G.R. No.
L-7188             August 9, 1954 were not complied with in Exhibit "A" because the back pages of the first two folios
In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.  of the will were not signed by any one, not even by the testator and were not
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,  numbered, and as to the three front pages, they were signed only by the testator.
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for
appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu,
executed a document purporting to be his Last Will and Testament now marked
Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the
municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties
estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the
legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance
of Cebu. Some cousins and nephews who would inherit the estate of the deceased if
he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being dead, testified
without contradiction that in his presence and in the presence of his co-witnesses,
Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke
and understood; that he (testator) signed on he left hand margin of the front page of
each of the three folios or sheets of which the document is composed, and numbered
the same with Arabic numerals, and finally signed his name at the end of his writing
at the last page, all this, in the presence of the three attesting witnesses after telling
that it was his last will and that the said three witnesses signed their names on the last
page after the attestation clause in his presence and in the presence of each other. The
oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to be a holographic will; that
it was in the handwriting of the testator and that although at the time it was executed
and at the time of the testator's death, holographic wills were not permitted by law
still, because at the time of the hearing and when the case was to be decided the new
Civil Code was already in force, which Code permitted the execution of holographic
wills, under a liberal view, and to carry out the intention of the testator which
according to the trial court is the controlling factor and may override any defect in
form, said trial court by order dated January 24, 1952, admitted to probate Exhibit
"A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are
appealing from that decision; and because only questions of law are involved in the
appeal, the case was certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a
person may execute a holographic will which must be entirely written, dated and
signed by the testator himself and need not be witnessed. It is a fact, however, that at
the time that Exhibit "A" was executed in 1923 and at the time that Father
Abadia died in 1943, holographic wills were not permitted, and the law at the
time imposed certain requirements for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters and signing on the left hand
margin by the testator and by the three attesting witnesses, requirements which
Interpreting and applying this requirement this Court in the case of In re Estate of
Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses
to sign on the left hand margin of every page, said:
. . . . This defect is radical and totally vitiates the testament. It is not enough
that the signatures guaranteeing authenticity should appear upon two folios
or leaves; three pages having been written on, the authenticity of all three of
them should be guaranteed by the signature of the alleged testatrix and her
witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement,
this Court declared:
From an examination of the document in question, it appears that the left
margins of the six pages of the document are signed only by Ventura Prieto.
The noncompliance with section 2 of Act No. 2645 by the attesting
witnesses who omitted to sign with the testator at the left margin of each of
the five pages of the document alleged to be the will of Ventura Prieto, is a
fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply the provisions of
the new Civil Code which not allows holographic wills, like Exhibit "A" which
provisions were invoked by the appellee-petitioner and applied by the lower court?
But article 795 of this same new Civil Code expressly provides: "The validity of a
will as to its form depends upon the observance of the law in force at the time it
is made." The above provision is but an expression or statement of the weight of
authority to the affect that the validity of a will is to be judged not by the law enforce
at the time of the testator's death or at the time the supposed will is presented in court
for probate or when the petition is decided by the court but at the time the instrument
was executed. One reason in support of the rule is that although the will operates
upon and after the death of the testator, the wishes of the testator about the
disposition of his estate among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the legacy or bequest then
becomes a completed act. This ruling has been laid down by this court in the case of
In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.
Of course, there is the view that the intention of the testator should be the ruling and
controlling factor and that all adequate remedies and interpretations should be
resorted to in order to carry out said intention, and that when statutes passed after the
execution of the will and after the death of the testator lessen the formalities required
by law for the execution of wills, said subsequent statutes should be applied so as to
validate wills defectively executed according to the law in force at the time of
execution. However, we should not forget that from the day of the death of the
testator, if he leaves a will, the title of the legatees and devisees under it becomes a
vested right, protected under the due process clause of the constitution against a
subsequent change in the statute adding new legal requirements of execution of wills
which would invalidate such a will. By parity of reasoning, when one executes a will
which is invalid for failure to observe and follow the legal requirements at the time
of its execution then upon his death he should be regarded and declared as having
died intestate, and his heirs will then inherit by intestate succession, and no
subsequent law with more liberal requirements or which dispenses with such
requirements as to execution should be allowed to validate a defective will and
thereby divest the heirs of their vested rights in the estate by intestate succession.
The general rule is that the Legislature can not validate void wills (57 Am. Jur.,
Wills, Sec. 231, pp. 192-193).
In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is
denied probate. With costs.
G.R. No. L-32636             March 17, 1930
In the matter Estate of Edward Randolph Hix, deceased.  writing purporting to be the was presented for probate on June 8, 1929, to the clerk
A.W. FLUEMER, petitioner-appellant,  of Randolph Country, State of West Virginia, in vacation, and was duly proven by
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a
decision of Judge of First Instance Tuason denying the probate of the document
alleged to by the last will and testament of the deceased. Appellee is not authorized
to carry on this appeal. We think, however, that the appellant, who appears to have
been the moving party in these proceedings, was a "person interested in the
allowance or disallowance of a will by a Court of First Instance," and so should be
permitted to appeal to the Supreme Court from the disallowance of the will (Code of
Civil Procedure, sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil.,
780).
It is theory of the petitioner that the alleged will was executed in Elkins, West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction,
and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2,
1914, p. 1690, and as certified to by the Director of the National Library. But this
was far from a compliance with the law. The laws of a foreign jurisdiction do not
prove themselves in our courts. the courts of the Philippine Islands are not authorized
to take American Union. Such laws must be proved as facts. (In re Estate of Johnson
[1918], 39 Phil., 156.) Here the requirements of the law were not met. There was no
was printed or published under the authority of the State of West Virginia, as
provided in section 300 of the Code of Civil Procedure. Nor was the extract from the
law attested by the certificate of the officer having charge of the original, under the
sale of the State of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract from the laws of
West Virginia was in force at the time the alleged will was executed.
In addition, the due execution of the will was not established. The only evidence on
this point is to be found in the testimony of the petitioner. Aside from this, there was
nothing to indicate that the will was acknowledged by the testator in the presence of
two competent witnesses, of that these witnesses subscribed the will in the presence
of the testator and of each other as the law of West Virginia seems to require. On the
supposition that the witnessses to the will reside without the Philippine Islands, it
would then the duty of the petitioner to prove execution by some other means (Code
of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in
West Virginia and not establish this fact consisted of the recitals in the CATHY will
and the testimony of the petitioner. Also in beginning administration proceedings
orginally in the Philippine Islands, the petitioner violated his own theory by
attempting to have the principal administration in the Philippine Islands.
While the appeal pending submission in this court, the attorney for the appellant
presented an unverified petition asking the court to accept as part of the evidence the
documents attached to the petition. One of these documents discloses that a paper
the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses
thereto , and ordered to be recorded and filed. It was shown by another document
that, in vacation, on June 8, 1929, the clerk of court of Randolph Country, West
Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of
the estate of Edward Randolph Hix, deceased. In this connection, it is to be noted
that the application for the probate of the will in the Philippines was filed on
February 20, 1929, while the proceedings in West Virginia appear to have been
initiated on June 8, 1929. These facts are strongly indicative of an intention to make
the Philippines the principal administration and West Virginia the ancillary
administration. However this may be, no attempt has been made to comply with
Civil Procedure, for no hearing on the question of the allowance of a will said to
have been proved and allowed in West Virginia has been requested. There is no
showing that the deceased left any property at any place other than the Philippine
Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been awarded
Edward Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of
West specific pronouncements on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs
of this instance against the appellant.
GR No. L-4113 June 30, 1952
Testamentary of the deceased William R. Giberson. LELA G.
DALTON, applicant-appellant, 
vs. 
SPRING GIBERSON, opponent-appealed.
The facts appear related in the decision of the Court. 
Messrs. CD Johnston and AP Deen in representation of the appellant. 
D. Francisco EF Remotique on behalf of the appellee.
PABLO, J .:
Lela G. Dalton presented on February 10, 1949, an application in Ceb's First Instance
Court for the legalization of a document that, according to her, is William R.
Giberson's olograph testament, granted on April 29, 1920 in San Francisco,
California; that Giberson was a citizen of the state of Illinois, United States, and a
resident of Cebu; and who died on August 6, 1943 in the concentration camp of the
University of Sto, Tomas, Manila, Philippines.
Spring Giberson, legitimate son of William R. Giberson, filed an opposition claiming
that the will is apocryphal; that it does not represent the true will of the deceased
Giberson: and that it has not been granted in accordance with the law.
On July 1, 1949, the opponent filed a motion requesting the dismissal of the request,
arguing that, before a will granted in a foreign country can be legalized in the
Philippine Islands, it must be demonstrated that said will had previously been
legalized in that country. , in accordance with article 1 of Rule 78; that the request
does not allege that the will had already been legalized in California.
The applicant opposed the motion for dismissal. On June 20, 1950, the Judge
dismissed the petition, declaring: "... under our existing rules only those wills that
have been declared and allowed in the United States, or any state or territory thereof,
or any foreign country, according to to the laws of that state, territory, or country,
may be allowed, filed or recorded in the proper court of first instance in the
Philippines. Against this order the applicant appeals.
The opponent, in support of his theory, maintains that Article 635 of the Code of
Civil Procedure has been repealed by Rule 78, by virtue of section 13, Article VIII of
the Constitution. Said article 635 of the Code of Civil Procedure reads as follows:
A will granted outside the Philippine Islands, which may be authenticated
and legalized in accordance with the laws of the state or country in which it
was granted, may be authenticated, legalized and registered in the
Philippine Islands, and shall have the same effectiveness as that granted in
accordance with the laws of these Islands.
This article has been applied in the case of Babcock Templeton v. Rider Babcock, 52
Jur. Fil., 134, in which it was declared that the testament granted in California and
that could be legalized in that state, can be legalized in the Philippines. In the case of
Varela v. Varela Calderon, 57 Jur. Fil., 291, the testament granted in Paris, France,
was legalized by the late Dr. Francisco Varela Calderon because it was a testament
that could be legalized in accordance with the laws of France.
A person can dispose of his property for after his death by will. The granting of a
will is a legal act that can be performed in the Philippines or abroad; if it is granted in
a foreign country, it must be done in accordance with the laws of that country, which
is a universally adopted rule.
The foreigner may dispose after his death of his property in the Philippines by
testament and is not obliged to grant it in the Philippines; You can do it in your own
country or in another, but in accordance with the laws of the country in which it is
granted. Article 635 of the Code of Civil Procedure, respecting the freedom of the
testator to grant his will in any place, provides that the will that can be legalized in a
foreign country in accordance with the laws of that country can also be legalized in
the Philippines. This provision is substantive, it creates the rights of the beneficiaries
of the will: they are guaranteed to be able to legalize in the Philippines the testaments
granted outside the Islands if they can be legalized in the country in which they were
granted, giving them cause of action to judicially request the fulfillment of the last
will of the testator, whatever the place of its granting. Without this provision, the
faculty of testing would be truncated.
By amending this Court the Code of Civil Procedure, only enmendo the procedural
part, but not the substantive part. "The substantive law can not be amended by rules
of procedure." (Reyes contra Viuda de Luz, * 16 Lawyer Journal, 623.) Therefore,
Article 635 of the Code of Civil Procedure remains subsistent as a substantive right.
And article 637 reads as follows: "The wills authenticated and legalized in the United
States, or in any state or territory of the same, or in a state or paisextranjero, in
accordance with the laws of that state, territory or country, may be legalized,
registered and filed in the Court of First Instance of the province in which the testator
has movable property, or immovable property affected by said testaments. " This
article is in conflict with article 635; in reality, it is nothing more than its corollary. If
a will granted in a foreign country that can be legalized according to the laws of that
country can also be legalized in the Philippine Islands, a fortiori the wills already
legalized in foreign countries according to the laws of those countries, can also be
legalized in the Philippines.
Article 1 of Rule 78 is nothing more than a transplantation of Article 637 of the Code
of Civil Procedure. We reproduce the two provisions:
RULE 78, - SECTION 1. Wills proved outside Philippines may be allowed
here . - Wills proved and allowed in a foreign country, according to the laws
of such country, may be allowed, filed, and recorded by the Court of First
Instance in the Philippines.
SEC. 637. Wills proved outside islands may be allowed here . - Wills
proved and allowed in the United States, or any State or Territory
thereof, or in a foreign state or country, according to the laws of such State,
Territory, or country, may be allowed, filed, and recorded in the Court of
First Instance of the province in which the testator has real or personal
estate in which such will operate .
The words underlined in the second provision are those that do not appear in the first.
Article 1 of Rule 78 does not prevent a testament granted in a foreign country from
being legalized in the Philippines, if it can be legalized in accordance with the laws
of that country, nor does it require that it be previously legalized in that country. It is
untenable, therefore, the theory of the opponent.
The appealed order is revoked with costs against the appellee.
G.R. No. L-20234      December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners, 
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance
of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court
of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and that "while each of the testators is yet living, he or she
will continue to enjoy the fruits of the two lands aforementioned", the said
two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will
was submitted to probate by said Gervasia and Manuela before the Court of
First Instance of Cebu which, after due publication as required by law and
there being no opposition, heard the evidence, and, by Order of October 31,
1939; in Special Proceedings No. 499, "declara legalizado el documento
Exhibit A como el testamento y ultima voluntad del finado Bernabe de la
Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra
testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y habido consideracion de la cuantia
de dichos bienes, se decreta la distribucion sumaria de los mismos en favor
de la logataria universal Manuela Rebaca de Potot previa prestacion por
parte de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado
Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499,
Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance
of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null
and void, for being executed contrary to the prohibition of joint wills in the Civil
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but
on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that
the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and testament
has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned, saying,
"assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939
by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died),
has conclusive effect as to his last will and testament despite the fact that even then
the Civil Code already decreed the invalidity of joint wills, whether in favor of the
joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code).
The error thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the probate
court, nor the conclusive effect of its final decision, however erroneous. A final
judgment rendered on a petition for the probate of a will is binding upon the whole
world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and
public policy and sound practice demand that at the risk of occasional errors
judgment of courts should become final at some definite date fixed by law. Interest
rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases
cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by
the 1939 decree admitting his will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision on Whether an act is valid
or void rests with the courts, and here they have spoken with finality when the will
was probated in 1939. On this court, the dismissal of their action for partition was
correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the
share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the new
Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint
will is considered a separate will of each testator. Thus regarded, the holding of the
court of First Instance of Cebu that the joint will is one prohibited by law was correct
as to the participation of the deceased Gervasia Rebaca in the properties in question,
for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil.
144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to
her heirs intestate, and not exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the only heir intestate of
said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7,
Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals
in CA-G.R. No. 23763-R is affirmed. No Costs.
GR No. L-9234 August 30, 1957
INTESTATE ESTATE OF THE LATE ELI RODRIGUEZ. SAMSON
RODRIGUEZ, ET AL., Movants-appellants,  596.26 piculs allocated to the parcels of land is not subject to such reserve trunk and
vs.  ordered the administratix -
RUPERTA A. VDA. DE RODRIGUEZ, administratix-appellee,
RUPERTA TO VDA. DE RODRIGUEZ, administratix-appellant, vs. SAMSON
RODRIGUEZ, ET AL., Movants-appellees.
Gabriel Benedicto for appellant.  Cadastre) in favor of Samson, Juanita, Inicerio and Gregorio, all surnamed
Carlos Hilado, Jose V. Coruna and Jose Y. Hilado for appellees.
PADILLA, J .:
In his lifetime the late Fortunate Rodriguez executed a will instituting as heirs
entitled to his estate, the following: Josefina and Nicanora, natural children; Samson,
Juanita, Inicerio and Gregorio, legitimate children by his first wife Julia Quillos; and
Eli Rodriguez, legitimate are by his second wife Ruperta A. Vda. of Rodriguez. After
his death submission in 1924, proceedings for the administration and settlement of
his estate was instituted in the Court of First Instance of Occidental Negros (Special
Proceedings No. 2758). On 24 March 1924 the heirs executed an agreement of
partition and submitted to the probate court for approval. After approval, the heirs
took possession of their respective shares. chanroblesvirtualawlibrary chanrobles
virtual law library
The real estate awarded to Eli Rodriguez are the following: (1) 1/15 share in Lots
Nos. 846, 848 and 965; (2) Lot No. 847; and (3) Lot No. 951, all of the Cadastral
Survey of La Carlota. These parcels of land are planted to sugar cane and the milled
produce at the Central Azucarera de La Carlota. Upon the enactment of Act No.
4166, known as the Sugar Limitation Law, on December 4, 1934, a quota of 596.26
piculs of sugar, divided into export, consumer, and emergency reserve, manufactured
from sugar cane grown therein, was allocated to the said parcels of
land. chanroblesvirtualawlibrary chanrobles virtual law library
On 19 May 1942 Eli Rodriguez died intestate, single and without issue in O'Donnel
concentration camp, Capas, Tarlac. On 28 December 1945 his mother Ruperta A.
Vda. of Rodriguez commenced proceedings in the Court of First Instance of
Occidental Negros for the administration and settlement of the deceased and prayed
that after hearing that she was appointed administrator of the estate of the
deceased; that she is exempted from filing a bond; and that she was declared the sole
estate of the deceased (Special Proceedings No. 220). On 23 September 1954
Samson Rodriguez, Juanita Rodriguez, Inicerio Rodriguez, Gregorio Rodriguez and
Josefina Rodriguez, half-brothers and half-sisters of the deceased, and Jesus Segura,
are of Nicanora Rodriguez, another half-sister of the deceased,trunk reservation in
their favor under and pursuant to the provisions of article 891 of the new Civil Code
(811 of the old), and that the administratrix be directed to register or cause to be
recorded on the back of the transfer certificates of title to be issued in his name by
the Registrar of Deeds in and for the province of Occidental Negros for the said
parcels of land, their right to such trunk reservation . After hearing, on 27 November
1954 the probate court held that Josefina Rodriguez, a natural sister of the deceased,
and Jesus Segura, the son of the late Nicanora Rodriguez, another natural sister, are
not entitled to trunk reservation , but that the rest of the movants are entitled to have
their rights to trunk reservationEli
Rodriguez ;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;; and that the sugar quota of
. . . to record in the Registry of Deeds of Negros Occidental, the reservable character
of lots Nos. 847, 951, 11, 965 and 7 of the Carlota Cadastre (the last three lots
corresponding to 1/15 pro undivided of Lots 846, 965 and 848 of the La Carlota
Rodriguez.
Motions for reconsideration filed on 22 December 1954 and 22 February 1955 were
denied on 14 February 1955 and 10 March 1955,
respectively. chanroblesvirtualawlibrary chanrobles virtual law library
The movants appeal from that part of the order denying their petition to include in
the reservation the sugar quota allotment of 596.26 piculs that may be manufactured
from the sugar cane grown in the parcels of land inherited by the administratrix from
her late son. The movants Josefina Rodriguez and Jesus Segura did not appeal. The
administratrix appeals from that part of the order directing it to register or cause to be
recorded the right of Samson, Juanita, Inicerio and Gregorio, all surnamed
Rodriguez, to a trunk reservation on the transfer of certificates to the administratrix
by The Rigistrar of Deeds of the province of Occidental Negros for the parcels of
land inherited by her from her late are Eli
Rodriguez. chanroblesvirtualawlibrary chanrobles virtual law library
Article 891 of the new Civil Code (811 of the old), provides:
The ascendant who inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant, or a brother or sister, is
obliged to reserve such property is he may have acquired by operation of the law for
the benefit of relatives who are within the third degree and who belong to the line
from which said property came.
Commenting on this article Manresa says:
The goods pass first to the legitimary ascendant: he reserves them, he keeps them
during his life, and at his death they go to the line to which they belonged if there are
relatives within the third degree in that line, and if they do not have them in that
moimento, the reserve disappears, the goods are free and the natural order of
succession is followed. In change the relatives have to respect that usufruct, and they
have a hope to those goods, that only those who live at the time of the death of the
ancestor realize. chanroblesvirtualawlibrary chanrobles virtual law library
From this it follows that the ascendant is something more than a simple
usufructuary; their right is analogous to that of the possessor of goods subject to a
resolutory condition. There is, in fact, a future and uncertain fact on which the
definitive acquisition or the extinction of the right by the ascendant or his heirs
depends, as well as the acquisition or the extension of the right of the relatives. Will
there be lineal relatives, within the third degree, to the death of the ascendant obliged
to reserve? Such is the question. Are they left? They acquire the goods, which are
lost to the heirs of the ascendant, because the condition has been fulfilled. There are
no more? The uncertain fact has not been realized, and the right of the ascendant or
of his heirs becomes definitive and firm. And do not believe that there will always be
waiting for the death of the ascendant: There will be cases in which, after the
reservation is born, that offspring will witness the death of the reservation, for the
relatives who may have been entitled to disappear, and it will not be possible for
them to come to exist. (Comentrios al Código Civil Espa ol, Vol. 6 pp. 252-253, 6th
Ed.)
Properties reservable under the aforequoted article are those that the propositus
acquired by gratuitous title from another ascenda, or brother or sister. Although in
1924, at the time the late Eli Rodriguez inherited by will the parcels of land from his
late father Fortunato, the sugar quota allotment was not yet in existence, still such
sugar quota allotment, in the language of the law, 1 is " an improvement attaching to
the land. " If there is no land planted to sugar cane there would be no sugar quota
allotment. The fact that "Mill companies and plantation owners may leave, transfer,
or assign their allotments received under the terms of this Act," 2 is another
compelling reason which leads us to regard the sugar quota allotment as part of the
land to be reserved for the reserve, because if the sugar quota allotment is sold by the
reservoir, the land subject to trunk reserve would greatly depreciate in value to the
prejudice and detriment of the right of the
book. chanroblesvirtualawlibrary chanrobles virtual law library
In support of her appeal, counsel for the administratrix quotes in her brief a passage
from Manresa thus -
That as for the brother, of course the precept is applicable to the brothers of double
bonds. But if the goods come from a half brother, would not have, then (place) the
reserve. (Manresa Vol. 6 page 256) Pp. 6-7, brief for the administratrix appellant.
This is not correct. The correct passage is -
As for the brother, of course the precept applies to the brothers with double
bonds. But if the goods come from a half-brother, will not the reserve go? There is
no doubt: brothers are one and others, and with that single denomination the half
brothers are included in articles 143, 144, 294, 770, 952, 953 and 954. Legitimates
are also all, and without an express provision of the law there is no they can be
excluded. The double bond determines a certain preference in the matter of
guardianships and successions; more to the effect of looking for the origin of log
goods in art. 811, it is enough that they are brothers, whether they are double bonds,
uterine or consanguineous. There is above all a decisive reason, as we shall see
later; in the end, the reservation is established in favor of the relatives who belong to
the line of the brother from whom the goods originate,chanrobles virtual law library
Must it be the double-bond kinship? Scaevola asserts that, since the reservation of
Article 811 is purely linear, it is not legitimate to distinguish between a relative of a
whole or a half-bond, and he quotes in his opinion the sentence of December 29,
1897, in which the Reserve in favor of one half brother. (Manresa, Comments to the
Spanish Civil Code, Vol. 6, pp. 328-329, 7th Ed.)
The provisions of article 891 of the new Civil Code (811 of the old) do not exclude
the half brothers and sisters from the benefit provided for therein, as long as they are
of the line from which the property to be reserved
came. chanroblesvirtualawlibrary chanrobles virtual law library
The order appealed from is modified by the sugar quota allotment of the parcels of
land in the reservation to be recorded on the transfer certificates of the title to be
issued to and in the name of Ruperta A. Vda. of Rodriguez, without pronouncement
as to costs. chanroblesvirtualawlibrary chanrobles virtual law library
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E.
CHRISTENSEN, DECEASED. 
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the
deceased, Executor and Heir-appellees, vs. HELEN CHRISTENSEN
GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:chanrobles virtual law library
This is an appeal from a decision of the Court of First Instance of Davao, Hon.
Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated
September 14, 1949, approving among things the final accounts of the executor,
directing the executor to reimburse Maria Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be enjoyed during her lifetime,
and in case of death without issue, one-half of said residue to be payable to Mrs.
Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the
testator Edward E. Christensen. The will was executed in Manila on March 5, 1951
and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight
years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A.chanroblesvirtualawlibrarychanrobles virtual law library
4. I further declare that I now have no living ascendants, and no descendants except
my above named daughter, MARIA LUCY CHRISTENSEN DANEY.
x x x           x x x           x x xchanrobles virtual law library
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married
to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact
that she was baptized Christensen, is not in any way related to me, nor has she been
at any time adopted by me, and who, from all information I have now resides in
Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the
said Maria Helen Christensen with the Davao Branch of the Philippine National
Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine
Currency per month until the principal thereof as well as any interest which may
have accrued thereon, is exhausted..
x x x           x x x           x x xchanrobles virtual law library
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as
aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of
which I may be possessed at my death and which may have come to me from any
source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final
account and project of partition ratified the payment of only P3,600 to Helen
Christensen Garcia and proposed that the residue of the estate be transferred to his
daughter, Maria Lucy Christensen.chanroblesvirtualawlibrarychanrobles virtual law
library
Opposition to the approval of the project of partition was filed by Helen Christensen
Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural
child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged
natural child of the deceased Edward E. Christensen. The legal grounds of opposition
are (a) that the distribution should be governed by the laws of the Philippines, and (b)
that said order of distribution is contrary thereto insofar as it denies to Helen
Christensen, one of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law that
should govern the estate of the deceased Christensen should not be the internal law
of California alone, but the entire law thereof because several foreign elements are
involved, that the forum is the Philippines and even if the case were decided in
California, Section 946 of the California Civil Code, which requires that the domicile
of the decedent should apply, should be applicable. It was also alleged that Maria
Helen Christensen having been declared an acknowledged natural child of the
decedent, she is deemed for all purposes legitimate from the time of her
birth.chanroblesvirtualawlibrarychanrobles virtual law library
The court below ruled that as Edward E. Christensen was a citizen of the United
States and of the State of California at the time of his death, the successional rights
and intrinsic validity of the provisions in his will are to be governed by the law of
California, in accordance with which a testator has the right to dispose of his
property in the way he desires, because the right of absolute dominion over his
property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176
P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record
on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various
motions for reconsideration, but these were denied. Hence, this
appeal.chanroblesvirtualawlibrarychanrobles virtual law library
The most important assignments of error are as follows:
Ichanrobles virtual law library
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE
HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED
NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY,
IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
IIchanrobles virtual law library
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING
TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS
AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL
LAW.
IIIchanrobles virtual law library
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER
INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE,
THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF
THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E.
CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE
PHILIPPINES.
IVchanrobles virtual law library
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE
OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO
THE PHILIPPINE LAWS.
Vchanrobles virtual law library
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE
PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-
HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States
and of the State of California at the time of his death. But there is also no question
that at the time of his death he was domiciled in the Philippines, as witness the
following facts admitted by the executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the facts of record show that
the deceased Edward E. Christensen was born on November 29, 1875 in New York
City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher,
was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of
Embarkation as the City of San Francisco, in the State of California, U.S.A. He
stayed in the Philippines until 1904.chanroblesvirtualawlibrarychanrobles virtual law
library
In December, 1904, Mr. Christensen returned to the United States and stayed there
for the following nine years until 1913, during which time he resided in, and was
teaching school in Sacramento, California.chanroblesvirtualawlibrarychanrobles
virtual law library
Mr. Christensen's next arrival in the Philippines was in July of the year 1913.
However, in 1928, he again departed the Philippines for the United States and came
back here the following year, 1929. Some nine years later, in 1938, he again returned
to his own country, and came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts.chanroblesvirtualawlibrarychanrobles virtual law library
Being an American citizen, Mr. Christensen was interned by the Japanese Military
Forces in the Philippines during World War II. Upon liberation, in April 1945, he left
for the United States but returned to the Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-
Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21,
1953.)chanrobles virtual law library
In April, 1951, Edward E. Christensen returned once more to California shortly after
the making of his last will and testament (now in question herein) which he executed
at his lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital
in the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we
are persuaded by the fact that he was born in New York, migrated to California and
resided there for nine years, and since he came to the Philippines in 1913 he returned
to California very rarely and only for short visits (perhaps to relatives), and
considering that he appears never to have owned or acquired a home or properties in
that state, which would indicate that he would ultimately abandon the Philippines
and make home in the State of California.
Sec. 16. Residence is a term used with many shades of meaning from mere
temporary presence to the most permanent abode. Generally, however, it is used to
denote something more than mere physical presence. (Goodrich on Conflict of Laws,
p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in
California when he resided in Sacramento, California from 1904 to 1913, was never
lost by his stay in the Philippines, for the latter was a territory of the United States
(not a state) until 1946 and the deceased appears to have considered himself as a
citizen of California by the fact that when he executed his will in 1951 he declared
that he was a citizen of that State; so that he appears never to have intended to
abandon his California citizenship by acquiring another. This conclusion is in
accordance with the following principle expounded by Goodrich in his Conflict of
Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a
place of permanent abode. But domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has never been. And he
may reside in a place where he has no domicile. The man with two homes, between
which he divides his time, certainly resides in each one, while living in it. But if he
went on business which would require his presence for several weeks or months, he
might properly be said to have sufficient connection with the place to be called a
resident. It is clear, however, that, if he treated his settlement as continuing only for
the particular business in hand, not giving up his former "home," he could not be a
domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of
intention as well as physical presence. "Residence simply requires bodily presence of
an inhabitant in a given place, while domicile requires bodily presence in that place
and also an intention to make it one's domicile." Residence, however, is a term used
with many shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in
Article 16 of the Civil Code of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the
country where it is situated.chanroblesvirtualawlibrarychanrobles virtual law library
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.
The application of this article in the case at bar requires the determination of the
meaning of the term "national law" is used
therein.chanroblesvirtualawlibrarychanrobles virtual law library
There is no single American law governing the validity of testamentary provisions in
the United States, each state of the Union having its own private law applicable to its
citizens only and in force only within the state. The "national law" indicated in
Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply
to any general American law. So it can refer to no other than the private law of the
State of California.chanroblesvirtualawlibrarychanrobles virtual law library
The next question is: What is the law in California governing the disposition of
personal property? The decision of the court below, sustains the contention of the
executor-appellee that under the California Probate Code, a testator may dispose of
his property by will in the form and manner he desires, citing the case of Estate of
McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions
of Article 946 of the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied.
We have checked it in the California Civil Code and it is there. Appellee, on the
other hand, relies on the case cited in the decision and testified to by a witness. (Only
the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the
deceased Christensen was a citizen of the State of California, the internal law
thereof, which is that given in the abovecited case, should govern the determination
of the validity of the testamentary provisions of Christensen's will, such law being in
force in the State of California of which Christensen was a citizen. Appellant, on the
other hand, insists that Article 946 should be applicable, and in accordance therewith
and following the doctrine of the renvoi, the question of the validity of the
testamentary provision in question should be referred back to the law of the
decedent's domicile, which is the Philippines.chanroblesvirtualawlibrarychanrobles
virtual law library
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the
forum refers a jural matter to a foreign law for decision, is the reference to the purely
internal rules of law of the foreign system; i.e., to the totality of the foreign law
minus its Conflict of Laws rules?"chanrobles virtual law library
On logic, the solution is not an easy one. The Michigan court chose to accept the
renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the matter
back to Michigan law. But once having determined the the Conflict of Laws
principle is the rule looked to, it is difficult to see why the reference back should not
have been to Michigan Conflict of Laws. This would have resulted in the "endless
chain of references" which has so often been criticized be legal writers. The
opponents of the renvoi would have looked merely to the internal law of Illinois, thus
rejecting the renvoi or the reference back. Yet there seems no compelling logical
reason why the original reference should be the internal law rather than to the
Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-
round, but those who have accepted the renvoi theory avoid this inextricabilis
circulas by getting off at the second reference and at that point applying internal law.
Perhaps the opponents of the renvoi are a bit more consistent for they look always to
internal law as the rule of reference.chanroblesvirtualawlibrarychanrobles virtual law
library
Strangely enough, both the advocates for and the objectors to the renvoi plead that
greater uniformity will result from adoption of their respective views. And still more
strange is the fact that the only way to achieve uniformity in this choice-of-law
problem is if in the dispute the two states whose laws form the legal basis of the
litigation disagree as to whether the renvoishould be accepted. If both reject, or both
accept the doctrine, the result of the litigation will vary with the choice of the forum.
In the case stated above, had the Michigan court rejected the renvoi, judgment would
have been against the woman; if the suit had been brought in the Illinois courts, and
they too rejected the renvoi, judgment would be for the woman. The same result
would happen, though the courts would switch with respect to which would hold
liability, if both courts accepted the renvoi.chanroblesvirtualawlibrarychanrobles
virtual law library
The Restatement accepts the renvoi theory in two instances: where the title to land is
in question, and where the validity of a decree of divorce is challenged. In these
cases the Conflict of Laws rule of the situs of the land, or the domicile of the parties
in the divorce case, is applied by the forum, but any further reference goes only to
the internal law. Thus, a person's title to land, recognized by the situs, will be
recognized by every court; and every divorce, valid by the domicile of the parties,
will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)chanrobles
virtual law library
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable
property in Massachusetts, England, and France. The question arises as to how this
property is to be distributed among X's next of
kin.chanroblesvirtualawlibrarychanrobles virtual law library
Assume (1) that this question arises in a Massachusetts court. There the rule of the
conflict of laws as to intestate succession to movables calls for an application of the
law of the deceased's last domicile. Since by hypothesis X's last domicile was
France, the natural thing for the Massachusetts court to do would be to turn to French
statute of distributions, or whatever corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law, however, would show that if
a French court were called upon to determine how this property should be
distributed, it would refer the distribution to the national law of the deceased, thus
applying the Massachusetts statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course of action: (a) either to apply the
French law is to intestate succession, or (b) to resolve itself into a French court and
apply the Massachusetts statute of distributions, on the assumption that this is what a
French court would do. If it accepts the so-called renvoi doctrine, it will follow the
latter course, thus applying its own law.chanroblesvirtualawlibrarychanrobles virtual
law library
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule
of the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers
the matter back again to the law of the forum. This is renvoi in the narrower sense.
The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law
Review, Vol. 31, pp. 523-571.)chanrobles virtual law library
After a decision has been arrived at that a foreign law is to be resorted to as
governing a particular case, the further question may arise: Are the rules as to the
conflict of laws contained in such foreign law also to be resorted to? This is a
question which, while it has been considered by the courts in but a few instances, has
been the subject of frequent discussion by textwriters and essayists; and the doctrine
involved has been descriptively designated by them as the "Renvoyer" to send back,
or the "Ruchversweisung", or the "Weiterverweisung", since an affirmative answer
to the question postulated and the operation of the adoption of the foreign law in toto
would in many cases result in returning the main controversy to be decided
according to the law of the forum. ... (16 C.J.S. 872.)chanrobles virtual law library
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of
the doctrine of renvoi is that the court of the forum, in determining the question
before it, must take into account the whole law of the other jurisdiction, but also its
rules as to conflict of laws, and then apply the law to the actual question which the
rules of the other jurisdiction prescribe. This may be the law of the forum. The
doctrine of the renvoi has generally been repudiated by the American authorities. (2
Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its
application in a country explained by Prof. Lorenzen in an article in the Yale Law
Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are
quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are
to be understood as incorporating not only the ordinary or internal law of the foreign
state or country, but its rules of the conflict of laws as well. According to this theory
'the law of a country' means the whole of its law.
x x x           x x x           x x xchanrobles virtual law library
Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:chanrobles virtual law library
(1) Every court shall observe the law of its country as regards the application of
foreign laws.chanroblesvirtualawlibrarychanrobles virtual law library
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall be
determined by the law of the domicile, or even by the law of the place where the act
in question occurred.chanroblesvirtualawlibrarychanrobles virtual law library
(b) The decision of two or more foreign systems of law, provided it be certain that
one of them is necessarily competent, which agree in attributing the determination of
a question to the same system of law.
x x x           x x x           x x xchanrobles virtual law library
If, for example, the English law directs its judge to distribute the personal estate of
an Englishman who has died domiciled in Belgium in accordance with the law of his
domicile, he must first inquire whether the law of Belgium would distribute personal
property upon death in accordance with the law of domicile, and if he finds that the
Belgian law would make the distribution in accordance with the law of nationality -
that is the English law - he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule,
while the rule applied in In re Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of California are to be enforced jointly, each
in its own intended and appropriate sphere, the principle cited In re Kaufman should
apply to citizens living in the State, but Article 946 should apply to such of its
citizens as are not domiciled in California but in other jurisdictions. The rule laid
down of resorting to the law of the domicile in the determination of matters with
foreign element involved is in accord with the general principle of American law that
the domiciliary law should govern in most matters or rights which follow the person
of the owner.
When a man dies leaving personal property in one or more states, and leaves a will
directing the manner of distribution of the property, the law of the state where he was
domiciled at the time of his death will be looked to in deciding legal questions about
the will, almost as completely as the law of situs is consulted in questions about the
devise of land. It is logical that, since the domiciliary rules control devolution of the
personal estate in case of intestate succession, the same rules should determine the
validity of an attempted testamentary dispostion of the property. Here, also, it is not
that the domiciliary has effect beyond the borders of the domiciliary state. The rules
of the domicile are recognized as controlling by the Conflict of Laws rules at the
situs property, and the reason for the recognition as in the case of intestate
succession, is the general convenience of the doctrine. The New York court has said
on the point: 'The general principle that a dispostiton of a personal property, valid at
the domicile of the owner, is valid anywhere, is one of the universal application. It
had its origin in that international comity which was one of the first fruits of
civilization, and it this age, when business intercourse and the process of
accumulating property take but little notice of boundary lines, the practical wisdom
and justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec.
164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out
as the national law is the internal law of California. But as above explained the laws
of California have prescribed two sets of laws for its citizens, one for residents
therein and another for those domiciled in other jurisdictions. Reason demands that
We should enforce the California internal law prescribed for its citizens residing
therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in
Article 16 of our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above explained, i.e., apply the
internal law for residents therein, and its conflict-of-laws rule for those domiciled
abroad.chanroblesvirtualawlibrarychanrobles virtual law library
It is argued on appellees' behalf that the clause "if there is no law to the contrary in
the place where the property is situated" in Sec. 946 of the California Civil Code
refers to Article 16 of the Civil Code of the Philippines and that the law to the
contrary in the Philippines is the provision in said Article 16 that the national law of
the deceased should govern. This contention can not be sustained. As explained in
the various authorities cited above the national law mentioned in Article 16 of our
Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article
946, which authorizes the reference or return of the question to the law of the
testator's domicile. The conflict of laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not domiciled in California, to the
law of his domicile, the Philippines in the case at bar. The court of the domicile can
not and should not refer the case back to California; such action would leave the
issue incapable of determination because the case will then be like a football, tossed
back and forth between the two states, between the country of which the decedent
was a citizen and the country of his domicile. The Philippine court must apply its
own law as directed in the conflict of laws rule of the state of the decedent, if the
question has to be decided, especially as the application of the internal law of
California provides no legitime for children while the Philippine law, Arts. 887(4)
and 894, Civil Code of the Philippines, makes natural children legally acknowledged
forced heirs of the parent recognizing them.chanroblesvirtualawlibrarychanrobles
virtual law library
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40
Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock,
52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support
the decision can not possibly apply in the case at bar, for two important reasons, i.e.,
the subject in each case does not appear to be a citizen of a state in the United States
but with domicile in the Philippines, and it does not appear in each case that there
exists in the state of which the subject is a citizen, a law similar to or identical with
Art. 946 of the California Civil Code.chanroblesvirtualawlibrarychanrobles virtual
law library
We therefore find that as the domicile of the deceased Christensen, a citizen of
California, is the Philippines, the validity of the provisions of his will depriving his
acknowledged natural child, the appellant, should be governed by the Philippine
Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the
internal law of California..chanroblesvirtualawlibrarychanrobles virtual law library
WHEREFORE, the decision appealed from is hereby reversed and the case returned E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina
to the lower court with instructions that the partition be made as the Philippine law Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in
on succession provides. Judgment reversed, with costs against appellees. satisfaction of their respective legacies, or a total of P120,000.00, which it released
from time to time according as the lower court approved and allowed the various
motions or petitions filed by the latter three requesting partial advances on account of
their respective legacies.chanroblesvirtualawlibrarychanrobles virtual law library
On January 8, 1964, preparatory to closing its administration, the executor submitted
G.R. No. L-23678 June 6, 1967
and filed its "Executor's Final Account, Report of Administration and Project of
TESTATE ESTATE OF AMOS G. BELLIS, deceased. 
Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E.
PEOPLE'S BANK and TRUST COMPANY, executor. 
Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-
legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the
appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees.
amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
executor - pursuant to the "Twelfth" clause of the testator's Last Will and Testament -
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
divided the residuary estate into seven equal portions for the benefit of the testator's
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
seven legitimate children by his first and second
J. R. Balonkita for appellee People's Bank & Trust Company.
marriages.chanroblesvirtualawlibrarychanrobles virtual law library
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their
BENGZON, J.P., J.:chanrobles virtual law library
respective oppositions to the project of partition on the ground that they were
This is a direct appeal to Us, upon a question purely of law, from an order of the
deprived of their legitimes as illegitimate children and, therefore, compulsory heirs
Court of First Instance of Manila dated April 30, 1964, approving the project of
of the deceased.chanroblesvirtualawlibrarychanrobles virtual law library
partition filed by the executor in Civil Case No. 37089
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of
therein.chanroblesvirtualawlibrarychanrobles virtual law library
which is evidenced by the registry receipt submitted on April 27, 1964 by the
The facts of the case are as follows:chanrobles virtual law library
executor.1chanrobles virtual law library
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United
After the parties filed their respective memoranda and other pertinent pleadings, the
States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate
lower court, on April 30, 1964, issued an order overruling the oppositions and
children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry
approving the executor's final account, report and administration and project of
A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet
partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the
Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis,
decedent, which in this case is Texas law, which did not provide for
Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children:
legitimes.chanroblesvirtualawlibrarychanrobles virtual law library
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma
Their respective motions for reconsideration having been denied by the lower court
Bellis.chanroblesvirtualawlibrarychanrobles virtual law library
on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he
which law must apply - Texas law or Philippine
directed that after all taxes, obligations, and expenses of administration are paid for,
law.chanroblesvirtualawlibrarychanrobles virtual law library
his distributable estate should be divided, in trust, in the following order and manner:
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of
(a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three
renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31,
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or
1963. Said doctrine is usually pertinent where the decedent is a national of one
P40,000.00 each and (c) after the foregoing two items have been satisfied, the
country, and a domicile of another. In the present case, it is not disputed that the
remainder shall go to his seven surviving children by his first and second wives,
decedent was both a national of Texas and a domicile thereof at the time of his
namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis
death.2 So that even assuming Texas has a conflict of law rule providing that the
Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
domiciliary system (law of the domicile) should govern, the same would not result in
shares.chanroblesvirtualawlibrarychanrobles virtual law library
a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio,
Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae)
Texas, U.S.A. His will was admitted to probate in the Court of First Instance of
calling for the application of the law of the place where the properties are situated,
Manila on September 15, 1958.chanroblesvirtualawlibrarychanrobles virtual law
renvoi would arise, since the properties here involved are found in the Philippines. In
library
the absence, however, of proof as to the conflict of law rule of Texas, it should not be
The People's Bank and Trust Company, as executor of the will, paid all the bequests
presumed different from ours.3 Appellants' position is therefore not rested on the
therein including the amount of $240,000.00 in the form of shares of stock to Mary
doctrine of renvoi. As stated, they never invoked nor even mentioned it in their Philippine law and not with his national law, is illegal and void, for his national law
arguments. Rather, they argue that their case falls under the circumstances mentioned cannot be ignored in regard to those matters that Article 10 - now Article 16 - of the
in the third paragraph of Article 17 in relation to Article 16 of the Civil Civil Code states said national law should
Code.chanroblesvirtualawlibrarychanrobles virtual law library govern.chanroblesvirtualawlibrarychanrobles virtual law library
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
of the decedent, in intestate or testamentary successions, with regard to four items: Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or
(a) the order of succession; (b) the amount of successional rights; (e) the intrinsic legitimes. Accordingly, since the intrinsic validity of the provision of the will and the
validity of the provisions of the will; and (d) the capacity to succeed. They provide amount of successional rights are to be determined under Texas law, the Philippine
that - law on legitimes cannot be applied to the testacy of Amos G.
ART. 16. Real property as well as personal property is subject to the law of the Bellis.chanroblesvirtualawlibrarychanrobles virtual law library
country where it is situated.chanroblesvirtualawlibrarychanrobles virtual law library Wherefore, the order of the probate court is hereby affirmed in toto, with costs
However, intestate and testamentary successions, both with respect to the order of against appellants. So ordered.
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose G.R. No. 54919. May 30, 1984.]
succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be POLLY CAYETANO, Petitioner, v. HON. TOMAS T. LEONIDAS, in his
found.chanroblesvirtualawlibrarychanrobles virtual law library capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Manila and NENITA CAMPOS PAGUIA, Respondents. 
Appellants would however counter that Art. 17, paragraph three, of the Civil Code,
stating that - Ermelo P. Guzman for Petitioner.
Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, public policy and good customs shall not be rendered Armando Z. Gonzales for Private Respondent.
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not SYLLABUS
correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of
this and the next preceding article" when they incorporated Art. 11 of the old Civil
Code as Art. 17 of the new Civil Code, while reproducing without substantial change
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE
the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must
ABUSE OF DISCRETION; GRANT OF MOTION TO WITHDRAW
have been their purpose to make the second paragraph of Art. 16 a specific provision
OPPOSITION TO PROBATE OF WILL IN CASE AT BAR, NOT A CASE OF. —
in itself which must be applied in testate and intestate succession. As further
We find no grave abuse of discretion on the part of the respondent judge when he
indication of this legislative intent, Congress added a new provision, under Art.
allowed withdrawal of petitioner’s opposition to the probate of the will. No proof
1039, which decrees that capacity to succeed is to be governed by the national law of
was adduced to support petitioner’s contention that the motion to withdraw was
the decedent.chanroblesvirtualawlibrarychanrobles virtual law library
secured through fraudulent means and that Atty. Franco Loyola was not his counsel
It is therefore evident that whatever public policy or good customs may be involved
of record. The records show that after the filing of the contested motion, the
in our System of legitimes, Congress has not intended to extend the same to the
petitioner at a later date, filed a manifestation wherein he confirmed that the Motion
succession of foreign nationals. For it has specifically chosen to leave, inter alia,
to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the
the amount of successional rights, to the decedent's national law. Specific provisions
motion was filed, the petitioner’s former counsel, Atty. Jose P. Lagrosa had long
must prevail over general ones.chanroblesvirtualawlibrarychanrobles virtual law
withdrawn from the case and had been substituted by Atty. Franco Loyola who in
library
turn filed the motion. The present petitioner cannot, therefore, maintain that the old
Appellants would also point out that the decedent executed two wills - one to govern
man’s attorney of record was Atty. Lagrosa at the time of filing the motion. Since the
his Texas estate and the other his Philippine estate - arguing from this that he
withdrawal was in order, the respondent judge acted correctly in hearing the probate
intended Philippine law to govern his Philippine estate. Assuming that such was the
of the will ex-parte, there being no other opposition to the same.
decedent's intention in executing a separate Philippine will, it would not alter the
law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a
2. ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL; PROBATE COURT,
foreigner's will to the effect that his properties shall be distributed in accordance with
SCOPE OF AUTHORITY. — As a general rule, the probate court’s authority is
limited only to the extrinsic validity of the will, the due execution thereof, the
testatrix’s testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only
after the court has declared that the will has been duly authenticated. However,
where practical considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet the issue (Maninang, v. Court
of Appeals, 114 SCRA 478).
3. CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC VALIDITY OF WILLS
GOVERNED BY THE NATIONAL LAW OF THE DECEDENT; CASE AT BAR.
— It is a settled rule that as regards the intrinsic validity of the provisions of the will,
as provided for by Articles 16(2) and 1039 of the Civil Code, the national law of the
decedent must apply. In the case at bar, although on its face, the will appeared to
have preterited the petitioner and thus, the respondent judge should have denied its
probate outright, the private respondents have sufficiently established that Adoracion
Campos was, at the time of her death, an American citizen and a permanent resident
of Philadelphia, Pennsylvania, U.S.A.. Therefore, the law governing Adoracion
Campos’ will is the law of Pennsylvania, U.S.A., which is the national law of the
decedent. Under the Pennsylvania law, no legitimes are provided for, and all the
estate may be given away by the testatrix to a complete stranger.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE;
COURT OF FIRST INSTANCE OF THE PROVINCE WHERE THE ESTATE IS
LOCATED HAS JURISDICTION. — The settlement of the estate of Adoracion
Campos was correctly filed with the Court of First Instance of Manila where she had
an estate since it was alleged and proven the Adoracion at the time of her death was a
citizen and permanent resident of Pennsylvania, United States of America and not a
"usual resident of Cavite" as alleged by the petitioner.
5. ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM QUESTIONING
JURISDICTION OF COURT IN CASE AT BAR. — Petitioner is now estopped
from questioning the jurisdiction of the probate court in the petition for relief. It is a
settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative
relief, against his opponent and after failing to obtain such relief, repudiate or
question that same jurisdiction (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, Et
Al., G.R. No. 63284, April 4, 1984).
DECISION
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which
admitted to and allowed the probate of the last will and testament of Adoracion C.
Campos, after an ex-parte presentation of evidence by herein
private Respondent.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios
C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was
the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74,
Section I of the Rules of Court whereby he adjudicated unto himself the ownership
of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as administratrix of the estate
of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time
of her death and was a permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while
temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her
lifetime, the testatrix made her last will and testament on July 10, 1975, according to
the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as
executor; that after the testatrix’ death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wills at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was
appointed after Dr. Barzaga had declined and waived his appointment as executor in
favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore,
there is an urgent need for the appointment of an administratrix to administer and
eventually distribute the properties of the estate located in the Philippines.chanrobles
virtual lawlibrary
On January 11, 1978, an opposition to the reprobate of the will was filed by herein
petitioner alleging among other things, that he has every reason to believe that the
will in question is a forgery; that the intrinsic provisions of the will are null and void;
and that even if pertinent American laws on intrinsic provisions are invoked, the
same could not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco
Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests)
stating that he "has been able to verify the veracity thereof (of the will) and now
confirms the same to be truly the probated will of his daughter Adoracion." Hence,
an ex-parte presentation of evidence for the reprobate of the questioned will was
made.
On January 10, 1979, the respondent judge issued an order to
wit:jgc:chanrobles.com.ph

"At the hearing, it has been satisfactorily established that Adoracion C. Campos, in
her lifetime, was a citizen of the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D); that when
alive, Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-
3-b); that while in temporary sojourn in the Philippines, Adoracion C. Campos died
in the City of Manila (Exhibit C) leaving property both in the Philippines and in the
United States of America; that the Last Will and Testament of the late Adoracion C.
Campos was admitted and granted probate by the Orphan’s Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of administration were issued in favor of
Clement J. McLaughlin, all in accordance with the laws of the said foreign country
on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is
not suffering from any disqualification which would render her unfit as
administratrix of the estate in the Philippines of the late Adoracion C. Campos.
"WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is
hereby admitted to and allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters
of Administration with the Will annexed issue in favor of said Administratrix upon
her filing of a bond in the amount of P5,000.00 conditioned under the provisions of
Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the
withdrawal of his opposition, acknowledging the same to be his voluntary act and
deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the
order allowing the will be set aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent means. According to him, the
"Motion to Dismiss Opposition" was inserted among the papers which he signed in
connection with two Deeds of Conditional Sales which he executed with the
Construction and Development Corporation of the Philippines (CDCP). He also
alleged that the lawyer who filed the withdrawal of the opposition was not his
counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made
several motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or
Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of hearing provided:jgc:chanrobles.com.ph
"Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in
the morning for submission for reconsideration and resolution of the Honorable
Court. Until this Motion is resolved, may I also request for the future setting of the
case for hearing on the Oppositor’s motion to set aside previously filed."cralaw
virtua1aw library
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the
case was called for hearing on this date, the counsel for petitioner tried to argue his
motion to vacate instead of adducing evidence in support of the petition for relief.
Thus, the respondent judge issued an order dismissing the petition for relief for
failure to present evidence in support thereof. Petitioner filed a motion for
reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this
petition.chanroblesvirtualawlibrary
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will,
which, incidentally has been questioned by the respondent, his children and forced
heirs as, on its face patently null and void, and a fabrication, appointing Polly
Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which was granted by the
court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the respondent and
her sisters, only remaining children and forced heirs was denied on September 12,
1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted
without or in excess of his jurisdiction when:jgc:chanrobles.com.ph
"1) He ruled the petitioner lost his standing in court deprived the Right to Notice
(sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C. Campos, thus, paving the way
for the ex-parte hearing of the petition for the probate of decedent will.
"2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way
of a motion presented prior to an order for the distribution of the estate — the law
especially providing that repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the estate in accordance with
the rules of Court.
"3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession.
"4) He denied petitioner’s petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition — a denial of the due process and
a grave abuse of discretion amounting to lack of jurisdiction.
"5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De Borja v. Tan, G.R. No.
L-7792, July 1955)."cralaw virtua1aw library
The first two issues raised by the petitioner are anchored on the allegation that the
respondent judge acted with grave abuse of discretion when he allowed the
withdrawal of the petitioner’s opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof
was adduced to support petitioner’s contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco Loyola was not his counsel
of record. The records show that after the filing of the contested motion, the
petitioner at a later date, filed a manifestation wherein he confirmed that the Motion
to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the
motion was filed, the petitioner’s former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty. Franco Loyola who in
turn filed the motion. The present petitioner cannot, therefore, maintain that the old
man’s attorney of record was Atty. Lagrosa at the time of filing the motion. Since the
withdrawal was in order, the respondent judge acted correctly in hearing the probate
of the will ex-parte, there being no other opposition to the same.chanrobles law
library : red
The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate court’s authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testatrix’s testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will has
been duly authenticated. However, where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue. (Maninang v. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed
the reprobate of Adoracion’s will, Hermogenes C. Campos was divested of his
legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents
have sufficiently established that Adoracion was, at the time of her death, an
American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A.
Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively
provide:chanrob1es virtual 1aw library
Art. 16 par. (2).
x       x       x
"However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found."cralaw virtua1aw
library
Art. 1039.
"Capacity to succeed is governed by the law of the nation of the decedent."cralaw
virtua1aw library
the law which governs Adoracion Campo’s will is the law of Pennsylvania, U.S.A.,
which is the national law of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that all the estate may be given
away by the testatrix to a complete stranger, the petitioner argues that such law
should not apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as
provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the
decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:jgc:chanrobles.com.ph
"It is therefore evident that whatever public policy or good customs may be involved
in our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent’s national law. Specific provisions
must prevail over general ones.
x       x       x
"The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the amount
of successional rights are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis."cralaw virtua1aw
library
As regards the alleged absence of notice of hearing for the petition for relief, the
records will bear the fact that what was repeatedly scheduled for hearing on separate
dates until June 19, 1980 was the petitioner’s petition for relief and not his motion to
vacate the order of January 10, 1979. There is no reason why the petitioner should
have been led to believe otherwise. The court even admonished the petitioner’s
failing to adduce evidence when his petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that he requested "for the future setting
of the case for hearing . . ." did not mean that at the next hearing, the motion to
vacate would be heard and given preference in lieu of the petition for relief.
Furthermore, such request should be embodied in a motion and not in a mere notice
of hearing.chanrobles.com : virtual law library
Finally, we find the contention of the petition as to the issue of jurisdiction utterly
devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided
that:jgc:chanrobles.com.ph
"SECTION 1. Where estate of deceased persons settled. — If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resided at the time of his death,
and if he is an inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when
the want of jurisdiction appears on the record."cralaw virtua1aw library
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with
the Court of First Instance of Manila where she had an estate since it was alleged and
proven the Adoracion at the time of her death was a citizen and permanent resident
of Pennsylvania, United States of America an not a "usual resident of Cavite" as
alleged by the petitioner. Moreover, petitioner is now estopped from questioning the
jurisdiction of the probate court in the petition for relief. It is a settled rule that a
party cannot invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that same
jurisdiction. (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, Et Al., G.R. No.
63284, April 4, 1984).chanrobles law library
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for
lack of merit.
GR. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL
RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF
VICTORIA, TARLAC, petitioner-appellant, vs. BELINA RIGOR, NESTORA
RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR DE
FAUSTO, Respondents-Appellees.
D. Tañedo, Jr. for appellants.chanrobles virtual law library
J. Palanca, Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of ricelands
located at Guimba, Nueva Ecija, with a total area of around forty- four hectares That
devise was made in the will of the late Father Pascual Rigor, a native of Victoria
Tarlac, in favor of his nearest male relative who would study for the
priesthood.chanroblesvirtualawlibrary chanrobles virtual law library
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed
to this Court from the decision of the Court of Appeals affirming the order of the
probate court declaring that the said devise was inoperative (Rigor vs. Parish Priest
of the Roman Catholic Church of Victoria, Tarlac, CA-G.R. No. 24319-R, August 1,
1963).chanroblesvirtualawlibrary chanrobles virtual law library
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on
August 9, 1935, leaving a will executed on October 29, 1933 which was probated by
the Court of First Instance of Tarlac in its order of December 5, 1935. Named as
devisees in the will were the testators nearest relatives, namely, his three sisters:
Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The
testator gave a devise to his cousin, Fortunato
Gamalinda.chanroblesvirtualawlibrary chanrobles virtual law library
In addition, the will contained the following controversial bequest (paragraphing
supplied to facilitate comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en
el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de
CERTIFICADO DE TRANSFERENCIA DE TITULO SON; - Titulo Num. 6530,
mide 16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y
Titulo Num. 6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente
mio varon mas cercano que estudie la carrera eclesiatica hasta ordenarse de
Presbiterado o sea Sacerdote; las condiciones de estate legado son;chanrobles
virtual law library
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este
legado;chanrobles virtual law library
(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar y
administrar de este legado al principiar a curzar la Sagrada Teologio, y ordenado de
Sacerdote, hasta su muerte; pero que pierde el legatario este derecho de administrar y
gozar de este legado al dejar de continuar sus estudios para ordenarse de Presbiterado
(Sacerdote).chanroblesvirtualawlibrarychanrobles virtual law library
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada año VEINTE
(20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual
legatario, quedase excomulgado, IPSO FACTO se le despoja este legado, y la
administracion de esto pasara a cargo del actual Parroco y sus sucesores de la Iglecia
Catolica de Victoria, Tarlac.chanroblesvirtualawlibrarychanrobles virtual law library
Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda and further praying that the possessors thereof be ordered to render an accounting of
expresado, pasara la administracion de este legado a cargo del actual Parroco the fruits. The probate court granted the petition. A new administrator was appointed.
Catolico y sus sucesores, de Victoria, Tarlac.chanroblesvirtualawlibrarychanrobles On January 31, 1957 the parish priest filed another petition for the delivery of the
virtual law library ricelands to the church as trustee.chanroblesvirtualawlibrary chanrobles virtual law
El Parroco administrador de estate legado, acumulara, anualmente todos los library
productos que puede tener estate legado, ganando o sacando de los productos anuales The intestate heirs of Father Rigor countered with a petition dated March 25, 1957
el CINCO (5) por ciento para su administracion, y los derechos correspondientes de praying that the bequest be d inoperative and that they be adjudged as the persons
las VEINTE (20) Misas rezadas que debiera el Parroco celebrar cada año, entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no
depositando todo lo restante de los productos de estate legado, en un banco, a nearest male relative of" the testator "has ever studied for the priesthood" (pp. 25 and
nombre de estate legado. 35, Record on Appeal). That petition was opposed by the parish priest of
To implement the foregoing bequest, the administratix in 1940 submitted a project Victoria.chanroblesvirtualawlibrary chanrobles virtual law library
containing the following item: Finding that petition to be meritorious, the lower court, through Judge Bernabe de
5. LEGACY OF THE CHURCHchanrobles virtual law library Aquino, declared the bequest inoperative and adjudicated the ricelands to the
That it be adjudicated in favor of the legacy purported to be given to the nearest male testator's legal heirs in his order of June 28, 1957. The parish priest filed two motions
relative who shall take the priesthood, and in the interim to be administered by the for reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library
actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines, Judge De Aquino granted the respond motion for reconsideration in his order of
or his successors, the real properties hereinbelow indicated, to wit: December 10, 1957 on the ground that the testator had a grandnephew named
Edgardo G. Cunanan (the grandson of his first cousin) who was a seminarian in the
San Jose Seminary of the Jesuit Fathers in Quezon City. The administrator was
Title No. Lot No. Area in Has. Tax Dec. Ass. Value directed to deliver the ricelands to the parish priest of Victoria as
trustee.chanroblesvirtualawlibrary chanrobles virtual law library
T-6530 3663 1.6249 18740 P 340.00 The legal heirs appealed to the Court of Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust for his nearest male relative who would
T-6548 3445-C 24.2998 18730 7,290.00
take the holy orders but that such trust could exist only for twenty years because to
T-6525 3670 6.2665 18736 1,880.00 enforce it beyond that period would violate "the rule against perpetuities. It ruled that
since no legatee claimed the ricelands within twenty years after the testator's death,
T-6521 3666 11.9251 18733 3,580.00 the same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil
Code and article 870 of the new Civil Code.chanroblesvirtualawlibrary chanrobles
virtual law library
Total amount and value - 44.1163 P13,090.00 The parish priest in this appeal contends that the Court of Appeals erred in not
Judge Roman A. Cruz in his order of August 15, 1940, approving the project of finding that the testator created a public charitable trust and in not liberally
partition, directed that after payment of the obligations of the estate (including the construing the testamentary provisions so as to render the trust operative and to
sum of P3,132.26 due to the church of the Victoria parish) the administratrix should prevent intestacy.chanroblesvirtualawlibrary chanrobles virtual law library
deliver to the devisees their respective shares.chanroblesvirtualawlibrary chanrobles As refutation, the legal heirs argue that the Court of Appeals d the bequest
virtual law library inoperative because no one among the testator's nearest male relatives had studied for
It may be noted that the administratrix and Judge Cruz did not bother to analyze the the priesthood and not because the trust was a private charitable trust. According to
meaning and implications of Father Rigor's bequest to his nearest male relative who the legal heirs, that factual finding is binding on this Court. They point out that
would study for the priesthood. Inasmuch as no nephew of the testator claimed the appellant priest's change of theory cannot be countenanced in this appeal
devise and as the administratrix and the legal heirs believed that the parish priest of .chanroblesvirtualawlibrarychanrobles virtual law library
Victoria had no right to administer the ricelands, the same were not delivered to that In this case, as in cases involving the law of contracts and statutory construction,
ecclesiastic. The testate proceeding remained where the intention of the contracting parties or of the lawmaking body is to be
pending.chanroblesvirtualawlibrary chanrobles virtual law library ascertained, the primary issue is the determination of the testator's intention which is
About thirteen years after the approval of the project of partition, or on February 19, the law of the case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209, 215;
1954, the parish priest of Victoria filed in the pending testate proceeding a petition Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA
praying for the appointment of a new administrator (succeeding the deceased 546).chanroblesvirtualawlibrary chanrobles virtual law library
administration Florencia Rigor), who should deliver to the church the said ricelands,
The will of the testator is the first and principal law in the matter of testaments.
When his intention is clearly and precisely expressed, any interpretation must be in
accord with the plain and literal meaning of his words, except when it may certainly
appear that his intention was different from that literally expressed (In re Estate of
Calderon, 26 Phil. 333).chanroblesvirtualawlibrary chanrobles virtual law library
The intent of the testator is the cardinal rule in the construction of wills." It is "the
life and soul of a will It is "the first greatest rule, the sovereign guide, the polestar, in
giving effect to a will". (See Dissent of Justice Moreland in Santos vs. Manarang, 27
Phil. 209, 223, 237-8.) chanrobles virtual law library
One canon in the interpretation of the testamentary provisions is that "the testator's
intention is to be ascertained from the words of the wilt taking into consideration the
circumstances under which it was made", but excluding the testator's oral
declarations as to his intention (Art. 789, Civil Code of the
Philippines).chanroblesvirtualawlibrary chanrobles virtual law library
To ascertain Father Rigor's intention, it may be useful to make the following re-
statement of the provisions of his will.chanroblesvirtualawlibrary chanrobles virtual
law library
1. that he bequeathed the ricelands to anyone of his nearest male relatives who would
pursue an ecclesiastical career until his ordination as
priest.chanroblesvirtualawlibrary chanrobles virtual law library
2. That the devisee could not sell the ricelands.chanroblesvirtualawlibrary chanrobles
virtual law library
3. That the devisee at the inception of his studies in sacred theology could enjoy and
administer the ricelands, and once ordained as a priest, he could continue enjoying
and administering the same up to the time of his death but the devisee would cease to
enjoy and administer the ricelands if he discontinued his studies for the
priesthood.chanroblesvirtualawlibrary chanrobles virtual law library
4. That if the devisee became a priest, he would be obligated to celebrate every year
twenty masses with prayers for the repose of the souls of Father Rigor and his
parents.chanroblesvirtualawlibrary chanrobles virtual law library
5. That if the devisee is excommunicated, he would be divested of the legacy and the
administration of the riceland would pass to the incumbent parish priest of Victoria
and his successors.chanroblesvirtualawlibrary chanrobles virtual law library
6. That during the interval of time that there is no qualified devisee as contemplated
above, the administration of the ricelands would be under the responsibility of the
incumbent parish priest of Victoria and his successors, and chanrobles virtual law
library
7. That the parish priest-administrator of the ricelands would accumulate annually
the products thereof, obtaining or getting from the annual produce five percent
thereof for his administration and the fees corresponding to the twenty masses with
prayers that the parish priest would celebrate for each year, depositing the balance of
the income of the devise in the bank in the name of his
bequest.chanroblesvirtualawlibrary chanrobles virtual law library
From the foregoing testamentary provisions, it may be deduced that the testator
intended to devise the ricelands to his nearest male relative who would become a
priest, who was forbidden to sell the ricelands, who would lose the devise if he
discontinued his studies for the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say annually twenty masses with
prayers for the repose of the souls of the testator and his
parents.chanroblesvirtualawlibrary chanrobles virtual law library
On the other hand, it is clear that the parish priest of Victoria would administer the
ricelands only in two situations: one, during the interval of time that no nearest male
relative of the testator was studying for the priesthood and two, in case the testator's
nephew became a priest and he was
excommunicated.chanroblesvirtualawlibrary chanrobles virtual law library
What is not clear is the duration of "el intervalo de tiempo que no haya legatario
acondicionado", or how long after the testator's death would it be determined that he
had a nephew who would pursue an ecclesiastical vocation. It is that patent
ambiguity that has brought about the controversy between the parish priest of
Victoria and the testator's legal heirs.chanroblesvirtualawlibrary chanrobles virtual
law library
Interwoven with that equivocal provision is the time when the nearest male relative
who would study for the priesthood should be determined. Did the testator
contemplate only his nearest male relative at the time of his death? Or did he have in
a mind any of his nearest male relatives at anytime after his death? chanrobles virtual
law library
We hold that the said bequest refers to the testator's nearest male relative living at
the time of his death and not to any indefinite time thereafter. "In order to be
capacitated to inherit, the heir, devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it is proper" (Art. 1025,
Civil Code).chanroblesvirtualawlibrary chanrobles virtual law library
The said testamentary provisions should be sensibly or reasonably construed. To
construe them as referring to the testator's nearest male relative at anytime after his
death would render the provisions difficult to apply and create uncertainty as to the
disposition of his estate. That could not have been his
intention.chanroblesvirtualawlibrary chanrobles virtual law library
In 1935, when the testator died, his nearest leagal heirs were his three sisters or
second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao.
Obviously, when the testator specified his nearest male relative, he must have had in
mind his nephew or a son of his sister, who would be his third-degree relative, or
possibly a grandnephew. But since he could not prognosticate the exact date of his
death or state with certitude what category of nearest male relative would be living at
the time of his death, he could not specify that his nearest male relative would be his
nephew or grandnephews (the son of his nephew or niece) and so he had to use the
term "nearest male relative".chanroblesvirtualawlibrary chanrobles virtual law
library
It is contended by the legal heirs that the said devise was in reality intended for
Ramon Quiambao, the testator's nephew and godchild, who was the son of his sister,
Mrs. Quiambao. To prove that contention, the legal heirs presented in the lower court
the affidavit of Beatriz Gamalinda, the maternal grandmother of Edgardo Cunanan,
who deposed that after Father Rigor's death her own son, Valentin Gamalinda, Jr.,
did not claim the devise, although he was studying for the priesthood at the San
Carlos Seminary, because she (Beatriz) knew that Father Rigor had intended that
devise for his nearest male relative beloning to the Rigor family (pp. 105-114,
Record on Appeal).chanroblesvirtualawlibrarychanrobles virtual law library
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was
not the one contemplated in Father Rigor's will and that Edgardo's father told her that
he was not consulted by the parish priest of Victoria before the latter filed his second
motion for reconsideration which was based on the ground that the testator's
grandnephew, Edgardo, was studying for the priesthood at the San Jose
Seminary.chanroblesvirtualawlibrary chanrobles virtual law library
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a
seminarian in 1961. For that reason, the legal heirs apprised the Court of Appeals
that the probate court's order adjudicating the ricelands to the parish priest of
Victoria had no more leg to stand on (p. 84, Appellant's
brief).chanroblesvirtualawlibrary chanrobles virtual law library
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to
the testator's intention and which is hearsay, has no probative value. Our opinion that
the said bequest refers to the testator's nephew who was living at the time of his
death, when his succession was opened and the successional rights to his estate
became vested, rests on a judicious and unbiased reading of the terms of the
will.chanroblesvirtualawlibrary chanrobles virtual law library
Had the testator intended that the "cualquier pariente mio varon mas cercano que
estudie la camera eclesiatica" would include indefinitely anyone of his nearest male
relatives born after his death, he could have so specified in his will He must have
known that such a broad provision would suspend for an unlimited period of time the
efficaciousness of his bequest.chanroblesvirtualawlibrarychanrobles virtual law
library
What then did the testator mean by "el intervalo de tiempo que no haya legatario
acondicionado"? The reasonable view is that he was referring to a situation whereby
his nephew living at the time of his death, who would like to become a priest, was
still in grade school or in high school or was not yet in the seminary. In that case, the
parish priest of Victoria would administer the ricelands before the nephew entered
the seminary. But the moment the testator's nephew entered the seminary, then he
would be entitled to enjoy and administer the ricelands and receive the fruits thereof.
In that event, the trusteeship would be
terminated.chanroblesvirtualawlibrary chanrobles virtual law library
Following that interpretation of the will the inquiry would be whether at the time
Father Rigor died in 1935 he had a nephew who was studying for the priesthood or
who had manifested his desire to follow the ecclesiastical career. That query is
categorically answered in paragraph 4 of appellant priest's petitions of February 19,
1954 and January 31, 1957. He unequivocally alleged therein that "not male relative
of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and 35,
Record on Appeal).chanroblesvirtualawlibrary chanrobles virtual law library
Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative.
Therefore, the administration of the ricelands by the parish priest of Victoria, as
envisaged in the wilt was likewise inoperative.chanroblesvirtualawlibrary chanrobles
virtual law library
The appellant in contending that a public charitable trust was constituted by the
testator in is favor assumes that he was a trustee or a substitute devisee That
contention is untenable. A reading of the testamentary provisions regarding the
disputed bequest not support the view that the parish priest of Victoria was a trustee
or a substitute devisee in the event that the testator was not survived by a nephew
who became a priest.chanroblesvirtualawlibrary chanrobles virtual law library
It should be understood that the parish priest of Victoria could become a trustee only
when the testator's nephew living at the time of his death, who desired to become a
priest, had not yet entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and could not have arisen in
this case because no nephew of the testator manifested any intention to enter the
seminary or ever became a priest.chanroblesvirtualawlibrary chanrobles virtual law
library
The Court of Appeals correctly ruled that this case is covered by article 888 of the
old Civil Code, now article 956, which provides that if "the bequest for any reason
should be inoperative, it shall be merged into the estate, except in cases of
substitution and those in which the right of accretion exists" ("el legado ... por
qualquier causa, no tenga efecto se refundira en la masa de la herencia, fuera de los
casos de sustitucion y derecho de acrecer").chanroblesvirtualawlibrary chanrobles
virtual law library
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2),
which provides that legal succession takes place when the will "does not dispose of
all that belongs to the testator." There being no substitution nor accretion as to the
said ricelands the same should be distributed among the testator's legal heirs. The
effect is as if the testator had made no disposition as to the said
ricelands.chanroblesvirtualawlibrary chanrobles virtual law library
The Civil Code recognizes that a person may die partly testate and partly intestate, or
that there may be mixed succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional legacy does not take effect,
there will be intestate succession as to the property recovered by the said legacy
(Macrohon Ong Ham vs. Saavedra, 51 Phil.
267).chanroblesvirtualawlibrary chanrobles virtual law library
We find no merit in the appeal The Appellate Court's decision is affirmed. Costs
against the petitioner.chanroblesvirtualawlibrary chanrobles virtual law library
Leon Guinto vs. Santiago Medina (deceased), Dominador Medina, et al.
9006-R October 7, 1953
Dizon, J.:
FACTS:
• Leon Guinto filed an action for forcible entry against
Santiago Medina.
 • Medina denied the material averments, and argued that he
has been in possession of the lot since 1921.
• The Justice of the Peace ordered Medina to vacate.
• Medina appealed to the CFI.
• While the case for forcible entry was pending trial, Guinto
instituted reconveyance proceedings.
• Santiago Medina died during the pendency of the original
appeal.
• The Court ruled in favor of Guinto, but refused to render
judgment sentencing the Medinas to pay him damages.
• Guinto contends that his claim for damages is one that
survived after the death of Santiago, and could be prosecuted against the
latter’s heirs, who are substituted in his place in both cases.
ISSUE:
Is Guinto entitled to recover damages, notwithstanding the death of Medina? Yes.
HELD:
• An action for forcible entry gives rise to two remedies:
recovery of possession and of damages, but subject to only one action.
• Both cannot be subjected of 2 separate actions, for to do
so would be tantamount to splitting up a singe cause of action.
• Such action survives despite defendant’s death.
• The heirs of Medina are liable to pay the damages.
• As they are merely substituted in the place of Santiago
upon his death, their liability is only to the extent of the value of the
property, which they might have received from the original defendant.
Reyes vs. Court of Appeals
S.C. L-5620 July 31, 1954
FACTS:
Benedicta had been in open, continuous, exclusive and notorious possession of the a
16,240 sq. m. unregistered parcel of agricultural land, located at Barrio Pintog,
Plaridel, Bulacan, under a bona fide claim of ownership since 1910.
Benedicta sold the said property to Ismaela Dimagiba, her niece, manifested by
allegedly two deeds of conveyance: in 1943 and 1944.
After the death of Benedicta delos Reyes, Ismaela Dimagiba submitted to the CFI a
petition for the probate of the purported will of her late aunt.
The will instituted Dimagiba as the sole heir of the estate.
The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes
and Luisa Reyes, and one month later, Mariano, Cesar, Leonor and Paciencia, all
surnamed Reyes, all claiming to be the heirs of the decedent, filed oppositions to the
probate asked.
Grounds advanced for the opposition were forgery, vices of consent of the testatrix,
estoppel by laches of the proponent and revocation of the will by two deeds of
conveyance of the major portion of the estate made by the testatrix in favor of the
proponent in 1943 and 1944.
They alleged that the property sold prior to Benedicta’s death should form part of
what they should inherit.
The Court ruled that said property is no longer part of the inheritance.
The Court of Appeals affirmed the decision of the lower court.
ISSUE:
Did the properties form part of the inheritance, of which the heirs are entitled to? Yes
Was it proper for the heirs to question the intrinsic validity of the will, on the ground
that her compulsory heir cannot be one, as theirs was an illicit relationship? No
HELD:
First
Even if they are sold, they still form part of the object of succession, and of the
estate.
In the case at bar, the sale cannot be considered as valid as the purpose for entering
into such contract is to deprive the heirs of their legitimes.
No consideration whatever was paid by Dimagiba on account of the transfers,
thereby rendering it even more doubtful whether in conveying the property to her
legatee.
The testatrix merely intended to comply in advance with what she had ordained in
her testament, rather than an alteration or departure therefrom.
Second
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated.
There are, however, notable circumstances wherein the intrinsic validity was first
determined as when the defect of the will is apparent on its face and the probate of
the will may become a useless ceremony if it is intrinsically invalid.
The intrinsic validity of a will may be passed upon because “practical
considerations” demanded it as when there is preterition of heirs or the testamentary
provisions are doubtful legality.
In this case however, there was never an open admission of any illicit relationship.
Thus, there was no need to go beyond the face of the will.
G.R. No. L-4963             January 29, 1953
MARIA USON, plaintiff-appellee,  Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA,
Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5) parcels of
land situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria
Uson against Maria del Rosario and her four children named Concepcion, Conrado,
Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the
Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left
the lands involved in this litigation. Faustino Nebreda left no other heir except his
widow Maria Uson. However, plaintiff claims that when Faustino Nebreda died in
1945, his common-law wife Maria del Rosario took possession illegally of said lands
thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931,
Maria Uson and her husband, the late Faustino Nebreda, executed a public document
whereby they agreed to separate as husband and wife and, in consideration of their
separation, Maria Uson was given a parcel of land by way of alimony and in return
she renounced her right to inherit any other property that may be left by her husband
upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the court
rendered decision ordering the defendants to restore to the plaintiff the ownership
and possession of the lands in dispute without special pronouncement as to costs.
Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino
Nebreda, former owner of the five parcels of lands litigated in the present case. There
is likewise no dispute that Maria del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Nebreda with whom she had four
illegitimate children, her now co-defendants. It likewise appears that Faustino
Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With this
background, it is evident that when Faustino Nebreda died in 1945 the five parcels of
land he was seized of at the time passed from the moment of his death to his only
heir, his widow Maria Uson (Article 657, old Civil Code).As this Court aptly said,
"The property belongs to the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and delivered to them a deed for the same
before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment,
therefore, the rights of inheritance of Maria Uson over the lands in question became
vested.
The claim of the defendants that Maria Uson had relinquished her right over the
lands in question because she expressly renounced to inherit any future property that
her husband may acquire and leave upon his death in the deed of separation they had
entered into on February 21, 1931, cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it be renounced (1
Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are
illegitimate children of the late Faustino Nebreda and under the old Civil Code are
not entitled to any successional rights, however, under the new Civil Code which
became in force in June, 1950, they are given the status and rights of natural children
and are entitled to the successional rights which the law accords to the latter (article
2264 and article 287, new Civil Code), and because these successional rights were
declared for the first time in the new code, they shall be given retroactive effect even
though the event which gave rise to them may have occurred under the prior
legislation (Article 2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that
rights which are declared for the first time shall have retroactive effect even though
the event which gave rise to them may have occurred under the former legislation,
but this is so only when the new rights do not prejudice any vested or acquired right
of the same origin. Thus, said article provides that "if a right should be declared for
the first time in this Code, it shall be effective at once, even though the act or event
which gives rise thereto may have been done or may have occurred under the prior
legislation, provided said new right does not prejudice or impair any vested or
acquired right, of the same origin." As already stated in the early part of this
decision, the right of ownership of Maria Uson over the lands in question became
vested in 1945 upon the death of her late husband and this is so because of the
imperative provision of the law which commands that the rights to succession are
transmitted from the moment of death (Article 657, old Civil Code). The new right
recognized by the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment of the vested right of Maria
Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state,
in a gesture of pity or compassion, agreed to assign the lands in question to the minor
children for the reason that they were acquired while the deceased was living with
their mother and Maria Uson wanted to assuage somewhat the wrong she has done to
them, this much can be said; apart from the fact that this claim is disputed, we are of
the opinion that said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order that it may
be valid it shall be made in a public document and must be accepted either in the
same document or in a separate one (Article 633, old Civil Code). Inasmuch as this
essential formality has not been followed, it results that the alleged assignment or
donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
G.R. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-
appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA,
MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of
Josefa Tangco, appellees,  on 6 October 1940, filed a petition for the probate of her will which was docketed as
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate
of Francisco de Borja, appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O.
VDA. DE DE BORJA, special Administratrix appellee,  Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco.
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the
late Francisco de Borja, plaintiff-appellee,  has been plagued with several court suits and counter-suits; including the three cases
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa
Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda.
de de Borja, special administratrix of the testate estate of Francisco de Borja,1 from
the approval of a compromise agreement by the Court of First Instance of Rizal,
Branch I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa
Tangco, Jose de Borja, Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of
the same compromise agreement by the Court of First Instance of Nueva Ecija,
Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco de
Borja, Tasiana O. Vda. de de Borja, Special Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision
of the Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452,
declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid
compromise agreement, as the separate and exclusive property of the late Francisco
de Borja and not a conjugal asset of the community with his first wife, Josefa
Tangco, and that said hacienda pertains exclusively to his testate estate, which is
under administrator in Special Proceeding No. 832 of the Court of First Instance of
Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco
Special Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The
will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed
executor and administrator: in 1952, their son, Jose de Borja, was appointed co-
administrator. When Francisco died, on 14 April 1954, Jose became the sole
administrator of the testate estate of his mother, Josefa Tangco. While a widower
Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First
Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix.
The validity of Tasiana's marriage to Francisco was questioned in said proceeding.
The relationship between the children of the first marriage and Tasiana Ongsingco
at bar, some eighteen (18) cases remain pending determination in the courts. The
testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a
century. In order to put an end to all these litigations, a compromise agreement was
entered into on 12 October 1963,2 by and between "[T]he heir and son of Francisco
de Borja by his first marriage, namely, Jose de Borja personally and as administrator
of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of
Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja,
assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the
compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into by and between
The heir and son of Francisco de Borja by his first marriage,
namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de Borja, assisted by her
lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the parties herein terminate and
settle, with finality, the various court litigations, controversies,
claims, counterclaims, etc., between them in connection with the
administration, settlement, partition, adjudication and distribution
of the assets as well as liabilities of the estates of Francisco de
Borja and Josefa Tangco, first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have agreed
voluntarily and without any reservations to enter into and execute
this agreement under the following terms and conditions:
1. That the parties agree to sell the Poblacion portion of the Jalajala
properties situated in Jalajala, Rizal, presently under administration
in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal),
more specifically described as follows:
Linda al Norte con el Rio Puwang que la separa
de la jurisdiccion del Municipio de Pililla de la
Provincia de Rizal, y con el pico del Monte
Zambrano; al Oeste con Laguna de Bay; por el
Sur con los herederos de Marcelo de Borja; y por
el Este con los terrenos de la Familia Maronilla
with a segregated area of approximately 1,313 hectares at the
amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself to pay Tasiana
Ongsingco Vda. de de Borja the total amount of Eight Hundred
Thousand Pesos (P800,000) Philippine Currency, in cash, which
represent P200,000 as his share in the payment and P600,000 as
pro-rata shares of the heirs Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be considered as full and
complete payment and settlement of her hereditary share in the
estate of the late Francisco de Borja as well as the estate of Josefa
Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-
Rizal, respectively, and to any properties bequeathed or devised in
her favor by the late Francisco de Borja by Last Will and
Testament or by Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for consideration or otherwise. The
funds for this payment shall be taken from and shall depend upon
the receipt of full payment of the proceeds of the sale of Jalajala,
"Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja hereby assumes
payment of that particular obligation incurred by the late Francisco
de Borja in favor of the Rehabilitation Finance Corporation, now
Development Bank of the Philippines, amounting to approximately
P30,000.00 and also assumes payment of her 1/5 share of the
Estate and Inheritance taxes on the Estate of the late Francisco de
Borja or the sum of P3,500.00, more or less, which shall be
deducted by the buyer of Jalajala, "Poblacion" from the payment to
be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of
this Agreement and paid directly to the Development Bank of the
Philippines and the heirs-children of Francisco de Borja.
4. Thereafter, the buyer of Jalajala "Poblacion" is hereby
authorized to pay directly to Tasiana Ongsingco Vda. de de Borja
the balance of the payment due her under paragraph 2 of this
Agreement (approximately P766,500.00) and issue in the name of
Tasiana Ongsingco Vda. de de Borja, corresponding certified
checks/treasury warrants, who, in turn, will issue the corresponding
receipt to Jose de Borja.
5. In consideration of above payment to Tasiana Ongsingco Vda.
de de Borja, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda. de
de Borja, for themselves and for their heirs, successors, executors,
administrators, and assigns, hereby forever mutually renounce,
withdraw, waive, remise, release and discharge any and all manner
of action or actions, cause or causes of action, suits, debts, sum or
sums of money, accounts, damages, claims and demands
whatsoever, in law or in equity, which they ever had, or now have
or may have against each other, more specifically Sp. Proceedings
Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No. 832-Nueva
Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No.
7452-CFI, Rizal, as well as the case filed against Manuel Quijal for
perjury with the Provincial Fiscal of Rizal, the intention being to
completely, absolutely and finally release each other, their heirs,
successors, and assigns, from any and all liability, arising wholly
or partially, directly or indirectly, from the administration,
settlement, and distribution of the assets as well as liabilities of the
estates of Francisco de Borja and Josefa Tangco, first spouse of
Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de de
Borja expressly and specifically renounce absolutely her rights as
heir over any hereditary share in the estate of Francisco de Borja.
6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the
payment under paragraph 4 hereof, shall deliver to the heir Jose de
Borja all the papers, titles and documents belonging to Francisco
de Borja which are in her possession and said heir Jose de Borja
shall issue in turn the corresponding receive thereof.
7. That this agreement shall take effect only upon the fulfillment of
the sale of the properties mentioned under paragraph 1 of this
agreement and upon receipt of the total and full payment of the
proceeds of the sale of the Jalajala property "Poblacion",
otherwise, the non-fulfillment of the said sale will render this
instrument NULL AND VOID AND WITHOUT EFFECT
THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set
their hands in the City of Manila, Philippines, the 12th of October,
1963.
On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12
October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-
7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in
Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both
instances. The Rizal court approved the compromise agreement, but the Nueva Ecija
court declared it void and unenforceable. Special administratrix Tasiana Ongsingco
Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court
G.R. case No. L-28040), while administrator Jose de Borja appealed the order of
disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised agreement of 12 October
1963 is not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco
on the ground that: (1) the heirs cannot enter into such kind of agreement without
first probating the will of Francisco de Borja; (2) that the same involves a
compromise on the validity of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to have force and effect.
In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco
and the Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs.
Guevara. 74 Phil. 479, wherein the Court's majority held the view that the
presentation of a will for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by appellant Tasiana
Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the
validity of an extrajudicial settlement of a decedent's estate by agreement between
heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs are
all of age, or the minors are represented by their judicial and legal representatives ..."
The will of Francisco de Borja having been submitted to the Nueva Ecija Court and
still pending probate when the 1963 agreement was made, those circumstances, it is
argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise agreement, Jose de
Borja stresses that at the time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of Court of 1940, which
allowed the extrajudicial settlement of the estate of a deceased person regardless of
whether he left a will or not. He also relies on the dissenting opinion of Justice
Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the view that if
the parties have already divided the estate in accordance with a decedent's will, the
probate of the will is a useless ceremony; and if they have divided the estate in a
different manner, the probate of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This
is apparent from an examination of the terms of the agreement between Jose de Borja
and Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the
sum of P800,000 payable to Tasiana Ongsingco —
shall be considered as full — complete payment — settlement of
her hereditary share in the estate of the late Francisco de Borja as
well as the estate of Josefa Tangco, ... and to any properties
bequeathed or devised in her favor by the late Francisco de Borja
by Last Will and Testament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for consideration or
otherwise.
This provision evidences beyond doubt that the ruling in the Guevara case is not
applicable to the cases at bar. There was here no attempt to settle or distribute the
estate of Francisco de Borja among the heirs thereto before the probate of his will.
The clear object of the contract was merely the conveyance by Tasiana Ongsingco of
any and all her individual share and interest, actual or eventual in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation as to any other
claimant, creditor or legatee. And as a hereditary share in a decedent's estate is
transmitted or vested immediately from the moment of the death of such causante or
predecessor in interest (Civil Code of the Philippines, Art. 777)3 there is no legal bar
to a successor (with requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of such share is not
determined until the subsequent liquidation of the estate.4 Of course, the effect of
such alienation is to be deemed limited to what is ultimately adjudicated to the
vendor heir. However, the aleatory character of the contract does not affect the
validity of the transaction; neither does the coetaneous agreement that the numerous
litigations between the parties (the approving order of the Rizal Court enumerates
fourteen of them, Rec. App. pp. 79-82) are to be considered settled and should be
dismissed, although such stipulation, as noted by the Rizal Court, gives the contract
the character of a compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the surviving spouse of
Francisco de Borja, Tasiana Ongsingco was his compulsory heir under article 995 et
seq. of the present Civil Code. Wherefore, barring unworthiness or valid
disinheritance, her successional interest existed independent of Francisco de Borja's
last will and testament and would exist even if such will were not probated at all.
Thus, the prerequisite of a previous probate of the will, as established in the Guevara
and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de
Borja.
Since the compromise contract Annex A was entered into by and between "Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the
one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by
his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the
transaction was binding on both in their individual capacities, upon the perfection of
the contract, even without previous authority of the Court to enter into the same. The
only difference between an extrajudicial compromise and one that is submitted and
approved by the Court, is that the latter can be enforced by execution proceedings.
Art. 2037 of the Civil Code is explicit on the point:
8. Art. 2037. A compromise has upon the parties the effect and
authority of res judicata; but there shall be no execution except in
compliance with a judicial compromise.
It is argued by Tasiana Ongsingco that while the agreement Annex
A expressed no definite period for its performance, the same
was intended to have a resolutory period of 60 days for its
effectiveness. In support of such contention, it is averred that such
a limit was expressly stipulated in an agreement in similar terms
entered into by said Ongsingco with the brothers and sister of Jose
de Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de
Borja, except that the consideration was fixed at P600,000
(Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and
which contained the following clause:
III. That this agreement shall take effect only upon the
consummation of the sale of the property mentioned herein and
upon receipt of the total and full payment of the proceeds of the
 sale by the herein owner heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all surnamed de Borja;
Provided that if no sale of the said property mentioned herein is
consummated, or the non-receipt of the purchase price thereof by
the said owners within the period of sixty (60) days from the date
hereof, this agreement will become null and void and of no further
effect.
Ongsingco's argument loses validity when it is considered that Jose de Borja was not
a party to this particular contract (Annex 1), and that the same appears not to have
been finalized, since it bears no date, the day being left blank "this — day of October
1963"; and while signed by the parties, it was not notarized, although plainly
intended to be so done, since it carries a proposed notarial ratification clause.
Furthermore, the compromise contract with Jose de Borja (Annex A), provides in its
par. 2 heretofore transcribed that of the total consideration of P800, 000 to be paid to
Ongsingco, P600,000 represent the "prorata share of the heirs Crisanto, Cayetano
and Matilde all surnamed de Borja" which corresponds to the consideration of
P600,000 recited in Annex 1, and that circumstance is proof that the duly notarized
contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was
designed to absorb and supersede the separate unformalize agreement with the other
three Borja heirs. Hence, the 60 days resolutory term in the contract with the latter
(Annex 1) not being repeated in Annex A, can not apply to the formal compromise
with Jose de Borja. It is moreover manifest that the stipulation that the sale of the
Hacienda de Jalajala was to be made within sixty days from the date of the
agreement with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A
as improper and ineffective, since the Hacienda de Jalajala (Poblacion) that was to be
sold to raise the P800,000 to be paid to Ongsingco for her share formed part of the
estate of Francisco de Borja and could not be sold until authorized by the Probate
Court. The Court of First Instance of Rizal so understood it, and in approving the
compromise it fixed a term of 120 days counted from the finality of the order now
under appeal, for the carrying out by the parties for the terms of the contract.
This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction
to approve the compromise with Jose de Borja (Annex A) because Tasiana
Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in the
Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object
of Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija. This
circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her
eventual share in the estate of her late husband, not the estate itself; and as already
shown, that eventual share she owned from the time of Francisco's death and the
Court of Nueva Ecija could not bar her selling it. As owner of her undivided
hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such
alienation is expressly recognized and provided for by article 1088 of the present
Civil Code:
Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale of the
vendor.
If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to
a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is
void because it amounts to a compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de
Borja", which is in itself definite admission of her civil status. There is nothing in the
text of the agreement that would show that this recognition of Ongsingco's status as
the surviving spouse of Francisco de Borja was only made in consideration of the
cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the Court of First Instance
of Nueva Ecija in its order of 21 September 1964, in Special Proceedings No. 832
(Amended Record on Appeal in L-28568, page 157), that the compromise agreement
of 13 October 1963 (Annex "A") had been abandoned, as shown by the fact that,
after its execution, the Court of First Instance of Nueva Ecija, in its order of 21
September 1964, had declared that "no amicable settlement had been arrived at by
the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated
that the proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable settlement referred to in the order
and motion above-mentioned was the compromise agreement of 13 October 1963,
which already had been formally signed and executed by the parties and duly
notarized. What the record discloses is that some time after its formalization,
Ongsingco had unilaterally attempted to back out from the compromise agreement,
pleading various reasons restated in the opposition to the Court's approval of Annex
"A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the
lapse of the allegedly intended resolutory period of 60 days and because the contract
was not preceded by the probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise
affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of
which objections have been already discussed. It was natural that in view of the
widow's attitude, Jose de Borja should attempt to reach a new settlement or novatory
agreement before seeking judicial sanction and enforcement of Annex "A", since the
latter step might ultimately entail a longer delay in attaining final remedy. That the
attempt to reach another settlement failed is apparent from the letter of Ongsingco's
counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco
in G.R. No. 28040; and it is more than probable that the order of 21 September 1964
and the motion of 17 June 1964 referred to the failure of the parties' quest for a more
satisfactory compromise. But the inability to reach a novatory accord can not
invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja
in finally seeking a court order for its approval and enforcement from the Court of
First Instance of Rizal, which, as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the order, now under
appeal.
We conclude that in so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of the Court of
First Instance of Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has
affected her unfavorably, in that while the purchasing power of the agreed price of
P800,000 has diminished, the value of the Jalajala property has increased. But the
fact is that her delay in receiving the payment of the agreed price for her hereditary
interest was primarily due to her attempts to nullify the agreement (Annex "A") she
had formally entered into with the advice of her counsel, Attorney Panaguiton. And
as to the devaluation de facto of our currency, what We said in Dizon Rivera vs.
Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if
there were to be a revaluation with every subsequent fluctuation in the values of
currency and properties of the estate", is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de
Jalajala (Poblacion), concededly acquired by Francisco de Borja during his marriage
to his first wife, Josefa Tangco, is the husband's private property (as contended by
his second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal
(ganancial) partnership with Josefa Tangco. The Court of First Instance of Rizal
(Judge Herminio Mariano, presiding) declared that there was adequate evidence to
overcome the presumption in favor of its conjugal character established by Article
160 of the Civil Code.
We are of the opinion that this question as between Tasiana Ongsingco and Jose de
Borja has become moot and academic, in view of the conclusion reached by this
Court in the two preceding cases (G.R. No. L-28568), upholding as valid the cession
of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de
Borja, for the sum of P800,000 with the accompanying reciprocal quit-claims
between the parties. But as the question may affect the rights of possible creditors
and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been
originally acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de
Borja and their title thereto was duly registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De
Barjo vs. Jugo, 54 Phil. 465). Subsequently, in 1931, the Hacienda was partitioned
among the co-owners: the Punta section went to Marcelo de Borja; the Bagombong
section to Bernardo de Borja, and the part in Jalajala proper (Poblacion)
corresponded to Francisco de Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as —
Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E.
Hermogena Romero; S. Heirs of Marcelo de Borja O. Laguna de
Bay; containing an area of 13,488,870 sq. m. more or less, assessed
at P297,410. (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate
Estate of Francisco de Borja, instituted a complaint in the Court of First Instance of
Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as Administrator of
Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above
described declared exclusive private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that it was conjugal property of his
parents (Francisco de Borja and Josefa Tangco), conformably to the presumption
established by Article 160 of the Philippine Civil Code (reproducing Article 1407 of
the Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is presumed to belong to the
conjugal partnership, unless it be proved that it pertains exclusively
to the husband or to the wife.
Defendant Jose de Borja further counterclaimed for damages, compensatory, moral
and exemplary, as well as for attorney's fees.
After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held
that the plaintiff had adduced sufficient evidence to rebut the presumption, and
declared the Hacienda de Jalajala (Poblacion) to be the exclusive private property of
the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de
Borja, to be entitled to its possession. Defendant Jose de Borja then appealed to this
Court.
The evidence reveals, and the appealed order admits, that the character of the
Hacienda in question as owned by the conjugal partnership De Borja-Tangco was
solemnly admitted by the late Francisco de Borja no less than two times: first, in the
Reamended Inventory that, as executor of the estate of his deceased wife Josefa
Tangco, he filed in the Special Proceedings No. 7866 of the Court of First Instance
of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended Accounting of
the same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the
plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the Estate of Josefa
Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3") listing
the Jalajala property among the "Conjugal Properties of the Spouses Francisco de
Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of
the Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First
Instance of Nueva Ecija, submitted therein in December, 1955, an inventory wherein
she listed the Jalajala Hacienda under the heading "Conjugal Property of the
Deceased Spouses Francisco de Borja and Josefa Tangco, which are in the
possession of the Administrator of the Testate Estate of the Deceased Josefa Tangco
in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit
"4").
Notwithstanding the four statements aforesaid, and the fact that they are plain
admissions against interest made by both Francisco de Borja and the Administratrix
of his estate, in the course of judicial proceedings in the Rizal and Nueva Ecija
Courts, supporting the legal presumption in favor of the conjugal community, the
Court below declared that the Hacienda de Jalajala (Poblacion) was not conjugal
property, but the private exclusive property of the late Francisco de Borja. It did so
on the strength of the following evidences: (a) the sworn statement by Francis de
Borja on 6 August 1951 (Exhibit "F") that —
He tomado possession del pedazo de terreno ya delimitado
(equivalente a 1/4 parte, 337 hectareas) adjunto a mi terreno
personal y exclusivo (Poblacion de Jalajala, Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire
Hacienda had been bought at a foreclosure sale for P40,100.00, of which amount
P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo de Borja;
that upon receipt of a subsequent demand from the provincial treasurer for realty
taxes the sum of P17,000, Marcelo told his brother Bernardo that Francisco (son of
Marcelo) wanted also to be a co-owner, and upon Bernardo's assent to the proposal,
Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount
would represent Francisco's contribution in the purchase of the Hacienda. The
witness further testified that —
Marcelo de Borja said that that money was entrusted to him by
Francisco de Borja when he was still a bachelor and which he
derived from his business transactions. (Hearing, 2 February 1965,
t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn statement overweighed
the admissions in the inventories relied upon by defendant-appellant Jose de Borja
since probate courts can not finally determine questions of ownership of inventoried
property, but that the testimony of Gregorio de Borja showed that Francisco de Borja
acquired his share of the original Hacienda with his private funds, for which reason
that share can not be regarded as conjugal partnership property, but as exclusive
property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article
148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive money of the wife or of
the husband.
We find the conclusions of the lower court to be untenable. In the first place, witness
Gregorio de Borja's testimony as to the source of the money paid by Francisco for his
share was plain hearsay, hence inadmissible and of no probative value, since he was
merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both Marcelo and Francisco de Borja
were already dead when Gregorio testified. In addition, the statement itself is
improbable, since there was no need or occasion for Marcelo de Borja to explain to
Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to
Marcelo. A ring of artificiality is clearly discernible in this portion of Gregorio's
testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante,
page 14) does not clearly demonstrate that the "mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The
inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala
owned by Francisco de Borja, one of 72.038 sq. m., assessed at P44,600, and a much
bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de Jalajala
(Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit
"F") refer to? In addition, Francisco's characterization of the land as "mi terreno
personal y exclusivo" is plainly self-serving, and not admissible in the absence of
cross examination.
It may be true that the inventories relied upon by defendant-appellant (Exhibits "2",
"3", "4" and "7") are not conclusive on the conjugal character of the property in
question; but as already noted, they are clear admissions against the pecuniary
interest of the declarants, Francisco de Borja and his executor-widow, Tasiana
Ongsingco, and as such of much greater probative weight than the self-serving
statement of Francisco (Exhibit "F"). Plainly, the legal presumption in favor of the
conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not
been rebutted but actually confirmed by proof. Hence, the appealed order should be
reversed and the Hacienda de Jalajala (Poblacion) declared property of the conjugal
partnership of Francisco de Borja and Josefa Tangco.
No error having been assigned against the ruling of the lower court that claims for
damages should be ventilated in the corresponding special proceedings for the
settlement of the estates of the deceased, the same requires no pro announcement
from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance
of Rizal in Case No. L-28040 is hereby affirmed; while those involved in Cases Nos.
L-28568 and L-28611 are reversed and set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and
PONCIANO BONILLA (their father) who represents the minors, petitioners, 
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA,
MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and
HON. LEOPOLDO GIRONELLA of the Court of First Instance of
Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in
Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the
motions for reconsideration of its order dismissing the complaint in the
aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and
Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court
of First Instance of Abra, to quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but
before the hearing of the motion to dismiss, the counsel for the plaintiff moved to
amend the complaint in order to include certain allegations therein. The motion to
amend the complaint was granted and on July 17, 1975, plaintiffs filed their amended
complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint on
the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to
sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel
for the plaintiff confirmed the death of Fortunata Barcena, and asked for substitution
by her minor children and her husband, the petitioners herein; but the court after the
hearing immediately dismissed the case on the ground that a dead person cannot be a
real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing
the complaint and on August 23, 1975, he moved to set aside the order of the
dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by counsel
for the plaintiff for lack of merit. On September 1, 1975, counsel for deceased
plaintiff filed a written manifestation praying that the minors Rosalio Bonilla and
Salvacion Bonilla be allowed to substitute their deceased mother, but the court
denied the counsel's prayer for lack of merit. From the order, counsel for the
deceased plaintiff filed a second motion for reconsideration of the order dismissing
the complaint claiming that the same is in violation of Sections 16 and 17 of Rule 3
of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the
complaint in Civil Case No. 856 and its orders denying the motion for
reconsideration of said order of dismissal. While it is true that a person who is dead
cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to
its completion. The records of this case show that the death of Fortunata Barcena
took place on July 9, 1975 while the complaint was filed on March 31, 1975. This
means that when the complaint was filed on March 31, 1975, Fortunata Barcena was
still alive, and therefore, the court had acquired jurisdiction over her person. If
thereafter she died, the Rules of Court prescribes the procedure whereby a party who
died during the pendency of the proceeding can be substituted. Under Section 16,
Rule 3 of the Rules of Court "whenever a party to a pending case dies ... it shall be
the duty of his attorney to inform the court promptly of such death ... and to give the
name and residence of his executor, administrator, guardian or other legal
representatives." This duty was complied with by the counsel for the deceased
plaintiff when he manifested before the respondent Court that Fortunata Barcena
died on July 9, 1975 and asked for the proper substitution of parties in the case. The
respondent Court, however, instead of allowing the substitution, dismissed the
complaint on the ground that a dead person has no legal personality to sue. This is a
grave error. Article 777 of the Civil Code provides "that the rights to the succession
are transmitted from the moment of the death of the decedent." From the moment of
the death of the decedent, the heirs become the absolute owners of his property,
subject to the rights and obligations of the decedent, and they cannot be deprived of
their rights thereto except by the methods provided for by law. 3 The moment of
death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to the
property of the deceased vests in them even before judicial declaration of their being
heirs in the testate or intestate proceedings. 5 When Fortunata Barcena, therefore,
died her claim or right to the parcels of land in litigation in Civil Case No. 856, was
not extinguished by her death but was transmitted to her heirs upon her death. Her
heirs have thus acquired interest in the properties in litigation and became parties in
interest in the case. There is, therefore, no reason for the respondent Court not to
allow their substitution as parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is
not thereby extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the deceased, within
such time as may be granted ... ." The question as to whether an action survives or
not depends on the nature of the action and the damage sued for. 6 In the causes of
action which survive the wrong complained affects primarily and principally
property and property rights, the injuries to the person being merely incidental, while
in the causes of action which do not survive the injury complained of is to the
person, the property and rights of property affected being incidental. 7 Following the
foregoing criterion the claim of the deceased plaintiff which is an action to quiet title
over the parcels of land in litigation affects primarily and principally property and
property rights and therefore is one that survives even after her death. It is, therefore,
the duty of the respondent Court to order the legal representative of the deceased
plaintiff to appear and to be substituted for her. But what the respondent Court did,
upon being informed by the counsel for the deceased plaintiff that the latter was
dead, was to dismiss the complaint. This should not have been done for under the
same Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the
legal representative fails to appear, to order the opposing party to procure the
appointment of a legal representative of the deceased. In the instant case the
respondent Court did not have to bother ordering the opposing party to procure the
appointment of a legal representative of the deceased because her counsel has not
only asked that the minor children be substituted for her but also suggested that their
uncle be appointed as guardian ad litem for them because their father is busy in
Manila earning a living for the family. But the respondent Court refused the request
for substitution on the ground that the children were still minors and cannot sue in
court. This is another grave error because the respondent Court ought to have known
that under the same Section 17, Rule 3 of the Rules of Court, the court is directed to
appoint a guardian ad litem for the minor heirs. Precisely in the instant case, the
counsel for the deceased plaintiff has suggested to the respondent Court that the
uncle of the minors be appointed to act as guardian ad litem for them.
Unquestionably, the respondent Court has gravely abused its discretion in not
complying with the clear provision of the Rules of Court in dismissing the complaint
of the plaintiff in Civil Case No. 856 and refusing the substitution of parties in the
case.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the
complaint in Civil Case No. 856 of the Court of First Instance of Abra and the
motions for reconsideration of the order of dismissal of said complaint are set aside
and the respondent Court is hereby directed to allow the substitution of the minor
children, who are the petitioners therein for the deceased plaintiff and to appoint a
qualified person as guardian ad litem for them. Without pronouncement as to costs.
G.R. No. 173292               September 1, 2010
MEMORACION Z. CRUZ, represented by EDGARDO Z. CRUZ, Petitioner, 
vs.
OSWALDO Z. CRUZ, Respondent.
DECISION
CARPIO, J.:
The Case Lucia Pena Purugganan granted the same, stating that the remedy under the
This is a petition for review1 of the Court of Appeals’ (CA) Decision2 dated 20 circumstances is ordinary appeal.4
December 2005 and Resolution dated 21 June 2006 in CA-G.R. CV No. 80355. The The Court of Appeals’ Ruling
CA affirmed with modification the Order3 dated 2 June 1997 of the Regional Trial Petitioner Memoracion Z. Cruz, represented by Edgardo Z. Cruz, filed with the Court
Court of the National Capital Judicial Region, Branch 30, Manila (RTC). of Appeals a Petition for Review under Rule 45 of the 1997 Revised Rules of Civil
The Antecedent Facts Procedure. On 20 December 2005, the CA rendered judgment affirming with
The undisputed facts, as summarized by the Court of Appeals, are as follows: modification the RTC decision. We quote the dispositive portion of the CA’s
On October 18, 1993, Memoracion Z. Cruz filed with the Regional Trial Court in decision below.
Manila a Complaint against her son, defendant-appellee Oswaldo Z. Cruz, for WHEREFORE, the appealed Order is AFFIRMED, with MODIFICATION. The
"Annulment of Sale, Reconveyance and Damages." trial court’s directive as to the prosecution of the action in the proper estate
Memoracion claimed that during her union with her common-law husband proceedings is DELETED.
(deceased) Architect Guido M. Cruz, she acquired a parcel of land located at Tabora SO ORDERED.5
corner Limay Streets, Bo. Obrero, Tondo Manila; that the said lot was registered in Petitioner’s Motion for Reconsideration was denied by the CA in its Resolution of 21
her name under TCT No. 63467 at the Register of Deeds of Manila; that sometime in June 2006.6
July 1992, she discovered that the title to the said property was transferred by Hence, this appeal.
appellee and the latter’s wife in their names in August 1991 under TCT No. 0- The Issues
199377 by virtue of a Deed of Sale dated February 12, 1973; that the said deed was The issues for resolution in this case are:
executed through fraud, forgery, misrepresentation and simulation, hence, null and 1. Whether the Court of Appeals erred in ruling that Memoracion Z. Cruz’s
void; that she, with the help of her husband’s relatives, asked appellee to settle the Petition for Annulment of Deed of Sale, Reconveyance and Damages is a
problem; that despite repeated pleas and demands, appellee refused to reconvey to purely personal action which did not survive her death; and
her the said property; that she filed a complaint against appellee before the office of 2. Whether the Court of Appeals erred in affirming with modification the
the Barangay having jurisdiction over the subject property; and that since the matter RTC Order dismissing the Petition for Annulment of Deed of Sale,
was unsettled, the barangay x x x issued x x x a certification to file [an] action in Reconveyance and Damages.
court, now the subject of controversy. The Court’s Ruling
After Memoracion x x x finished presenting her evidence in chief, she died on We find the appeal meritorious.
October 30, 1996. Through a Manifestation, Memoracion’s counsel, Atty. Roberto T. The Petition for Annulment of Sale, Reconveyance 
Neri, notified the trial court on January 13, 1997 of the fact of such death, evidenced and Damages survived the death of petitioner
by a certificate thereof. The criterion for determining whether an action survives the death of a petitioner was
For his part, appellee filed a Motion to Dismiss on the grounds that (1) the plaintiff’s elucidated in Bonilla v. Barcena,7 to wit:
reconveyance action is a personal action which does not survive a party’s death, The question as to whether an action survives or not depends on the nature of the
pursuant to Section 21, Rule 3 of the Revised Rules of Court, and (2) to allow the action and the damage sued for. In the causes of action which survive, the wrong
case to continue would result in legal absurdity whereby one heir is representing the complained [of] affects primarily and principally property and property rights, the
defendant [and is a] co-plaintiff in this case. injuries to the person being merely incidental, while in the causes of action which do
On June 2, 1997, the trial court issued the appealed Order in a disposition that reads: not survive, the injury complained of is to the person, the property and rights of
"Wherefore, in view of the foregoing, this case is ordered dismissed without property affected being incidental.8
prejudice to the prosecution thereof in the proper estate proceedings." If the case affects primarily and principally property and property rights, then it
On October 17, 1997, Memoracion’s son-heir, Edgardo Z. Cruz, manifested to the survives the death of the plaintiff or petitioner. In Sumaljag v. Literato,9 we held that
trial court that he is retaining the services of Atty. Neri for the plaintiff. a Petition for Declaration of Nullity of Deed of Sale of Real Property is one relating
Simultaneously, Atty. Neri filed a Motion for Reconsideration of the June 2, 1997 to property and property rights, and therefore, survives the death of the petitioner.
Order. However, the said motion was subsequently denied by Acting Presiding Judge Accordingly, the instant case for annulment of sale of real property merits survival
Cielito N. Mindaro-Grulla [on October 31, 2000]. despite the death of petitioner Memoracion Z. Cruz.
Thereafter, Edgardo Cruz, as an heir of Memoracion Cruz, filed a notice of appeal in The CA erred in affirming RTC’s dismissal of the 
behalf of the deceased plaintiff, signed by Atty. Neri, but the appeal was dismissed Petition for Annulment of Deed of Sale, 
by Judge Mindaro-Grulla, [stating that] the proper remedy being certiorari under Reconveyance and Damages
Rule 65 of the Rules of Court. On appellant’s motion for reconsideration, Judge When a party dies during the pendency of a case, Section 16, Rule 3 of the 1997
Revised Rules of Civil Procedure necessarily applies, viz:
Sec. 16. Death of party; duty of counsel. - Whenever a party to a pending action dies,
and the claim is not thereby extinguished, it shall be the duty of his counsel to inform
the court within thirty (30) days after such death of the fact thereof, and to give the
name and address of his legal representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint
a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear
and be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the
one so named shall fail to appear within the specified period, the court may order the
opposing party, within a specified time, to procure the appointment of an executor or
administrator for the estate of the deceased and the latter shall immediately appear
for and on behalf of the deceased. The court charges in procuring such appointment,
if defrayed by the opposing party, may be recovered as costs.
The foregoing section is a revision of Section 17, Rule 3 of the old Rules of Court:
SEC. 17. Death of party. - After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and to be substituted for the deceased, within a period of thirty
(30) days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified by
the court, and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such appointment,
if defrayed by the opposing party, may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint guardian ad
litem for the minor heirs.
If the action survives despite death of a party, it is the duty of the deceased’s counsel
to inform the court of such death, and to give the names and addresses of the
deceased’s legal representatives. The deceased may be substituted by his heirs in the
pending action. As explained in Bonilla:
x x x Article 777 of the Civil Code provides "that the rights to the succession are
transmitted from the moment of the death of the decedent." From the moment of the
death of the decedent, the heirs become the absolute owners of his property, subject
to the rights and obligations of the decedent, and they cannot be deprived of their
rights thereto except by the methods provided for by law. The moment of death is the
determining factor when the heirs acquire a definite right to the inheritance whether
such right be pure or contingent. The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their being heirs in the
testate or intestate proceedings. When [plaintiff], therefore, died[,] her claim or right
to the parcels of land x x x was not extinguished by her death but was transmitted to
her heirs upon her death. Her heirs have thus acquired interest in the properties in
litigation and became parties in interest in the case. There is, therefore, no reason for
the respondent Court not to allow their substitution as parties in interest for the
deceased plaintiff.10
If no legal representative is named by the counsel of the deceased, or the legal
representative fails to appear within a specified period, it is the duty of the court
where the case is pending to order the opposing party to procure the appointment of
an executor or administrator for the estate of the deceased. The reason for this rule is
to protect all concerned who may be affected by the intervening death, particularly
the deceased and his estate.111avvphi1
In the instant case, petitioner (plaintiff) Memoracion Z. Cruz died on 30 October
1996. Her counsel, Atty. Roberto T. Neri, notified the trial court of such death on 13
January 1997, through a Manifestation stating thus:
COMES NOW the undersigned counsel and to this Honorable Court respectfully
gives notice that the plaintiff, Memoracion Z. Cruz, died on October 30, 1996, in
Manila as shown by a Certificate of Death, a certified true copy of which is hereto
attached as Annex "A" hereof.
The legal representative of the deceased plaintiff is her son EDGARDO CRUZ
whose address is at No. 3231-E Tabora St., Bo. Obrero, Tondo, Manila.
x x x x12
On 24 January 1997, respondent (defendant) Oswaldo Z. Cruz moved to dismiss the
case alleging that it did not survive Memoracion’s death. The RTC granted the
motion to dismiss in the assailed Order dated 2 June 1997.
We rule that it was error for the RTC to dismiss the case. As mentioned earlier, the
petition for annulment of deed of sale involves property and property rights, and
hence, survives the death of petitioner Memoracion. The RTC was informed, albeit
belatedly,13 of the death of Memoracion, and was supplied with the name and address
of her legal representative, Edgardo Cruz. What the RTC could have done was to
require Edgardo Cruz to appear in court and substitute Memoracion as party to the
pending case, pursuant to Section 16, Rule 3 of the 1997 Revised Rules of Civil
Procedure, and established jurisprudence.
We note that on 17 October 1997, Edgardo Cruz filed with the RTC a Manifestation,
stating that he is retaining the services of Atty. Roberto T. Neri. We quote:14
UNDERSIGNED HEIR of the late Memoracion Z. Cruz respectfully manifests that
he is retaining the services of ATTY. ROBERTO T. NERI as counsel for the
plaintiff.
(Sgd.) EDGARDO Z. CRUZ
Plaintiff
Consistent with our ruling in Heirs of Haberer v. Court of Appeals,15 we consider
such Manifestation, signed by Memoracion’s heir, Edgardo Cruz, and retaining Atty.
Neri’s services as counsel, a formal substitution of deceased Memoracion by her
heir, Edgardo Cruz. It also needs mention that Oswaldo Cruz, although also an heir
of Memoracion, should be excluded as a legal representative in the case for being an
adverse party therein.16
WHEREFORE, we GRANT the petition. We REVERSE the Court of Appeals’
Decision dated 20 December 2005 and Resolution dated 21 June 2006 in CA-G.R.
CV No. 80355. We REMAND this case to the Regional Trial Court of the National
Capital Judicial Region, Branch 30, Manila, for further proceedings.
[G.R. No. L-41171. July 23, 1987.]
INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO
BORROMEO-HERRERA, Petitioner, v. FORTUNATO BORROMEO and
HON. FRANCISCO P. BURGOS, Judge of the Court of First Instance of Cebu,
Branch II, Respondents.
[G.R. No. L-55000. July 23, 1987.]
IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED,
PILAR N. BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO,
JOSE BORROMEO, CONSUELO B. MORALES, AND CANUTO V.
BORROMEO, JR., heirs-appellants, v. FORTUNATO
BORROMEO, Claimant-Appellee.
[G.R. No. L-62895. July 23, 1987.]
JOSE CUENCO BORROMEO, Petitioner, v. HONORABLE COURT OF
APPEALS, HON. FRANCISCO P. BURGOS, As presiding Judge of the (now)
Regional Trial Court, Branch XV, Region VII, RICARDO V. REYES, as
Administrator of the Estate of Vito Borromeo in Sp. Proc. No. 916-R,
NUMERIANO G. ESTENZO and DOMINGO L. ANTIGUA, Respondents.
[G.R. No. L-63818. July 23, 1987.]
DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the
Intestate Estate of VITO BORROMEO, Sp. Proc. No. 916-R, Regional Trial
Court of Cebu, joined by HON. JUDGE FRANCISCO P. BURGOS, as
Presiding Judge of Branch XV of the Regional Trial Court of Cebu, as a formal
party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and
NUMERIANO ESTENZO, Petitioners, v. HONORABLE INTERMEDIATE
APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA O.
BORROMEO, Respondents.
[G.R. No. L-65995. July 23, 1987.]
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA
BORROMEO, and JOSE CUENCO BORROMEO, Petitioners, v.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV,
Regional Trial Court of Cebu; RICARDO V. REYES, Administrator of the
Estate of VITO BORROMEO in Sp. Proc. No. 916-R; and DOMINGO L.
ANTIGUA, Respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HEIRS ACQUIRE A RIGHT TO SUCCESSION
FROM THE MOMENT OF THE DEATH OF THE DECEASED; HEREDITARY
RIGHTS MAY BE WAIVED PRIOR TO THE PARTITION OF THE ESTATE. —
The prevailing jurisprudence on waiver of hereditary rights is that "the properties
included in an existing inheritance cannot be considered as belonging to third
persons with respect to the heirs, who by fiction of law continue the personality of
the former. Nor do such properties have the character of future property, because the
heirs acquire a right to succession from the moment of the death of the deceased, by
principle established in article 657 and applied by article 661 of the Civil Code.
according to which the heirs succeed the deceased by the mere fact of death. More or
less, time may elapse from the moment of the death of the deceased until the heirs
enter into possession of the hereditary property, but the acceptance in any event
retroacts to the moment of the death, in accordance with article 989 of the Civil
Code. The right is vested, although conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co.,
41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even
if the order to partition the estate was issued only in 1969.
2. ID.; ID.; WAIVER OF HEREDITARY RIGHTS, ESSENTIAL ELEMENTS. —
For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to relinquish such right.
(People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a
right or advantage must be shown clearly and convincingly, and when the only proof
of intention rests in what a party does, his act should be so manifestly consistent
with, and indicative of an intent to, voluntarily relinquish the particular right or
advantage that no other reasonable explanation of his conduct is possible (67 C.J.,
311). (Fernandez v. Sebido, Et Al., 70 Phil., 151, 159).
3. REMEDIAL LAW; JURISDICTION; TRIAL COURT HAS JURISDICTION TO
PASS UPON THE VALIDITY OF THE WAIVER AGREEMENT; EXTENDS TO
MATTERS INCIDENTAL AND COLLATERAL TO THE EXERCISE OF ITS
POWERS IN HANDLING SETTLEMENT OF ESTATE. — With respect to the
issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon the
validity of the waiver agreement. It must be noted that in Special Proceedings No.
916-R the lower court disallowed the probate of the will and declared it as fake.
Upon appeal, this Court affirmed the decision of the lower court on March 30, 1967,
in G.R. No. L-18498. Subsequently, several parties came before the lower court
filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising jurisdiction and
trying the said claims or petitions. Moreover, the jurisdiction of the trial court
extends to matters incidental and collateral to the exercise of its recognized powers
in handling the settlement of the estate.
4. JUDICIAL ETHICS; JUDGES; SUSPECION OF PARTIALITY ON THE PART
OF A TRIAL JUDGE MUST BE AVOIDED AT ALL COSTS; SHOULD INHIBIT
HIMSELF FROM HEARING A CASE AT THE VERY FIRST SIGN OF LACK OF
FAITH AND TRUST TO HIS ACTIONS WHETHER WELL-GROUNDED OR
NOT. — The allegations of the private respondents in their motion for inhibition,
more specifically the insistence of the trial judge to sell the entire estate at
P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored.
Suspicion of partiality on the part of a trial judge must be avoided at all costs. In the
case of Bautista v. Rebueno (81 SCRA 535), this Court stated: ". . . The Judge must
maintain and preserve the trust and faith of the parties litigants. He must hold himself
above reproach and suspicion. At the very first sign of lack of faith and trust to his
actions, whether well grounded or not, the Judge has no other alternative but inhibit
himself from the case. A judge may not be legally prohibited from sitting in a
litigation, but when circumstances appear that will induce doubt to his honest
actuations and probity in favor of either party, or incite such state of mind, he should
conduct a careful self-examination. He should exercise his discretion in a way that
the people’s faith in the Courts of Justice is not impaired. The better course for the
Judge under such circumstances is to disqualify himself. That way, he avoids being
misunderstood, his reputation for probity and objectivity is preserved. What is more
important, the ideal of impartial administration of justice is lived up to." In this case,
the fervent distrust of the private respondents is based on sound reasons.
5. CIVIL LAW; ATTORNEY’S FEES; OBLIGATION OF THE INDIVIDUAL
HEIRS AND NOT THAT OF THE ESTATE OF THE DECEASED. — We agree
with the petitioners’ contention that attorney’s fees are not the obligation of the
estate but of the individual heirs who individually hired their respective lawyers. The
portion, therefore, of the Order of August 15, 1969, segregating the exhorbitantly
excessive amount of 40% of the market value of the estate from which attorney’s
fees shall be taken and paid should be deleted.
DECISION
GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO, 916-R of the then Court of First
Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13,
1952, in Parañaque, Rizal at the age of 88 years, without forced heirs but leaving
extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a
petition for the probate of a one page document as the last will and testament left by
the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all
surnamed Borromeo, in equal and undivided shares, and designating Junquera as
executor thereof. The case was docketed as Special Proceedings No. 916-R. The
document, drafted in Spanish, was allegedly signed and thumbmarked by the
deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto
Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial,
the probate court held that the document presented as the will of the deceased was a
forgery.chanrobles virtual lawlibrary
On appeal to this Court, the decision of the probate court disallowing the probate of
the will was affirmed in Testate Estate of Vito Borromeo, Jose H. Junquera, Et. Al.
v. Crispin Borromeo, Et. Al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings. Several parties
came before the court filing claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo.
The following petitions or claims were filed:chanrob1es virtual 1aw library
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a
petition for declaration of heirs and determination of heirship. There was no
opposition filed against said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as
heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to
this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon
Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora
Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for
declaration of heirs and determination of shares. The petition was opposed by the
heirs of Jose and Cosme Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda
Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim.
Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of
Carlos Borromeo represented by Jose Talam filed oppositions to this claim.
When the aforementioned petitions and claims were heard jointly, the following facts
were established:chanrob1es virtual 1aw library
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having
predeceased the former), were survived by their eight (8) children, namely,.
 5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left
Jose Ma. Borromeo the following children:chanrob1es virtual 1aw library

Cosme Borromeo a. Marcial Borromeo

Pantaleon Borromeo b. Carlos Borromeo, who died on Jan. 18, 1965, survived by his wife, Remedios
Alfonso, and his only daughter, Amelinda Borromeo Talam.
Vito Borromeo
c. Asuncion Borromeo
Paulo Borromeo
d. Florentina Borromeo, who died in 1948.
Anecita Borromeo
e. Amilio Borromeo, who died in 1944.
Quirino Borromeo and
f. Carmen Borromeo, who died in 1925.
Julian Borromeo
The last three died leaving no issue.
2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his
brothers and sisters predeceased him. 6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and
left the following children:chanrob1es virtual 1aw library
3. Vito’s brother Pantaleon Borromeo died leaving the following
children:chanrob1es virtual 1aw library a. Exequiel Borromeo, who died on December 29, 1949

a. Ismaela Borromeo, who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito
Borromeo. He was married to Remedios Cuenco Borromeo, who died on March 28,
1968. He had an only son - Atty. Jose Cuenco Borromeo one of the petitioners
herein.
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following
children:chanrob1es virtual 1aw library
aa. Federico Borromeo
bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)

c. Crispin Borromeo, who is still alive. cc. Canuto Borromeo, Jr.

4. Aniceta Borromeo, sister of Vito Borromeo, died ahead of him and left an only dd. Jose Borromeo
daughter, Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the following
children:chanrob1es virtual 1aw library ee. Consuelo Borromeo

a. Aniceta Ocampo Castro ff. Pilar Borromeo

b. Ramon Ocampo gg. Salud Borromeo

c. Lourdes Ocampo hh. Patrocinio Borromeo Herrera.

d. Elena Ocampo, all living, and c. Maximo Borromeo, who died in July, 1948

e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr. d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his shall be taken and paid from this segregated portion.
children:chanrob1es virtual 1aw library
On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as
aa. Maria Borromeo Atega heir under the forged will, filed a motion before the trial court praying that he be
declared as one of the heirs of the deceased Vito Borromeo, alleging that he is an
bb. Luz Borromeo illegitimate son of the deceased and that in the declaration of heirs made by the trial
court, he was omitted, in disregard of the law making him a forced heir entitled to
cc. Hermenegilda Borromeo Nonnenkamp receive a legitime like all other forced heirs. As an acknowledged illegitimate child,
he stated that he was entitled to a legitime equal in every case to four-fifths of the
dd. Rosario Borromeo legitime of an acknowledged natural child.

ee. Fe Borromeo Queroz. Finding that the motion of Fortunato Borromeo was already barred by the order of
the court dated April 12, 1969 declaring the persons named therein as the legal heirs
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an of the deceased Vito Borromeo, the court dismissed the motion on June 25, 1973.
order declaring the following, to the exclusion of all others, as the intestate heirs of
the deceased Vito Borromeo:chanrob1es virtual 1aw library Fortunato Borromeo filed a motion for reconsideration. In the memorandum he
submitted to support his motion for reconsideration, Fortunato changed the basis for
1. Jose Cuenco Borromeo his claim to a portion of the estate. He asserted and incorporated a Waiver of
Hereditary Rights dated July 31, 1967, supposedly signed by Pilar N. Borromeo,
2. Judge Crispin Borromeo Maria B. Putong. Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V.
3. Vitaliana Borromeo Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam. In the
waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed
4. Patrocinio Borromeo Herrera estate. The motion was opposed on the ground that the trial court, acting as a probate
court, had no jurisdiction to take cognizance of the claim; that respondent Fortunato
5. Salud Borromeo Borromeo is estopped from asserting the waiver agreement; that the waiver
agreement is void as it was executed before the declaration of heirs; that the same is
6. Asuncion Borromeo void having been executed before the distribution of the estate and before the
acceptance of the inheritance; and that it is void ab initio and inexistent for lack of
7. Marcial Borromeo subject matter.

8. Amelinda Borromeo de Talam, and
9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of Vito Borromeo shall
be divided into 4/9 and 5/9 groups and distributed in equal and equitable shares
among the 9 abovenamed declared intestate heirs.cralawnad
On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B.
Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order of August 15, 1969. In
this same order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to
partition the properties of the deceased in the way and manner they are divided and
partitioned in the said Agreement of Partition and further ordered that 40% of the
market value of the 4/9 and 5/9 of the estate shall be segregated. All attorney’s fees
On December 24, 1974, after due hearing, the trial court concluding that the five
declared heirs who signed the waiver agreement assigning their hereditary rights to
Fortunato Borromeo had lost the same rights, declared the latter as entitled to 5/9 of
the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the trial court’s
order dated December 24, 1974, declaring respondent Fortunato Borromeo entitled to
5/9 of the estate of Vito Borromeo and the July 7, 1975 order, denying the motion for
reconsideration.
The petitioner argues that the trial court had no jurisdiction to take cognizance of the
claim of respondent Fortunato Borromeo because it is not a money claim against the
decedent but a claim for properties, real and personal, which constitute all of the
shares of the heirs in the decedent’s estate, heirs who allegedly waived their rights in
his favor. The claim of the private respondent under the waiver agreement, according
to the petitioner, may be likened to that of a creditor of the heirs which is improper.
He alleges that the claim of the private respondent under the waiver agreement was
filed beyond the time allowed for filing of claims as it was filed only sometime in
1973, after there had been a declaration of heirs (April 10, 1969), an agreement of
partition (April 30, 1969), the approval of the agreement of partition and an order
directing the administrator to partition the estate (August 15, 1969), when in a mere
memorandum, the existence of the waiver agreement was brought out.
It is further argued by the petitioner that the document entitled "Waiver of Hereditary
Rights" executed on July 31, 1967, aside from having been cancelled and revoked on
June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo,
is without force and effect because there can be no effective waiver of hereditary
rights before there has been a valid acceptance of the inheritance the heirs intend to
transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance or
repudiation of inheritance valid, the person must be certain of the death of the one
from whom he is to inherit and of his right to the inheritance. Since the petitioner and
her co-heirs were not certain of their right to the inheritance until they were declared
heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is
also supported by Article 1057 of the same Code which directs heirs, devisees, and
legatees to signify their acceptance or repudiation within thirty days after the court
has issued an order for the distribution of the estate.chanrobles.com:cralaw:red
Respondent Fortunato Borromeo on the other hand, contends that under Article 1043
of the Civil Code there is no need for a person to be first declared as heir before he
can accept or repudiate an inheritance. What is required is that he must first be
certain of the death of the person from whom he is to inherit and that he must be
certain of his right to the inheritance. He points out that at the time of the signing of
the waiver document on July 31, 1967, the signatories to the waiver document were
certain that Vito Borromeo was already dead as well as of their rights to the
inheritance as shown in the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the validity of
the waiver of hereditary rights, respondent Borromeo asserts that since the waiver or
renunciation of hereditary rights took place after the court assumed jurisdiction over
the properties of the estate it partakes of the nature of a partition of the properties of
the estate needing approval of the court because it was executed in the course of the
proceedings. He further maintains that the probate court loses jurisdiction of the
estate only after the payment of all the debts of the estate and the remaining estate is
distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that "the properties
included in an existing inheritance cannot be considered as belonging to third
persons with respect to the heirs, who by fiction of law continue the personality of
the former. Nor do such properties have the character of future property, because the
heirs acquire a right to succession from the moment of the death of the deceased, by
principle established in article 657 and applied by article 661 of the Civil Code.
according to which the heirs succeed the deceased by the mere fact of death. More or
less, time may elapse from the moment of the death of the deceased until the heirs
enter into possession of the hereditary property, but the acceptance in any event
retroacts to the moment of the death, in accordance with article 989 of the Civil
Code. The right is vested, although conditioned upon the adjudication of the
corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co.,
41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even
if the order to partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be
considered to be effective. For a waiver to exist, three elements are essential: (1) the
existence of a right; (2) the knowledge of the existence thereof; and (3) an intention
to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120).
The intention to waive a right or advantage must be shown clearly and convincingly,
and when the only proof of intention rests in what a party does, his act should be so
manifestly consistent with, and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable explanation of his conduct is
possible (67 C.J., 311). (Fernandez v. Sebido, Et Al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver document did
not have the clear and convincing intention to relinquish their rights. Thus: (1) On
October 27, 1967, Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled
"Compliance" wherein they submitted a proposal for the amicable settlement of the
case. In that Compliance, they proposed to concede to all the eight (8) intestate heirs
of Vito Borromeo all properties, personal and real, including all cash and sums of
money in the hands of the Special Administrator, as of October 31, 1967, not
contested or claimed by them in any action then pending in the Court of First
Instance of Cebu. In turn, the heirs would waive and concede to them all the 14
contested lots. In this document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an heir of the
deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver
of Hereditary Rights" was never meant to be what the respondent now purports it to
be. Had the intent been otherwise, there would not be any reason for Fortunato,
Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the deceased; (2) On
April 21 and 30, 1969, the majority of the declared heirs executed an Agreement on
how the estate they inherited shall be distributed. This Agreement of Partition was
approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner,
among others, signed a document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all
her (Patrocinio B. Herrera’s) rights, interests, and participation as an intestate heir in
the estate of the deceased Vito Borromeo. The stated consideration for said
assignment was P100,000.00; (4) On the same date, June 29, 1968, the respondent
Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment)
in turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in
the same deed of assignment. The stated consideration was P50,000.00; (5) A
Cancellation of Deed of Assignment and Deed of Reconveyance was signed by
Tomas Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato
Borromeo signed this document on March 24, 1969.chanrobles.com:cralaw:red
With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction
to pass upon the validity of the waiver agreement. It must be noted that in Special
Proceedings No. 916-R the lower court disallowed the probate of the will and
declared it as fake. Upon appeal, this Court affirmed the decision of the lower court
on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came before
the lower court filing claims or petitions alleging themselves as heirs of the intestate
estate of Vito Borromeo. We see no impediment to the trial court in exercising
jurisdiction and trying the said claims or petitions. Moreover, the jurisdiction of the
trial court extends to matters incidental and collateral to the exercise of its
recognized powers in handling the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated December 24,
1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of the Court
of First Instance of Cebu, Branch II, dated December 24, 1974, declaring the waiver
document earlier discussed in G.R. No. 41171 valid. The appellate court certified this
case to this Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also
question the jurisdiction of the lower court to hear and decide the action filed by
claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was executed on July
31, 1967, Pilar Borromeo and her children did not yet possess or own any hereditary
right in the intestate estate of the deceased Vito Borromeo because said hereditary
right was only acquired and owned by them on April 10, 1969, when the estate was
ordered distributed.
They further argue that in contemplation of law, there is no such contract of waiver
of hereditary right in the present case because there was no object, which is
hereditary right, that could be the subject matter of said waiver, and, therefore, said
waiver of hereditary right was not only null and void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without any
formal pleading filed by the lawyers of Fortunato Borromeo for the approval of the
waiver agreement and without notice to the parties concerned, two things which are
necessary so that the lower court would be vested with authority and jurisdiction to
hear and decide the validity of said waiver agreement, nevertheless, the lower court
set the hearing on September 25, 1973 and without asking for the requisite pleading.
This resulted in the issuance of the appealed order of December 24, 1974, which
approved the validity of the waiver agreement. The appellants contend that this
constitutes an error in the exercise of jurisdiction.
The appellee on the other hand, maintains that by waiving their hereditary rights in
favor of Fortunato Borromeo, the signatories to the waiver document tacitly and
irrevocably accepted the inheritance and by virtue of the same act, they lost their
rights because the rights from that moment on became vested in Fortunato
Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code there is no
need for a person to be declared as heir first before he can accept or repudiate an
inheritance. What is required is that he is certain of the death of the person from
whom he is to inherit, and of his right to the inheritance. At the time of the signing of
the waiver document on July 31, 1967, the signatories to the waiver document were
certain that Vito Borromeo was already dead and they were also certain of their right
to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire jurisdiction
over the claim because of the alleged lack of a pleading invoking its jurisdiction to
decide the claim, the appellee asserts that on August 23, 1973, the lower court issued
an order specifically calling on all oppositors to the waiver document to submit their
comments within ten days from notice and setting the same for hearing on September
25, 1973. The appellee also avers that the claim as to a 5/9 share in the inheritance
involves no question of title to property and, therefore, the probate court can decide
the question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The
appellants in this case, who are all declared heirs of the late Vito Borromeo are
contesting the validity of the trial court’s order dated December 24, 1974, declaring
Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo under the waiver
agreement.chanrobles virtual lawlibrary
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be
validated. The essential elements of a waiver, especially the clear and convincing
intention to relinquish hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the eight
(8) intestate heirs various properties in consideration for the heirs giving to the
respondent and to Tomas, and Amelia Borromeo the fourteen (14) contested lots was
filed inspite of the fact that on July 31, 1967, some of the heirs had allegedly already
waived or sold their hereditary rights to the Respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of
assignment, the deed of reconveyance, and the subsequent cancellation of the deed of
assignment and deed of reconveyance all argue against the purported waiver of
hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that
the trial court acquired jurisdiction to pass upon the validity of the waiver agreement
because the trial court’s jurisdiction extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative
of some of the heirs-distributees, praying for the immediate closure of Special
Proceeding No. 916-R. A similar motion dated May 29, 1979 was filed by Atty. Jose
Amadora. Both motions were grounded on the fact that there was nothing more to be
done after the payment of all the obligations of the estate since the order of partition
and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the
aforesaid motions, petitioner Jose Cuenco Borromeo filed a petition for mandamus
before the Court of Appeals to compel the respondent judge to terminate and close
Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending motions to
compel the petitioner, as co-administrator, to submit an inventory of the real
properties of the estate and an accounting of the cash in his hands, pending claims for
attorney’s fees, and that mandamus will not lie to compel the performance of a
discretionary function, the appellate court denied the petition on May 14, 1982. The
petitioner’s motion for reconsideration was likewise denied for lack of merit. Hence,
this petition.
The petitioner’s stand is that the inaction of the respondent judge on the motion filed
on April 28, 1972 for the closure of the administration proceeding cannot be justified
by the filing of the motion for inventory and accounting because the latter motion
was filed only on March 2, 1979. He claimed that under the then Constitution, it is
the duty of the respondent judge to decide or resolve a case or matter within three
months from the date of its submission.
The respondents contend that the motion to close the administration had already been
resolved when the respondent judge cancelled all settings of all incidents previously
set in his court in an order dated June 4, 1979, pursuant to the resolution and
restraining order issued by the Court of Appeals enjoining him to maintain status quo
on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the
exception of Patrocinio B. Herrera, signed an agreement of partition of the properties
of the deceased Vito Borromeo which was approved by the trial court, in its order
dated August 15, 1969. In this same order, the trial court ordered the administrator,
Atty. Jesus Gaboya, Jr., to partition the properties of the deceased in the way and
manner they are divided and partitioned in the said Agreement of Partition and
further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be
segregated and reserved for attorney’s fees.chanrobles law library
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p.
197, Rollo, G.R. No. 41171) his court has not finally distributed to the nine (9)
declared heirs the properties due to the following circumstances:chanrob1es virtual
1aw library
1. The court’s determination of the market value of the estate in order to segregate
the 40% reserved for attorney’s fees;
2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of
the 5/9 of the estate because of the waiver agreement signed by the heirs representing
the 5/9 group which is still pending resolution by this Court (G.R. No. 41171);
3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and
4. The claim of Tarcela Villegas for 1/2 of the estate causing annotations of notices
of lis pendens on the different titles of the properties of the estate.
Since there are still real properties of the estate that were not yet distributed to some
of the declared heirs, particularly the 5/9 group of heirs due to the pending resolution
of the waiver agreement, this Court in its resolution of June 15, 1983, required the
judge of the Court of First Instance of Cebu, Branch II, to expedite the determination
of Special Proceedings No. 916-R and ordered the co-administrator Jose Cuenco
Borromeo to submit an inventory of real properties of the estate and to render an
accounting of cash and bank deposits realized from rents of several properties.
The matter of attorney’s fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:chanrob1es virtual 1aw library
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated
December 24, 1974;
2. G.R. No. 63818, denying the petition for review seeking to modify the decision of
the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo and
ordering the remand of the case to the Executive Judge of the Regional Trial Court of
Cebu for re-raffling; and

3. G.R. No. 65995, granting the petition to restrain the respondents from further
acting on any and all incidents in Special Proceedings No. 916-R because of the
affirmation of the decision of the Intermediate Appellate Court in G.R. No.
63818."cralaw virtua1aw library
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 an
accounting of the cash and bank deposits by the petitioner, as co-administrator of the
estate, if he has not yet done so, as required by this Court in its Resolution dated June
15, 1983. This must be effected with all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra O. Borromeo filed a
motion for inhibition in the Court of First Instance of Cebu, Branch II, presided over
by Judge Francisco P. Burgos to inhibit the judge from further acting in Special
Proceedings No. 916-R. The movants alleged, among others, the
following:chanrob1es virtual 1aw library
x       x       x
"6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the
production of the certificates of title and to deposit the same with the Branch Clerk
of Court, presumably for the ready inspection of interested buyers. Said motion was
granted by the Hon. Court in its order of October 2, 1978 which, however, became
the subject of various motions for reconsideration from heirs-distributees who
contended that as owners they cannot be deprived of their titles for the flimsy reasons
advanced by Atty. Antigua. In view of the motions for reconsideration, Atty. Antigua
ultimately withdraw his motions for production of titles.
"7. The incident concerning the production of titles triggered another incident
involving Atty. Raul H. Sesbreno who was then the counsel of herein movants Petra
O. Borromeo and Amelinda B. Talam. In connection with said incident, Atty.
Sesbreno filed a pleading which the Hon. Presiding Judge considered direct contempt
because, among others, Atty. Sesbreno insinuated that the Hon. Presiding Judge
stands to receive `fat commission’ from the sale of the entire property. Indeed, Atty.
Sesbreno was seriously in danger of being declared in contempt of court with the dim
prospect of suspension from the practice of his profession. But obviously to extricate
himself from the prospect of contempt and suspension, Atty. Sesbreno chose
rapproachment and ultimately joined forces with Atty. Antigua, Et Al., who,
together, continued to harass administrator Jose Cuenco Borromeo.
x       x       x
"9. The herein movants are informed and so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of Atty. Domingo L. Antigua.
"10. There is now a clear tug of war between Atty. Antigua, Et. Al. who are agitating
for the 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 willing to sell their distributive shares
under the terms and conditions presently proposed. In this tug of war, a pattern of
harassment has become apparent against the herein movants, especially Jose Cuenco
Borromeo. Among the harassments employed by Atty. Antigua Et. Al. are the
pending motions for the removal of administrator Jose Cuenco Borromeo, the
subpoena duces tecum issued to the bank which seeks to invade into the privacy of
the personal account of Jose Cuenco Borromeo, and the other matters mentioned in
paragraph 8 hereof. More harassment motions are expected until the herein movants
shall finally yield to the proposed sale. In such a situation, the herein movants beg
for an entirely independent and impartial judge to pass upon the merits of said
incidents.
"11. Should the Hon. Presiding Judge continue to sit and take cognizance of this
proceeding, including the incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty. Antigua, Et. Al. and prejudiced
against the herein movants. Incidents which may create this impression need not be
enumerated herein. (pp. 39-41, Rollo).
The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion
for reconsideration having been denied, the private respondents filed a petition
for certiorari and/or prohibition with preliminary injunction before the Intermediate
Appellate Court.
In the appellate court, the private respondents alleged, among others, the
following:chanrob1es virtual 1aw library
x       x       x
"16. With all due respect, petitioners regret the necessity of having to state herein
that respondent Hon. Francisco P. Burgos has shown undue interest in pursing the
sale initiated by Atty. Domingo L. Antigua, Et. Al. Significantly, a brother of
respondent Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L.
Antigua.
"17. Evidently, the proposed sale of the entire properties of the estate cannot be
legally done without the conformity of the heirs-distributees because the certificates
of title are already registered in their names. Hence, in pursuit of the agitation to sell,
respondent Hon. Francisco P. Burgos urged the heirs-distributees to sell the entire
property based on the rationale that proceeds thereof deposited in the bank will earn
interest more than the present income of the so called estate. Most of the heirs-
distributees, however, have been timid to say their piece. Only the 4/9 group of heirs
led by petitioner Jose Cuenco Borromeo have had the courage to stand up and refuse
the proposal to sell clearly favored by respondent Hon. Francisco P. Burgos.
x       x       x
"20. Petitioners will refrain from discussing herein the merits of the shotgun motion
of Atty. Domingo L. Antigua as well as other incidents now pending in the court
below which smack of harassment against the herein petitioners. For, regardless of
the merits of said incidents, petitioners respectfully contend that it is highly improper
for respondent Hon. Francisco P. Burgos to continue to preside over Sp. Proc. No.
916-R by reason of the following circumstances:jgc:chanrobles.com.ph
"(a) He has shown undue interest in the sale of the properties as initiated by Atty.
Domingo L. Antigua whose sister is married to a brother of Respondent.
"(b) The proposed sale cannot be legally done without the conformity of the heirs-
distributees, and petitioners have openly refused the sale, to the great disappointment
of Respondent.
"(c) The shotgun motion of Atty. Antigua and similar incidents are clearly intended
to harass and embarrass administrator Jose Cuenco Borromeo in order to pressure
him into acceding to the proposed sale.
"(d) Respondent has shown bias and prejudice against petitioners by failing to
resolve the claim for attorney’s fees filed by Jose Cuenco Borromeo and the late
Crispin Borromeo. Similar claims by the other lawyers were resolved by respondent
after petitioners refused the proposed sale." (pp. 41-43, Rollo).
On March 1, 1983, the appellate court rendered its decision granting the petition
for certiorari and/or prohibition and disqualifying Judge Francisco P. Burgos from
taking further cognizance of Special Proceedings No. 916-R. The court also ordered
the transmission of the records of the case to the Executive Judge of the Regional
Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the appellate court on
April 11, 1983. Hence, the present petition for review seeking to modify the decision
of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the case of Intestate Estate of Vito
Borromeo and orders the remand of the case to the Executive Judge of the Regional
Trial Court of Cebu for re-raffling.chanrobles law library
The principal issue in this case has become moot and academic because Judge
Francisco P. Burgos decided to retire from the Regional Trial Court of Cebu
sometime before the latest reorganization of the judiciary. However, we decide the
petition on its merits for the guidance of the judge to whom this case will be
reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They
contend that Judge Burgos has never shown unusual interest in the proposed sale of
the entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua. They
claim that this disinterest is shown by the judge’s order of March 2, 1979 assessing
the property of the estate at P15,000,000.00. They add that he only ordered the
administrator to sell so much of the properties of the estate to pay the attorney’s fees
of the lawyers-claimants. To them, the inhibition of Judge Burgos would have been
unreasonable because his orders against the failure of Jose Cuenco Borromeo, as
administrator, to give an accounting and inventory of the estate were all affirmed by
the appellate court. They claim that the respondent court should also have taken
judicial notice of the resolution of this Court directing the said judge to "expedite the
settlement and adjudication of the case" in G.R. No. 54232. And finally, they state
that the disqualification of Judge Burgos would delay further the closing of the
administration proceeding as he is the only judge who is conversant with the 47
volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed, countered
that Judge Burgos appointed Ricardo V. Reyes as co-administrator of the estate on
October 11, 1972, yet Borromeo was singled out to make an accounting of what he
was supposed to have received as rentals for the land upon which the Juliana Trade
Center is erected, from January, 1977 to February, 1982, inclusive, without
mentioning the withholding tax for the Bureau of Internal Revenue. In order to
bolster the agitation to sell as proposed by Domingo L. Antigua, Judge Burgos
invited Antonio Barredo, Jr., to a series of conferences from February 26 to 28, 1979.
During the conferences, Atty. Antonio Barredo, Jr., offered to buy the shares of the
heirs-distributees presumably to cover up the projected sale initiated by Atty.
Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by
petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo be required to
file an inventory when he has already filed one to account for cash, a report on which
the administrators had already rendered: and to appear and be examined under oath
in a proceeding conducted by Judge Burgos. It was also prayed that subpoena duces
tecum be issued for the appearance of the Manager of the Consolidated Bank and
Trust Co., bringing all the bank records in the name of Jose Cuenco Borromeo jointly
with his wife as well as the appearance of heirs-distributees Amelinda Borromeo
Talam and another heir distributee Vitaliana Borromeo. Simultaneously with the
filing of the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a request for
the issuance of subpoena duces tecum to the Manager of Consolidated Bank and
Trust Co., Inc.; Register of Deeds of Cebu City; Register of Deeds for the Province
of Cebu and another subpoena duces tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the
Manager of the bank, the Register of Deeds for the City of Cebu, the Register of
Deeds for the Province of Cebu, and to Jose Cuenco Borromeo.
 the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
On the following day, March 3, 1979, Atty. Gaudioso V. Villagonzalo in behalf of Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo case
the heirs of Marcial Borromeo who had a common cause with Atty. Barredo, Jr., and ordering the remand of the case to the Executive Judge of the Regional Trial
joined petitioner Domingo L. Antigua by filing a motion for relief of the Court for re-raffling should be DENIED for the decision is not only valid but the
administrator. issue itself has become moot and academic.

On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena
duces tecum to private respondent Jose Cuenco Borromeo to bring and produce all
the owners’ copies of the titles in the court presided over by Judge Burgos.
Consequently, the Branch Clerk of Court issued a subpoena duces tecum
commanding Atty. Jose Cuenco Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on May 14, 1979,
before the date of the hearing, Judge Burgos issued an order denying the private
respondents’ motion for reconsideration and the motion to quash the subpoena.
It was further argued by the private respondents that if Judge Francisco P. Burgos is
not inhibited or disqualified from trying Sp. Proc. No. 916-R, there would be a
miscarriage of justice because for the past twelve years, he had not done anything
towards the closure of the estate proceedings except to sell the properties of the
heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million pesos
while the Intestate Court had already evaluated it at 15 million pesos.chanrobles
virtual lawlibrary
The allegations of the private respondents in their motion for inhibition, more
specifically the insistence of the trial judge to sell the entire estate at P6,700,000.00,
where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of partiality
on the part of a trial judge must be avoided at all costs. In the case of Bautista v.
Rebueno (81 SCRA 535), this Court stated:jgc:chanrobles.com.ph
". . . The Judge must maintain and preserve the trust and faith of the parties litigants.
He must hold himself above reproach and suspicion. At the very first sign of lack of
faith and trust to his actions, whether well grounded or not, the Judge has no other
alternative but inhibit himself from the case. A judge may not be legally prohibited
from sitting in a litigation, but when circumstances appear that will induce doubt to
his honest actuations and probity in favor of either party, or incite such state of mind,
he should conduct a careful self-examination. He should exercise his discretion in a
way that the people’s faith in the Courts of Justice is not impaired. The better course
for the Judge under such circumstances is to disqualify himself. That way, he avoids
being misunderstood, his reputation for probity and objectivity is preserved. What is
more important, the ideal of impartial administration of justice is lived up to."cralaw
virtua1aw library
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any and all
incidents in Special Proceedings No. 916-R during the pendency of this petition and
G.R. No. 63818. They also pray that all acts of the respondents related to the said
special proceedings after March 1, 1983 when the respondent Judge was disqualified
by the appellate court be declared null and void and without force and effect
whatsoever.
The petitioners state that the respondent Judge has set for hearing all incidents in
Special Proceedings No. 916-R, including the reversion from the heirs-distributees to
the estate, of the distributed properties already titled in their names as early as 1970,
notwithstanding the pending inhibition case elevated before this Court which is
docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special Proceeding No. 916-R
requires only the appraisal of the attorney’s fees of the lawyers-claimants who were
individually hired by their respective heirs-clients, so their attorney’s fees should be
legally charged against their respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one and
barred by res judicata because this Court on July 8, 1981, in G.R. No. 54232 directed
the respondent Judge to expedite the settlement and liquidation of the decedent’s
estate. They claim that this resolution, which was already final and executory, was in
effect reversed and nullified by the Intermediate Appellate Court in its case — AC-
G.R. No. SP-11145 — when it granted the petition for certiorari and/or prohibition
and disqualified Judge Francisco P. Burgos from taking further cognizance of
Special Proceedings No. 916-R as well as ordering the transmission of the records of
the case to the Executive Judge of the Regional Trial Court of Region VII for re-
raffling on March 1, 1983, which was appealed to this Court by means of a Petition
for Review (G.R. No. 63818).
We agree with the petitioners’ contention that attorney’s fees are not the obligation
of the estate but of the individual heirs who individually hired their respective
lawyers. The portion, therefore, of the Order of August 15, 1969, segregating the
exhorbitantly excessive amount of 40% of the market value of the estate from which
attorney’s fees shall be taken and paid should be deleted.

In this case, the fervent distrust of the private respondents is based on sound reasons. Due to our affirmance of the decision of the Intermediate Appellate Court in G.R.
As earlier stated, however, the petition for review seeking to modify the decision of No. 63818, we grant the petition.
WHEREFORE, —

(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and
the order dated July 7, 1975, denying the petitioner’s motion for reconsideration of
the aforementioned order are hereby SET ASIDE for being NULL and VOID;

(2) In G.R. No. 55000, the order of the trial court declaring the waiver document
valid is hereby SET ASIDE;

(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of
the Intermediate Appellate Court disqualifying and ordering the inhibition of Judge
Francisco P. Burgos from further hearing Special Proceedings No. 916-R is declared
moot and academic. The judge who has taken over the sala of retired Judge
Francisco P. Burgos shall immediately conduct hearings with a view to terminating
the proceedings. In the event that the successor-judge is likewise disqualified, the
order of the Intermediate Appellate Court directing the Executive Judge of the
Regional Trial Court of Cebu to re-raffle the case shall be implemented;

(4) In G.R. No. 65995, the petition is hereby GRANTED. The issue seeking to
restrain Judge Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT
and ACADEMIC;

(5) In G.R. No. 62895, the trial court is hereby ordered to speedily terminate the
close Special Proceedings No. 916-R, subject to the submission of an inventory of
the real properties of the estate and an accounting of the cash and bank deposits by
the petitioner-administrator of the estate as required by this Court in its Resolution
dated June 15, 1983; and

(6) The portion of the Order of August 15, 1969, segregating 40% of the market
value of the estate from which attorney’s fees shall be taken and paid should be, as it
is hereby DELETED. The lawyers should collect from the heirs-distributees who
individually hired them, attorney’s fees according to the nature of the services
rendered but in amounts which should not exceed more than 20% of the market value
of the property the latter acquired from the estate as beneficiaries.