
presumed dead as demonstrated of preponderance of evidence. As this Court said
hereinabove, it logically follows that as in Joaquin vs. Navarro "Where there are facts,
4
G.R. No. L-41171 July 23, 1987 PETRA BORROMEO, VITALIANA BORROMEO,
AMELINDA BORROMEO, and JOSE CUENCO
INTESTATE ESTATE OF THE LATE VITO BORROMEO, petitioners,
BORROMEO, PATROCINIO BORROMEO- vs.
HERRERA, petitioner, HONORABLE FRANCISCO P. BURGOS, Presiding
vs. Judge of Branch XV, Regional Trial Court of Cebu;
FORTUNATO BORROMEO and HON. FRANCISCO RICARDO V. REYES, Administrator of the Estate
P. BURGOS, Judge of the Court of First Instance of VITO BORROMEO in Sp. Proc. No. 916-R; and
of Cebu, Branch II, respondents. DOMINGO L. ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x GUTIERREZ, JR., J.:
No. L-55000 July 23, 1987 These cases before us all stem from SP. PROC. NO.
916-R of the then Court of First Instance of Cebu.
IN THE MATTER OF THE ESTATE OF VITO
BORROMEO, DECEASED, PILAR N. BORROMEO, G.R. No. 41171
MARIA B. PUTONG, FEDERICO V. BORROMEO,
JOSE BORROMEO, CONSUELO B. MORALES, Vito Borromeo, a widower and permanent resident of
AND CANUTO V. BORROMEO, JR., heirs- Cebu City, died on March 13, 1952, in Paranaque,
appellants, Rizal at the age of 88 years, without forced heirs but
vs. leaving extensive properties in the province of Cebu.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
On April 19, 1952, Jose Junquera filed with the Court Borromeo represented by Jose Talam filed
of First Instance of Cebu a petition for the probate of a oppositions to this claim.
one page document as the last will and testament left
by the said deceased, devising all his properties to When the aforementioned petitions and claims were
Tomas, Fortunato and Amelia, all surnamed heard jointly, the following facts were established:
Borromeo, in equal and undivided shares, and
designating Junquera as executor thereof. The case 1. Maximo Borromeo and Hermenegilda Galan,
was docketed as Special Proceedings No. 916-R. The husband and wife (the latter having predeceased the
document, drafted in Spanish, was allegedly signed former), were survived by their eight (8) children,
and thumbmarked by the deceased in the presence of namely,
Cornelio Gandionco, Eusebio Cabiluna, and
Felixberto Leonardo who acted as witnesses.
Jose Ma. Borromeo
Oppositions to the probate of the will were filed. On
Cosme Borromeo
May 28, 1960, after due trial, the probate court held
that the document presented as the will of the
deceased was a forgery. Pantaleon Borromeo
The following petitions or claims were filed: 2. Vito Borromeo died a widower on March 13, 1952,
without any issue, and all his brothers and sisters
1. On August 29, 1967, the heirs of Jose Ma. predeceased him.
Borromeo and Cosme Borromeo filed a
petition for declaration of heirs and 3. Vito's brother Pantaleon Borromeo died leaving the
determination of heirship. There was no following children:
opposition filed against said petition.
a. Ismaela Borromeo,who died on Oct. 16,
2. On November 26, 1967, Vitaliana Borromeo 1939
also filed a petition for declaration as heir. The
heirs of Jose Ma. Borromeo and Cosme b. Teofilo Borromeo, who died on Aug. 1,
Borromeo filed an opposition to this petition. 1955, or 3 years after the death of Vito
Borromeo. He was married to Remedios
3. On December 13, 1967, Jose Barcenilla, Cuenco Borromeo, who died on March 28,
Jr., Anecita Ocampo de Castro, Ramon 1968. He had an only son-Atty. Jose Cuenco
Ocampo, Lourdes Ocampo, Elena Ocampo, Borromeo one of the petitioners herein.
Isagani Morre, Rosario Morre, Aurora Morre,
Lila Morre, Lamberto Morre, and Patricia c. Crispin Borromeo, who is still alive.
Morre, filed a petition for declaration of heirs
and determination of shares. The petition was 4. Anecita Borromeo, sister of Vito Borromeo, died
opposed by the heirs of Jose and Cosme ahead of him and left an only daughter, Aurora B.
Borromeo. Ocampo, who died on Jan. 30, 1950 leaving the
following children:
4. On December 2, 1968, Maria Borromeo
Atega, Luz Borromeo, Hermenegilda a. Anecita Ocampo Castro
Borromeo Nonnenkamp, Rosario Borromeo,
and Fe Borromeo Queroz filed a claim. Jose
Cuenco Borromeo, Crispin Borromeo, b. Ramon Ocampo
Vitaliana Borromeo and the heirs of Carlos
c. Lourdes Ocampo
d. Elena Ocampo, all living, and d. Matilde Borromeo, who died on Aug. 6,
1946
e. Antonieta Ocampo Barcenilla (deceased),
survived by claimant Jose Barcenilla, Jr. e. Andres Borromeo, who died on Jan. 3,
1923, but survived by his children:
5. Cosme Borromeo, another brother of Vito
Borromeo, died before the war and left the following aa. Maria Borromeo Atega
children:
bb. Luz Borromeo
a. Marcial Borromeo
cc. Hermenegilda Borromeo
b. Carlos Borromeo,who died on Jan. 18, Nonnenkamp
1965,survived by his wife, Remedios Alfonso,
and his only daughter, Amelinda Borromeo dd. Rosario Borromeo
Talam
ee. Fe Borromeo Queroz
c. Asuncion Borromeo
On April 10, 1969, the trial court, invoking Art. 972 of
d. Florentina Borromeo, who died in 1948. the Civil Code, issued an order declaring the
following, to the exclusion of all others, as the
e. Amilio Borromeo, who died in 1944. intestate heirs of the deceased Vito Borromeo:
The petitioner's stand is that the inaction of the Since there are still real properties of the estate that
respondent judge on the motion filed on April 28, were not vet distributed to some of the declared heirs,
1972 for the closure of the administration proceeding particularly the 5/9 group of heirs due to the pending
cannot be justified by the filing of the motion for resolution of the waiver agreement, this Court in its
inventory and accounting because the latter motion resolution of June 15, 1983, required the judge of the
was filed only on March 2, 1979. He claimed that Court of First Instance of Cebu, Branch 11, to
under the then Constitution, it is the duty of the expedite the determination of Special Proceedings
respondent judge to decide or resolve a case or No. 916-R and ordered the co-administrator Jose
matter within three months from the date of its Cuenco Borromeo to submit an inventory of real
submission. properties of the estate and to render an accounting
of cash and bank deposits realized from rents of
The respondents contend that the motion to close the several properties.
administration had already been resolved when the
The matter of attorney's fees shall be discussed in advanced by Atty, Antigua. In view of the
G.R. No. 65995. motions for reconsideration, Atty Antigua
ultimately withdraw his motions for production
Considering the pronouncements stated in: of titles.
1. G.R. No. 41171 & G.R. No. 55000, setting 7. The incident concerning the production of
aside the Order of the trial court dated titles triggered another incident involving Atty.
December 24, 1974; Raul H. Sesbreno who was then the counsel
of herein movants Petra O. Borromeo and
2. G.R. No. 63818, denying the petition for Amelinda B. Talam In connection with said
review seeking to modify the decision of the incident, Atty. Sesbreno filed a pleading which
Intermediate Appellate Court insofar as it the tion. presiding, Judge Considered direct
disqualifies and inhibits Judge Francisco P. contempt because among others, Atty.
Burgos from further hearing the Intestate Sesbreno insinuated that the Hon. Presiding
Estate of Vito Borromeo and ordering the Judge stands to receive "fat commission" from
remand of the case to the Executive,Judge of the sale of the entire property. Indeed, Atty.
the Regional trial Court of Cebu for re-raffling; Sesbreno was seriously in danger of being
and declared in contempt of court with the dim
prospect of suspension from the practice of
his profession. But obviously to extricate
3. G.R. No. 65995, granting the petition to
himself from the prospect of contempt and
restrain the respondents from further acting
suspension. Atty. Sesbreno chose
on any and all incidents in Special
rapproachment and ultimately joined forces
proceedings No. 916-11 because of the
with Atty. Antigua, et al., who, together,
affirmation of the decision of the Intermediate
continued to harass administrator
Appellate Court in G.R. No. 63818.
x x x x x x x x x
the trial court may now terminate and close Special
Proceedings No. 916-R, subject to the submission of
an inventory of the real properties of the estate and 9. The herein movants are informed and so
an accounting of the call and bank deposits of the they allege, that a brother of the Hon.
petitioner, as co-administrator of the estate, if he has Presiding Judge is married to a sister of Atty.
not vet done so, as required by this Court in its Domingo L. Antigua.
Resolution dated June 15, 1983. This must be
effected with all deliberate speed. 10. There is now a clear tug of war bet ween
Atty. Antigua, et al. who are agitating for the
G.R. No. 63818 sale of the entire estate or to buy out the
individual heirs, on the one hand, and the
herein movants, on the other, who are not
On June 9, 1979, respondents Jose Cuenco
willing to sell their distributive shares under
Borromeo and Petra 0. Borromeo filed a motion for
the terms and conditions presently proposed.
inhibition in the Court of First Instance of Cebu,
In this tug of war, a pattern of harassment has
Branch 11, presided over by Judge Francisco P.
become apparent against the herein movants,
Burgos to inhibit the judge from further acting in
especially Jose Cuenco Borromeo. Among the
Special Proceedings No. 916-R. 'The movants
harassments employed by Atty Antigua et al.
alleged, among others, the following:
are the pending motions for the removal of
administrator Jose Cuenco Borromeo, the
x x x x x x x x x subpoena duces tecum issued to the bank
which seeks to invade into the privacy of the
6. To keep the agitation to sell moving, Atty. personal account of Jose Cuenco Borromeo,
Antigua filed a motion for the production of the and the other matters mentioned in paragraph
certificates of title and to deposit the same 8 hereof. More harassment motions are
with the Branch Clerk of Court, presumably for expected until the herein movants shall finally
the ready inspection of interested buyers. yield to the proposed sale. In such a situation,
Said motion was granted by the Hon. Court in the herein movants beg for an entirely
its order of October 2, 1978 which, however, independent and impartial judge to pass upon
became the subject of various motions for the merits of said incidents.
reconsideration from heirs-distributees who
contended that as owners they cannot be
deprived of their titles for the flimsy reasons
11. Should the Hon. Presiding Judge continue that it is highly improper for respondent Hon.
to sit and take cognizance of this proceeding, Francisco P. Burgos to continue to preside
including the incidents above-mentioned, he is over Sp. Proc. No. 916-R by reason of the
liable to be misunderstood as being biased in following circumstances:
favor of Atty Antigua, et al. and prejudiced
against the herein movants. Incidents which (a) He has shown undue interest in
may create this impression need not be the sale of the properties as initiated
enumerated herein. (pp. 39-41, Rollo) by Atty. Domingo L. Antigua whose
sister is married to a brother of
The motion for inhibition was denied by Judge respondent.
Francisco P. Burgos. Their motion for reconsideration
having been denied, the private respondents filed a (b) The proposed sale cannot be
petition for certiorari and/or prohibition with legally done without the conformity of
preliminary injunction before the Intermediate the heirs-distributees, and petitioners
Appellate Court. have openly refused the sale, to the
great disappointment of respondent.
In the appellate court, the private respondents
alleged, among others, the following: (c) The shot gun motion of Atty.
Antigua and similar incidents are
x x x x x x x x x clearly intended to harass and
embarrass administrator Jose Cuenco
16. With all due respect, petitioners regret the Borromeo in order to pressure him into
necessity of having to state herein that acceding to the proposed sale.
respondent Hon. Francisco P. Burgos has
shown undue interest in pursing the sale (d) Respondent has shown bias and
initiated by Atty. Domingo L. Antigua, et al. prejudice against petitioners by failing
Significantly, a brother of respondent Hon. to resolve the claim for attorney's fees
Francisco P. Burgos is married to a sister of filed by Jose Cuenco Borromeo and
Atty. Domingo L. Antigua. the late Crispin Borromeo. Similar
claims by the other lawyers were
17. Evidence the proposed sale of the entire resolved by respondent after
properties of the estate cannot be legally done petitioners refused the proposed sale.
without the conformity of the heirs-distributees (pp. 41-43, Rollo)
because the certificates of title are already
registered in their names Hence, in pursuit of On March 1, 1983, the appellate court rendered its
the agitation to sell, respondent Hon. decision granting the petition for certiorari and/or
Francisco P. Burgos urged the heirs- prohibition and disqualifying Judge Francisco P.
distributees to sell the entire property based Burgos from taking further cognizance of Special
on the rationale that proceeds thereof Proceedings No. 916-R. The court also ordered the
deposited in the bank will earn interest more transmission of the records of the case to the
than the present income of the so called Executive Judge of the Regional Trial Court of Region
estate. Most of the heirs-distributees, VII for re-raffling.
however. have been petitioner timid to say
their piece. Only the 4/9 group of heirs led by A motion for reconsideration of the decision was
Jose Cuenco Borromeo have had the courage denied by the appellate court on April 11, 1983.
to stand up and refuse the proposal to sell Hence, the present petition for review seeking to
clearly favored by respondent Hon. Francisco modify the decision of the Intermediate Appellate
P. Burgos. Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the case of
x x x x x x x x x Intestate Estate of Vito Borromeo and orders the
remand of the case to the Executive Judge of the
20. Petitioners will refrain from discussing Regional Trial Court of Cebu for re-raffling.
herein the merits of the shotgun motion of
Atty. Domingo L. Antigua as well as other The principal issue in this case has become moot and
incidents now pending in the court below academic because Judge Francisco P. Burgos
which smack of harassment against the herein decided to retire from the Regional Trial Court of
petitioners. For, regardless of the merits of Cebu sometime before the latest reorganization of the
said incidents, petitioners respectfully contend judiciary. However, we decide the petition on its
merits for the guidance of the judge to whom this case Borromeo. Simultaneously with the filing of the motion
will be reassigned and others concerned. of Domingo Antigua, Atty. Raul H. Sesbreno filed a
request for the issuance of subpoena duces tecum to
The petitioners deny that respondent Jose Cuenco the Manager of Consolidated Bank and 'Trust Co.,
Borromeo has been harassed. They contend that Inc.; Register of Deeds of Cebu City; Register of
Judge Burgos has benn shown unusual interest in the Deeds for the Province of Cebu and another
proposed sale of the entire estate for P6,700,000.00 subpoena duces tecum to Atty. Jose Cuenco
in favor of the buyers of Atty. Antigua. They claim that Borromeo.
this disinterest is shown by the judge's order of March
2, 1979 assessing the property of the estate at On the same date, the Branch Clerk of Court issued a
P15,000,000.00. They add that he only ordered the subpoena duces tecum to the Managert of the bank,
administrator to sell so much of the properties of the the Register of deeds for the City of Cebu, the
estate to pay the attorney's fees of the lawyers- Register of Deeds for the Province, of Cebu. and to
claimants. To them, the inhibition of Judge Burgos Jose Cuenco Borromeo.
would have been unreasonable because his orders
against the failure of Jose Cuenco Borromeo, as On the following day, March 3, 1979, Atty Gaudioso v.
administrator, to give an accounting and inventory of Villagonzalo in behalf of the heirs of Marcial Borromeo
the estate were all affirmed by the appellate court. who had a common cause with Atty Barredo, Jr.,
They claim that the respondent court, should also joined petitioner Domingo L. Antigua by filing a motion
have taken judicial notice of the resolution of this for relief of the administrator.
Court directing the said judge to "expedite the
settlement and adjudication of the case" in G.R. No. On March 5, 1979, Atty. Villagonzalo filed a request
54232. And finally, they state that the disqualification for the issuance of a subpoena duces tecum to
of judge Burgos would delay further the closing of the private respondent Jose Cuenco Borromeo to bring
administration proceeding as he is the only judge who and produce all the owners" copies of the titles in the
is conversant with the 47 volumes of the records of court presided order by Judge Burgos.
the case.
Consequently. the Branch Clerk of Court issued a
Respondent Jose Cuenco Borromeo, to show that he subpoena duces tecum commanding Atty. Jose
had been harassed. countered that Judge Burgos Cuenco Borromeo to bring and produce the titles in
appointed Ricardo V. Reyes as co-administrator of court.
the estate on October 11, 1972, yet Borromeo was
singled out to make an accounting of what t he was
All the above-incidents were set for hearing on June
supposed to have received as rentals for the land
7, 1979 but on June 14, 1979, before the date of the
upon which the Juliana Trade Center is erected, from
hearing, Judge Burgos issued an order denying the
January, 1977 to February 1982, inclusive, without
private respondents' motion for reconsideration and
mentioning the withholding tax for the Bureau of
the motion to quash the subpoena.
Internal Revenue. In order to bolster the agitation to
1avvphi1
G.R. No. 126707 February 25, 1999 On July 26, 1990, private respondent Joselito P. Dela
Merced, illegitimate son of the late Francisco de la
BLANQUITA E. DELA MERCED, LUISITO E. DELA Merced, filed a "Petition for Annulment of the
MERCED, BLANQUTIA M. MACATANGAY, MA. Extrajudicial Settlement of the Estate of the Deceased
OLIVIA M. PAREDES, TERESITA P. RUPISAN, Evarista M. Dela Merced with Prayer for a Temporary
RUBEN M. ADRIANO, HERMINIO M. ADRIANO, Restraining Order", alleging that he was fraudulently
JOSELITO M. ADRIANO, ROGELIO M. ADRIANO, omitted from the said settlement made by petitioners,
WILFREDO M. ADRIANO, VICTOR M. ADRIANO, who were fully aware of his relation to the late
CORAZON A. ONGOCO, JASMIN A. MENDOZA Francisco. Claiming successional rights, private
and CONSTANTINO M. ADRIANO, petitioners, respondent Joselito prayed that he be included as
vs. one of the beneficiaries, to share in the one-third (1/3)
JOSELITO P. DELA MERCED, respondent. pro-indiviso share in the estate of the deceased
Evarista, corresponding to the heirs of Francisco.
On August 3, 1990, the trial court issued the
PURISIMA, J.: temporary restraining order prayed for by private
respondent Joselito, enjoining the sale of any of the
real properties of the deceased Evarista.
This is a Petition for Review on Certiorari of the
Decision of the Court of Appeals, dated October 17,
After trial, however, or on June 10, 1992, to be In its Decision of October 17, 1996, the Court of
definite, the trial court dismissed the petition, lifted the Appeals reversed the decision of the trial court of
temporary restraining order earlier issued, and origin and ordered the petitioners to execute an
cancelled the notice of lis pendens on the certificates amendatory agreement which shall form part of the
of title covering the real properties of the deceased original settlement, so as to include private
Evarista. respondent Joselito as a co-heir to the estate of
Francisco, which estate includes one-third (1/3) pro
In dismissing the petition, the trial court stated: indiviso of the latter's inheritance from the deceased
Evarista.
The factual setting of the instant
motion after considering the The relevant and dispositive part of the Decision of
circumstances of the entire case and the Court of Appeals, reads:
the other evidentiary facts and
documents presented by the herein xxx xxx xxx
parties points only to one issue which
goes into the very skeleton of the It is a basic principle embodied in
controversy, to wit: "Whether or not Article 777, New Civil Code that the
the plaintiff may participate in the rights to the succession are
intestate estate of the late Evarista M. transmitted from the moment of the
Dela Merced in his capacity as death of the decedent, so that
representative of his alleged father, Francisco dela Merced inherited 1/3 of
Francisdo Dela Merced, brother of the his sister's estate at the moment of the
deceased, whose succession is under latter's death. Said 1/3 of Evarista's
consideration. estate formed part of Francisco's
estate which was subsequently
xxx xxx xxx transmitted upon his death on March
23, 1987 to his legal heirs, among
It is to be noted that Francisco Dela whom is appellant as his illegitimate
Merced, alleged father of the herein child. Appellant became entitled to his
plaintiff, is a legitimate child, not an share in Francisco's estate from the
illegitimate. Plaintiff, on the other time of the latter's death in 1987. The
hand, is admittedly an illegitimate child extrajudicial settlement therefore is
of the late Francisco Dela Merced. void insofar as it deprives plaintiff-
Hence, as such, he cannot represent appellant of his share in the estate of
his alleged father in the succession of Francisco M. dela Merced. As a
the latter in the intestate estate of the consequence, the cancellation of the
late Evarista Dela Merced, because of notice of lis pendens is not in order
the barrier in Art. 992 of the New Civil because the property is directly
Code which states that: affected. Appellant has the right to
demand a partition of his father's
An illegitimate child has no right to estate which includes 1/3 of the
inherit ab intestato from the legitimate property inherited from Evarista dela
children and relatives of his father or Merced.
mother, nor shall such children or
relatives inherit in the same manner WHEREFORE, premises considered,
from the illegitimate child. the appealed decision is hereby
REVERSED and SET ASIDE.
The application of Art. 992 cannot be Defendants-appellees are hereby
ignored in the instant case, it is clearly ordered to execute an amendatory
worded in such a way that there can agreement/settlement to include
be no room for any doubts and herein plaintiff-appellant Joselito dela
ambiguities. This provision of the law Merced as co-heir to the estate of
imposes a barrier between the Francisco dela Merced which includes
illegitimate and the legitimate 1/3 of the estate subject of the
family. . . . (Rollo, p. 87-88) questioned Deed of Extrajudicial
Settlement of the Estate of Evarista M.
dela Merced dated April 20, 1989. The
Not satisfied with the dismissal of his petition, the
amendatory agreement/settlement
private respondent appealed to the Court of Appeals.
shall form part of the original Domestic Relations Court in which court her husband
Extrajudicial Settlement. With costs (one of the legal heirs of the decedent) had instituted
against defendants-appellees. a case for legal separation against her on the ground
of an attempt against his life. When Mauricio (her
SO ORDERED. (Rollo, p. 41) husband) died, she should have commenced an
action for the settlement of the estate of her husband,
In the Petition under consideration, petitioners insist in which case she could receive whatever allowance
that being an illegitimate child, private respondent the intestate court would grant her.
Joselito is barred from inheriting from Evarista
because of the provision of Article 992 of the New The present case, however, relates to the rightful and
Civil Code, which lays down an impassable barrier undisputed right of an heir to the share of his late
between the legitimate and illegitimate families. father in the estate of the decedent Evarista,
ownership of which had been transmitted to his father
The Petition is devoid of merit. upon the death of Evarista. There is no legal obstacle
for private respondent Joselito, admittedly the son of
the late Francisco, to inherit in his own right as an heir
Article 992 of the New Civil Code is not applicable
to his father's estate, which estate includes a one-
because involved here is not a situation where an
third (1/3) undivided share in the estate of Evarista.
illegitimate child would inherit ab intestato from a
legitimate sister of his father, which is prohibited by
the aforesaid provision of law. Rather, it is a scenario WHEREFORE, for lack of merit, the Petition is hereby
where an illegitimate child inherits from his father, the DENIED and the Appealed Decision of the Court of
latter's share in or portion of, what the latter already Appeals AFFIRMED in toto.
inherited from the deceased sister, Evarista.
SO ORDERED.
As opined by the Court of Appeals, the law in point in
the present case is Article 777 of the New Civil Code
which provides that the rights to succession are
transmitted from the moment of death of the G.R. No. L-28394 November 26, 1970
decedent.
PEDRO GAYON, plaintiff-appellant,
Since Evarista died ahead of her brother Francisco, vs.
the latter inherited a portion of the estate of the former SILVESTRE GAYON and GENOVEVA DE
as one of her heirs. Subsequently, when Francisco GAYON, defendants-appellees.
died, his heirs, namely: his spouse, legitimate
children, and the private respondent, Joselito, an German M. Lopez for plaintiff-appellant.
illegitimate child, inherited his (Francisco's) share in
the estate of Evarista. It bears stressing that Joselito
Pedro R. Davila for defendants-appellees.
does not claim to be an heir of Evarista by right of
representation but participates in his own right, as an
heir of the late Francisco, in the latter's share (or
portion thereof) in the estate of Evarista.
CONCEPCION, C.J.:
Petitioners argue that if Joselito desires to assert
successional rights to the intestate estate of his Appeal, taken by plaintiff Pedro Gayon, from an order
father, the proper forum should be in the settlement of of the Court of First Instance of Iloilo dismissing his
his own father's intestate estate, as this Court held in complaint in Civil Case No. 7334 thereof.
the case of Gutierrez vs. Macandog (150 SCRA 422
[1987]) The records show that on July 31, 1967, Pedro Gayon
filed said complaint against the spouses Silvestre
Petitioners' reliance on the case of Gutierrez vs. Gayon and Genoveva de Gayon, alleging
Macandog (supra) is misplaced. The said case substantially that, on October 1, 1952, said spouses
involved a claim for support filed by one Elpedia executed a deed — copy of which was attached to the
Gutierrez against the estate of the decedent, Agustin complaint, as Annex "A" — whereby they sold to
Gutierrez, Sr., when she was not even an heir to the Pedro Gelera, for the sum of P500.00, a parcel of
estate in question, at the time, and the decedent had unregistered land therein described, and located in
no obligation whatsoever to give her support. Thus, the barrio of Cabubugan, municipality of Guimbal,
this Court ruled that Elpedia should have asked for province of Iloilo, including the improvements thereon,
support pendente lite before the Juvenile and subject to redemption within five (5) years or not later
than October 1, 1957; that said right of redemption A reconsideration of this order having been denied,
had not been exercised by Silvestre Gayon, plaintiff interposed the present appeal, which is well
Genoveva de Gayon, or any of their heirs or taken.
successors, despite the expiration of the period
therefor; that said Pedro Gelera and his wife Estelita Said order is manifestly erroneous and must be set
Damaso had, by virtue of a deed of sale — copy of aside. To begin with, it is not true that Mrs. Gayon
which was attached to the complaint, as Annex "B" — "has nothing to do with the land subject of plaintiff's
dated March 21, 1961, sold the aforementioned land complaint." As the widow of Silvestre Gayon, she is
to plaintiff Pedro Gayon for the sum of P614.00; that one of his compulsory heirs and has, accordingly, an
2
plaintiff had, since 1961, introduced thereon interest in the property in question. Moreover, her own
improvements worth P1,000; that he had, moreover, motion to dismiss indicated merely "a necessity of
fully paid the taxes on said property up to 1967; and amending the complaint," to the end that the other
that Articles 1606 and 1616 of our Civil Code require successors in interest of Silvestre Gayon, instead of
a judicial decree for the consolidation of the title in the latter, be made parties in this case. In her
and to a land acquired through a conditional sale, opposition to the aforesaid motion for reconsideration
and, accordingly, praying that an order be issued in of the plaintiff, Mrs. Gayon alleged, inter alia, that the
plaintiff's favor for the consolidation of ownership in "heirs cannot represent the dead defendant, unless
and to the aforementioned property. there is a declaration of heirship." Inasmuch,
however, as succession takes place, by operation of
In her answer to the complaint, Mrs. Gayon alleged law, "from the moment of the death of the
that her husband, Silvestre Gayon, died on January 6, decedent" and "(t)he inheritance includes all the
3
1954, long before the institution of this case; that property, rights and obligations of a person which are
Annex "A" to the complaint is fictitious, for the not extinguished by his death," it follows that if his
4
signature thereon purporting to be her signature is not heirs were included as defendants in this case, they
hers; that neither she nor her deceased husband had would be sued, not as "representatives" of the
ever executed "any document of whatever nature in decedent, but as owners of an aliquot interest in the
plaintiff's favor"; that the complaint is malicious and property in question, even if the precise extent of their
had embarrassed her and her children; that the heirs interest may still be undetermined and they have
of Silvestre Gayon had to "employ the services of derived it from the decent. Hence, they may be sued
counsel for a fee of P500.00 and incurred expenses without a previous declaration of heirship, provided
of at least P200.00"; and that being a brother of the there is no pending special proceeding for the
deceased Silvestre Gayon, plaintiff "did not exert settlement of the estate of the decedent. 5
Soon later, she filed a motion to dismiss, reproducing No suit shall be filed or maintained
substantially the averments made in her answer and between members of the same family
stressing that, in view of the death of Silvestre Gayon, unless it should appear that earnest
there is a "necessity of amending the complaint to suit efforts toward a compromise have
the genuine facts on record." Presently, or on been made, but that the same have
September 16, 1967, the lower court issued the order failed, subject to the limitations in
appealed from, reading: article 2035.
Considering the motion to dismiss and It is noteworthy that the impediment arising from this
it appearing from Exhibit "A" annexed provision applies to suits "filed or maintained between
to the complaint that Silvestre Gayon members of the same family." This phrase, "members
is the absolute owner of the land in of the same family," should, however, be construed in
question, and considering the fact that the light of Art. 217 of the same Code, pursuant to
Silvestre Gayon is now dead and his which:
wife Genoveva de Gayon has nothing
to do with the land subject of plaintiff's Family relations shall include those:
complaint, as prayed for, this case is
hereby dismissed, without
(1) Between husband and wife;
pronouncement as to costs. 1
(4) Among brothers and sisters. The following properties belonging to the late Don
Filemon Sotto and administered by respondent
Mrs. Gayon is plaintiff's sister-in-law, whereas her Marcelo Sotto were levied upon:
children are his nephews and/or nieces. Inasmuch as
none of them is included in the enumeration 1. Parcel of land on Lot No. 1049,
contained in said Art. 217 — which should be covered by TCT No. 27640 of the
construed strictly, it being an exception to the general Banilad Friar Lands Estate, Cebu City;
rule — and Silvestre Gayon must necessarily be
excluded as party in the case at bar, it follows that the 2. Parcel of land on Lot No. 1052,
same does not come within the purview of Art. 222, covered by TCT No. 27642 of the
and plaintiff's failure to seek a compromise before Banilad Friar Lands Estate, Cebu City;
filing the complaint does not bar the same.
3. Parcel of land on Lot No.
WHEREFORE, the order appealed from is hereby set 1051,covered by TCT No. 27641 of
aside and the case remanded to the lower court for the Banilad Friad Lands Estate, Cebu
the inclusion, as defendant or defendants therein, of City;
the administrator or executor of the estate of Silvestre
Gayon, if any, in lieu of the decedent, or, in the 4. Parcel of land on Lot No. 5253 of
absence of such administrator or executor, of the the Cebu Cadastre, Cebu City,
heirs of the deceased Silvestre Gayon, and for further covered by TCT No. 27639;
proceedings, not inconsistent with this decision, with
the costs of this instance against defendant-appellee,
5. Parcel of land situated at
Genoveva de Gayon. It is so ordered.
Mantalongon, Dalaguete, Cebu,
covered by TD No. 010661, with an
area of 76-708; (sic)
G.R. No. L-55076 September 21, 1987 6. Parcel of land on Lot No. 4839 of
the Upon Cadastre, at Barrio Sa-ac
MATILDE S. PALICTE, petitioner, Mactan Island, with an area of Forty
vs. Four Thousand Six Hundred Forty
HON. JOSE O. RAMOLETE as Presiding Judge of Four (44,644) square meters more or
Court of First Instance of Cebu, Branch III, and less;
MARCELO SOTTO, Administrator, respondents.
7. Residential House of strong
materials, situated on a Government
lot at Lahug, Cebu City;
GUTIERREZ, JR., J.:
8. Residential House of strong
This is a petition for review on certiorari of the order of materials, situated at Central, Cebu
the then Court of First Instance of Cebu declaring the City. " (Rollo, p. 40)
deed of redemption executed for the petitioner null
and void and denying the petitioner's motion that the Seven of the above-described properties were
Registrar of Deeds of the City of Cebu be directed to awarded to Pilar Teves, who alone bid for them for
transfer the Owner's Duplicate Certificates of Title to the amount of P217,300.00.
Lot Nos. 1049, 1051, and 1052 from Filemon Sotto to
her and to issue a new Owner's Duplicate Certificate The residential house situated on a government lot at
of Title to Lot 2179-C in her name. Lahug, Cebu City, was awarded to lone bidder
Asuncion Villarante for the amount of P10,000.00.
On July 5, 1979, a sale at public auction was held
pursuant to a writ of execution issued on February 5, Within the period for redemption, petitioner Matilde S.
1979 by the respondent judge and to a court order Palicte, as one of the heirs of the late Don Filemon
dated June 4, 1979 in the case of Pilar Teves, et al. Sotto, redeemed from purchaser Pilar Teves, four (4)
vs Marcelo Sotto, Administrator, Civil Case No. R- lots for the sum of P60,000.00.
A deed of redemption dated July 29, 1980, executed OF THE REVISED RULES OF
by Deputy Provincial Sheriff Felipe V. Belandres and COURT REAL PROPERTY SOLD ON
approved by the Clerk of Court, Esperanza Garcia as EXECUTION AGAINST THE ESTATE
Ex-Officio Sheriff, was issued for these lots: OF THE DECEDENT IS ONLY THE
ADMINISTRATOR OF THE ESTATE,
1. A parcel of land or Lot No. 2179-C- OR HIS SUCCESSOR-IN-INTEREST.
PDI-25027 Cebu Cadastre, Cebu City,
bid at P20,000.00; B
On July 24, 1980, petitioner Palicte filed a motion with RESPONDENT JUDGE ERRED IN
respondent Judge Ramolete for the transfer to her RULING THAT ALTHOUGH
name of the titles to the four (4) parcels of land PETITIONER IS A DECLARED HEIR
covered by the deed of redemption. OF THE DECEDENT, HER RIGHT
TO THE ESTATE, LIKE THAT OF
This motion was opposed by the plaintiffs in Civil REDEMPTION OF CERTAIN
Case No. R-10027, entitled "Pilar Teves, et al. vs ESTATE PROPERTY, COULD ONLY
Marcelo Sotto, administrator" on several grounds, ARISE AFTER DISTRIBUTION OF
principal among which, is that movant, Palicte, is not THE ESTATE AS THERE IS STILL
one of those authorized to redeem under the JUDGMENT DEBT CHARGEABLE
provisions of the Rules of Court. AGAINST THE ESTATE.
MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B. (c) more than forty (40) hectares of coconut lands in
LOCSIN, AUREA B. LOCSIN, MATILDE L. Bogtong, eighteen (18) hectares of riceland in
CORDERO, SALVADOR B. LOCSIN and MANUEL Daraga, and the residential lots in Daraga, Albay and
V. DEL ROSARIO, petitioners, in Legazpi City went to his son Mariano, which
vs. Mariano brought into his marriage to Catalina Jaucian
THE HON. COURT OF APPEALS, JOSE JAUCIAN, in 1908. Catalina, for her part, brought into the
FLORENTINO JAUCIAN, MERCEDES JAUCIAN marriage untitled properties which she had inherited
ARBOLEDA, HEIRS OF JOSEFINA J. BORJA, from her parents, Balbino Jaucian and Simona Anson.
HEIRS OF EDUARDO JAUCIAN and HEIRS OF These were augmented by other properties acquired
VICENTE JAUCIAN, respondents. by the spouses in the course of their union, which 1
Reversal of the decision of the Court of Appeals in his wife's nephew and trusted legal adviser, Attorney
CA-G.R. No. CV-11186 — affirming with modification Salvador Lorayes. Attorney Lorayes disclosed that the
the judgment of the Regional Trial Court of Albay in spouses being childless, they had agreed that their
favor of the plaintiffs in Civil Case No. 7152 entitled properties, after both of them shall have died should
"Jose Jaucian, et al. v. Mariano B. Locsin, et al.," an revert to their respective sides of the
action for recovery of real property with damages — is family, i.e., Mariano's properties would go to his
sought. in these proceedings initiated by petition for "Locsin relatives" (i.e., brothers and sisters or
review on certiorari in accordance with Rule 45 of the nephews and nieces), and those of Catalina to her
Rules of Court. "Jaucian relatives." 4
The petition was initially denied due course and Don Mariano Locsin died of cancer on September 14,
dismissed by this Court. It was however reinstated 1948 after a lingering illness. In due time, his will was
upon a second motion for reconsideration filed by the probated in Special Proceedings No. 138, CFI of
petitioners, and the respondents were required to Albay without any opposition from both sides of the
comment thereon. The petition was thereafter given family. As directed in his will, Doña Catalina was
due course and the parties were directed to submit appointed executrix of his estate. Her lawyer in the
their memorandums. These, together with the probate proceeding was Attorney Lorayes. In the
evidence, having been carefully considered, the Court inventory of her husband's estate which she 5
now decides the case. submitted to the probate court for approval, Catalina 6
Don Mariano relied on Doña Catalina to carry out the 15 Nov. 26, 1975 Deed of Sale in favor of 261 P
terms of their compact, hence, nine (9) years after his 4,930 - ditto -
death, as if in obedience to his voice from the grave, Aurea Locsin
and fully cognizant that she was also advancing in
years, Doña Catalina began transferring, by sale, 16 Oct. 17, 1975 Deed of Sale in favor of 533 P 2,000
donation or assignment, Don Mariano's as well as her Delfina Anson
own, properties to their respective nephews and Aurea Locsin M. Acabado
nieces. She made the following sales and donation of
properties which she had received from her husband's
17 Nov. 26, 1975 Deed of Sale in favor of 373 P
estate, to his Locsin nephews and nieces:
1,000 Leonor Satuito
Aurea Locsin Mariano B. Locsin
EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE
WITNESSES
19 Sept. 1, 1975 Conditional Donation in 1,130 P
3,000 - ditto -
23 Jan. 26, 1957 Deed of Absolute Sale in 962 P 481 favor of Mariano Locsin
favor of Mariano Locsin
1-MVRJ Dec. 29, 1972 Deed of Reconveyance
1-JRL Apr. 7, 1966 Deed of Sale in favor of 430,203 P 1,5110.66 P 1,000 Delfina Anson
20,000 in favor of Manuel V. del (Lot 2155) Antonio Illegible
Jose R. Locsin Rosario whose maternal
grandfather was Getulio
1-JJL Mar. 22, 1967 Deed of Sale in favor of 5,000 P Locsin
1,000 Hostilio Cornello
Julian Locsin (Lot 2020) Helen M. Jaucian 2-MVRJ June 30, 1973 Deed of Reconveyance
319.34 P 500 Antonio Illegible
1 Nov. 29, 1974 Deed of Donation in 26,509 in favor of Manuel V. del (Lot 2155) Salvador Nical
favor Aurea Locsin, Rosario but the rentals
Matilde L. Cordero from bigger portion of
and Salvador Locsin Lot 2155 leased to Filoil
Refinery were assigned to
2 Feb. 4, 1975 Deed of Donation in 34,045 Maria Jaucian Lorayes
favor Aurea Locsin, Cornelio
Matilde L. Cordero
and Salvador Locsin Of her own properties, Doña Catalina conveyed the
following to her own nephews and nieces and others:
3 Sept. 9, 1975 Deed of Donation in (Lot 2059)
favor Aurea Locsin, EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE
Matilde L. Cordero
and Salvador Locsin 2-JJL July 16, 1964 Deed of Sale in favor 5,000 P
1,000
4 July 15, 1974 Deed of Absolute Sale in 1,424 Vicente Jaucian (lot 2020)
Hostilio Cornelio (6,825 sqm. when
favor of Aurea B. Locsin Fernando Velasco resurveyed)
5 July 15, 1974 Deed of Absolute Sale in 1,456 P 24 Feb. 12, 1973 Deed of Absolute Sale 100 P 1,000
5,750 Hostilio Cornelio in favor of Francisco M.
favor of Aurea B. Locsin Elena Jaucian Maquiniana
6 July 15, 1974 Deed of Absolute Sale in 1,237 P 26 July 15, 1973 Deed of Absolute Sale in 130 P
5,720 - ditto - 1,300
favor of Aurea B. Locsin favor of Francisco
Maquiniana
27 May 3, 1973 Deed of Absolute Sale in 100 P 1,000 (1) declaring the, plaintiffs, except the
favor of Ireneo Mamia heirs of Josefina J. Borja and Eduardo
Jaucian, who withdrew, the rightful
28 May 3, 1973 Deed of Absolute Sale in 75 P 750 heirs and entitled to the entire estate,
favor of Zenaida Buiza in equal portions, of Catalina Jaucian
Vda. de Locsin, being the nearest
29 May 3, 1973 Deed of Absolute Sale in 150 P 1,500 collateral heirs by right of
favor of Felisa Morjella representation of Juan and Gregorio,
both surnamed Jaucian, and full-blood
brothers of Catalina;
30 Apr. 3, 1973 Deed of Absolute Sale in 31 P 1,000
favor of Inocentes Motocinos
(2) declaring the deeds of sale,
donations, reconveyance and
31 Feb. 12, 1973 Deed of Absolute Sale in 150 P
exchange and all other instruments
1,500
conveying any part of the estate of
favor of Casimiro Mondevil
Catalina J. Vda. de Locsin including,
but not limited to those in the inventory
32 Mar. 1, 1973 Deed of Absolute Sale in 112 P 1,200 of known properties (Annex B of the
favor of Juan Saballa complaint) as null and void ab-initio;
25 Dec. 28, 1973 Deed of Absolute Sale in 250 P (3) ordering the Register of Deeds of
2,500 Albay and/or Legazpi City to cancel all
of Rogelio Marticio certificates of title and other transfers
of the real properties, subject of this
Doña Catalina died on July 6, 1977. case, in the name of defendants, and
derivatives therefrom, and issue new
Four years before her death, she had made a will on ones to the plaintiffs;
October 22, 1973 affirming and ratifying the transfers
she had made during her lifetime in favor of her (4) ordering the defendants, jointly and
husband's, and her own, relatives. After the reading of severally, to reconvey ownership and
her will, all the relatives agreed that there was no possession of all such properties to
need to submit it to the court for probate because the the plaintiffs, together with all
properties devised to them under the will had already muniments of title properly endorsed
been conveyed to them by the deceased when she and delivered, and all the fruits and
was still alive, except some legacies which the incomes received by the defendants
executor of her will or estate, Attorney Salvador from the estate of Catalina, with legal
Lorayes, proceeded to distribute. interest from the filing of this action;
and where reconveyance and delivery
In 1989, or six (6) years after Doña Catalina's demise, cannot be effected for reasons that
some of her Jaucian nephews and nieces who had might have intervened and prevent the
already received their legacies and hereditary shares same, defendants shall pay for the
from her estate, filed action in the Regional Trial Court value of such properties, fruits and
of Legaspi City (Branch VIII, Civil Case No. 7152) to incomes received by them, also with
recover the properties which she had conveyed to the legal interest from the filing, of this
Locsins during her lifetime, alleging that the case
conveyances were inofficious, without consideration,
and intended solely to circumvent the laws on (5) ordering each of the defendants to
succession. Those who were closest to Doña Catalina pay the plaintiffs the amount of
did not join the action. P30,000.00 as exemplary damages;
and the further sum of P20,000.00
After the trial, judgment was rendered on July 8, l985 each as moral damages; and
in favor of the plaintiffs (Jaucian), and against the
Locsin defendants, the dispositive part of which (6) ordering the defendants to pay the
reads: plaintiffs attorney's fees and litigation
expenses, in the amount of
WHEREFORE, this Court renders P30,000.00 without prejudice to any
judgment for the plaintiffs and against contract between plaintiffs and
the defendants: counsel.
Costs against the defendants. 9
supported by the donor. Without such
reservation, the donation shall be
The Locsins appealed to the Court of Appeals (CA- reduced on petition of any person
G.R. No. CV-11186) which rendered its now appealed affected. (634a)
judgment on March 14, 1989, affirming the trial court's
decision. The lower court capitalized on the fact that Doña
Catalina was already 90 years old when she died on
The petition has merit and should be granted. July 6, 1977. It insinuated that because of her
advanced years she may have been imposed upon,
The trial court and the Court of Appeals erred in or unduly influenced and morally pressured by her
declaring the private respondents, nephews and husband's nephews and nieces (the petitioners) to
nieces of Doña Catalina J. Vda. de Locsin, entitled to transfer to them the properties which she had
inherit the properties which she had already disposed inherited from Don Mariano's estate. The records do
of more than ten (10) years before her death. For not support that conjecture.
those properties did not form part of her hereditary
estate, i.e., "the property and transmissible rights and For as early as 1957, or twenty-eight (28) years
obligations existing at the time of (the decedent's) before her death, Doña Catalina had already begun
death and those which have accrued thereto since the transferring to her Locsin nephews and nieces the
opening of the succession." The rights to a person's
10 properties which she received from Don Mariano. She
succession are transmitted from the moment of his sold a 962-sq.m. lot on January 26, 1957 to his
death, and do not vest in his heirs until such nephew and namesake Mariano Locsin II. On April
13
death to which her heirs may lay claim. Had she died 1967, she sold a 5,000-sq.m. portion of Lot 2020 to
intestate, only the property that remained in her estate Julian Locsin. 15
as donations, the right arising under certain and among Doña Catalina, Julian Locsin, Vicente
circumstances to impugn and compel the reduction or Jaucian and Agapito Lorete. At least Vicente
17
revocation of a decedent's gifts inter vivos does not Jaucian, among the other respondents in this case, is
inure to the respondents since neither they nor the estopped from assailing the genuineness and due
donees are compulsory (or forced) heirs. 12
execution of the sale of portions of Lot 2020 to
himself, Julian Locsin, and Agapito Lorete, and the
There is thus no basis for assuming an intention on partition agreement that he (Vicente) concluded with
the part of Doña Catalina, in transferring the the other co-owners of Lot 2020.
properties she had received from her late husband to
his nephews and nieces, an intent to circumvent the Among Doña, Catalina's last transactions before she
law in violation of the private respondents' rights to died in 1977 were the sales of property which she
her succession. Said respondents are not her made in favor of Aurea Locsin and Mariano Locsin in
compulsory heirs, and it is not pretended that she had 1975.18
which his wife had inherited from her parents, flies in donation dated February 4, 1975 in favor of Matilde
24
the teeth of Doña Catalina's admission in her Cordero, and (3) still another deed dated September
inventory of that estate, that "items 1 to 33 are the 9, 1975 in favor of Salvador Lorayes, were all
25
private properties of the deceased (Don Mariano) and witnessed by Hostilio Cornelio (who is married to
forms (sic) part of his capital at the time of the Doña Catalina's niece, Maria Lorayes) and Fernando
marriage with the surviving spouse, while items 34 to Velasco who is married to another niece, Maria
42 are conjugal properties, acquired during the Olbes. The sales which she made in favor of Aurea
26
marriage." She would have known better than anyone Locsin on July 15, 1974 were witnessed by Hostilio
27
else whether the listing included any of her Cornelio and Elena Jaucian. Given those
paraphernal property so it is safe to assume that none circumstances, said transactions could not have been
was in fact included. The inventory was signed by her anything but free and voluntary acts on her part.
under oath, and was approved by the probate court in
Special Proceeding No. 138 of the Court of First Apart from the foregoing considerations, the trial court
Instance of Albay. It was prepared with the assistance and the Court of Appeals erred in not dismissing this
of her own nephew and counsel, Atty. Salvador action for annulment and reconveyance on the ground
Lorayes, who surely would not have prepared a false of prescription. Commenced decades after the
inventory that would have been prejudicial to his transactions had been consummated, and six (6)
aunt's interest and to his own, since he stood to years after Doña Catalina's death, it prescribed four
inherit from her eventually. (4) years after the subject transactions were recorded
in the Registry of Property, whether considered an
28
This Court finds no reason to disbelieve Attorney action based on fraud, or one to redress an injury to
Lorayes' testimony that before Don Mariano died, he the rights of the plaintiffs. The private respondents
and his wife (Doña Catalina), being childless, had may not feign ignorance of said transactions because
agreed that their respective properties should the registration of the deeds was constructive notice
eventually revert to their respective lineal relatives. As thereof to them and the whole world. 29
plaintiff lodged a
complaint against the From this adverse decision, the private respondent
defendant regarding appealed to the respondent Court of Appeals, which
the land in question docketed the case as CA-G.R. CV No. 09853. He
with the Presidential asked the respondent Court to reverse the RTC
Action Committee On because the latter erred: (a) in not considering the
Land Problems unsullied testimonial and documentary evidence for
(PACLAP) as (sic) the appellant; (b) in appreciating the plaintiff-
Camp Wilhelm, appellee's flimsy and insufficient testimonial evidence;
Lucena City. And then (c) in not declaring that prescription and laches were
the instant action was raised by the defendant; (d) in declaring that the
filed in court on July failure to present to the cadastral court the deed of
12, 1977. absolute sale bars the appellant (private respondent)
from proving his ownership over the land in suit; and
On the contrary it is (e) in rendering judgment in favor of the petitioner.
8
execute to the defendant-appellant the concluded that the petitioner's claimed possession "is
proper deed of conveyance not possession in law that deserves protection and
transferring full ownership of Transfer recognition." On the other hand, it gave credit to the
13
Certificate of Title No. T-28170 to the private respondent's version chiefly because he has
said defendant-appellant; been paying irrigation charges since 1960.
(3) ordering the Register of Deeds of Aggrieved thereby, the petitioner took this recourse,
Lucena City to cancel said Transfer and raises the following issues:
Certificate of Title No. T-28170 and to
issue thereafter a new one in the 1. Whether or not the alleged sale of a
name of defendant-appellant, in the property by virtue of an instrument
event the plaintiff-appellee shall fail or which was not filed or registered under
refuse to execute the conveyance; Act 3344 and was not submitted
before the Cadastral Court during the
(4) ordering the plaintiff-appellee to hearing thereof may deprived (sic) an
pay attorney's fees of P10,000.00. adjudicated-declared owner the (sic)
enjoyment of possession and the
Costs against the plaintiff-appellee. 9 improvements thereof.
In resolving the appeal against the petitioner, the 2. Whether or not a party in (sic)
respondent Court stressed the fact that although OCT whose title was vested by virtue of a
No. 43073 was issued in 1937, it was only on 26 rendition of judgment and issuance of
August 1976 that the petitioner initially moved "to the decree of registration in a judicial
change the registered ownership" of the property with proceeding in rem which as such,
the issuance of TCT No. 27166. At that time, binds the whole world and who ever
petitioner was already forty-nine (49) years old. In claim (sic) thereafter on the said land
short, the respondent Court observed that she are (sic) deemed barred under the
allowed twenty-eight (28) years to pass — from the principle of res judicata.
time she attained the age of majority — before taking
any affirmative action to protect her rights over the 3. Whether (sic) or not property
property. It thus concluded that "suspicion then is not covered by Torence (sic) Title can be
altogether unjustified that the inaction was because acquired by prescription or adverse
the appellee knew of the sale by her father Juan possession. 14
property until she was dispossessed in 1976 by the trial court gave credence to the petitioner's account
private respondent principally because it was in the that she had legally possessed the property in
third quarter of 1977 that she (petitioner) declared the question until 1976, categorically ruling that the
questioned property in her name, and had paid land private respondent's "evidence does not convincingly
taxes thereon only for the same third quarter of 1977. establish that he possessed the property publicly,
exclusively and peacefully in the concept of was because the appellee knew of the
owner." The reasons for this pronouncement have
16
sale by her father to Juan (sic)
already been given. Clearly, these matters are Zabella. . . .
20
nor paid the real estate taxes thereon. All that he case, the private respondent's "adverse claim" is one
paid, and this was only beginning in 1960, were the based on a transaction which had occurred long
irrigation charges. And yet, the respondent Court before the rendition of the decision in the cadastral
resolved the issue in his favor. This palpable proceedings and the issuance of OCT No. 43073.
inconsistency on the part of the Court of Appeals This seems to have escaped the attention of the
defies all logic. public respondent which instead concluded that it was
the petitioner who did not take any legal action from
Furthermore, the respondent Court's conclusion that 1937, when OCT No. 43073 was issued, until 26
the petitioner made no move to have the property August 1976, when TCT NO. 27166 was issued
declared in her name or pay the real estate taxes following her execution on 22 June 1976 of the
thereon before 1976 because she knew all along affidavit of "self-adjudication." This conclusion has no
about the 1929 sale executed by her father to Ariston basis. As has been earlier adverted to, the continued
Zabella, is plain speculation and, as characterized by existence of OCT No. 43073 in Juan Zabella's name
the public respondent, a mere "suspicion," thus: protected the petitioner as the sole heir of Anastacio
Llenares. There is no law which requires her, as a
. . . The suspicion then is not sole heir, to execute an affidavit of adjudication and
altogether unjustified that the inaction cause both the cancellation of the OCT and the
issuance of a new one in her name and in the names It is now settled that an action for the conveyance of
of the heirs of co-owner Juan Zabella in order to property based on an implied or constructive trust
transfer the ownership of the property to her, or prescribes in ten (10) years. 30
judicial and in rem. As such, they bind the whole G.R. No. 77029 August 30, 1990
world. The final judgment rendered therein is deemed
to have settled the status of the land subject thereof; BIENVENIDO, ESTELITA, MACARIO, LUIS,
any claim over it not noted thereon by other parties is ADELAIDE, ENRIQUITA and CLAUDIO, all
therefore deemed barred under the principle of res surnamed, GEVERO, petitioners,
judicata. In a cadastal proceeding, the Government
24 vs.
is actually the plaintiff and all the claimants are INTERMEDIATE APPELLATE COURT and DEL
defendants. This is because the former, represented
25 MONTE DEVELOPMENT
by the Solicitor General, institutes the proceedings by CORPORATION, respondents.
a petition against the holders, claimants, possessors
or occupants of such lands or any part thereof while Carlito B. Somido for petitioners.
the latter, or those claiming interest in the entire land
or any part of it, whether named in the notice or not, Benjamin N. Tabios for private respondent.
are required to appear before the court and file an
answer on or before the return day or within such
further time as may be followed by the court. All 26
I. In holding that the real property of Thomas (a) The accrual of the inheritance tax is distinct from
Hanley, deceased, passed to his instituted the obligation to pay the same. Section 1536 as
heir, Matthew Hanley, from the moment of the amended, of the Administrative Code, imposes the
death of the former, and that from the time, tax upon "every transmission by virtue of inheritance,
the latter became the owner thereof. devise, bequest, gift mortis causa, or advance in
anticipation of inheritance,devise, or bequest." The
II. In holding, in effect, that there was tax therefore is upon transmission or the transfer or
deliquency in the payment of inheritance tax devolution of property of a decedent, made effective
due on the estate of said deceased. by his death. (61 C. J., p. 1592.) It is in reality an
excise or privilege tax imposed on the right to
succeed to, receive, or take property by or under a
III. In holding that the inheritance tax in
will or the intestacy law, or deed, grant, or gift to
question be based upon the value of the
become operative at or after death. Acording to article
estate upon the death of the testator, and not,
657 of the Civil Code, "the rights to the succession of
as it should have been held, upon the value
a person are transmitted from the moment of his
thereof at the expiration of the period of ten
death." "In other words", said Arellano, C. J., ". . . the
years after which, according to the testator's
heirs succeed immediately to all of the property of the
will, the property could be and was to be
deceased ancestor. The property belongs to the heirs
delivered to the instituted heir.
at the moment of the death of the ancestor as
completely as if the ancestor had executed and
IV. In not allowing as lawful deductions, in the delivered to them a deed for the same before his
determination of the net amount of the estate death." (Bondad vs. Bondad, 34 Phil., 232. See also,
subject to said tax, the amounts allowed by Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-
the court as compensation to the "trustees" Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil.,
and paid to them from the decedent's estate. 391; Innocencio vs. Gat-Pandan, 14 Phil., 491;
Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras
V. In not rendering judgment in favor of the Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19
plaintiff and in denying his motion for new trial. Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs.
Osario & Yuchausti Steamship Co., 41 Phil., 531;
The defendant-appellant contradicts the theories of Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First
the plaintiff and assigns the following error besides: Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of
Baun, 53 Phil., 654.) Plaintiff, however, asserts that
The lower court erred in not ordering the while article 657 of the Civil Code is applicable to
plaintiff to pay to the defendant the sum of testate as well as intestate succession, it operates
P1,191.27, representing part of the interest at only in so far as forced heirs are concerned. But the
the rate of 1 per cent per month from April 10, language of article 657 of the Civil Code is broad and
1924, to June 30, 1931, which the plaintiff had makes no distinction between different classes of
failed to pay on the inheritance tax assessed heirs. That article does not speak of forced heirs; it
by the defendant against the estate of does not even use the word "heir". It speaks of the
Thomas Hanley. rights of succession and the transmission thereof from
the moment of death. The provision of section 625 of
the Code of Civil Procedure regarding the (a) In the second and third cases of
authentication and probate of a will as a necessary the next preceding section, before
condition to effect transmission of property does not entrance into possession of the
affect the general rule laid down in article 657 of the property.
Civil Code. The authentication of a will implies its due
execution but once probated and allowed the (b) In other cases, within the six
transmission is effective as of the death of the testator months subsequent to the death of the
in accordance with article 657 of the Civil Code. predecessor; but if judicial
Whatever may be the time when actual transmission testamentary or intestate proceedings
of the inheritance takes place, succession takes place shall be instituted prior to the
in any event at the moment of the decedent's death. expiration of said period, the payment
The time when the heirs legally succeed to the shall be made by the executor or
inheritance may differ from the time when the heirs administrator before delivering to each
actually receive such inheritance. "Poco importa", beneficiary his share.
says Manresa commenting on article 657 of the Civil
Code, "que desde el falleimiento del causante, hasta If the tax is not paid within the time
que el heredero o legatario entre en posesion de los hereinbefore prescribed, interest at the rate of
bienes de la herencia o del legado, transcurra mucho twelve per centum per annum shall be added
o poco tiempo, pues la adquisicion ha de retrotraerse as part of the tax; and to the tax and interest
al momento de la muerte, y asi lo ordena el articulo due and unpaid within ten days after the date
989, que debe considerarse como complemento del of notice and demand thereof by the collector,
presente." (5 Manresa, 305; see also, art. 440, par. 1, there shall be further added a surcharge of
Civil Code.) Thomas Hanley having died on May 27, twenty-five per centum.
1922, the inheritance tax accrued as of the date.
A certified of all letters testamentary or of
From the fact, however, that Thomas Hanley died on admisitration shall be furnished the Collector
May 27, 1922, it does not follow that the obligation to of Internal Revenue by the Clerk of Court
pay the tax arose as of the date. The time for the within thirty days after their issuance.
payment on inheritance tax is clearly fixed by section
1544 of the Revised Administrative Code as amended
It should be observed in passing that the word
by Act No. 3031, in relation to section 1543 of the
"trustee", appearing in subsection (b) of section 1543,
same Code. The two sections follow:
should read "fideicommissary" or "cestui que trust".
There was an obvious mistake in translation from the
SEC. 1543. Exemption of certain acquisitions Spanish to the English version.
and transmissions. — The following shall not
be taxed:
The instant case does fall under subsection (a), but
under subsection (b), of section 1544 above-quoted,
(a) The merger of the usufruct in the as there is here no fiduciary heirs, first heirs, legatee
owner of the naked title. or donee. Under the subsection, the tax should have
been paid before the delivery of the properties in
(b) The transmission or delivery of the question to P. J. M. Moore as trustee on March 10,
inheritance or legacy by the fiduciary 1924.
heir or legatee to the trustees.
(b) The plaintiff contends that the estate of Thomas
(c) The transmission from the first heir, Hanley, in so far as the real properties are concerned,
legatee, or donee in favor of another did not and could not legally pass to the instituted
beneficiary, in accordance with the heir, Matthew Hanley, until after the expiration of ten
desire of the predecessor. years from the death of the testator on May 27, 1922
and, that the inheritance tax should be based on the
In the last two cases, if the scale of taxation value of the estate in 1932, or ten years after the
appropriate to the new beneficiary is greater testator's death. The plaintiff introduced evidence
than that paid by the first, the former must pay tending to show that in 1932 the real properties in
the difference. question had a reasonable value of only P5,787. This
amount added to the value of the personal property
SEC. 1544. When tax to be paid. — The tax left by the deceased, which the plaintiff admits is
fixed in this article shall be paid: P1,465, would generate an inheritance tax which,
excluding deductions, interest and surcharge, would
amount only to about P169.52.
If death is the generating source from which the allowed a deduction of only P480.81. This sum
power of the estate to impose inheritance taxes takes represents the expenses and disbursements of the
its being and if, upon the death of the decedent, executors until March 10, 1924, among which were
succession takes place and the right of the estate to their fees and the proven debts of the deceased. The
tax vests instantly, the tax should be measured by the plaintiff contends that the compensation and fees of
vlaue of the estate as it stood at the time of the the trustees, which aggregate P1,187.28 (Exhibits C,
decedent's death, regardless of any subsequent AA, EE, PP, HH, JJ, LL, NN, OO), should also be
contingency value of any subsequent increase or deducted under section 1539 of the Revised
decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. Administrative Code which provides, in part, as
L., p. 232; Blakemore and Bancroft, Inheritance follows: "In order to determine the net sum which
Taxes, p. 137. See also Knowlton vs. Moore, 178 must bear the tax, when an inheritance is concerned,
U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law. ed., 969.) there shall be deducted, in case of a resident, . . . the
"The right of the state to an inheritance tax accrues at judicial expenses of the testamentary or intestate
the moment of death, and hence is ordinarily proceedings, . . . ."
measured as to any beneficiary by the value at that
time of such property as passes to him. Subsequent A trustee, no doubt, is entitled to receive a fair
appreciation or depriciation is immaterial." (Ross, compensation for his services (Barney vs. Saunders,
Inheritance Taxation, p. 72.) 16 How., 535; 14 Law. ed., 1047). But from this it
does not follow that the compensation due him may
Our attention is directed to the statement of the rule in lawfully be deducted in arriving at the net value of the
Cyclopedia of Law of and Procedure (vol. 37, pp. estate subject to tax. There is no statute in the
1574, 1575) that, in the case of contingent Philippines which requires trustees' commissions to
remainders, taxation is postponed until the estate be deducted in determining the net value of the estate
vests in possession or the contingency is settled. This subject to inheritance tax (61 C. J., p. 1705).
rule was formerly followed in New York and has been Furthermore, though a testamentary trust has been
adopted in Illinois, Minnesota, Massachusetts, Ohio, created, it does not appear that the testator intended
Pennsylvania and Wisconsin. This rule, horever, is by that the duties of his executors and trustees should be
no means entirely satisfactory either to the estate or separated. (Ibid.; In re Vanneck's Estate, 161 N. Y.
to those interested in the property (26 R. C. L., p. Supp., 893; 175 App. Div., 363; In re Collard's Estate,
231.). Realizing, perhaps, the defects of its anterior 161 N. Y. Supp., 455.) On the contrary, in paragraph
system, we find upon examination of cases and 5 of his will, the testator expressed the desire that his
authorities that New York has varied and now real estate be handled and managed by his executors
requires the immediate appraisal of the postponed until the expiration of the period of ten years therein
estate at its clear market value and the payment provided. Judicial expenses are expenses of
forthwith of the tax on its out of the corpus of the administration (61 C. J., p. 1705) but, in State vs.
estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 Hennepin County Probate Court (112 N. W., 878; 101
N. E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Minn., 485), it was said: ". . . The compensation of a
Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. trustee, earned, not in the administration of the estate,
Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E., 958; but in the management thereof for the benefit of the
Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., legatees or devises, does not come properly within
1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. the class or reason for exempting administration
Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., expenses. . . . Service rendered in that behalf have no
888.) California adheres to this new rule (Stats. 1905, reference to closing the estate for the purpose of a
sec. 5, p. 343). distribution thereof to those entitled to it, and are not
required or essential to the perfection of the rights of
But whatever may be the rule in other jurisdictions, we the heirs or legatees. . . . Trusts . . . of the character
hold that a transmission by inheritance is taxable at of that here before the court, are created for the the
the time of the predecessor's death, notwithstanding benefit of those to whom the property ultimately
the postponement of the actual possession or passes, are of voluntary creation, and intended for the
enjoyment of the estate by the beneficiary, and the preservation of the estate. No sound reason is given
tax measured by the value of the property transmitted to support the contention that such expenses should
at that time regardless of its appreciation or be taken into consideration in fixing the value of the
depreciation. estate for the purpose of this tax."
(c) Certain items are required by law to be deducted (d) The defendant levied and assessed the
from the appraised gross in arriving at the net value of inheritance tax due from the estate of Thomas Hanley
the estate on which the inheritance tax is to be under the provisions of section 1544 of the Revised
computed (sec. 1539, Revised Administrative Code). Administrative Code, as amended by section 3 of Act
In the case at bar, the defendant and the trial court No. 3606. But Act No. 3606 went into effect on
January 1, 1930. It, therefore, was not the law in force and even those which, without expressly prohibiting
when the testator died on May 27, 1922. The law at certain acts, impose a penalty upon their commission
the time was section 1544 above-mentioned, as (59 C. J., p. 1110). Revenue laws, generally, which
amended by Act No. 3031, which took effect on impose taxes collected by the means ordinarily
March 9, 1922. resorted to for the collection of taxes are not classed
as penal laws, although there are authorities to the
It is well-settled that inheritance taxation is governed contrary. (See Sutherland, Statutory Construction,
by the statute in force at the time of the death of the 361; Twine Co. vs. Worthington, 141 U. S., 468; 12
decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed.,
4th ed., p. 3461). The taxpayer can not foresee and 910; Com. vs. Standard Oil Co., 101 Pa. St., 150;
ought not to be required to guess the outcome of State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article
pending measures. Of course, a tax statute may be 22 of the Revised Penal Code is not applicable to the
made retroactive in its operation. Liability for taxes case at bar, and in the absence of clear legislative
under retroactive legislation has been "one of the intent, we cannot give Act No. 3606 a retroactive
incidents of social life." (Seattle vs. Kelleher, 195 U. effect.
S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But
legislative intent that a tax statute should operate (e) The plaintiff correctly states that the liability to pay
retroactively should be perfectly clear. (Scwab vs. a tax may arise at a certain time and the tax may be
Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First paid within another given time. As stated by this court,
Trust & Savings Bank, 257 U. S., 602; Stockdale vs. "the mere failure to pay one's tax does not render one
Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 delinqent until and unless the entire period has
U. S., 221.) "A statute should be considered as eplased within which the taxpayer is authorized by
prospective in its operation, whether it enacts, law to make such payment without being subjected to
amends, or repeals an inheritance tax, unless the the payment of penalties for fasilure to pay his taxes
language of the statute clearly demands or expresses within the prescribed period." (U. S. vs. Labadan, 26
that it shall have a retroactive effect, . . . ." (61 C. J., Phil., 239.)
P. 1602.) Though the last paragraph of section 5 of
Regulations No. 65 of the Department of Finance The defendant maintains that it was the duty of the
makes section 3 of Act No. 3606, amending section executor to pay the inheritance tax before the delivery
1544 of the Revised Administrative Code, applicable of the decedent's property to the trustee. Stated
to all estates the inheritance taxes due from which otherwise, the defendant contends that delivery to the
have not been paid, Act No. 3606 itself contains no trustee was delivery to the cestui que trust, the
provisions indicating legislative intent to give it beneficiery in this case, within the meaning of the first
retroactive effect. No such effect can begiven the paragraph of subsection (b) of section 1544 of the
statute by this court. Revised Administrative Code. This contention is well
taken and is sustained. The appointment of P. J. M.
The defendant Collector of Internal Revenue Moore as trustee was made by the trial court in
maintains, however, that certain provisions of Act No. conformity with the wishes of the testator as
3606 are more favorable to the taxpayer than those of expressed in his will. It is true that the word "trust" is
Act No. 3031, that said provisions are penal in nature not mentioned or used in the will but the intention to
and, therefore, should operate retroactively in create one is clear. No particular or technical words
conformity with the provisions of article 22 of the are required to create a testamentary trust (69 C. J.,
Revised Penal Code. This is the reason why he p. 711). The words "trust" and "trustee", though apt for
applied Act No. 3606 instead of Act No. 3031. Indeed, the purpose, are not necessary. In fact, the use of
under Act No. 3606, (1) the surcharge of 25 per cent these two words is not conclusive on the question that
is based on the tax only, instead of on both the tax a trust is created (69 C. J., p. 714). "To create a trust
and the interest, as provided for in Act No. 3031, and by will the testator must indicate in the will his
(2) the taxpayer is allowed twenty days from notice intention so to do by using language sufficient to
and demand by rthe Collector of Internal Revenue separate the legal from the equitable estate, and with
within which to pay the tax, instead of ten days only sufficient certainty designate the beneficiaries, their
as required by the old law. interest in the ttrust, the purpose or object of the trust,
and the property or subject matter thereof. Stated
Properly speaking, a statute is penal when it imposes otherwise, to constitute a valid testamentary trust
punishment for an offense committed against the there must be a concurrence of three circumstances:
state which, under the Constitution, the Executive has (1) Sufficient words to raise a trust; (2) a definite
the power to pardon. In common use, however, this subject; (3) a certain or ascertain object; statutes in
sense has been enlarged to include within the term some jurisdictions expressly or in effect so providing."
"penal statutes" all status which command or prohibit (69 C. J., pp. 705,706.) There is no doubt that the
certain acts, and establish penalties for their violation, testator intended to create a trust. He ordered in his
will that certain of his properties be kept together For this reason, no one is allowed to object to or resist
undisposed during a fixed period, for a stated the payment of taxes solely because no personal
purpose. The probate court certainly exercised sound benefit to him can be pointed out. (Thomas vs. Gay,
judgment in appointment a trustee to carry into effect 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed.,
the provisions of the will (see sec. 582, Code of Civil 740.) While courts will not enlarge, by construction,
Procedure). the government's power of taxation (Bromley vs.
McCaughn, 280 U. S., 124; 74 Law. ed., 226; 50 Sup.
P. J. M. Moore became trustee on March 10, 1924. Ct. Rep., 46) they also will not place upon tax laws so
On that date trust estate vested in him (sec. 582 in loose a construction as to permit evasions on merely
relation to sec. 590, Code of Civil Procedure). The fanciful and insubstantial distictions. (U. S. vs. Watts,
mere fact that the estate of the deceased was placed 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs.
in trust did not remove it from the operation of our Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690,
inheritance tax laws or exempt it from the payment of followed in Froelich & Kuttner vs. Collector of
the inheritance tax. The corresponding inheritance tax Customs, 18 Phil., 461, 481; Castle Bros., Wolf &
should have been paid on or before March 10, 1924, Sons vs. McCoy, 21 Phil., 300; Muñoz & Co. vs. Hord,
to escape the penalties of the laws. This is so for the 12 Phil., 624; Hongkong & Shanghai Banking
reason already stated that the delivery of the estate to Corporation vs. Rafferty, 39 Phil., 145; Luzon
the trustee was in esse delivery of the same estate to Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When
the cestui que trust, the beneficiary in this case. A proper, a tax statute should be construed to avoid the
trustee is but an instrument or agent for the cestui possibilities of tax evasion. Construed this way, the
que trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. statute, without resulting in injustice to the taxpayer,
Rep., 689; 57 Law. ed., 1086). When Moore accepted becomes fair to the government.
the trust and took possesson of the trust estate he
thereby admitted that the estate belonged not to him That taxes must be collected promptly is a policy
but to his cestui que trust (Tolentino vs. Vitug, 39 deeply intrenched in our tax system. Thus, no court is
Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not allowed to grant injunction to restrain the collection of
acquire any beneficial interest in the estate. He took any internal revenue tax ( sec. 1578, Revised
such legal estate only as the proper execution of the Administrative Code; Sarasola vs. Trinidad, 40 Phil.,
trust required (65 C. J., p. 528) and, his estate ceased 252). In the case of Lim Co Chui vs. Posadas (47
upon the fulfillment of the testator's wishes. The Phil., 461), this court had occassion to demonstrate
estate then vested absolutely in the beneficiary (65 C. trenchment adherence to this policy of the law. It held
J., p. 542). that "the fact that on account of riots directed against
the Chinese on October 18, 19, and 20, 1924, they
The highest considerations of public policy also justify were prevented from praying their internal revenue
the conclusion we have reached. Were we to hold taxes on time and by mutual agreement closed their
that the payment of the tax could be postponed or homes and stores and remained therein, does not
delayed by the creation of a trust of the type at hand, authorize the Collector of Internal Revenue to extend
the result would be plainly disastrous. Testators may the time prescribed for the payment of the taxes or to
provide, as Thomas Hanley has provided, that their accept them without the additional penalty of twenty
estates be not delivered to their beneficiaries until five per cent." (Syllabus, No. 3.)
after the lapse of a certain period of time. In the case
at bar, the period is ten years. In other cases, the trust ". . . It is of the utmost importance," said the Supreme
may last for fifty years, or for a longer period which Court of the United States, ". . . that the modes
does not offend the rule against petuities. The adopted to enforce the taxes levied should be
collection of the tax would then be left to the will of a interfered with as little as possible. Any delay in the
private individual. The mere suggestion of this result proceedings of the officers, upon whom the duty is
is a sufficient warning against the accpetance of the developed of collecting the taxes, may derange the
essential to the very exeistence of government. operations of government, and thereby, cause serious
(Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., detriment to the public." (Dows vs. Chicago, 11 Wall.,
1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. 108; 20 Law. ed., 65, 66; Churchill and Tait vs.
ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19 Rafferty, 32 Phil., 580.)
Law. ed., 101; Union Refrigerator Transit Co. vs.
Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 It results that the estate which plaintiff represents has
Law. ed., 150; Charles River Bridge vs. Warren been delinquent in the payment of inheritance tax
Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation and, therefore, liable for the payment of interest and
to pay taxes rests not upon the privileges enjoyed by, surcharge provided by law in such cases.
or the protection afforded to, a citizen by the
government but upon the necessity of money for the
support of the state (Dobbins vs. Erie Country, supra).
The delinquency in payment occurred on March 10, twelve per centum per annum from March 10, 1924,
1924, the date when Moore became trustee. The the date of delinquency, to September 15, 1932, the
interest due should be computed from that date and it date of payment under protest, a period covering 8
is error on the part of the defendant to compute it one years, 6 months and 5 days. To the tax and interest
month later. The provisions cases is mandatory thus computed should be added the sum of P724.88,
(see and cf. Lim Co Chui vs. Posadas, supra), and representing a surhcarge of 25 per cent on both the
neither the Collector of Internal Revenuen or this tax and interest, and also P10, the compromise sum
court may remit or decrease such interest, no matter fixed by the defendant (Exh. 29), giving a grand total
how heavily it may burden the taxpayer. of P3,634.43.
To the tax and interest due and unpaid within ten As the plaintiff has already paid the sum of P2,052.74,
days after the date of notice and demand thereof by only the sums of P1,581.69 is legally due from the
the Collector of Internal Revenue, a surcharge of estate. This last sum is P390.42 more than the
twenty-five per centum should be added (sec. 1544, amount demanded by the defendant in his
subsec. (b), par. 2, Revised Administrative Code). counterclaim. But, as we cannot give the defendant
Demand was made by the Deputy Collector of more than what he claims, we must hold that the
Internal Revenue upon Moore in a communiction plaintiff is liable only in the sum of P1,191.27 the
dated October 16, 1931 (Exhibit 29). The date fixed amount stated in the counterclaim.
for the payment of the tax and interest was November
30, 1931. November 30 being an official holiday, the The judgment of the lower court is accordingly
tenth day fell on December 1, 1931. As the tax and modified, with costs against the plaintiff in both
interest due were not paid on that date, the estate instances. So ordered.
became liable for the payment of the surcharge.
Article 779
In view of the foregoing, it becomes unnecessary for
us to discuss the fifth error assigned by the plaintiff in
G.R. No. L-21993 June 21, 1966
his brief.
ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET
We shall now compute the tax, together with the
AL., petitioners,
interest and surcharge due from the estate of Thomas
vs.
Hanley inaccordance with the conclusions we have
HON. JUAN DE BORJA, as Judge of the Court of
reached.
First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA
At the time of his death, the deceased left real JACALAN, respondents.
properties valued at P27,920 and personal properties
worth P1,465, or a total of P29,385. Deducting from
Lorenzo Somulong for petitioners.
this amount the sum of P480.81, representing
Torres and Torres for respondents.
allowable deductions under secftion 1539 of the
Revised Administrative Code, we have P28,904.19 as
the net value of the estate subject to inheritance tax. REYES, J.B.L., J.:
The primary tax, according to section 1536, Petitioners Angela, Maria, Abelardo and Antonio,
subsection (c), of the Revised Administrative Code, surnamed Rodriguez, petition this Court for a writ
should be imposed at the rate of one per centum of certiorari and prohibition to the Court of First
upon the first ten thousand pesos and two per centum Instance of Bulacan, for its refusal to grant their
upon the amount by which the share exceed thirty motion to dismiss its Special Proceeding No. 1331,
thousand pesos, plus an additional two hundred per which said Court is alleged to have taken cognizance
centum. One per centum of ten thousand pesos is of without jurisdiction.
P100. Two per centum of P18,904.19 is P378.08.
Adding to these two sums an additional two hundred The facts and issues are succinctly narrated in the
per centum, or P965.16, we have as primary tax, order of the respondent court, dated June 13, 1963
correctly computed by the defendant, the sum of (Petition, Annex 0), in this wise:
P1,434.24.
It is alleged in the motion to dismiss filed by
To the primary tax thus computed should be added Angela, Maria, Abelardo and Antonio
the sums collectible under section 1544 of the Rodriguez, through counsel, that this Court
Revised Administrative Code. First should be added "has no jurisdiction to try the above-entitled
P1,465.31 which stands for interest at the rate of case in view of the pendency of another
action for the settlement of the estate of the therefore has precedence over the case filed
deceased Rev. Fr. Celestino Rodriguez in the in Rizal on March 12, 1963.
Court of First Instance of Rizal, namely, Sp.
Proceedings No. 3907 entitled 'In the matter The Court of First Instance, as previously stated
of the Intestate Estate of the deceased Rev. denied the motion to dismiss on the ground that a
Fr. Celestino Rodriguez which was filed ahead difference of a few hours did not entitle one
of the instant case". proceeding to preference over the other; that, as early
as March 7, movants were aware of the existence of
The records show that Fr. Celestino the purported will of Father Rodriguez, deposited in
Rodriguez died on February 12, 1963 in the the Court of Bulacan, since they filed a petition to
City of Manila; that on March 4, 1963, examine the same, and that movants clearly filed the
Apolonia Pangilinan and Adelaida Jacalan intestate proceedings in Rizal "for no other purpose
delivered to the Clerk of Court of Bulacan a than to prevent this Court (of Bulacan) from exercising
purported last will and testament of Fr. jurisdiction over the probate proceedings".
Rodriguez; that on March 8, 1963, Maria Reconsideration having been denied, movants, now
Rodriguez and Angela Rodriguez, through petitioners, came to this Court, relying principally on
counsel filed a petition for leave of court to Rule 73, section 1 of the Rules of Court, and invoking
allow them to examine the alleged will; that on our ruling in Ongsingco vs. Tan and De Borja, L-7792,
March 11, 1963 before the Court could act on July 27, 1955.
the petition, the same was withdrawn; that on
March 12, 1963, aforementioned petitioners SECTION 1. Where estate of deceased
filed before the Court of First Instance of Rizal persons settled. — If the decedent is an
a petition for the settlement of the intestate inhabitant of the Philippines at the time of his
estate of Fr. Rodriguez alleging, among other death, whether a citizen or an alien, his will
things, that Fr. Rodriguez was a resident of shall be proved, or letters of administration
Parañaque, Rizal, and died without leaving a granted, and his estate settled, in the Court of
will and praying that Maria Rodriguez be First Instance in the province in which he
appointed as Special Administratrix of the resides at the time of his death, and if he is an
estate; and that on March 12, 1963 Apolonia inhabitant of a foreign country, the Court of
Pangilinan and Adelaida Jacalan filed a First Instance of any province which he had
petition in this Court for the probation of the estate. The court first taking cognizance of the
will delivered by them on March 4, 1963. It settlement of the estate of a decedent, shall
was stipulated by the parties that Fr. exercise jurisdiction to the exclusion of all
Rodriguez was born in Parañaque, Rizal; that other courts. The jurisdiction assumed by a
he was Parish priest of the Catholic Church of court, as far as it depends on the place of
Hagonoy, Bulacan, from the year 1930 up to residence of the decedent, or of the location
the time of his death in 1963; that he was of his estate, shall not be contested in a suit or
buried in Parañaque, and that he left real proceeding, except in an appeal from that
properties in Rizal, Cavite, Quezon City and court, in the original case, or when the want of
Bulacan. jurisdiction appears on the record.
The movants contend that since the intestate We find this recourse to be untenable. The jurisdiction
proceedings in the Court of First Instance of of the Court of First Instance of Bulacan became
Rizal was filed at 8:00 A.M. on March 12, vested upon the delivery thereto of the will of the late
1963 while the petition for probate was filed in Father Rodriguez on March 4, 1963, even if no
the Court of First Instance of Bulacan at 11:00 petition for its allowance was filed until later, because
A.M. on the same date, the latter Court has no upon the will being deposited the court could, motu
jurisdiction to entertain the petition for proprio, have taken steps to fix the time and place for
probate, citing as authority in support thereof proving the will, and issued the corresponding notices
the case of Ongsingco Vda. de Borja vs. Tan conformably to what is prescribed by section 3, Rule
and De Borja, G.R. No. 7792, July 27, 1955. 76, of the Revised Rules of Court (Section 3, Rule 77,
of the old Rules):
The petitioners Pangilinan and Jacalan, on
the other hand, take the stand that the Court SEC. 3. Court to appoint time for proving
of First Instance of Bulacan acquired will. Notice thereof to be published. — When a
jurisdiction over the case upon delivery by will is delivered to, or a petition for the
them of the will to the Clerk of Court on March allowance of a will is filed in, the Court having
4, 1963, and that the case in this Court jurisdiction, such Court shall fix a time and
place for proving the will when all concerned and the same case will have to be
may appear to contest the allowance thereof, commenced anew before another court of the
and shall cause notice of such time and place same rank in another province. That this is of
to be published three (3) weeks successively, mischievous effect in the prompt
previous to the time appointed, in a administration of justice is too obvious to
newspaper of general circulation in the require comment. (Cf. Tanunchuan vs. Dy
province. Buncio & Co., G.R. No. 48206, December 31,
1942). Furthermore, section 600 of Act No.
But no newspaper publication shall be made 190, providing that the estate of a deceased
where the petition for probate has been filed person shall be settled in the province where
by the testator himself. he had last resided, could not have been
intended as defining the jurisdiction of the
The use of the disjunctive in the words "when a will is probate court over the subject matter,
delivered to OR a petition for the allowance of a will is because such legal provision is contained in a
filed" plainly indicates that the court may act upon the law of procedure dealing merely with
mere deposit therein of a decedent's testament, even procedural matters, and, as we have said time
if no petition for its allowance is as yet filed. Where and again, procedure is one thing and
the petition for probate is made after the deposit of jurisdiction over the subject matter is another.
the will, the petition is deemed to relate back to the (Attorney General vs. Manila Railroad
time when the will was delivered. Since the testament Company, 20 Phil. 523.) The law of
of Fr. Rodriguez was submitted and delivered to the jurisdiction — Act No. 136, Section 56, No. 5
Court of Bulacan on March 4, while petitioners — confers upon Courts of First Instance
initiated intestate proceedings in the Court of First jurisdiction over all probate cases
Instance of Rizal only on March 12, eight days later, independently of the place of residence of the
the precedence and exclusive jurisdiction of the deceased.1 Since, however, there are many
Bulacan court is incontestable. Courts of First Instance in the Philippines, the
Law of Procedure, Act No. 190, section 600,
1äwphï1.ñët
In the Kaw Singco case (ante) this Court ruled that: This disposition presupposes that two or more courts
have been asked to take cognizance of the settlement
"... If we consider such question of residence of the estate. Of them only one could be of proper
as one affecting the jurisdiction of the trial venue, yet the rule grants precedence to that Court
court over the subject-matter, the effect shall whose jurisdiction is first invoked, without taking
be that the whole proceedings including all venue into account.
decisions on the different incidents which
have arisen in court will have to be annulled
There are two other reasons that militate against the Wherefore, the writ of certiorari applied for is denied.
success of petitioners. One is that their commencing Costs against petitioners Rodriguez.
intestate proceedings in Rizal, after they learned of
the delivery of the decedent's will to the Court of G.R. No. L-39247 June 27, 1975
Bulacan, was in bad faith, patently done with a view to
divesting the latter court of the precedence awarded it
In the Matter of the Petition to Approve the Will of
by the Rules. Certainly the order of priority
Leodegaria Julian. FELIX BALANAY,
established in Rule 73 (old Rule 75) was not designed
JR., petitioner,
to convert the settlement of decedent's estates into a
vs.
race between applicants, with the administration of
HON. ANTONIO M. MARTINEZ, Judge of the Court
the properties as the price for the fleetest.
of First Instance of Davao, Branch VI; AVELINA B.
ANTONIO and DELIA B. LANABAN, respondents.
The other reason is that, in our system of civil law,
intestate succession is only subsidiary or subordinate
Roberto M. Sarenas for petitioner.
to the testate, since intestacy only takes place in the
absence of a valid operative will. Says Article 960 of
the Civil Code of the Philippines: Jose B. Guyo for private respondents.
(3) If the suspensive condition attached to the Leodegaria Julian, a native of Sta. Maria, Ilocos Sur,
institution of heir does not happen or is not died on February 12, 1973 in Davao City at the age of
fulfilled, or if the heir dies before the testator, sixty-seven. She was survived by her husband, Felix
or repudiates the inheritance, there being no Balanay, Sr., and by their six legitimate children
substitution, and no right of accretion takes named Felix Balanay, Jr., Avelina B. Antonio, Beatriz
place; B. Solamo, Carolina B. Manguiob, Delia B. Lanaban
and Emilia B. Pabaonon.
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this Felix J. Balanay, Jr. filed in the lower court a petition
Code. dated February 27, 1973 for the probate of his
mother's notarial will dated September 5, 1970 which
is written in English. In that will Leodegaria Julian
Therefore, as ruled in Castro, et al. vs. Martinez, 10
declared (a) that she was the owner of the "southern
Phil. 307, "only after final decision as to the nullity of
half of nine conjugal lots (par. II); (b) that she was the
testate succession could an intestate succession be
absolute owner of two parcels of land which she
instituted in the form of pre-established action". The
inherited from her father (par. III), and (c) that it was
institution of intestacy proceedings in Rizal may not
her desire that her properties should not be divided
thus proceed while the probate of the purported will of
among her heirs during her husband's lifetime and
Father Rodriguez is pending.
that their legitimes should be satisfied out of the fruits
of her properties (Par. IV).
We rule that the Bulacan Court of First Instance was
entitled to priority in the settlement of the estate in
Then, in paragraph V of the will she stated that after
question, and that in refusing to dismiss the probate.
her husband's death (he was eighty-two years old in
proceedings, said court did not commit any abuse of
1973) her paraphernal lands and all the conjugal
discretion. It is the proceedings in the Rizal Court that
lands (which she described as "my properties")
should be discontinued.
should be divided and distributed in the manner set
forth in that part of her will. She devised and
partitioned the conjugal lands as if they were all effected a compromise of future legitimes. He prayed
owned by her. She disposed of in the will her that the probate of the will be withdrawn and that the
husband's one half share of the conjugal assets. * proceeding be converted into an intestate proceeding.
In another motion of the same date he asked that the
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on corresponding notice to creditors be issued.
the grounds of lack of testamentary capacity, undue influence, preterition of
the husband and alleged improper partition of the conjugal estate. The
oppositors claimed that Felix Balanay, Jr. should collate certain properties Avelina B. Antonio and Delia B. Lanaban, through
which he had received from the testatrix.
Atty. Jose B. Guyo, in their comments dated October
15, 1973 manifested their conformity with the motion
Felix Balanay, Jr., in his reply to the opposition, for the issuance of a notice to creditors. They prayed
attached thereto an affidavit of Felix Balanay, Sr. that the will be declared void for being contrary to law
dated April 18, 1973 wherein he withdrew his and that an intestacy be declared.
opposition to the probate of the will and affirmed that
he was interested in its probate. On the same date The lower court, acting on the motions of Atty.
Felix Balanay, Sr. signed an instrument captioned Montaña, assumed that the issuance of a notice to
"Conformation (sic) of Division and Renunciation of creditors was in order since the parties had agreed on
Hereditary Rights" wherein he manifested that out of that point. It adopted the view of Attys. Montaña and
respect for his wife's will he "waived and renounced' Guyo that the will was void. So, in its order of
his hereditary rights in her estate in favor of their six February 28, 1974 it dismissed the petition for the
children. In that same instrument he confirmed the probate, converted the testate proceeding into an
agreement, which he and his wife had perfected intestate proceeding, ordered the issuance of a notice
before her death, that their conjugal properties would to creditors and set the intestate proceeding for
be partitioned in the manner indicated in her will. hearing on April 1 and 2, 1974. The lower court did
not abrogate its prior orders of June 18 and October
Avelina B. Antonio, an oppositor, in her rejoinder 15, 1973. The notice to creditors was issued on April
contended that the affidavit and "conformation" of 1, 1974 and published on May 2, 9 and 16 in the
Felix Balanay, Sr. were void. The lower court in its Davao Star in spite of petitioner's motion of April 17,
order of June 18, 1973 "denied" the opposition and 1974 that its publication be held in abeyance.
reset for hearing the probate of the will. It gave effect
to the affidavit and conformity of Felix Balanay, Sr. In Felix Balanay, Jr., through a new counsel, Roberto M.
an order dated August 28, 1973 it appointed its Sarenas, in a verified motion dated April 15, 1974,
branch clerk of court as special administrator of the asked for the reconsideration of the lower court's
decedent's estate. order of February 28, 1974 on the ground that Atty.
Montaña had no authority to withdraw the petition for
Mrs. Antonio moved for the reconsideration of the the allowance of the will. Attached to the motion was
lower court's order of June 18, 1973 on the grounds a copy of a letter dated March 27, 1974 addressed to
(a) that the testatrix illegally claimed that she was the Atty. Montaña and signed by Felix Balanay, Jr.,
owner of the southern half of the conjugal lots and (b) Beatriz V. Solamo, Carolina B. Manguiob and Emilia
that she could not partition the conjugal estate by B. Pabaonon, wherein they terminated Montaña's
allocating portions of the nine lots to her children. services and informed him that his withdrawal of the
Felix Balanay, Jr., through his counsel, Hermenegildo petition for the probate of the will was without their
Cabreros, opposed that motion. The lower court consent and was contrary to their repeated reminder
denied it in its order of October 15, 1973. to him that their mother's will was "very sacred" to
them.
In the meanwhile, another lawyer appeared in the
case. David O. Montaña, Sr., claiming to be the Avelina B. Antonio and Delia B. Lanaban opposed the
lawyer of petitioner Felix Balanay, Jr. (his counsel of motion for reconsideration. The lower court denied the
record was Atty. Cabreros), filed a motion dated motion in its order of June 29, 1974. It clarified that it
September 25, 1973 for "leave of court to withdraw declared the will void on the basis of its own
probate of alleged will of Leodegaria Julian and independent assessment of its provisions and not
requesting authority to proceed by intestate estate because of Atty. Montaña's arguments.
proceeding." In that motion Montaña claimed to be the
lawyer not only of the petitioner but also of Felix The basic issue is whether the probate court erred in
Balanay, Sr., Beatriz B. Solamo, Carolina B. passing upon the intrinsic validity of the will, before
Manguiob and Emilia B. Pabaonon. ruling on its allowance or formal validity, and in
declaring it void.
Montaña in his motion assailed the provision of the
will which partitioned the conjugal assets or allegedly
We are of the opinion that in view of certain unusual prejudice the legitime of the
provisions of the will, which are of dubious legality, compulsory heirs.
and because of the motion to withdraw the petition for
probate (which the lower court assumed to have been A parent who, in the interest of his or
filed with the petitioner's authorization), the trial court her family, to keep any agricultural,
acted correctly in passing upon the will's intrinsic industrial, or manufacturing enterprise
validity even before its formal validity had been intact, may avail himself of the right
established. The probate of a will might become an granted him in this article, by ordering
idle ceremony if on its face it appears to be that the legitime of the other children
intrinsically void. Where practical considerations to whom the property is not assigned
demand that the intrinsic validity of the will be passed be paid in cash. (1056a)
upon, even before it is probated, the court should
meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 The testatrix in her will made a partition of the entire
SCRA 449. Compare with Sumilang vs. Ramagosa, conjugal estate among her six children (her husband
L-23135, December 26, 1967, 21 SCRA 1369; Cacho had renounced his hereditary rights and his one-half
vs. Udan, L-19996, April 30, 1965, 13 SCRA 693). 1äwphï1.ñët
The rule is that "the invalidity of one of several Felix Balanay, Sr. could validly renounce his
dispositions contained in a will does not result in the hereditary rights and his one-half share of the
invalidity of the other dispositions, unless it is to be conjugal partnership (Arts. 179[1] and 1041, Civil
presumed that the testator would not have made such Code) but insofar as said renunciation partakes of a
other dispositions if the first invalid disposition had not donation of his hereditary rights and his one-half
been made" (Art. 792, Civil Code). "Where some of share in the conjugal estate (Art. 1060[1] Civil Code),
the provisions of a will are valid and others invalid, the it should be subject to the limitations prescribed in
valid parts will be upheld if they can be separated articles 750 and 752 of the Civil Code. A portion of the
from the invalid without defeating the intention of the estate should be adjudicated to the widower for his
testator or interfering with the general testamentary support and maintenance. Or at least his legitime
scheme, or doing injustice to the beneficiaries" (95 should be respected.
C.J.S. 873).
Subject to the foregoing observations and the rules on
The statement of the testatrix that she owned the collation, the will is intrinsically valid and the partition
"southern half of the conjugal lands is contrary to law therein may be given effect if it does not prejudice the
because, although she was a coowner thereof, her creditors and impair the legitimes. The distribution
share was inchoate and proindiviso (Art. 143, Civil and partition would become effective upon the death
Code; Madrigal and Paterno vs. Rafferty and of Felix Balanay, Sr. In the meantime, the net income
Concepcion, 38 Phil. 414). But That illegal declaration should be equitably divided among the children and
does not nullify the entire will. It may be disregarded. the surviving spouse.
The provision of the will that the properties of the It should be stressed that by reason of the surviving
testatrix should not be divided among her heirs during husband's conformity to his wife's will and his
her husband's lifetime but should be kept intact and renunciation of his hereditary rights, his one-half
that the legitimes should be paid in cash is contrary to conjugal share became a part of his deceased wife's
article 1080 of the Civil Code which reads: estate. His conformity had the effect of validating the
partition made in paragraph V of the will without
ART. 1080. Should a person make a prejudice, of course, to the rights of the creditors and
partition of his estate by an act inter the legitimes of the compulsory heirs.
vivos, or by will, such partition shall be
respected, insofar as it does not Article 793 of the Civil Code provides that "property
acquired after the making of a will shall only pass
thereby, as if the testator had it at the time of making legally tenable, such desire be given effect
the will, should it expressly appear by the will that independent of the attitude of the parties affected
such was his intention". Under article 930 of the Civil thereby" (Resolution, Vda. de Precilla vs. Narciso, L-
Code "the legacy or devise of a thing belonging to 27200, August 18, 1972, 46 SCRA 538, 565).
another person is void, if the testator erroneously
believed that the thing pertained to him. But if the To give effect to the intention and wishes of the
thing bequeathed, though not belonging to the testatrix is the first and principal law in the matter of
testator when he made the will, afterwards becomes testaments (Dizon-Rivera vs. Dizon, L-24561, June
his, by whatever title, the disposition shall take effect." 30, 1970, 33 SCRA 554, 561). Testacy is preferable
to intestacy. An interpretation that will render a
In the instant case there is no doubt that the testatrix testamentary disposition operative takes precedence
and her husband intended to partition the conjugal over a construction that will nullify a provision of the
estate in the manner set forth in paragraph V of her will (Arts. 788 and 791, Civil Code).
will. It is true that she could dispose of by will only her
half of the conjugal estate (Art. 170, Civil Code) but Testacy is favored. Doubts are resolved in favor of
since the husband, after the dissolution of the testacy especially where the will evinces an intention
conjugal partnership, had assented to her on the part of the testator to dispose of practically his
testamentary partition of the conjugal estate, such whole estate. So compelling is the principle that
partition has become valid, assuming that the will may intestacy should be avoided and that the wishes of
be probated. the testator should prevail that sometimes the
language of the will can be varied for the purpose of
The instant case is different from giving it effect (Austria vs. Reyes, L-23079, February
the Nuguid case, supra, where the testatrix instituted 27, 1970, 31 SCRA 754, 762).
as heir her sister and preterited her parents. Her will
was intrinsically void because it preterited her As far as is legally possible, the expressed desire of
compulsory heirs in the direct line. Article 854 of the the testator must be followed and the dispositions of
Civil Code provides that "the preterition or omission of the properties in his will should be upheld (Estorque
one, some, or all of the compulsory heirs in vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540,
the direct line, whether living at the time of the 546).
execution of the will or born after the death of the
testator, shall annul the institution of heir; but the The law has a tender regard for the wishes of the
devises and legacies, shall be valid insofar as they testator as expressed in his will because any
are not inofficious." Since the preterition of the disposition therein is better than that which the law
parents annulled the institution of the sister of the can make (Castro vs. Bustos, L-25913, February 28,
testatrix and there were no legacies and devises, total 1969, 27 SCRA 327, 341).
intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët
On January 3, 1979, Rufo mortgaged a parcel of land, On February 7, 1997, the RTC rendered a
which he owns, as security for a loan he obtained Decision9 disposing as follows:
from the Rural Bank of Maigo, Lanao del Norte
(Bank). The said property was originally covered by
Original Certificate of Title No. P-439(788) and more
particularly described as follows:
WHEREFORE, judgment is hereby rendered, RESPONDENTS; THUS, WARRANTING THE
ordering the plaintiffs to execute a Deed of Sale in PETITIONER'S ACT OF ENFORCING THE
favor of the defendant, the one-third share of the AGREEMENT BY REIMBURSING THE
property in question, presently possessed by him, and RESPONDENTS OF HIS (PETITIONER'S) JUST
described in the deed of partition, as follows: SHARE OF THE REPURCHASE PRICE.11
A one-third portion of Transfer Certificate of Title No. The main issue raised by petitioner is whether co-
T-39,484 (a.f.), formerly Original Certificate of Title ownership by him and respondents over the subject
No. P-788, now in the name of Saturnino Balus and property persisted even after the lot was purchased
Leonarda B. Vda. de Calunod, situated at Lagundang, by the Bank and title thereto transferred to its name,
Bunawan, Iligan City, bounded on the North by Lot and even after it was eventually bought back by the
5122; East by shares of Saturnino Balus and respondents from the Bank.
Leonarda Balus-Calunod; South by Lot 4649,
Dodiongan River; West by Lot 4661, consisting of Petitioner insists that despite respondents' full
10,246 square meters, including improvements knowledge of the fact that the title over the disputed
thereon. property was already in the name of the Bank, they
still proceeded to execute the subject Extrajudicial
and dismissing all other claims of the parties. Settlement, having in mind the intention of purchasing
back the property together with petitioner and of
The amount of ₱6,733.33 consigned by the defendant continuing their co-ownership thereof.
with the Clerk of Court is hereby ordered delivered to
the plaintiffs, as purchase price of the one-third Petitioner posits that the subject Extrajudicial
portion of the land in question. Settlement is, in and by itself, a contract between him
and respondents, because it contains a provision
Plaintiffs are ordered to pay the costs. whereby the parties agreed to continue their co-
ownership of the subject property by "redeeming" or
SO ORDERED.10 "repurchasing" the same from the Bank. This
agreement, petitioner contends, is the law between
the parties and, as such, binds the respondents. As a
The RTC held that the right of petitioner to purchase
result, petitioner asserts that respondents' act of
from the respondents his share in the disputed
buying the disputed property from the Bank without
property was recognized by the provisions of the
notifying him inures to his benefit as to give him the
Extrajudicial Settlement of Estate, which the parties
right to claim his rightful portion of the property,
had executed before the respondents bought the
comprising 1/3 thereof, by reimbursing respondents
subject lot from the Bank.
the equivalent 1/3 of the sum they paid to the Bank.
Aggrieved by the Decision of the RTC, herein
The Court is not persuaded.
respondents filed an appeal with the CA.
Petitioner and respondents are arguing on the wrong
On May 31, 2005, the CA promulgated the presently
premise that, at the time of the execution of the
assailed Decision, reversing and setting aside the
Extrajudicial Settlement, the subject property formed
Decision of the RTC and ordering petitioner to
part of the estate of their deceased father to which
immediately surrender possession of the subject
they may lay claim as his heirs.
property to the respondents. The CA ruled that when
petitioner and respondents did not redeem the subject
property within the redemption period and allowed the At the outset, it bears to emphasize that there is no
consolidation of ownership and the issuance of a new dispute with respect to the fact that the subject
title in the name of the Bank, their co-ownership was property was exclusively owned by petitioner and
extinguished. respondents' father, Rufo, at the time that it was
mortgaged in 1979. This was stipulated by the parties
during the hearing conducted by the trial court on
Hence, the instant petition raising a sole issue, to wit:
October 28, 1996.12 Evidence shows that a Definite
Deed of Sale13 was issued in favor of the Bank on
WHETHER OR NOT CO-OWNERSHIP AMONG THE January 25, 1984, after the period of redemption
PETITIONER AND THE RESPONDENTS OVER THE expired. There is neither any dispute that a new title
PROPERTY PERSISTED/CONTINUED TO EXIST was issued in the Bank's name before Rufo died on
(EVEN AFTER THE TRANSFER OF TITLE TO THE July 6, 1984. Hence, there is no question that the
BANK) BY VIRTUE OF THE PARTIES' AGREEMENT Bank acquired exclusive ownership of the contested
PRIOR TO THE REPURCHASE THEREOF BY THE lot during the lifetime of Rufo.
The rights to a person's succession are transmitted parties shall be accorded primordial consideration. 16 It
from the moment of his death. 14 In addition, the is the duty of the courts to place a practical and
inheritance of a person consists of the property and realistic construction upon it, giving due consideration
transmissible rights and obligations existing at the to the context in which it is negotiated and the
time of his death, as well as those which have purpose which it is intended to serve.17 Such intention
accrued thereto since the opening of the is determined from the express terms of their
succession.15 In the present case, since Rufo lost agreement, as well as their contemporaneous and
ownership of the subject property during his lifetime, it subsequent acts.18 Absurd and illogical interpretations
only follows that at the time of his death, the disputed should also be avoided.19
parcel of land no longer formed part of his estate to
which his heirs may lay claim. Stated differently, For petitioner to claim that the Extrajudicial Settlement
petitioner and respondents never inherited the subject is an agreement between him and his siblings to
lot from their father. continue what they thought was their ownership of the
subject property, even after the same had been
Petitioner and respondents, therefore, were wrong in bought by the Bank, is stretching the interpretation of
assuming that they became co-owners of the subject the said Extrajudicial Settlement too far.
lot. Thus, any issue arising from the supposed right of
petitioner as co-owner of the contested parcel of land In the first place, as earlier discussed, there is no co-
is negated by the fact that, in the eyes of the law, the ownership to talk about and no property to partition,
disputed lot did not pass into the hands of petitioner as the disputed lot never formed part of the estate of
and respondents as compulsory heirs of Rufo at any their deceased father.
given point in time.
Moreover, petitioner's asseveration of his and
The foregoing notwithstanding, the Court finds a respondents' intention of continuing with their
necessity for a complete determination of the issues supposed co-ownership is negated by no less than
raised in the instant case to look into petitioner's his assertions in the present petition that on several
argument that the Extrajudicial Settlement is an occasions he had the chance to purchase the subject
independent contract which gives him the right to property back, but he refused to do so. In fact, he
enforce his right to claim a portion of the disputed lot claims that after the Bank acquired the disputed lot, it
bought by respondents. 1avvphi1
offered to re-sell the same to him but he ignored such
offer. How then can petitioner now claim that it was
It is true that under Article 1315 of the Civil Code of also his intention to purchase the subject property
the Philippines, contracts are perfected by mere from the Bank, when he admitted that he refused the
consent; and from that moment, the parties are bound Bank's offer to re-sell the subject property to him?
not only to the fulfillment of what has been expressly
stipulated but also to all the consequences which, In addition, it appears from the recitals in the
according to their nature, may be in keeping with Extrajudicial Settlement that, at the time of the
good faith, usage and law. execution thereof, the parties were not yet aware that
the subject property was already exclusively owned
Article 1306 of the same Code also provides that the by the Bank. Nonetheless, the lack of knowledge on
contracting parties may establish such stipulations, the part of petitioner and respondents that the
clauses, terms and conditions as they may deem mortgage was already foreclosed and title to the
convenient, provided these are not contrary to law, property was already transferred to the Bank does not
morals, good customs, public order or public policy. give them the right or the authority to unilaterally
declare themselves as co-owners of the disputed
In the present case, however, there is nothing in the property; otherwise, the disposition of the case would
subject Extrajudicial Settlement to indicate any be made to depend on the belief and conviction of the
express stipulation for petitioner and respondents to party-litigants and not on the evidence adduced and
continue with their supposed co-ownership of the the law and jurisprudence applicable thereto.
contested lot.
Furthermore, petitioner's contention that he and his
On the contrary, a plain reading of the provisions of siblings intended to continue their supposed co-
the Extrajudicial Settlement would not, in any way, ownership of the subject property contradicts the
support petitioner's contention that it was his and his provisions of the subject Extrajudicial Settlement
sibling's intention to buy the subject property from the where they clearly manifested their intention of having
Bank and continue what they believed to be co- the subject property divided or partitioned by
ownership thereof. It is a cardinal rule in the assigning to each of the petitioner and respondents a
interpretation of contracts that the intention of the specific 1/3 portion of the same. Partition calls for the
segregation and conveyance of a determinate portion siblings executed a Special Power of Attorney
of the property owned in common. It seeks a authorizing him to mortgage the said property. The
severance of the individual interests of each co- other mortgaged parcel of land, covered by OCT No.
owner, vesting in each of them a sole estate in a 10271, was registered in the name of Sergio and
specific property and giving each one a right to enjoy Juana. Subsequently, Sergio died without being able
his estate without supervision or interference from the to pay his obligations with DBP. Since the loan was
other.20 In other words, the purpose of partition is to nearing its maturity and the mortgaged properties
put an end to co-ownership,21 an objective which were in danger of being foreclosed, Leandro paid
negates petitioner's claims in the present case. Sergio's loan obligations. Considering that
respondents were unable to reimburse Leandro for
WHEREFORE, the instant petition is DENIED. The the advances he made in Sergio's favor, respondents
assailed Decision of the Court of Appeals, dated May agreed that Sergio's share in the lot which he co-
31, 2005 in CA-G.R. CV No. 58041, is AFFIRMED. owned with his siblings and the other parcel of land in
the name of Sergio and Juana, shall be assigned in
SO ORDERED favor of Leandro ahd Juliana. Leandro's and Sergio's
brother, Domingo, was tasked to facilitate the transfer
of ownership of the subject properties in favor of
G.R. No. 198434 Leandro ·and Juliana. However, Domingo died
without being able to cause such transfer.
HEIRS OF LEANDRO NATIVIDAD AND JULIANA V. Subsequently, despite demands and several follow-
NATIVIDAD, Petitioners, ups made by petitioners, respondents failed and
vs. refused to honor their undertaking.
JUANA MAURICIO-NATIVIDAD, and SPOUSES
JEAN NATIVIDAD CRUZ AND JERRY Respondents filed their Answer denying the
CRUZ, Respondents. allegations in the complaint and raising the following
defenses: (1) respondents are not parties to the
DECISION contract between Sergio and DBP; (2) there is neither
verbal nor written agreement between petitioners and
PERALTA, J.: respondents that the latter shall reimburse whatever
payment was made by the former or their
Challenged in the present petition for review predecessor-in-interest; (3) Jean was only a minor
on certiorari are the Decision and Resolution of the
1 2 during the execution of the alleged agreement and is
Court of Appeals (CA), dated February 7, 2011 and not a party thereto; (4) that whatever liability or
August 25, 2011, respectively, in CA-G.R. CV No. obligation of respondents is already barred by
92840. The assailed CA Decision modified the prescription, laches and estoppel; (5) that the
Decision of the Regional Trial Court (RTC) of San complaint states no cause of action as respondents
Mateo, Rizal, Branch 75, in Civil Case No. 1637-02- are not duty-bound to reimburse whatever alleged
SM, while the CA Resolution denied petitioners' payments were made by petitioners; and (6) there is
motion for reconsideration. no contract between the parties to the effect that
respondents are under obligation to transfer
The present petition arose from an action for specific ownership in petitioners' favor as reimbursement for
performance and/or recovery of sum of money filed the alleged payments made by petitioners to DBP.
against herein respondents by the spouses Leandro
Natividad (Leandro) and Juliana Respondents waived their right to present evidence
Natividad (Juliana), who are the predecessors of arid they merely filed their memorandum. Also, during
herein petitioners. pendency" of the trial, Leandro died and was
substituted by his heirs, herein petitioners.
In their Complaint, Leandro and Juliana alleged that
sometime in 1974, Sergio On November. 4, 2008, the RTC rendered its
Natividad (Sergio), husband of respondent Juana Decision in favor of petitioners, the dispositive portion
Mauricio-Natividad (Juana) and father of respondent of which reads as follows:
Jean Natividad-Cruz (Jean), obtained a loan from the
Development Bank of t.he Philippines (DBP). As WHEREFORE, premises considered, judgment is
security for the loan, Sergio mortgaged two parcels of hereby rendered as follows:
land, one of which is co-owned and registered in his
name and that of his siblings namely, Leandro, 1. Defendants Juana Mauricio [Vda.] de
Domingo and Adoracion. This property is covered by Natividad and Jean Natividad-Cruz are
Original Certificate of Title (OCT) No. 5980. Sergio's ordered to effect the transfer of title in OCT
No. 5980 with respect to the undivided share II. WITH DUE RESPECT, THE HONORABLE
of the late Sergio Natividad; and in OCT No. COURT OF APPEALS ERRED IN RULING
10271 both of the Registry of Deeds of the THAT THE INTEREST ON THE UNPAID
Province of Rizal in favor of plaintiff Juliana [V LOAN .OBLIGATION SHOULD BE IMPOSED
da.] de Natividad and the Heirs of the late ONLY ON JUNE 23, 2001, DATE OF THE
Leandro Natividad. DEMAND FOR PAYMENT INSTEAD OF
SEPTEMBER 23, 1994, WHEN THE
2. Defendants to pay jointly and severally, PARTIES VERBALLY AGREED TO CONVEY
attorney's fees in the sum of Thirty Thousand THEIR PROPERTY RIGHTS WITH THE
Pesos (P30,000.00); and cost of suit. EXECUTION OF THE EXTRAJUDICIAL
SETTLEMENT OF ESTATE OF SERGIO
SO ORDERED. 3 NATIVIDAD. 5
Aggrieved by the RTC Decision, respondents filed an Petitioners, insist that there was a verbal agreement
Appeal with the CA. between respondents and Leandro, their
predecessor-in-interest, wherein the subject
properties shall be assigned to the latter as
On February 7, 2011, the CA promulgated its
reimbursement for the payments he made in Sergio's
questioned Decision, disposing as follows:
favor. To support this contention, petitioners relied
heavily on the Extrajudicial Settlement Among Heirs,
WHEREFORE, the appeal is PARTLY which was executed by respondents to prove that
GRANTED. The Decision dated November 4, 2008 is there was indeed such an agreement and that such a
hereby MODIFIED in that defendants-appellants Settlement is evidence of the partial execution of the
Juana Mauricio-Natividad and Jean Natividad-Cruz said agreement. The provisions of the said Settlement
are ordered instead to reimburse plaintiffs-appellees are as follows:
Juliana Natividad and the heirs of the late Leandro
Natividad the amount of P162,514.88 representing
EXTRAJUDICIAL SETTLEMENT AMONG HEIRS
the amount of the loan obligation paid to the
Development Bank of the Philippines, plus legal
interest of 12% per annum computed from June 23, KNOW ALL MEN BY THESE PRESENTS:
2001 until finality of the judgment, the total amount of
which shall be to the extent only of defendants- This EXTRAJUDICIAL SETTLEMENT, made and
appellants' successional rights in the mortgaged entered into by and among:
properties and Juana's conjugal share in [the]
property covered by OCT No. 10271. The award of JUAN M. NATIVIDAD, widow; JEAN N. CRUZ,
attorney's fees and cost of suit are AFFIRMED. married to JERRY CRUZ; JOSELITO M. NATIVIDAD,
single, all of legal age, Filipino citizens, and residents
SO ORDERED. 4 of Malanday, San Mateo, Rizal
That the parties hereto being all of legal age and with Even granting that such an agreement existed, the
full civil capacity to contract, hereby by these presents CA did not commit any en-or in ruling that the
agree to divide and adjudicate, as they hereby divide assignment of the shares of Sergio in the subject
and adjudicate, among themselves the above- properties in petitioners' favor as payment of Sergio's
described real estate property in equal shares and obligation cannot be enforced if there is no written
interest. contract to such effect. Under the Statute of Frauds , 9
3. When the judgment of the court TESTATE estate of Carlos Gil, deceased. ISABEL
awarding a sum of money becomes final HERREROS VDA. DE GIL, administratrix-appellee,
and executory, the rate of legal interest, vs.
whether the case falls under paragraph 1 PILAR GIL VDA. DE MURCIANO, oppositor-
or paragraph 2, above, shall be 6% per appellant.
annum from such finality until its
satisfaction, this interim period being
Eligio C. Lagman for appellant.
deemed to be by then an equivalent to a
Reyes, Albert and Agcaoili for appellee.
forbearance of credit. (Emphasis supplied)
JUGO, J.:
xxx 13
Regarding the correctness and accuracy of the However, Act No. 2645 of the Philippine Legislature,
above-copied alleged will, the court below said: passed on July 1, 1916, besides increasing the
contents of the attestation clause, entirely suppressed
. . . The only copy available is a printed form the above-quoted provision. This would show that the
contained in the record appeal in case G.R. purpose of the amending act was to surround the
No. L-254, entitled "Testate Estate of Carlos execution of a will with greater guarantees and
Gil; Isabel Herreros Vda. de Gil, petitioner and solemnities. Could we, in view of this, hold that the
appellant vs. Roberto Toledo y Gil, oppositor court can cure alleged deficiencies by inferences,
implications, and internal circumstantial evidence? 3. ID.; ID.; ID.; ID. — The portion of section
Even in ordinary cases the law requires certain 618 of the Code of Civil Procedure, as
requisities for the conclusiveness of circumstantial amended, which provides that "The attestation
evidence. clause shall state the number of sheets or
pages used, upon which the will is written, and
It is contended that the deficiency in the attestation the fact that the testator signed the will and
clause is cured by the last paragraph of the body of every page thereof, or caused some other
the alleged will, which we have quoted above. At first person to write his name, under his express
glance, it is queer that the alleged testator should direction, in the presence of three witnesses,
have made an attestation clause, which is the function and the latter witnessed and signed the will
of the witness. But the important point is that he and all pages thereof in the presence of the
attests or certifies his own signature, or, to be testator and of each other" applied and
accurate, his signature certifies itself. It is evident that enforced.
one cannot certify his own signature, for it does not
increase the evidence of its authenticity. It would be 4. ID.; ID.; ID.; ID. — An attestation clause
like lifting one's self by his own bootstraps. which does not recite that the witnesses
Consequently, the last paragraph of the will cannot signed the will and each and every page
cure in any way the fatal defect of the attestation thereof on the left margin in the presence of
clause of the witnesses. Adding zero to an insufficient the testator is defective, and such a defect
amount does not make it sufficient. annuls the will. (Sano vs. Quintana, supra.)
It is said that the rules of statutory construction are In the subsequent case of Quinto vs. Morata (54 Phil.,
applicable to documents and wills. This is true, but 481, 482), Judge Manuel V. Moran, now Chief Justice
said rules apply to the body of the will, containing the of the Supreme Court, in his decision made the
testamentary provisions, but not to the attestation following pronouncement:
clause, which must be so clear that it should not
require any construction. . . . En la clausula de atestiguamiento del
testamento en cuestion, se hace constar que
The parties have cited pro and con several decisions los testadores firmaron el testamento
of the Supreme Court, some of which are said to be en presencia de los tres testigos
rather strict and others liberal, in the interpretation of instrumentales y que estos firmaron el
section 618 of Act No. 190, as amended by Act No. testamento los unos en presencia de los
2645. otros, pero no se hace constar que dichos
testigos firmaron el testamento
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), en presencia de los testadores, ni que estos y
the court had the following to say: aquellos firmaron todas y cada una de las
paginas del testamento los primeros en
1. WILLS; ALLOWANCE OR presencia de los segundos y vice-versa.
DISALLOWANCE; SECTIONS 618 AND 634
OF THE CODE OF CIVIL PROCEDURE En su virtud, se deniega la solicitud en la que
CONSTRUED. — The right to dispose of the se pide la legalizacion del alegado testamento
property by will is governed entirely by statute. Exhibit A de Gregorio Pueblo y Carmen
The law is here found in section 618 of the Quinto, y se declara que Gregorio Pueblo
Code of Civil Procedure, as amended. The murio intestado.
law not alone carefully makes use of the
imperative, but cautiously goes further and The Supreme Court fully affirmed the decision, laying
makes use of the negative, to enforce down the following doctrine:
legislative intention.
1. WILLS; ATTESTATION CLAUSE;
2. ID.; ID.; ATTESTATION. — The Philippine EVIDENCE TO SUPPLY DEFECTS OF. —
authorities relating to the attestation clause to The attestation clause must be made in strict
wills reviewed. The cases of Saño vs. conformity with the requirements of section
Quintana ([1925], 48 Phil., 506), and Nayve 618 of Act No. 190, as amended. Where said
vs. Mojal and Aguilar ([1924], 47 Phil., 152), clause fails to show on its face a full
particularly compared. The decision in In re compliance with those requirements, the
Will of Quintana, supra, adopted and defect constitutes sufficient ground for the
reaffirmed. The decision in Nayve vs. Mojal disallowance of the will. (Sano vs. Quintana,
and Aguilar, supra, modified. 48 Phil., 506; Gumban vs. Gorecho, 50 Phil.,
30). Evidence aliunde should not be admitted held not to be fatally defective and to conform
to establish facts not appearing on the to the law.
attestation clause, and where said evidence
has been admitted it should not be given the This very different from the attestation clause in the
effect intended. (Uy Coque vs. Navas L. case at bar.
Sioca, 43 Phil., 405, 409.).
In the case of Grey vs. Fabie * (40 Off. Gaz., 1st
2. ID.; ID.; INTERPRETATION OF SECTION Supplement, 196, No. 3, May 23, 1939), the will was
618 OF ACT NO. 190, AS AMENDED. — objected to on the ground that, although the
Section 618 of Act No. 190, as amended, attestation clause stated that "each of the pages of
should be given a strict interpretation in order which the said will is composed" was signed by the
to give effect to the intention of the testatrix at the left margin and at the foot of the fifth
Legislature. Statutes prescribing formalities to page, it did not state that the signature was made in
be observed in the execution of wills are very the presence of the witnesses. It was held, however,
strictly construed. Courts cannot supply the that said deficiency was cured by the phrase "as well
defensive execution of will. (40 Cyc., p. 1079; as by each of us in the presence of the testatrix." The
Uy Coque vs. Navas L. Sioca, supra.) words "as well as" indicate that the testatrix signed
also in the presence of the witnesses, for the phrase
It is true that in subsequent decisions, the court has "as well as" in this case is equivalent to "also." The
somewhat relaxed the doctrine of the Gumban vs. language is clear and, unlike the attestation clause in
Gorcho case, supra, but not to the extent of validating the present case, does not necessitate any correction.
an attestation clause similar to that involved herein. In the body of the will the testatrix stated that she
signed in the presence of each and all of the three
In the case of Aldaba vs. Roque (43 Phil., 378), the witnesses. This was considered as a corroboration,
testatrix signed the attestation clause which was but it was unnecessary.
complete, and it was also signed by the two attesting
witnesses. For this reason, the court said: In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd
Supplement, 51, 52, No. 7, October 18, 1939; 68
In reality, it appears that it is the testatrix who Phil., 745), the attestation clause reads as follows:
makes the declaration about the points
contained in the above described paragraph; Suscrito y declarado por el testador Valerio
however, as the witnesses, together with the Leynez, como su ultima voluntad y testamento
testatrix, have signed the said declaration, we en presencia de todos y cada uno de
are of the opinion and so hold that the words nosotros, y a ruego de dicho testador,
above quoted of the testament constitute a firmamos el presente cada uno en presencia
sufficient compliance with the requirements of de los otros, o de los demas y de la del mismo
section 1 of Act No. 2645 which provides testsador, Valerio Leynez. El testamento
that: . . . (p. 381, supra.) consta de dos (2) paginas solamente.
The attestation clause involved herein is very The objection was that the attestation clause did not
different. state that the testator and the witnesses signed each
and every page of the will. This fact , however,
In the case of Dischoso de Ticson vs. De Gorotiza (57 appears in the will itself. It is clear, therefore, that in
Phil., 437), it was held that: case of the will complied with all the requisites for its
due execution. In the instant case, essential words
An attestation clause to a will, copied from a were omitted.
form book and reading: "We, the undersigned
attesting witnesses, whose residences are In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th
stated opposite our respective names, do Supplement, 131, 134-135, No. 23, April 18, 1939),
hereby certify that the testatrix, whose name the attestation clause reads as follows:
is signed hereinabove, has publish unto us
the foregoing will consisting of two pages as Hacemos constar que en la fecha y pueblo
her Last Will and Testament, and has signed arriba mencionadios otorgo el Sr. Emiliano
the same in our presence, and in witness Alcala su ultima voluntad o testamentao
whereof we have each signed the same and compuesto de cuatro paginas incluida ya esta
each page thereof in the presence of said clasula de atestiguamiento. Que estabamos
testatrix and in the presence of each other," presentes en el momento de leer y ratificar el
que el testamento arriba mencionado es su
ultima voluntad o testamento compuesto de creation, and is available only upon the
cuatro paginasen papel de maquinilla. Que compliance with the requirements of the
igualmente estabamos presentes cuando el statute. The formalities which the Legislature
firmo este documento al pie del mismo y en el has prescribed for the execution of a will are
margen izquierdo de cada pagina del testador essential to its validity, and cannot be
tambien en presencia suya y de cada uno de disregarded. The mode so prescribed is the
nosotros en cada pagina y en el margen measure for the exercise of the right, and the
izquierdo de esta escritura o testamento. En heir can be deprived of his inheritance only by
su testimonio firmamos abajo en prsencia del a compliance with this mode. For the purpose
testador y de cada uno de nosotros. of determining whether a will has been
properly executed, the intention of the testator
The above attestation clause is substantially perfect. in executing it is entitled to no consideration.
The only clerical error is that it says "testador" instead For that purpose only intention of the
of "testamento" in the phrase "cada pagina del Legislature, as expressed in the language of
testador." The word "tambien" renders unnecessary the statute, can be considered by the court,
the use of the verb "firmamos." and whether the will as presented, shows a
compliance with the statute. Estate of Walker,
In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460,
1855, No. 9, June 27, 1941), the attestation clause 52 Am. St. Rep. 104. In re Seaman's Estate,
did not state the number of pages of the will. 80 Pac., 700, 701.)
However, it was held that this deficiency was cured by
the will itself, which stated that it consisted of three In interpreting the legislature's thought, courts
pages and in fact it had three pages. have rigidly opposed any exception tending to
weaken the basic principle underlying the law,
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, the chief purpose of which is to see that the
4940, No. 12, October 23, 1947), decided by the testator's wishes are observed. It is possible,
Court of Appeals, the attestation clause (translated in in some or many cases, a decedent may have
Spanish) reads as follows: thought he had made a will, but the statute
says he had not. The question is not one of
his intention, but of what he actually did, or . . .
Nosotros, los testigos, certificamos que este
failed to do. . . . It may happen . . . that . . .
que hemos firmado es el testamento y ultima
wills . . . truly expressing the intertions of the
voluntad, que se ha redactado en cuatro
testator are made without observations of the
paginas, de Numeriano Rallos, quien despues
required forms; and whenever that happens,
de leer y de leer y de leerle el mencionado
the genuine intention is frustrated. . . . The
testamento, y despues de que ella dio su
Legislature . . . has taught of it best and has
conformidad, firmo y marco con su dedo
therefore determined, to run the risk of
pulgar derecho en nuestra presencia y en
frustrating (that intention, . . . in preference to
presencia de cada uno de nosotros, que
the risk of giving effect to or facilitating the
asimismo cada uno de nosotros, los testigos,
formation of spurious wills, by the absence of
firmamos enpresencia de la testadora y en
forms. . . . The evil probably to arise by giving
presencia de cada uno de nosotros.
to wills made without any form, . . ." or, in
derogation of testator's wishes, fraudulently
It will be noticed that the only thing omitted is the imposing spurious wills on his effect on his
statement as to the signing of the testatrix and the estate. Churchill's Estate, 260 Pac. 94, 101,
witnesses of each and every page of the will, but the 103 Atl. 533.
omission is cured by the fact that their signatures
appear on every page. This attestation clause is
It has always been the policy of this court to
different from that involved in the present case.
sustain a will if it is legally possible to do so,
but we cannot break down the legislative
There is no reason why wills should not be executed barriers protecting a man's property after
by complying substantially with the clear requisites of death, even if a situation may be presented
the law, leaving it to the courts to supply essential apparently meritorious. (In Re: Maginn, 30 A.
elements. The right to dispose of property by will is L. R., pp. 419, 420.)
not natural but statutory, and statutory requirements
should be satisfied.
In view of the foregoing, the decision appealed from is
reversed, denying the probate of the alleged will and
The right to make a testamentary disposition declaring intestate the estate of the deceased Carlos
of one's property is purely of statutory Gil. With costs against the appellee. It is so ordered.
Moran, C.J., Pablo, Bengzon, Padilla and Reyes, casilla, asi como todos las hojas del mismo
JJ., concur. (Ha sido firmado por el testador) en nuestra
presencia y que cada de nosotros hemos
atestiguado y firmado dicho documento y
todas las hojas del mismo presencia del
testador y en la de cada uno de nosotros.
Separate Opinions
It seems obvious that the missing phrase was
TUAZON, J., dissenting: inadvertently left out. The probabilities of error in the
copy are enhanced by the fact that the form of the will
was not in controversy. The form of the will being
The decision takes for granted that the will was immaterial, it is easily conceivable that little or on care
written just as it was copied in the stipulation of facts was employed in the copying thereof in the pleading
by the parties. But counsel for appellee makes the or record on appeal above mentioned. The absence
correctness of the copy an issue thereby raising the of the signature of the testator on the first page of the
question of not whether the burnt will possessed the copy is an additional proof that little or on pain was
statutory requirements but whether the copy is taken to insure accuracy in the transcription. The
erroneous. Since this is a chief feature on which the appearance of "la testadora" in the copy instead of "el
appellee's case is built; since, in fact, the objection to testador" is another.
form of the attestation clause, with which the decision
wholly deals, would disappear if the appellee's
contention were well founded, it is proper that in this Quite aside from all this, the testator was presumed to
dissenting opinion we should accord the matter at know the law, as the decision says. Certainly,
least a passing notice. Attorney Mariano Omaña, who drafted the whole
instrument and signed it as an attesting witness, knew
the law and, by the context of the whole instrument,
It may be stated as background that the original of the has shown familiarity with the rules of grammar and
will was filed in the Court of First Instance of Manila in ability to express his idea properly.
1943; that in 1945, before the will came up for
probate, it was destroyed by fire or looters; that in the
probate proceeding after liberation, the parties Read in the light of these circumstances — without
submitted an agreed statement of facts in which the mentioning the evidence or record, not objected to,
will was reproduced as copied in the record on appeal that the testator signed the will in the presence of the
in another case docketed in this court on appeal as attesting witnesses — so important an omission as to
G.R. No. L-254 and decided on April 30, 1948. It make the sentence senseless — granting such
further appears from the record of that case and from omission existed in the original document-could not
the decision of this court that the controversy there have been intentional or due to ignorance. The most
concerned the right of a nephew of the testator to that can be said is that the flaw was due to a clerical
impugn the will, it being alleged that he was not a mistake, inadvertance, or oversight.
legal heir and had no interest in the probate.
There is insinuation that the appellee in agreeing that
As transcribed in the majority decision, it will be seen the will read as it was "reproduced in the record on
that the attestation clause is truncated and Appeal" above mentioned is bound by the agreement.
meaningless. The last of the compound sentence in This is not an absolute rule. The binding effect of a
incomplete, lacking an adjective phrase. Counsel for stipulation on the parties does not go to the extent of
appellee contends that the phrase "ha sido firmado barring them or either of them from impeaching it on
por el testador" or equivalent expression between the the score of clerical error or clear mistake. That there
words "del mismo" and the words "en nuestra was such mistake, is indubitable. It is noteworthy that
presencia" should be inserted if the sentence is to be the opponent and appellant herself appears not to
complete and have sense. The attestation clause with have noticed any defect in the attestation clause as
the inclusion of the omitted phrase, which we italicize copied in the stipulation. It would seem that in the
should read thus: court below she confined her attack on the will to the
alleged failure of the testator to sign the first page. We
say this because it was only the alleged unsigning of
Nosotros, los que suscribimos, todos mayores the first page of the document which the trial court in
de edad, certificamos que el testamento que the appealed decision discussed and ruled upon.
precede escrito en la lengua castellana que There is not the slightest reference in the decision,
conoce la testador, compuesto de las direct or implied, to any flaw in the attestation clause
paginadas utiles con la clausula de — which is by far more important than the alleged
atestiguamiento paginadas correlativamente absence of the testator's signature on the first page.
en letras y numeros en la parte superior de la
As stated the problem posed by the omission in expressed in the will; but not where the effect of
question is governed, not by the law of wills which inserting the words in the will would alter or defeat
requires certain formalities to be observed in the such intention, or change the meaning of words that
execution, but by the rules of construction applicable are clear and unequivocal." On pages 50, 51, the
to statues and documents in general. And this rule same work says: "To aid the court in ascertaining and
would obtain even if the omission had occurred in the giving effect to the testator's intention in the case of
original document and not in the copy alone. In either an ambiguous will, certain rules have been
case, the court may and should correct the error by established for guidance in the construction or
supplying the omitted word or words. interpretation to be placed upon such a will, and in
general a will should be construed according to these
In Testamentaria del finado Emilio Alcala, a similar established rules of construction." Speaking of
situation arose and the Court said: construction of statutes which, as has been said, is
applicable to construction of documents, the same
Es evidente que leyendo la clausula de work, in Vol. 59, p. 992, says: "Where it appears from
atestiguacion se nota a simple vista que en su the context that certain words have been inadvertently
redaccion se ha incurrido en omisiones que la omitted from a statute, the court may supply such
razon y el sentido comon pueden suplirlas sin words as are necessary to complete the sense, and to
alterar ni tergiversar la intencion tanto del express the legislative intent.
testador como la de los tres testigos que
intervinieron en el otorgamiento de la misma. Adding force to the above principle is the legal
Teniendo en cuenta la fraselogia de la presumption that the will is in accordance with law. (2
segunda parte de la clausula se observara Page on Wills, 840, 841; 57 Am. Jur., 720.)
que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que Let us assume, for the purpose of this decision only,
los tribunales, en el ejercicio de su discrecion that the attestation clause was drawn as the
y en la aplicacion de las reglas de draftsman intended, that the mistake in language in
interpretacion de documentos, pueden said clause was not inadvertent, and consider the
subsanarlos para dar efectividad a la case on the premise from which the court has
intencion y hacer que el conjunto de los approached it; is the decision well grounded, at least
terminos de la clausula de atestacion surtan in the light of this court's previous decisions?
sus efectos.
At the outset, it should be pointed out that as early as
La interpritacion que se acaba de bar a la 1922 a similar case, in which the validity of the will
clausula de atestacion y la correccion de los was sustained, found its way into this court. (Aldaba
errores gramaticales de que misma adolece, vs. Roque, 43 Phil., 378). The case was more than
incluyendo la insercion del verbo "firmamos" four-square behind the case at bar. There the
que se omitio involuntariamente, esta de departure from the statutory formality was more
acuerdo con las reglas fundamentals de radical, in that the testator took charge or writing the
interpretacion de documentos segun las entire attestation clause in the body of the will, the
cuales se debe hacer prevalecer siempre la witnesses limiting their role to signing the document
intencion del que haya redactado el below the testator's signature. Here, at most, the
instrumento (art. 288, Cod. de Proc. Civ.; testator took away from the witness only a small part
Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., of their assigned task, leaving them to perform the
sec. 187, pags. 225, 226.) rest.
La solucion que se acaba de bar al asunto es Referring to "the lack of attestation clause required by
la que se halla mas conforme con la justificia law," this court, in a unanimous decision in banc,
en vista de que se ha presentado prueba through Mr. Justice Villamor said (syllabus): "When
alguna que insinue siquiera que en el the attestation clause is signed by the witnesses to
otorgamiento del testamento se ha cometido the instruments besides the testator, such attestation
dolo o fraude con el animo de perjudiar a clause is valid and constitutes a substantial
cualquiera. (Testamentaria de Emiano Alcala, compliance with the provisions of section 1 of Act No.
40 G. O., 14. Suplemento, No. 23, pags. 131, 2645, even though the facts recited in said attestation
132.) appear to have been make by the testator himself."
From 69 C. J., 82 83, we quote: "Words omitted from That was good doctrine when it was announced. We
a will may be supplied by the court whenever think it is good law still. That ruling should set the
necessary to effectuate the testator's intention as present case at rest unless the court wants to discard
it. On the possibility that this is the intention, we will the case above cited by the opponents of the new
dwell on the subject further. trends. But the so-called liberal rule does not offer any
puzzle or difficulty, nor does it open the door to
This Court noted in Dichoso de Ticson vs. De serious consequences. The decisions we have cited
Gorostiza, (1922), 57 Phil., 437, "that there have been to tell us when and where to stop; the dividing line is
noticeable in the Philippines two divergent tendencies drawn with precision. They say "Halt" when and
in the law of wills — the one being planted on strict where evidence aliunde to fill a void in any part of the
construction and the other on liberal construction. A document is attempted. They only permit a probe, an
late example of the former views may be found in the exploration within the confines of the will, to ascertain
decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, its meaning and to determine the existence or
sanctioning a literal enforcement of the law. The basic absence of the formalities of law. They do not allow
case in the other direction, predicated on reason, the courts to go outside the will or to admit extrinsic
is Abangan vs. Abangan (1919), 40 Phil., 476, oft- evidence to supply missing details that should appear
cited approvingly in later decisions." In the Abangan in the will itself. This clear, sharp limitation eliminates
case, unanimous court, speaking through Mr. Justice uncertainly and ought to banish any fear of dire
Avanceña, later Chief Justice, observed: "The object results.
of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid The case at hand comes within the bounds thus
substitution of wills and testaments and to guaranty defined. If the witnesses here purposely omitted or
their truth and authenticity. Therefore the laws on this forgot that the testator signed the will in their
subject should be interpreted in such a way as to presence, the testator said that he did and the
attain these primodial ends. But, on the other hand, witnesses by their signatures in the will itself said it
also one must not lose sight of the fact that it is not was so. No extraneous proof was necessary and
the object of the law to restrain and curtail the none was introduced or taken into consideration.
exercise of the right to make a will. So when an
interpretation already given assures such ends, any To regard the letter rather than the spirit of the will
other interpretation whatsoever, that adds nothing but and of the law behind it was the thing that led to
demands more requisites entirely unnecessary, unfortunate consequences. It was the realization of
useless and frustrative of the testator's last will, must the injustice of the old way that impelled this court, so
be disregarded." we believe, to forsake the antiquated, outworn
worship of form in preference to substance. It has
Subsequent decisions which followed and adopted been said, and experience has known, that the
the Abangan principle were numerous: Avera vs. mechanical system of construction has operated more
Garcia (1921), 42 Phil., 145; Aldaba vs. to defeat honest wills than prevent fraudulent ones.
Roque (1922), 43 Phil., 378; Unson vs. Abella (1922,) That, it must be conceded, is the effect in this case of
43 Phil., 494; Pecson vs. Coronel (1923), 45 Phil., this court's rejection of the will under consideration.
216; Fernandez vs. Vergel de Dios (1924), 46 Phil., For the adverse party concedes the genuineness of
922; Nayve vs. Mojal (1924), 47 Phil., 152; De Gala the document. At least, the genuineness is super
vs. Gonzales (1929), 53 Phil., 104; Rey vs. obvious, and there is not the slightest insinuation of
Cartegana (1931), 56 Phil., 282; Ticson vs. undue pressure, mental incapacity of the testator of
Gorostiza (1932), 57 Phil., 437; Testamentaria de M. fraud.
Ozoa (1933), 57 J. F., 1007; Sebastian vs.
Pañganiban (1934), 59 Phil., 653; Rodriguez vs. It is said that for the testator to certify that he signed
Yap (1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. the will in the witnesses' presence "would be like
194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl. lifting one's self by his own bootstraps." The simile,
No. 3, p. 196; Leynez vs. Leynez (1939)3, 40 Off. we say with due respect, does not look to us quite
Gaz., 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940)4, well placed. Under physical law a man cannot raise
40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. his body from the ground by his own bare hands
Fernandez (1941)5, 40 Off. Gaz., 1844; Mendoza vs. without the aid of some mechanical appliance, at least
Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De not for more than a flitting moment. But there is no
Villa (1941)7, 40 Off. Gaz., 14th Suppl. No. 23, p. 131; impossibility or impropriety in one attesting to his own
and Lopez vs. Liboro (1948)8, 46 Off. Gaz., Suppl. No. act unless forbidden by rules of positive law. The
1, p. 211. rationale of our dissent is that he is not. If we were to
make a metaphorical comparison, it would be more
The majority decision says, and we quote: "If we cure appropriate to say that a man can and generally does
a deficiency by means of inferences, when are we himself pull the bootstraps to put the boots on.
going to stop making inferences to supply fatal
deficiencies in wills? Where are we to draw the line?"
These same questions might well have been asked in
Coming to execution of wills, we see no legitimate The will in question was presented for probate in the
practical reason for objecting to the testator instead of Court of First Instance of Manila in 1943 with Roberto
the witnesses certifying that he signed the will in the Toledo y Gil, decedent's nephew, and Pilar Gil Vda.
presence of the latter. The will is the testator's and the de Murciano, decedent's sister opposing the
intervention of attesting witnesses is designed merely application. Toledo's legal right to intervene was
to protect the testator's and not anybody else's questioned by the proponent of the will, and the
interest. objection was sustained in an order which was
affirmed by this court in G. R. No. L-254. As a result
If the sole purpose of the statute is to make it certain of the latter decision, Toledo was eliminated from the
that the testator has definite and complete intention to case and did not appear when the trial was resumed.
pass his property, and to prevent, as far as possible,
any chance of substituting one instrument for another The proceeding seems to have held in abeyance
(1 Page on Wills, 481), What better guaranty of the pending final disposition of Toledo's appeal, and early
genuineness of the will can there be than a in 1945, before the application was heard on the
certification by the testator himself in the body of the merit, the record, along with the will, was destroyed,
will so long as the testator's signature is duly necessitating its reconstitution after liberation. In the
authenticated? Witnesses may sabotage the will by reconstitution, a stipulation of facts was submitted in
muddling it or attestation clause. For the testator, who which, according to the appealed order, "both parties .
is desirous of making a valid will, to do so would be a . . agreed that the will as transcribed in the record on
contradiction. If the formalities are only a means to an appeal in Case G. R. No. L-254 is true and a correct
end and not the end themselves, and that end is copy.
achieved by another method slightly different from the
prescribed manner, what has been done by the The will consisted of only two pages, and the
testator and the witnesses in the execution of the attestation clause as thus copied reads:
instant will should satisfy both law and conscience.
The chief requirements of statutes are writing, NOSOTROS los que suscribimos, todos
signature by the testator, and attestation and mayores de edad, certificamos: que el
signature of three witnesses. Whether the courts testamento que precede escrito en la lengua
profess to follow the harsher rule, whether to follow castellana que canoce la testador, compuesto
the milder rule, they agree on one thing — that as de dos paginas utiles con la clausula de
long as the testator performs each of those acts the atestigamiento paginadas correlativamente en
courts should require no more. (1 Page on Wills, 481, letras y numeros en la parte superior de la
484.) casilla, asi como todas las hojas del mismo,
en nuestra presencia y que cada uno de
Paras, Feria, Montemayor and Bautista Angelo, nosotros hemos atestiguado y firmado dicho
JJ., concur. documento y todas las hojas del mismo en
presencia del testador y en la de cada uno de
nosotros.
TUASON, J.: It will be noted from the above copy that the last of the
compound sentence is truncated and meaningless.
This appeal is before us on a motion for This defect is the main basis of the appellant's sole
reconsideration of this court's decision. Whereas assignment of error.
formerly six justices voted for reversal and five for
affirmance of the probate court's order admitting the Counsel for appellee contend that the phrase "han
will to probate, the vote upon reconsideration was six sido firmadas por el testador" or equivalent
for affirmance and five for reversal, thereby making expression between the words "del mismo" and the
the dissenting opinion, which had been filed, the words "en nuestra presencia" should be inserted if the
prevailing rule of the case. Under the circumstances, attestation clause is to be complete and have sense.
this resolution will largely be confined to a With this insertion the attestation clause would read
restatement of that dissenting opinion. ". . ., asi como todas las hojas del mismo han sido
firmadas por el testador en nuestra presencia . . ." redaccion se ha incurrido en omisiones que la
The point is well taken. razon y el sentido cumon pueden suplirlas sin
altenar ni tergiversar la intencion tanto del
It seems obvious that the missing phrase was left out testador como la de los tres testigos que
from the copy. The probabilities of error in the copy intervenieron en el otorgamiento de la misma.
are enhanced by the fact that the form of the Will was Teniendo en cuenta la fraseologia de la
not controversy in Toledo's appeal. The form of the segunda parte de la clausula se observara
will being immaterial, it is easily conceivable that little que las omisiones, aunque son substanciales,
or no care was employed in transcribing the consisten en meros errores gramaticales que
document in the agreement or record on appeal. The los tribunales, en el ejercicio de su discrecion
absence of the signature of the testator on the first y en la aplicacion de las reglas de
page of the copy is an additional proof that little or no interpretacion de documentos, pueden
pain taken to insure accuracy in the transcription. The subsanarlos para dar efectividad a la
appearance of "la testadora" in the copy instead of "el intencion y hacer que el conjunto de los
testador" is another indication of the haste and terminos de la clausula de atestacion surtan
carelessness in the transcription. efectos.
Quite aside from all this, the testator was presumed to La interpretacion que se acaba de dar a la
know the law, as the trial court says. Certainly, clausula de atestacion y la correccion de los
Attorney Mariano Omaña, who drew the instrument errores gramanticales de que misma adolece,
and signed it as an attesting witness, knew the law incluyedo la insercion del verbo "firmamos"
and, by the context thereof, has shown familiarity with que se omitio involuntariamente, esta de
the rules of grammar and ability to express his idea acurdo con las reglas fundamentales de
properly. In the light of these circumstances and of interpretacion de documentos segun las
further fact that the clause was brief and, by its cuales se debe hacer prevalecer siempre la
importance, must have been written with utmost intencion del que haya redactado el
concern, so important an omission as to make the instrumento (art 286, Cod. de Proc. Civil;
clause or sentence senseless could not have been Pecson contra Coronel, 45 Jur. Fil., 224; 28 R.
made, intentionally or otherwise, in the original. C. L., sec. 187, pages. 225, 226).
There is insinuation that the appellee in agreeing that La solucion que se acaba de dar al asunto es
the will read as it was "reproduced in the Record on la que se halla mas conforme con la justicia
appeal" is bound by the agreement. This is not an en vista de que no se ha presentado prueba
absolute rule. The binding effect of a stipulation on alguna que insinue siquiera que en el
the parties does not go to the extent of barring either otorgamiento del testamiento se ha cometido
of them from impeaching it on the score of clerical dolo o fraude con el animo de perjudicar a
error or clear mistake. The mistake just pointed out cualquiera. Testamentaria de Emiliano Alcala,
clearly brings the case within the exceptions of the 40 Gaz. Of., 14. Supplemento, No. 23, pags.
rule. The able counsel for the proponent of the will 131, 132.)
could not possibly have subscribed to the agreement
if they had noticed the incomplete sentence in the From 69 C. J. 82, 83, we quote: "Words omitted from
copy without making an objection or reservation. a will may be supplied by the court whenever
necessary to effectuate the testator's intention as
The problem posed by the omission in question is expressed in the will: but not where the effect of
governed, not by the law of wills which requires inserting the words in the will would alter or defeat
certain formalities to be fulfilled in the execution, but such intention, or change the meaning of words that
by the rules of construction applicable to statutes and are clear and unequivocal." On pages 50 and 51, the
documents in general. And this rule would obtain same work says: "To aid the court in ascertaining and
whether the omission occurred in the original giving effect to the testator's intention in the case of
document or in the copy alone. In either case, the an ambiguous will, certain rules been established for
court may and should correct the error by supplying guidance in the construction or interpretation to be
the omitted word or words. placed upon such a will, and in general a will should
be construed according to these established rules of
In Testamentaria del finado Emiliano Alcala, a similar construction." And referring to construction of statues
situation arose and the court said: which, as has been said, is applicable to construction
of documents, C. J. S., in Vol. 59, p. 992, tells us that
"Where it appears from the context that certain words
Es evidente que leyendo la clausula de
have been inadvertently from a statute, the court may
atestiguacion se nota a simple vista que en su
supply such words as are necessary to complete the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150,
sense, and to express the legislative intent." sanctioning a literal enforcement of the law. The basic
rule in the other direction, predicated on reason,
Adding force to the above principle is the legal is Abangan vs. Abangan (1919), 40 Phil., 476, oft-
presumption that the will is in accordance with law. (2 cited approvingly in later decisions."
Page on Wills 840; 57 Am. Jur., 720.)
In the Abangan case, a unanimous court, speaking
But let it be assumed, for the sake of this decision through Mr. Justice Avanceña, later Chief Justice,
only, that the attestation clause was drawn exactly as observed:
it was copied in Toledo's record on appeal, was the
mistake fatal? Was it, or was it not, cured by the "The object of the solemnities surrounding the
testator's own declaration? to wit: "En testimonio de lo execution of wills is to close the door against bad faith
cual, firmo este mi testamento y en el margen and fraud, to avoid substitution of wills and
izquierdo de cada una de sus dos paginas utiles con testaments and to guaranty their truth and
la clausula de atestiguamiento en presencia de los authenticity. Therefore the laws on this subject should
testigos, quienes a su vez firmaron cada una de be interpreted in such a way as to attain these
dichas paginas y la clausula de atestiguamiento en mi primodial ends. But, on the other hand, also one must
presencia cada uno de ellos con la de los demas, hoy not lose sight of the fact that it is not the object of the
en Porac, Pampanga, I. F., el dia 27 de marzo de mil law to restrain and curtail the exercise of the right to
novecientos treinta y nueve." The answer is in the make a will. So when an interpretation already given
negative. assures such ends, any other interpretation
whatsoever, that adds nothing but demands more
As early as 1922 a similar case, in which the validity requisites entirely unnecessary, useless and
of the will was sustained, found its way into this court. frustrative of the testator's last will, must be
See Aldaba vs. Roque, 43 Phil., 378. That case was disregarded."
more than foursquare behind the case at bar. There
the departure from the statutory formality was more Subsequent decisions which followed and adopted
radical, in that the testator took charge of writing the the Abangan principle were: Avera vs. Garcia (1921),
entire attestation clause in the body of the will, the 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil.,
witnesses limiting their role to signing the document 378; Unson vs. Abella (1922), 43 Phil., 494; Pecson
below the testator's signature. Here, at the most, the vs. Coronel (1923), 45 Phil., 216; Fernandez vs.
testator took away from the witnesses only a small Vergel de Dios (1924), 46 Phil., 922; Neyve vs.
part of their assigned task, leaving to them the rest. Mojal (1924), 47 Phil., 152; De Gala vs.
Gonzales (1929), 53 Phil., 104; Rey vs.
Referring to "the lack of attestation clause required by Cartagena (1931), 56 Phil., 282; Ticson vs.
law," this court, in a unanimous decision in banc, Gorostiza (1932), 57 Phil., 437; Testamentaria de N.
through Mr. Justice Villamor said in the Adalba-Roque Ozoa (1933), 57 J. F., 1007; Sebastian vs.
case (syllabus): Panganiban (1934), 59 Phil., 653; Rodriguez vs.
Yap (1939), 40 Off. Gaz., 1st Suppl. No. 3, p.
When the attestation clause is signed by the 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl.,
witnesses to the instruments, besides the testator, No. 3, p. 196; Leynez vs. Leynez (1939), 40 Off. Gaz.,
such attestation clause is valid and constitutes a 3rd Suppl. No. 7, p. 51; Martir vs. Martir (1940), 40
substantial compliance with the provisions of section Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs.
1 of Act No. 2645, even though the facts recited in Fernandez (1941), 40 Off. Gaz., 1844; Mendoza vs.
said attestation clause appear to have been made by Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De
the testator himself. Villa (1941), 40 Off. Gaz., 14th Suppl. No. 23, p. 131;
and Lopez vs. Liboro (1948), 46 Off. Gaz., Suppl. No.
1, p. 211.
That ruling should set the present case at rest unless
we want to revert to the old, expressly abandoned
doctrine, in a long line of what we believe to be better- It is objected that "If we cure a deficiency by means of
considered decisions. inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills? Where
are we to draw the line?" These same question might
This court noted in Dichoso de Ticson vs. De
well have been asked by the opponents of the new
Gorostiza (1922), 57 Phil., 437, "that there have been
trends in the cases above cited. But the so-called
noticeable in the Philippines two divergent tendencies
liberal rule does not offer any puzzle or difficulty, nor
in the lie of wills — the one being planted on strict
does it open the door to serious consequences. The
construction and the other on liberal construction. A
later decisions do tell us when and where to stop;
late example of the former views be found in the
they draw the dividing line with precision. They do not of the will can there be than a certification by the
allow evidence aliunde to fill a void in any part of the testator himself in the body of the will so long as the
document or supply missing details that should testator's signature is duly authenticated? Witnesses
appear in the will itself. They only permit a probe into may sabotage the will by muddling and bungling it or
the will, an exploration within its confines, to ascertain the attestation clause. For the testator, who is
its meaning or to determine the existence or absence desirous of making a valid will, to do so would be a
of the requisite formalities of law. This clear, sharp contradiction. If the formalities are only a means to an
limitation eliminates uncertainty and ought to banish end and not the end themselves, and that end is
any fear of dire results. achieved by another method slightly from the
prescribed manner, what has been done by the
The case at hand comes within the bounds thus testator and the witnesses in the execution of the
defined if the witnesses here purposely omitted or instant will should satisfy both law and conscience.
forgot to say that the testator signed the will in their
presence, the testator said that he did and the A second ground of attack on the questioned will is
witnesses by their signatures in the will itself said it that the first page or sheet thereof does not bear the
was so. No extraneous proof was necessary and testator's signature. The discussion on the
none was introduced or taken into consideration. correctness of the copy of the attestation clause
amply answers this objection in fact, the appellee's
To regard the letter rather than the spirit of the will case is much stronger on this point for the reason that
and of the law behind it was the thing that led to there is not only speculative but also positive basis for
unfortunate consequences. It was the realization of the conclusion that the testator's signature was affixed
the injustice of the old way that impelled this court, so to the first page of the original. Both the testator and
we believe, to forsake the antiquated, outworn the attesting witnesses stated in the will and in the
worship of form in preference to substance. It has attestation clause, respectively, that the former signed
been said, and experience has shown, that the both pages or sheets of the testament.
mechanical system of construction has operated more
to defeat honest wills than prevent fraudulent ones. Upon the foregoing consideration, the order of the
That, must be conceded, would be the effect in this probate court is affirmed with costs.
case if the will under consideration were rejected. For
the adverse party now concedes the genuineness of A motion dated February 17, 1953, was filed after the
the document. At any rate, the genuineness is super motion for reconsideration was deliberated and voted
obvious, and there is not the slightest insinuation of upon, in behalf of the minor children of Carlos Worrel,
undue pressure, mental incapacity of the testator, or who was a residuary legatee under the will and who is
fraud. alleged to have died on February 6, 1949. The motion
prays that a guardian ad litem be appointed for the
It is said that for the testator to certify that he signed said children, and allowed to intervene and file "A
the will in the witnesses' presence "would be like Supplementary Memorandum in Support of
lifting one's self by his own bootstraps." The simile Appellant's (Appellee's?) Motion for reconsideration."
does not look to us quite well placed. There is no Counsel for the appellant objects to the motion on the
impossibility or impropriety in one attesting to his own ground that the movants having only a contingent
act unless forbidden by rules of positive law. The interest under the will are not of right entitled to
rationale of this decision is that he is not. If we were to intervene.
make a metaphorical comparison, it would be more
correct to say that a man can and generally does As this case has already been considerably delayed
himself pull the bootstraps when he puts his boots on. and thoroughly considered and discussed from all
angles, it is the sense of the court that the children's
Coming to execution of wills, we see no legitimate, intervention with the consequent further delay of the
practical reason for objecting to the testator instead of decision would not serve the best interest of the
the witnesses certifying that he signed the will in the parties. For this reason, the motion is denied.
presence of the latter. The will is of the testator's own
making, the intervention of attesting witnesses being G.R. No. 76648 February 26, 1988
designed merely to protect his interest. If the sole
purpose of the statute in requiring the intervention of
THE HEIRS OF THE LATE MATILDE MONTINOLA-
witnesses is to make it certain that the testator has
SANSON, petitioners,
definite and complete intention to pass his property,
vs.
and to prevent, as far as possible, any chance of
COURT OF APPEALS and EDUARDO F.
substituting one instrument for another (1 Page on
HERNANDEZ, respondents.
Wills, 481), what better guaranty of the genuineness
After a hearing on the merits, the probate court,
finding the evidence presented in support of the
GANCAYCO, J.: petition to be conclusive and overwhelming, rendered
its decision allowing the probate of the disputed will.
This is a petition for review on certiorari of the decision of the Court of
Appeals 1 promulgated August 29,1986 affirming in toto the decision of the Petitioner thus appealed the decision of the probate
Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the
dispositive part of which reads: court to the Court of Appeals which affirmed
in toto the decision.
8
as one wholly written, dated, and her motion was the Affidavit of Merit of Gregorio
signed freely by the late Herminia Montinola Sanson, petitioner's son, alleging that
Montinola in accordance with law witnesses have been located whose testimonies
while in possession of full could shed light as to the ill health of the testatrix as
testamentary capacity, and allowing well as undue influence exerted on the latter.
and admitting the same to probate.
The appellate court in its resolution of October 13,
Upon the finality of the decision, let 1986, denied the motion for new trial of petitioner on
10
letters testamentary issue to the the following grounds: (1) the Affidavit of merit
executor, Eduardo F. Hernandez, as attached to the motion alleged that efforts were
well as the certificate of probate exerted to locate unnamed witnesses only after the
prescribed under Section 13 of Rule court's decision was handed down, and (2) the
76 of the Rules of Court. unnamed witnesses would allegedly shed light on the
fact of grave illness of the testatrix as well as the
SO ORDERED. 3 undue influence exerted on her which are merely
corroborative or cumulative since these facts were
This case arose from a petition filed by private brought to light during the trial.
respondent Atty. Eduardo F. Hernandez on April 22,
1981 with the Court of First Instance of Manila (now The motion for reconsideration of petitioner dated
Regional Trial Court) seeking the probate of the October 27, 1986 was likewise denied by the
11
holographic will of the late Herminia Montinola appellate court in its resolution of November 20,
executed on January 28, 1980. The testatrix, who4 1986 on the ground that the affidavit of one Patricia
12
died single, parentless and childless on March Delgado submitted with the motion constitutes
29,1981 at the age of 70 years, devised in this will cumulative evidence and the motion being in reality a
several of her real properties to specified persons. second motion for reconsideration which is prescribed
by law.
On April 29,1981, private respondent who was named
executor in the will filed an urgent motion for In the petition now before Us, petitioner assigned the
appointment of special administrator. With the 5 following errors:
conformity of all the relatives and heirs of the testatrix
except oppositor, the court in its order of May 5, I
1981 appointed private respondent as Special
6
known to her. The evidence which the petitioner now Revised Rules of Court, or the probate of
22
by petitioner only for the purpose of delaying the case and find no error in the conclusion arrived at by
proceedings. In fact, petitioners son in his the respondent court that the contested will was duly
manifestation admitted that he had to request a new executed in accordance with law.
law firm to do everything legally possible to meet the
deadline for the filing of a motion for reconsideration Petitioner alleges that her exclusion from the alleged
and/or for new trial. This would explain the
18
holographic will was without rhyme or reason, being
haphazard preparation of the motion, thus failing to the only surviving sister of the testatrix with whom she
comply with the requirements of rule 53, which was shares an intimate relationship, thus demonstrating
filed on the last day of the reglementary period of the lack of testamentary capacity of testatrix.
appeal so that the veracity of the ground relied upon
is questionable. The appellate court correctly denied
In the case of Pecson v. Coronel, it was held —
24
has no compulsory heirs may dispose by will of all his undue influence must be supported by substantial
estate or any part of it in favor of any person having evidence that it was actually exercised. 29
capacity to succeed.
Finally, We quote with approval the observation of the
It is within the right of the testatrix not to include her respondent court —
only sister who is not a compulsory heir in her will.
Nevertheless, per testimony of Asuncion Gemperle, There is likewise no question as to the
the latter had reserved two boxes of jewelry worth due execution of the subject Will. To
P850,000.00 for petitioner. Furthermore, petitioner's Our minds, the most authentic proof
son Francis was instituted as an heir in the contested that decreased had testamentary
will. capacity at the time of the execution of
the Will, is the Will itself which
Petitioner still insists that the fact that in her according to a report of one of the two
holographic will the testatrix failed to dispose of all of expert witnesses (Exhibits X to X-3)
her estate is an indication of the unsoundness of her reveals the existence of significant
mind. handwriting characteristics such as:
We cannot subscribe to this contention. Art. 841 of 1. Spontaneity, freedom, and speed of
the Civil Code provides — writing
The contention of the petitioner that the will was Primicias, Abad, Mencies & Castillo for petitioner.
obtained by undue influence or improper pressure Moises Ma. Buhain for respondent.
exerted by the beneficiaries of the will cannot be
TUAZON , J.: It must be admitted that the attestation clause was
very poor drawn, its language exceedingly
This is an appeal from the Court of Appeals which ungrammatical to the point of being difficult to
affirmed an order of the Court of First Instance of understand; but from a close examination of the
Zambales denying the probate of the last will and whole context in relation to its purpose the implication
testament and seems clear that the testatrix signed in the presence
so-called codicil, identified as Exhibits A and B, of of the witnesses. Considering that the witnesses' only
Pilar Montealegre, deceased. The testatrix was business at hand was to sign and attest to the
survived by the husband and collateral relatives, testatrix's signing of the document, and that the only
some of whom, along with the husband, were actors of the proceeding were the maker and the
disinherited in Exhibit B for the reasons set forth witnesses acting and speaking collectively and in the
therein. first person, the phrase "in our presence," used as it
was in connection with the process of signing, can not
The opposition to Exhibit A was predicated on alleged imply anything but the testatrix signed before them.
defects of the attestation clause. Written in the local No other inference is possible. The prepositional
dialect known to the testatrix, the attestation clause, phrase "in our presence" denotes an active verb and
as translated into English in the record on appeal, the verb a subject. The verb could not be other than
reads: signed and the subject no other than the testatrix.
The foregoing instrument consisting of three The use of the word "also" is no less enlightening. It
pages, on the date above-mentioned, was denotes that, as each of the witnesses sign in the
executed, signed and published by testatrix presence of the testatrix and of one another, so the
Pilar Montealegre and she declared that the testatrix sign in similar or like manner — in their
said instrument is her last will and testament; presence.
that in our presence and also in the very
presence of the said testatrix as likewise in In consonance with the principle of the liberal
the presence of two witnesses and the interpretation, adhered to in numerous later decision
testatrix each of us three witnesses signed of this Court and affirmed and translated into
this a testament. inactment in the new Civil Code (Article 827), we are
constrained to hold the attestation clause under
The opponent objected that this clause did not estate consideration sufficient and valid.
that the tetratrix and the witnesses had signed each
and every page of the will or that she had signed the "Precision of language in the drafting of the attestation
instrument in the presence of the witnesses. The clause is desirable. However, it is not imperative that
Appellate Court dismissed the first objection, finding a parrot-like copy of the word of the statue be made. It
that "failure to estate in the attestation clause in is sufficient if from the language employed it can
question that the testatrix and/or the witnesses had reasonably be deduced that the attestation clause
signed each and every page of Exhibit A were cured fulfills what the law expects of it."
by the fact that each one of the page of the instrument (Ticson vs. Gorostiza, supra.)
appears to be signed by the testatrix and the three
attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, "It could have been the intention of the legislature in
(1924); Ticson vs. Gorostiza, 57 Phil., (1932); providing for the essential safeguards in the execution
Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October of a will to shackle the very right of the testamentary
18, 1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., disposition which the law recognizes and holds
4938, 4940)." But granting the correctness of the sacred." (Leynes vs. Leynes, supra.)
premise, the court held the second objection well
taken and thus concluded: "The question whether the With reference of Exhibit B the Court of Appeal
testatrix had signed in the presence of said witnesses agreed with the trial court that the document having
can not be verified upon physical examination of the been executed one day before Exhibit A could not be
instrument. Hence, the absence of the require considered as a codicil "because a codicil, as the
statement in said clause may not, pursuant to the word implies, is only an addition to, or modification of,
decisions of the Supreme Court, be offset by the will." The Court of Appeals added that "the
proof aliunde even if admitted without any objection." content of Exhibit B are couched in the language of
ordinarily used in a simple affidavit and as such, may
The premise of the conclusion is, in our opinion, not have the legal effect and force to a testamentary
incorrect. disposition." Furthermore, the Court of Appeals
observed, disinheritance "may not be made in any
instrument other than the will of Exhibit A, as
expressly provided for in article 849 of the Civil Code,"
and, "there being no disposition as to the
disinheritance of the oppositor, Pedro Lopez Porras
(the surviving spouse), in the said Exhibit A, it is quite
SARMIENTO, J.:
clear that he can not be disinherited in any other
instrument including Exhibit B, which is, as above
stated, a simple affidavit." This case is a chapter in an earlier suit decided by
this Court involving the probate of the two wills of the
1
We further agree with each other and The conveyance in question is not, first of all, one
the BANK that the receipt or check of of mortis causa, which should be embodied in a will. A
either, any or all of us during our will has been defined as "a personal, solemn,
lifetime, or the receipt or check of the revocable and free act by which a capacitated person
survivor or survivors, for any payment disposes of his property and rights and declares or
or withdrawal made for our above- complies with duties to take effect after his
mentioned account shall be valid and death." In other words, the bequest or device must
14
sufficient release and discharge of the pertain to the testator. In this case, the monies
15
BANK for such payment or subject of savings account No. 35342-038 were in the
withdrawal. 5
nature of conjugal funds In the case relied on, Rivera
v. People's Bank and Trust Co., we rejected claims
16
On the other hand, the Court of Appeals, in the ... Such conclusion is evidently
petition for certiorari filed by the herein private predicated on the assumption that
respondent, held that the above-quoted survivorship Stephenson was the exclusive owner
agreement constitutes a conveyance mortis of the funds-deposited in the bank,
causa which "did not comply with the formalities of a which assumption was in turn based
valid will as prescribed by Article 805 of the Civil on the facts (1) that the account was
Code," and secondly, assuming that it is a mere
8
originally opened in the name of
donation inter vivos, it is a prohibited donation under Stephenson alone and (2) that Ana
the provisions of Article 133 of the Civil Code.
9
Rivera "served only as housemaid of
the deceased." But it not infrequently
The dispositive portion of the decision of the Court of happens that a person deposits
Appeals states: money in the bank in the name of
another; and in the instant case it also
WHEREFORE, the order of appears that Ana Rivera served her
respondent Judge dated November master for about nineteen years
26, 1985 (Annex II, petition) is hereby without actually receiving her salary
set aside insofar as it granted private from him. The fact that subsequently
respondent's motion to sell certain Stephenson transferred the account to
properties of the estate of Dolores L. the name of himself and/or Ana Rivera
Vitug for reimbursement of his alleged and executed with the latter the
advances to the estate, but the same survivorship agreement in question
order is sustained in all other respects. although there was no relation of
In addition, respondent Judge is kinship between them but only that of
directed to include provisionally the master and servant, nullifies the
deposits in Savings Account No. assumption that Stephenson was the
35342-038 with the Bank of America, exclusive owner of the bank account.
Makati, in the inventory of actual In the absence, then, of clear proof to
properties possessed by the spouses the contrary, we must give full faith
at the time of the decedent's death. and credit to the certificate of deposit
With costs against private which recites in effect that the funds in
respondent. 10 question belonged to Edgar
Stephenson and Ana Rivera; that they
In his petition, Vitug, the surviving spouse, assails the were joint (and several) owners
appellate court's ruling on the strength of our thereof; and that either of them could
decisions in Rivera v. People's Bank and Trust withdraw any part or the whole of said
account during the lifetime of both, It is also our opinion that the agreement involves no
and the balance, if any, upon the modification petition of the conjugal partnership, as
death of either, belonged to the held by the Court of Appeals, by "mere 21
survivor. 17
stipulation" and that it is no "cloak" to circumvent
22 23
No costs.
SO ORDERED.