Week 6 Pecson v.

Coronel Oppositors essentially question that validity of the will on the ground that it would have been too impossible that they, as relatives, would be left with nothing as this was not normal in Philippine customs. The SC held that there is nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of the beneficiary here would not seem the most usual and customary, still this would not be null per se. In the absence of any statutory restriction every person possesses absolute dominion over his property, and may bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty. If the testator possesses the requisite capacity to make a will, and the disposition of his property is not affected by fraud of undue influence, the will is not rendered invalid by the fact that it is unnatural, unreasonable, or unjust. NABLE vs. USON March 10, 1914 FACTS: The codicil of Filomena contains the following: "First. I declare that all the property which belongs to me as conjugal property, referred to in my said testament, shall be the property of my aforesaid husband, Don Rafael Sison; in case all or part of said property exists at my husband's death, it is my will that at his death my sisters and nieces hereinafter named succeed him as heirs. "Second. I declare to be my sisters in lawful wedlock the persons named Doa Antonia Uson, now deceased, who has left two daughters called Maria Rosario, widow, of Estanislao Lengson; Ignacia Uson, married to Don Vicente Puzon; Eufemia Uson, now deceased, who is survived by three daughters called Maria Salud, Maria Amparo, and Maria Asuncion; and Maria Pilar Uson; Maria Manaoag Uson, unmarried, issue had by our deceased father Don Daniel Uson with one Leonarda Fernandez, alias Andao de Lingayen, so that they may have and enjoy it in equal parts as good sisters and relatives. HELD: The property should be divided equally between the living sisters and the children of the deceased sisters, share and share alike, a niece taking the same share that a sister receives. The testatrix, in the first paragraph, declares that after her husband's death she desires that her sisters and nieces shall succeed him as heirs. In the 2 nd paragraph, the nieces are referred to in no way different from the sisters. In that final declaration, the testatrix desires that the sisters and nieces shall take and enjoy the property in equal parts. The testatrix's intention is fairly clear. MICIANO vs. BRIMO 50 PHIL 867

FACTS: A will of an American testator provided that his estate should be disposed of in accordance with the Philippine law. The testator further provided that whoever would oppose his wishes that his estate should be distributed in accordance with Philippine laws would forfeit their inheritance HELD: Even if the testators wishes must be given paramount importance, if the wishes of the testator contravene a specific provision of law, then that provision in a will should not be given effect . A persons will is merely an instrument which is PERMITTED, so his right is not absolute. It should be subject to the provisions of the Philippine laws. The estate of a decedent shall be distributed in accordance with his national law. He cannot provide otherwise. The SC held that those who opposed would not forfeit their inheritance because that provision is not legal. Heirs of Montinola-Sanson vs. CA This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29,1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which reads: WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Herminia Montinola in accordance with law while in possession of full testamentary capacity, and allowing and admitting the same to probate. Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section 13 of Rule 76 of the Rules of Court. SO ORDERED.
3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this will several of her real properties to specified persons. On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of special administrator. 5 With the conformity of all the relatives and heirs of the testatrix except oppositor, the court in its order of May 5, 1981 6 appointed private respondent as Special Administrator of the testate estate of deceased. On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the said win, filed her Opposition to

Probate of Will, 7 alleging inter alia: that the subject will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to make testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix by the beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the estate. After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will. Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the decision. 8 On September 24,1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue influence exerted on the latter. The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on the following grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue influence exerted on her which are merely corroborative or cumulative since these facts were brought to light during the trial. The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate court in its resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a second motion for reconsideration which is prescribed by law. In the petition now before Us, petitioner assigned the following errors: I THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE. II THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL. III

AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA. IV THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION. V THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL. VI THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE. In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs. In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or cumulative. On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention. Section 1, Rule 53 provides Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may be filed on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of the diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. The affidavit of merit executed by Gregorio Montinola Sanson alleged the following: xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court, but I have finally succeeded in tracking them down; 4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the questioned will was allegedly executed; 5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they know for a fact that there was 'undue influence' exerted by petitioner and other relatives to procure improper favors from the testatrix; xxx xxx xxx
13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their appearance before the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid. 14 The affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight. Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the appellate court was handed down. The trial lasted for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the petitioner now propose to present could have been discovered and presented during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able to discover said evidence. 15 In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influence exerted upon her had been brought to light during the trial, and new evidence on this point is merely corroborative and cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence even if presented win not carry much probative weight which can alter the judgment. 17 It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new law firm to do everything legally possible to

meet the deadline for the filing of a motion for reconsideration and/or for new trial. 18This would explain the haphazard preparation of the motion, thus failing to comply with the requirements of rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new trial. The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filed out of time. Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now conclusive. 20 At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail. During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expert witnesses who declared that the contested will and signature are in the handwriting of the testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised Rules of Court, 22 or the probate of holographic wills. As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did not prove such claim of antedating. The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalities required by law are conclusive on the Supreme Court when supported by evidence. 23 We have examined the records of this case and find no error in the conclusion arrived at by the respondent court that the contested will was duly executed in accordance with law. Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix. In the case of Pecson v. Coronel,
24

it was held

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889... Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested will. Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of the unsoundness of her mind. We cannot subscribe to this contention. Art. 841 of the Civil Code provides A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession. Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-compulsory heirs. 25 The fact that some heirs are more favored than others is proof of neither fraud or undue influence. 26 Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent might as well die intestate. 27 The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or a possibility that it may have been exercised. 28 The exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised. 29

Finally, We quote with approval the observation of the respondent court There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that decreased had testamentary capacity at the time of the execution of the Will, is the Will itself which according to a report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as: 1. Spontaneity, freedom, and speed of writing xxx xxx xxx 3. good line quality. 4. presence of natural variation... (Exhibit X). The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was true that she was indeed of unsound mind and/or under undue influence or improper pressure when she the Will. IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory. SO ORDERED. NUGUID vs. NUGUID June 23, 1966 FACTS: The parents of the testatrix opposed the petition for probate on the ground of preterition. They contend that they are compulsory heirs of the deceased in the direct ascending line and that the institution of the testatrix of her sister as the universal heir preterited them, and that in consequence the institution is void. HELD: The court's area of inquiry is limited - to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be represented, and to be acted upon, by the court. However, if it is alleged that the will is void because of preterition, a probate would be useless, if indeed there was preterition . Since the will provides for the institution of the testatrix sister as universal heir and nothing more, the result is the same. The entire will is null and void.

Solano vs. CA A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming the judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No. 3956, an action for Recognition. On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving heir mentioned in his Last Will and Testament probated on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA entered her formal appearance as a "substitute defendant" on March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO, and asking that she be allowed to assume her duties as executrix of the probated Will with the least interference from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO". On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT. ZONIA did not file any responsive pleading and the case proceeded to trial. The GARCIAS further moved for the impleading of the SOLANO estate in addition to ZONIA, which was opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1 In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2 On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment the dispositive portion of which decrees: t.hqw WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the illegitimate children of the late Dr. Meliton Solano under the class of ADULTEROUS CHILDREN, with all the rights granted them by law. The institution of Sonia Ana Solano as sole and universal heir of the said deceased in the will is hereby declared null and void and the three (3) children shall share equally the estate or one- third (1/3) each, without prejudice to the legacy given to Trinidad Tuagnon and the right of any creditors of the estate. No pronouncement as to costs. Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CA-G.R. No. 49018).

ZONIA seeks a reversal of that affirmance in this petition, which was given due course. At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned from the following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2"). Their birth certificates and baptismal certificates mention only the mother's name without the father's name. The facts establish, however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts of support and provisions for their education. In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father as "P.N.C. " (Exhibit "V"), or "padre no conocido". During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and Trinidad Tuagnon executed an "Escritura de Reconocimiento de Unit Hija Natural" (Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to use the name ZONIA Ana Solano y Tuagnon. The document was registered with the Local Civil Registrar on the same date. On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"), instituting ZONIA as his universal heir to all his personal and real properties in Camalig, Tabaco and Malinao, all in the province of Albay, except for five parcels of land in Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct Upon SOLANO's petition (Exhibit "10"), the Will was duly probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S. Grageda (Exhibit "12"). As above stated, these facts are not in question. Petitioner maintains, however, that: t.hqw I The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano, now petitioner, an illegitimate child of the late Dr. Meliton Solano in an action where private respondents, as plaintiffs in

the Court below, sought recognition as natural children of Dr. Meliton Solano. II The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in ordering the division of the estate of Dr. Meliton Solano between the petitioner and private respondents, when said estate is under the jurisdiction and control of the probate Court in Special Proceedings No. 842. III The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring nun and void the institution of heir in the last will and testament of Dr. Meliton Solano, which was duly probated in special proceedings No. 842 of the Court of First Instance of Albay, and in concluding that total intestacy resulted there from. 3 Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the same action despite the pendency of Special Proceedings No. 842; and 3) to declare null and void the institution of heir in the Last Win and Testament of SOLANO, which was duly probated in the same Special Proceedings No. 842, and concluding that total intestacy resulted. It is true that the action below was basically one for recognition. However, upon notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir ... as of as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano ... Sole and Universal Heir", ZONIA specifically prayed that she be 6 allowed to assume her duties as executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is already final and executory, with least interference from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted new rights in her capacity as sole and universal heir, "executrix and administratrix, "and challenged the right of the GARCIAS to recognition. Thus, she was not defending the case as a mere representative of the deceased but asserted rights and defenses in her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA ... and Supplemental Cause of Action ... "vigorously denying that ZONIA was SOLANO's sole and universal heir; that ZONIA could not legally be considered as SOLANO's acknowledged natural child because of a legal impediment; that the admission to probate of SOLANO's Will was merely conclusive as to its due execution; that the supposed recognition under a notarial instrument of ZONIA as an acknowledged natural child was fraudulent and a product of misrepresentation; that ZONIA's recognition in the Will as an acknowledged natural child is subject to nullification and that at most ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.

During the trial, the GARCIAS presented evidence to prove their allegations not only in their main complaint but also in their "Reply to Appearance and Supplemental Cause of Action". ZONIA presented no objection to the presentation by the GARCIAS of their oral and documentary evidence and even cross-examined their witnesses. ZONIA, for her part, presented her own testimonial and documentary evidence, denied the relationship of the GARCIAS' to SOLANO and presented the notarial recognition in her favor as an acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such. No error was committed by either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status. ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and distributing the shares of the parties in SOLANO's estate when said estate was under the jurisdiction and control of the Probate Court in Special Proceedings No. 842. Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It should be recalled that SOLANO himself instituted the petition for probate of the Will during his lifetime. That proceeding was not one to settle the estate of a deceased person that would be deemed terminated only upon the final distribution of the residue of the hereditary estate. With the Will allowed to probate, the case would have terminated except that it appears that the parties, after SOLANO's death, continued to file pleadings therein. Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated. The records further disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the Court and before the same presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not concerned with the intrinsic validity or legality of the provisions of the Will. 6 Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did not have the legal capacity to contract marriage at the time of ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact, pretended from SOLANO's Last' Will and Testament; and that as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. t. hqw The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of

heir; but the devises and legacies shall be valid insofar as they are not inofficious. ... 8 As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, 9and should be respected in so far as it is not inofficious. 10 So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding that the entire Will is void and intestacy ensues, the pretention of the GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The Will, therefore, is valid subject to that limitation. 11 It is a plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of. 12 Since the legitime of illegitimate children consists of one half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate. As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in the Will is valid and should be respected. The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et al., 15 which held that where the institution of a universal heir is null and void due to pretention, the Will is a complete nullity and intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-sentence Will was involved with no other provision except the institution of the sole and universal heir; there was no specification of individual property; there were no specific legacies or bequests. It was upon that factual setting that this Court declared: t.hqw The disputed order, we observe, declares the will in question 'a complete nullity. Article 854 of the Civil Code in turn merely nullifies 'the institution of heir'. Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null." (at p. 459) In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the Civil Code, supra, applies merely annulling the "institution of heir". Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court was never questioned before either Court. ZONIA herself had gone, without objection, to trial on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held estopped to repudiate that jurisdiction

to which she had voluntarily submitted, after she had received an unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16 on this point, declared: t.hqw 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 the same jurisdiction. The question whether the court has jurisdiction either of the subject matter of the action or of the parties is not because the judgment or order of the court is valid and conclusive as an adjudication but for the reason that such practice cannot be tolerated obviously for reasons of public policy. After voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court. WHEREFORE, the judgment under review is hereby modified in that the hereditary share in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad Tuagnon shall be respected. The judgment is affirmed in all other respects. No costs. SO ORDERED.1wph1.t Plana, Relova and Gutierrez, Jr., JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring: The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance in vitam of Dr. Solano's will)

which were pending before the same judge and the same branch of the trial court could be correctly said to have been. consolidated. Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate courts to which she had submitted without question her cause. Separate Opinions TEEHANKEE, J., concurring: The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance in vitam of Dr. Solano's will) which were pending before the same judge and the same branch of the trial court could be correctly said to have been. consolidated. Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate courts to which she had submitted without question her cause. ACAIN vs. IAC October 27, 1987 FACTS: Constantino filed a petition for the probate of the will of the late Nemesio. The will provided that all his shares from properties he earned with his wife shall be given to his brother Segundo (father of Constantino). In case Segundo dies, all such property shall be given to Segundos children. Segundo pre-deceased Nemesio. The oppositors Virginia, a legally adopted daughter of the deceased, and the latter's widow Rosa filed a motion to dismiss on the following grounds: (1) the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been preterited. HELD: Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited. Insofar as the widow is concerned, Article 854 may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line .

The same thing cannot be said of the other respondent Virginia, whose legal adoption by the testator has not been questioned by petitioner. Adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. This is a clear case of preterition of the legally adopted child. Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs - without any other testamentary disposition in the will - amounts to a declaration that nothing at all was written. In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it. Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive. At the outset, he appears to have an interest in the will as an heir. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased. MELENCIO-HERRERA, J., concurring: I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence. To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54). The requisites of preterition are: 1. The heir omitted is a forced heir (in the direct line); 2. The ommission is by mistake or thru an oversight. 3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total. Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175). In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy ensued. Crisologo vs. Singson Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of Da. Leona Singson, the original owner, and the project of partition submitted to, and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had made demands for the partition of said property, but defendant refused to accede thereto, thus compelling them to bring action. Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand partition thereof. After trial upon the issue thus posed, the lower court rendered judgment as follows: 1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and lot described in the complaint to the extent of each of an undivided 1/2 portion thereof; . 2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property within 30 days from receipt of this judgment unless it be shown that the division thereof may render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may be applied; . 1wph1.t

3. That in the event the said parties shall fail to do so, this Court will appoint the corresponding commissioners to make the partition in accordance with law; and . 4. Without special pronouncement as to costs." . From the above judgment, defendant Singson appealed. It is admitted that Da. Leona Singson, who died single on January 13, 1948, was the owner of the property in question at the time of her death. On July 31, 1951 she executed her last will which was admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece Consolation, all surnamed Florentino. Clause IX of her last will reads as follows: . NOVENO. Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION FLORENTINO: (A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas murieie antes ... (Exhibit F.) The issue to be decided is whether the testamentary disposition above-quoted provided for what is calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: . Art. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish or should be unable to accept the inheritance. A simple substitution, without a statement of the cases to which it is to apply, shall include the three mentioned in the next preceeding paragraph, unless the testator has otherwise provided: Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve and transmit to a third person the whole or part of the inheritance shall be valid and effective, provided they do not go beyond the second degree, or that they are made in favor of persons living at the time of the death of the testator." .

Art. 785. The following shall be inoperative: . 1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon the fiduciary the absolute obligation of delivering the property to a second heir." .... In accordance with the first legal provision quoted above, the testator may not only designate the heirs who will succeed him upon his death, but also provide for substitutes in the event that said heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him. The testator may also bequeath his properties to a particular person with the obligation, on the part of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular event (6 Manresa, p. 1112). It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named therein in this manner: that upon the death of Consolacion Florentino whether this occurs before or after that of the testatrix the property bequeathed to her shall be delivered (" se dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause created what is known as sustitucion vulgar, the necessary result would be that Consolacion Florentino, upon the death of the testatrix, became the owner of one undivided half of the property, but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed by will, but mere usufructuary rights thereon until the time came for him to deliver said property to the fideicomisario, it is obvious that the nude ownership over the property, upon the death of the testatrix, passed to and was acquired by another person, and the person cannot be other than the fideicomisario (6 Manresa p. 145). It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old Civil Code provides that a fideicommissary substitution shall have no effect unless it is made expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second heir. In this connection Manresa says: . Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: .

1.o Un primer heredero llamado al goce de los bienes preferentemente. 2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo o parte del caudal. 3.o Un segundo heredero. A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el fideicomisario tenga derecho a los bienes de la herencia desde el momento de la muerte del testador, puesto que ha de suceder a este y no al fiduciario. Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque falta el requisito de haberse impuesto a los primeros herederos la obligacion de conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al sustituido la obligacion terminante de conservar y transmitir los bienes a un segundo heredero. A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As already stated, it merely provides that upon appellee's death whether this happens before or after that of the testatrix her share shall belong to the brothers of the testatrix. In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da. Leona Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the brothers of the testatrix to be effective or to take place upon the death of the former, whether it happens before or after that of the testatrix. IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs. Perez vs. Garchitorena The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena. And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant

to the writ of execution issued in said judgment, levied an attachment on said amount deposited with La Urbana. The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction. The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction. The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors: 1. The lower court erred in holding that a trust was created by the will of Doa Ana Maria Alcantara. 2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as "herederos fidei-comisarios." 3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs. The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not in dispute. The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below: Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will, and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix and properties composing my hereditary estate, that she may enjoy them with God's blessing and my own. Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible.

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the duties of administering my estate, because I recognize that his character is not adapted to management and administration. The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution. This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and the fact that by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution. The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instants case is a fideicommissary substitution. In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance . The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things: 1. A first heir called primarily to the enjoyment of the estate. 2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate. 3. A second heir. To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary. (Emphasis ours.) It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust." It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution. Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribed that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree." Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the wholeestate shall pass unimpaired to the heiress's children, that is to say the heiress is required to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our quotation from Manresa inserted above. Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the

testatrix. That is, said clause anticipates the case where the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance. The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under consideration, to wit: 1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will. 2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she should die after the testatrix. 3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI. Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator. By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the testatrix, Ana Maria Alcantara. Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs. The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered RABADILLA vs. CA June 29, 2000 FACTS: In the codicil of testatrix, Rabadilla was instituted as a devisee of a lot, containing the following provisions: 1. Rabadilla shall have the obligation until he dies, every year, to give to Belleza 100 piculs of sugar until Belleza dies;

2. Should Rabadilla die, his heir to whom he shall give the lot shall have to obligation to still give yearly the sugar as specified to Belleza; 3. In the event that the lot is sold, leased or mortgaged, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly sugar to Belleza. Should the command be not respected, Belleza shall immediately seize the lot and turn it over to the testatrix near descendants. HELD: This is not a case of simple substitution . The codicil did not provide that should Rabadilla default due to predecease, incapacity or renunciation, the testatrix near descendants would substitute him. Neither is there a fideicommissary substitution. Here, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Also, the near descendants right to inherit from the testatrix is not definite. It will only pass to them if the obligation to deliver is not fulfilled. Moreover, a fideicommissary substitution is void if the first heir is not related by first degree to the second degree. In this case, the near descendants are not at all related to Dr. Rabadilla. This is also not a conditional institution . The testatrix did not make Rabadillas inheritance dependent on the performance of the said obligation. Since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. The manner of institution is modal because it imposes a charge upon the instituted heir without affecting the efficacy of such institution. A mode imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. In a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate. The mode obligates but does not suspend. BALANAY, JR. vs. MARTINEZ June 27, 1975 FACTS: The testatrix said in her will that it was her desire that her properties should not be divided among her heirs during her husbands lifetime. She further stated that after her husbands death, her paraphernal lands and all the conjugal lands should be distributed in the manner set forth in her will. She devised and partitioned the conjugal lands as if she owned all of them. Thus, she disposed of in the will her husbands share of the conjugal assets. The husband and one of the daughters opposed the probate of the will alleging preterition of the husband and alleged improper partition of the conjugal estate. The husband later withdrew his opposition and expressed conformity with his wifes wishes. The probate court gave effect to the renunciation of the husbands hereditary rights. Later, the probate court dismissed the petition and declared the will void and converted the testate proceeding into an intestate proceeding. HELD: The probate court can pass upon the intrinsic validity of the will before ruling on its formal validity in this case.

In view of unusual provisions in the will, which are of dubious legality, and because of the motion to withdraw the petition for probate, the trial court acted correctly in passing upon the wills intrinsic validity even before its formal validity had been established. The probate court, however, was not correct in declaring the will intrinsically void. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. The statement of the testatrix that she owned the southern half of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and pro-indiviso. But that illegal declaration does not nullify the entire will. It may be disregarded. The distribution and partition would become effective upon the husbands death. In the meantime, the net income should be equitably divided among the children and the surviving spouse. By reason of the surviving husbands conformity to his wifes will and his renunciation of his hereditary rights, his conjugal share became a part of his deceased wifes estate. His conformity had the effect of validating the partition made in the will, without prejudice to the rights of the creditors and the legitimes of the compulsory heirs. Morente vs. De La Santa The will of Consuelo Morente contains the following clauses: 1. I hereby order that all real estate which may belong to me shall pass to my husband, Gumersindo de la Santa. 2. That my said husband shall not leave my brothers after my death, and that he shall not marry anyone; should my said husband have children by anyone, he shall not convey any portion of the property left by me, except the onethird part thereof and the two remaining thirds shall be and remain for my brother Vicente or his children should he have any. 3. After my death I direct my husband to dwell in the camarin in which the bakery is located, which is one of the properties belonging to me. Her husband, Gumersindo de la Santa, married again within four months of the death of the testatrix. Elena Morente, a sister of the deceased, filed a petition in the proceeding relating to the probate of the will of Consuelo Morente pending in the Court of First Instance of the Province of Tayabas in which she alleged the second marriage of Gumersindo de la Santa and asked that the legacy to him abovementioned be annulled. Objection was made in the court below by the husband to the procedure followed by the petitioner. The court below, however, held that the proceeding was proper and from that holding the husband did not appeal. From the judgment of the court below, the petitioner, Elena Morente, appealed. In its judgment the court denied the petition. It was said, however, in the decision, as we understand it, that the husband having married, he had the right to the use of

all the property during his life and that at his death two-thirds thereof would pass to Vicente, a brother of the testatrix, and one-third thereof could be disposed of by the husband. The construction given to the will by the court below is not accepted by the appellant. She claims that by the mere act of marriage the husband at once lost all rights acquired by the will. It is neither alleged nor proven that any children have been born to the husband since the death of the testatrix. lawphil.net Article 790 of the Civil Code provides that testamentary provisions may be made conditional and article 793 provides that a prohibition against another marriage may in certain cases be validly imposed upon the widow or widower. But the question in this case is, Did the testatrix intend to impose a condition upon the absolute gift which is contained in the first clauses of the will? It is to be observed that by the second clause she directs that her husband shall not leave her sisters. It is provided in the third clause that he must continue to live in a certain building. It is provided in the second clause that he shall not marry again. To no one of these orders is attached the condition that if he fails to comply with them he shall lose the legacy given to him by the first clause of the will. It is nowhere expressly said that if he does leave the testatrix's sisters, or does not continue to dwell in the building mentioned in the will he shall forfeit the property given him in the first clause; nor is it anywhere expressly said that if he marries again he shall incur such a loss. But it is expressly provided that if one event does happen the disposition of the property contained in the first clause of the will shall be changed. It is said that if he has children by anyone, two-thirds of that property shall pass to Vicente, the brother of the testatrix. We are bound to construe the will with reference to all the clauses contained therein, and with reference to such surrounding circumstances as duly appear in the case, and after such consideration we can not say that it was the intention of the testatrix that if her husband married again he should forfeit the legacy above mentioned. In other words, there being no express condition attached to that legacy in reference to the second marriage, we can not say that any condition can be implied from the context of the will. In the case of Chiong Joc-Soy vs. Jaime Vano (8 Phil. Rep., 119), we held that the legacy contained in the will therein mentioned was not conditional. It is true that case arose under article 797 of the Civil Code, which perhaps is not strictly applicable to this case, but we think that it may be argued from what is said in article 797 that, in order to make a testamentary provision conditional, such condition must fairly appear from the language used in the will. Whether the children mentioned in the second clause of the will are natural children or legitimate children we do not decide, for no such question is before us, the contingency mentioned in that part of the clause not having arisen, and we limit ourselves to saying merely that by the subsequent marriage of the husband he did not forfeit the legacy given to him by the first part of the will. That was the only question before the court below. the judgment of that court, denying the petition, is accordingly affirmed, with the costs of this instance against the appellant. So ordered. PARISH PRIEST OF VICTORIA V. RIGOR, 89 SCRA 493 FACTS:

Father Pascual Rigor devised forty-four hectares of ricelands to his nearest male relatives who would study priesthood and provided that the administration of the ricelands would be under the responsibility of the parish priest of Victoria during the time that there is no qualified devisee as contemplated in the will. The parish priest of Victoria petitioned for the delivery of the Riceland to the church since no nearest male relative is available. The lower court, after declaring the bequest inoperative, later reconsidered its findings on the ground that the testator had a grandnephew (born after the testators death), who was a seminarian, and directed the administrator of the estate to deliver the ricelands to the parish priest of Victoria as trustee. RULING: THE Supreme Court ruled that the will referred to the nearest male relative of the testator who was living at the time of his death and not to any indefinite time thereafter, because in order to be capacitated to inherit, the devisee must be living at the moment the succession opens, except in case of representation, when it is proper. GARCIA FULE V. CA Nov. 29, 1976; J. Martin NATURE: Petitions for review of the decision of the CA FACTS: On April 26, 1973 Amado G. Garcia died, he owned property in Calamba, Laguna. On May 2, 1973, Virginia G. Fule field with CFI Laguna a petition for letters of administration and ex parte appointment as special administratix over the estate. Motion was granted. (there was an allegation that the wife was Carolina Carpio) Preciosa B. Garcia, wife of deceased, and in behalf of their child: Agustina B. Garcia opposed, which was denied by CFI. (Preciosa alleged that Fule was a creditor of the estate, and as a mere illegitimate sister of the deceased is not entitled to succeed from him 1) CA reversed and annulled the appointment of Fule. Preciosa became special administratrix upon a bond of P30k. ISSUES: a.) Venue v. jurisdiction b.) What does the word resides in Revised Rules of Court Rule 73 Section 1 Mean? c.) Who is entitled? HELD/RATIO: a.) RULE 73
1

NCC Art. 992. An illegitimate child has no right to inherit ab intestado from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

SECTION 1. 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 at the CFI in the province in which he resides at the time of his death, And if he is an inhabitant of a foreign country, the CFI of any province in which he had estate. The court 1st 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 proceedings, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. Fules own submitted Death Certificate shows that the deceased resided in QC at the time of his death, therefore the venue of Laguna was improper. Venue is subject to waiver (RULE 4 SECTION 4), but Preciosa did not waive it, merely requested for alternative remedy to assert her rights as surviving spouse. However, venue is distinct from jurisdiction which is conferred by Judiciary Act of 1948, as amended to be with CFIs independently from the place of residence of the deceased. RULE 79 SECTION 2, demands that the petition should show the existence of jurisdiction to make the appointment sought, and should allege all the necessary facts such as death, name, last residence, existence, situs of assets, intestacy, right of person who seeks administration as next of kin, creditor or otherwise to be appointed. b.) Resides ex vi termini actual residence - Elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. - Same meaning as inhabitant. - Popular sense the personal, actual or physical habitation of a person, actual residence or place of abode - Must be more than temporary Distinguished from legal residence or domicile requires bodily presence and an intention to make it ones domicile. c.) Preciosa is prima facie entitled to the appointment of special administratrix. The New Rules RULE 80 SECTION 1 broadened the basis for appointment of special administrator (temporarily) to take possession and charge of the estates of the

deceased until the questions causing the delay are decided and (regular) executors or administrators appointed. Old rules basis ay: appeal of allowance of disallowance of a will; New: added - xxx delay in granting letters testamentary or of administration by any cause (includes parties cannot agree among themselves) including an appeal of allowance of disallowance of a will, the court may appoint a xxx The discretion to appoint a special administrator or not is with the probate court, the paramount consideration is the beneficial interest of the appointee in the estate of the decedent. In re: Fule, it is not required that the administratrix be entitled to share in the estate of the decedent only that one is entitled to the administration; but the preference of Preciosa is with sufficient reason the widow would have the right of succession over a portion of the exclusive property of the decedent, besides her share in the conjugal partnership. For such reason, she would have as such, if not more, interest in administering the entire estate correctly than any other next of kin. DISPOSITION: Fules petition DENIED. Ilustre vs. Frondosa From the record it appears that Franciso Calzado died on the 9th or 10th of December, 1903. It also appears from the record that at the time of his death he was the owner of certain property, some of which was described in paragraph 3 of the complaint. The plaintiff alleges, and the fact is not denied, that he was appointed as administrator of the estate of the said Francisco Calzado. The record fails to show when he was appointed. On the 31st of July, 1909, nearly six years after the death of the said Calzado, the plaintiff, as administrator, commenced the present action to recover the property described in paragraph 3 of the complaint. The defendant demurred to the complaint, alleging: First. That the plaintiff was not the proper party to bring the action; and Second. That the facts alleged were not sufficient to constitute a cause of action. This demurrer was sustained and the plaintiff filed an amended petition. The amended petition did not change the character of the action. To the amended petition the defendant answered, denying generally and specifically all of the facts alleged in the complaint, and as a special defense alleged:

First. That at the time of the death of Francisco Calzado (the 9th of December, 1903), he was the owner of the property described in the complaint; Second. That at the time of the death of Francisco Calzado he had no relatives, descendants or ascendants, but nephews, who being of lawful age divided among themselves the property in question and sold to the defendant the said property; Third. That at the time of the division of the estate among the heirs of the deceased and at the time the lands were sold, there were no debts against the estate of the said Francisco Calzado; Fourth. That the plaintiff is not a creditor of the estate of the said deceased. During the trial of the cause the defendant showed by oral and documentary proof that he was in possession of the land in question; that he had purchased the same from some of the nephews and heirs of the deceased Francisco Calzado; that he had purchased the interest of all the heirs except perhaps three. There was no proof adduced during the trial of the cause to show that any of the heirs of the deceased were minors or that there were any debts existing against the said estate. Under the provisions of the Civil Code (arts. 657 to 661), the rights to the succession of a person are transmitted from the moment of his death; in other words, the heirs succeeded immediately to all of the property of the deceased ancestor. 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. In the absence of debts existing against the estate, the heirs may enter upon the administration of the said property immediately. If they desire to administer it jointly, they may do so. If they desire to partition it among themselves and can do this by mutual agreement, they also have that privilege. The Code of Procedure in Civil Actions provides how an estate may be divided by a petition for partition in case they can not mutually agree in the division. When there are no debts existing against the estate, there is certainly no occasion for the intervention of an administrator in the settlement and partition of the estate among the heirs. When the heirs are all of lawful age and there are no debts, there is no reason why the estate should be burdened with the costs and expenses of an administrator. The property belonging absolutely to the heirs, in the absence of existing debts against the estate, the administrator has no right to intervene in any way whatever in the division of the estate among the heirs. They are coowners of an undivided estate and the law offers them a remedy for the division of the same among themselves. There is nothing in the present case to show that the heirs requested the appointment of the administrator, or that they intervened in any way whatever in the present action. If there are any heirs of the

estate who have not received their participation, they have their remedy by petition for partition of the said estate. The lower court rendered a judgment in favor of the plaintiff and against the defendant. From that judgment the defendant appealed. For the reasons above stated, the judgment of the lower court is hereby reversed, with costs. Rodriguez vs. Tan This is a petition for certiorari seeking to nullify the order of respondent Judge dated August 11, 1952, wherein after overruling the opposition to the institution of the intestate estate proceedings of the late Flaviano Rodriguez, he appointed Abelardo Rodriguez administrator of the estate upon filing a bond in the sum of P2,000. It is averred in the petition that Flaviano Rodriguez died on February 8, 1944, at Paraaque, Rizal, leaving an estate with a value of P10,000; that the surviving heirs are the widow, Fortunata Vda. de Rodriguez, and six children who are the petitioners and respondent Abelardo Rodriguez all the heirs, who were then already of age, entered into a verbal agreement whereby they agreed not to make a liquidation of the estate but to place it under the administration of the widow with the understanding that each of the six children would be entitled to receive a portion of the income in equal shares from year to year for the needs of their families provided that they do not exceed the participation to which they are entitled; that on March 19, 1952, or eight years after the death of Flaviano Rodriguez, respondent Abelardo Rodriguez filed a petition for administration of their intestate estate of said deceased in spite of his knowledge that the estate had no debts and all the heirs were of age; that on June 2, 1952, the other heirs, petitioners herein, objected to the petition invoking the rule that if the estate is free from obligations and the heirs are all of age, no administration proceedings shall be allowed; that on August 11, 1952, respondent Judge, after overruling the opposition, appointed Abelardo Rodriguez administrator of the estate upon filing the requisite bond. Respondents herein, in answer to the petition, admitted the existence of a verbal agreement entered into between the heirs in 1944, wherein they agreed not to liquidate the estate and to place it under the administration of the widow in view of the unsettled conditions then prevailing at the time, but they contend that while that was the understanding the same was not carried out because in reality it was Benjamin Rodriguez, one of the petitioners herein, who took over the administration of the estate and in the discharge of his duties he failed and refused to give to respondent Abelardo Rodriguez his share in the income which he badly needed for the support of his family, for which reason he started the intestate proceedings which gave rise to the present petition for certiorari. The issue to be determined is whether respondent Judge acted properly in maintaining the administration proceedings and in appointing Abelardo Rodriguez as administrator of the estate notwithstanding the fact that the estate has no debts and all the heirs entitled to share in its distribution are all of age.

Under section 1, rule 74 of the Rules of Court, if the decedent left no debts and the heirs are all of age, or the minors are represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit, and should they disagree, they may do so in an ordinary action of partition. Construing the scope of said section 1, (formerly section 596, Act No. 190), this Court repeatedly held "that when a person dies without leaving pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration, which is always long and costly, or to apply for the appointment of an administrator by the court. It has been uniformly held that in such case the judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings" (Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bondad vs. Bondad, 34 Phil., 232; Baldemor vs. Malangyaon, 34 Phil., 367; Fule vs. Fule, 46 Phil., 317; Utulo vs. Pasion de Garcia, 66 Phil., 302). It, therefore, appears from said section 1, as construed by this Court, that when the estate has no pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration for the reason that it is superfluous or unnecessary, and in most cases long and costly, in which case the way left to the heirs is to divide the estate among themselves as they may see fit, and should they disagree, they may do so in an ordinary action of partition. But, is this pattern mandatory upon the heirs? Should the heirs be unable to agree on a settlement of the estate, do they have to resort necessarily to an ordinary action of partition? Can they not choose to institute administration proceedings? Our answer is that section 1 does not preclude the heirs from instituting administration proceedings, even if the estate has no debts or obligations, if they do not desire to resort for good reasons to an ordinary action of partition. While section 1 allows the heirs to divide the estate among themselves as they may see fit, or to resort to an ordinary action of partition, it does not compel them to do so if they have good reasons to take a different course of action. Said section is not mandatory or compulsory as may be gleaned from the use made therein of the word may. If the intention were otherwise the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. Note that the word may is used not only once but in the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs. The inquiry before us is not new. In a case where one of the heirs chose to institute administration proceedings in court, even if the estate had no debts, and the widow sought to dismiss the case invoking in support of her contention the doctrine enunciated in the cases already adverted to, this Court said: The principal ground of the opposition is that the heirs being of legal age, and their being no proof that there is any valid and effective credit against the deceased, no legal reason exists for the court to appoint an administrator, as prayed for in the petition, citing in support of this contention the doctrine

enunciated in the case of Ilustre vs. Alaras Frondosa (17 Phil., 321); Bondad vs. Bondad (34 Phil., 232); Baldemor vs. Malangyaon (34 Phil., 367). It is true that, under section 596 of the Code of Civil Procedure, whenever all the heirs of a person who died intestate are lawful age and legal capacity, and there are no debts due from the estate, or all the debts have been paid, the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without court proceedings. But there is nothing in this section which prohibits said heirs from instituting special proceedings for the administration of the intestate estate if they cannot agree on the extrajudicial partition and appointment of the same. (Orozco vs. Garcia, 50 Phil., 149, 151.) In this particular case, however, we find that the core of petitioners' objection is not that the heirs have erroneously instituted these administration proceedings but that the court erred in appointing Abelardo Rodriguez administrator of the estate. It is claimed that Abelardo Rodriguez was appointed administrator without the petitioners having been given an opportunity to be heard. But this claim has no basis it appearing that the parties had been duly heard before the court issued its order now complained of. It appears that both parties submitted the names of the persons they wanted to be appointed as administrator and the court made its choice only after weighing the fitness and qualifications of the persons recommended. Thus, on this point, the court said: The petitioner in this case appears to be qualified to act as administrator of the estate of the deceased Flaviano Rodriguez and does not possess any of the disqualifications. Moreover, he is one of the heirs left by the deceased. Inasmuch as one of the oppositors appear to be more qualified to act as administrator of the estate, the court is inclined to grant the petition presented by Abelardo Rodriguez. (Annex D) The petition is dismissed with costs. The preliminary injunction issued is hereby dissolved. Medina vs. CA In this review by certiorari of the appellate court's resolution dismissing the petition filed by petitioners challenging the lower court's orders appointing private respondent Beda Gonzales as special administrator of the intestate estate of the decedent Agustin Medina, the Court excludes the said special administrator from interfering in the possession and enjoyment of the harvests of the property known as "Bitukang Manok" by petitioner Rosalia M. del Carmen to whom the said property had been sold, and full payment therefor received, by the estate through Gonzales' predecessor with the approval of the lower court, which overruled Gonzales' opposition thereto as an assignee of some heirs of the estate, and as one personally interested in the purchase of the property for himself. The Court's action is based on the established doctrine that a person with an adverse conflicting interest is unsuitable for the trust reposed in an administrator of

an estate. Respondent Gonzales, whose appeal of the lower court's order of approval of the sale to the Court of Appeals is pending, cannot be at the same time an appellant in his personal capacity opposing the sale of the property and an appellee representing the estate and upholdingthe same sale as made by the estate through Gonzales' predecessor as special administrator with the due approval and confirmation of the lower court. Since the estate proceedings have been pending for over 13 years now without the lower court once having appointed a regular administrator, said court is directed to name a suitable person as regular administrator charged with the task of accomplishing the administration of the estate with the utmost reasonable dispatch. From the papers submitted with the petition, it appears that as noted by respondent court of first instance of Zambales, presided by Judge Augusto M. Amores in an order dated March 6, 1970, 1 wherein it approved and confirmed the deed of sale executed on May 8, 1969 by then special administrator Demetrio Encarnacion of the intestate estate of the decedent Agustin Medina covering the sale of its property known as "Bitukang Manok" for P24,000.00 to petitioner Rosalia M. del Carmen, a daughter-heir of the decedent, the said intestate proceedings have "already lasted for over ten (10) years now contrary to the spirit of the law in the settlement of estates the most expeditious way", and the said court expressed its "desire ... to terminate the proceedings once and for all." Respondent lower court, through its said order, overruled the opposition of therein oppositor-heir Uldarico S. Medina and of assignee Beda J. Gonzales, private respondent herein, who claimed therein "to have an interest over the estate on the ground that certain heirs have already sold their shares and/or interest over the same in his favor" as being "without merit." It found Uldarico's interest as "confined solely to his desire to partake of whatever share he has in the estate in the same way with that of the rest of the heirs." It further held that respondent Beda J. Gonzales "could not ... claim a better right over that of the herein vendee Rosalia Medina del Carmen in the deed of sale because the said Beda J. Gonzales is merely subrogated, if at all, to the interests of the heirs concerned who according to the records, have received more benefits from the estate even before its distribution as against that of the vendee, who according to the records has never received anything yet from the estate." 2 In the same order, upon "suggestion and agreement of the parties" which the lower court "considered to be well taken for the speedy termination of the instant proceedings," it designated its clerk of court, Atty. Pastor de Castro, Jr. as "special administrator and to qualify immediately as such in lieu of special administrator Demetrio Encarnacion." 3 No regular administrator to settle the estate once and for all appears to have ever been appointed by respondent lower court during the period of over thirteen years that the estate has been pending settlement. Respondent Gonzales appealed respondent court's order of approval and confirmation of the sale of the "Bitukang Manok" property as an interested partyassignee opposed to the sale executed by the estate of the deceased Agustin Medina through its then special administrator Demetrio Encarnacion, later replaced

by the clerk of court, Atty. Pastor de Castro, Jr., as above stated, on his assertion that he had bought the rights of the other heirs of the estate those of a majority of the heirs, according to his answer at bar. The appeal is now pending in the Court of Appeals. 4 Almost a year later, in an order dated February 11, 1971, acting on the motion dated October 5, 1970 of respondent Gonzales for appointment as regular administrator of the estate, respondent lower court appointed him "not as a regular administrator but only as special administrator for the intestate estate of the deceased Agustin Medina" and he qualified as such upon posting of the bond fixed in the amount of P5,000.00 and replaced "judicial administrator Pastor de Castro, Jr." 5 An urgent motion dated March 22, 1971 to revoke Gonzales' appointment as special administrator on the ground that "by said order, Beda Gonzales is now assuming the inconsistent positions of administering the estate especially the Bitukang Manok property and at the same time appealing from the order approving the sale of that property only for the purpose of enabling himself to buy and acquire that property to the loss and prejudice of the estate contrary to law" 6 was denied by respondent lower court in its order dated July 21, 1971. 7 In the same order of July 21, 1971, said court also rejected the petitioner Rosalia's petition dated May 5, 1971, for the appointment of a regular administrator as "very urgent and necessary" and proposing that co-petitioner Serafin Medina, as heir and son and next of kin of the decedent, who has no adverse interests in his favor and against the estate and is a qualified and competent resident of Olongapo City be named as such, holding that: ... considering that whatever rights and interest the heirs may have over the estate now under administration by Beda J. Gonzales could be amply protected since the said special administrator has posted a bond in the amount of P5,000.00; considering further that there is no showing that said administrator has been remiss in the performance of his duties or violated the trust reposed on him as administrator; and in order not to delay any further the termination of this proceeding which has lagged long enough, the Court finds said petition of Serafin Medina to be without merit and the same is hereby denied and the appointment of said J. Gonzales as special administrator is hereby retained. 8 Reconsideration having been denied by respondent lower court under its order of September 28, 1971, petitioners instituted in the Court of Appeals an action for certiorari with preliminary injunction under date of September 20, 1971, citing respondent Gonzales' conflicting interests as special administrator and as "interested buyer ... persisting in objecting to the sale, in his desire to be the buyer (of the Bitukang Manok property) despite Court approval, thereby causing the estate unnecessary delay and expense to the prejudice of the other heirs" and his interference with and collection of the harvests of the said property duly sold to petitioner Rosalia M. del Carmen, as well as pressing for the appointment instead of

petitioner Serafin Medina, as disinterested heir and next of kin, as administrator of the estate. 9 Respondent court of appeals, however, under its resolution of January 6, 1972, found the "petition insufficient in substance to merit due course" and ordered the dismissal thereof, on the ground "(1) that it is not disputed that the lower court has jurisdiction to appoint respondent Beda J. Gonzales as special administrator; (2) that petitioners merely allege that the lower court had gravely abused its discretion without any prima facie showing to this effect: (3) considering further that the lower court had considered and resolved herein petitioners' objections to respondent Gonzales' continuation as such administrator, to wit, [quoting the considerations stated in the lower court's order dated July 21, 1971, already quoted hereinabove]; considering, finally, that it is well-settled that the actuations of the trial court should not be disturbed except upon showing of lack of jurisdiction or grave abuse of discretion on the part of the tribunal, involving whimsical and/or capricious exercise of discretion." Their motion for reconsideration of such dismissal having failed, petitioners instituted the present action for review on February 23, 1972. The Court issued on February 29, 1972 a temporary restraining order restraining respondent lower court and respondent Gonzales "from implementing (the lower court's) orders dated February 11, 1971, July 21, 1971 and September 28, 1971 ... and from otherwise interfering in the possession by the petitioner Rosalia M. del Carmen of a property known as "Bitukang Manok" of the intestate estate of the deceased Agustin Medina ... and private respondent ... from interfering in the cultivation and harvests or otherwise disturbing the possession of aforementioned property by said petitioner." Upon the Court's giving due course to the petition per its resolution of March 24, 1972, it ordered the issuance of a writ of preliminary injunction to the same effect upon the posting of an injunction bond of P2,000.00, and such writ was issued on May 29, 1972. Insofar as the petition assails the appointment of respondent Gonzales as special administrator giving rise to the anomalous situation "where in an appealed intestate case to the Court of Appeals (CA-G.R. No. 49439-R, entitled "Intestate Estate of the Deceased Agustin R. Medina; Pastor de Castro, Jr. (now Beda Gonzales) Special Administrator, versus Uldarico Medina and Beda J. Gonzales, Movant's) the appellate and the appellant are one and the same person," the petition is manifestly meritorious and must be granted.The sale to Rosalia of the Bitukang Manok property having been approved and confirmed by respondent lower court over the personal opposition of said respondent on March 6, 1970 which approval he appealed to the Court of Appeals, his subsequent appointment as special administrator of the estate a year later under respondent lower court's order of February 11, 1971 created a clear conflict of interest that could cause grave damage and prejudice to the estate and subject it to unnecessary suits. With specific reference to the Bitukang Manok property as sold by the estate through Gonzales' predecessor as special administrator and confirmed by the lower court, the same has passed to petitioner Rosalia's ownership and possession since the court's confirmation of the sale on March 6, 1970 and the estate makes no further claim against the same but on the contrary has defended the sale and

Rosalia's title thereto as the vendee thereof as against Gonzales' adverse opposition in the appeal brought by Gonzales in his personal capacity. Yet now, as complained of by Rosalia, Gonzales by virtue of his appointment, as special administrator a year later seeks in such other capacity to interfere with her in the harvests of the property purportedly on behalf of the estate when in fact he is going against the official stand of the estate which upholds the sale. It is readily seen thereby that Gonzales has been placed in an unduly favored position where he may use his position as special administrator to favor his personal interests as one interested in the purchase of the property for himself, although he denies obliquely in his brief such personal interest with the statement that "there is no evidence or pleading of record that (he) is interested in the acquisition for himself of the Bitukang Manok property ... and it is a matter of record that having acquired the rights and interests of the majority of the heirs, he had stepped into the shoes of such heirs, hence, his concern and interest to protect the estate, as special administrator" 10 which is to say, to protect his claimed majority interest in the estate, hence his insistence on opposing the sale. Grave prejudice may thus be inflicted by him on petitioner Rosalia's as an heir as well as the other heirs such as petitioner Serafin Medina because of the further delay (13 years now) in their receiving their distributive shares of their father's estate (as against their co-heirs who have sold and assigned their rights and shares in the estate to Gonzales) as well as to Rosalia as buyer because of Gonzales' interference with her enjoyment of the property paid for in full by her since 1970. Hence, the established doctrine that an administrator is deemed unsuitable and should be removed where his personal interests conflict with his official duties, by virtue of the equally established principle that an administrator is a quasi trustee, disqualified from acquiring properties of the estate, 11 and who should be indifferent between the estate and claimants of the property except to preserve it for due administration, and who should be removed when his interest conflicts with such right and duly. 12 As restated by the Court in Lim vs. Dias-Millares, 13 "(I)n this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind of hostility to those immediately interested in the estate.". The Court noted from the questioned order of February 11, 1971 that respondent Gonzales was designated special administrator in replacement of the lower court's clerk of court, Atty. Pastor de Castro, Jr., who had been appointed as such in the earlier order of March 6, 1970. The Court does not look with favor on such practice of clerks of court or other court employees being appointed as administrators of estates of decedents pending settlement before the probate court. The objectivity and impartiality of such clerks of court or other employees so appointed as administrators in discharging their regular functions may be easily compromised by extraneous considerations. Furthermore, because of the administrator's fees and compensation payable to them, it is not inconceivable that self-interest intrudes and consciously or unconsciously, obstacles are placed against the prompt settlement and termination of the proceedings in derogation of the primordial purpose of the law to strive to have the estate settled expeditiously and promptly so that the

benefits that may flow therefrom may be immediately enjoyed by the decedent's heirs and beneficiaries. 14 Probate courts are therefore enjoined to desist from such practice of appointing their clerks of court or other court employees as administrators or receivers of estates or the like. On this consideration (the replacement of the clerk of court) and on the further consideration of the specific and limited powers of special administrators and that their appointment merely temporary and subsists only until a regular administrator is duly appointed (since Rule 80, section 1 provides for the appointment of a special administrator as a caretaker only "when there is delay in granting letters testamentary or of administration by any cause") 15 the Court has resolved to allow the appointment of respondent Gonzales as special administrator to stand, insofar as taking care of the other properties of the estate are concerned, to the exclusion of the Bitukang Manok property already sold by the estate to petitioner Rosalia del Carmen. (The said property shall pertain to said petitioner's possession and enjoyment as the vendee thereof and in the event that the appellate courts find cause to set aside the lower court's confirmation of the sale in her favor in the pending appeal of Gonzales in his personal capacity, then shall be the time for the estate and/or the heirs to reclaim possession of the property upon return to her of the purchase price paid by her). The Court has finally noted that while the estate involved is not large and there seem to be no complicated questions that have impeded its prompt settlement, and notwithstanding the lower court's avowed desire to terminate the proceedings once and for all, the said estate proceedings have been pending now for over thirteen years without the lower court once having appointed a regular administrator in accordance with the Rules of Court to take charge of the settlement thereof and the distribution and partition of the net estate to the heirs entitled thereto. As time and again stated by the Court, while the provisions of the Rules of Court may be deemed directory in nature, "the speedy settlement of the estates of deceased persons for the benefit of creditors and those entitled to residue by way of inheritance or legacy after the debts and expenses of administration have been paid, is the ruling spirit of our probate law" 16 and "courts of first instance should exert themselves to close up estate within twelve months from the time they are presented, and they may refuse to allow any compensation to executors and administrators who do not actively labor to that end, and they may even adopt harsher measures." 17 As in the cited jurisprudence, therefore, respondent lower court is directed to name a suitable person or entity, who is competent and qualified and doesnot suffer from any proscribed conflict of interest, (and preferably upon the common agreement of the heirs, to avoid any further bickerings) as regular administrator charged with the task of accomplishing and terminating the administration of the estate with the utmost reasonable dispatch, with a view to an early distribution of the net estate among the heirs and persons entitled thereto. ACCORDINGLY, the dismissal resolution of the Court of Appeals is hereby modified and in lieu thereof, judgment is entered allowing the appointment of respondent Gonzales special administrator to stand, insofar as taking care temporarily of the

other properties of the estate are concerned, but to the exclusion of the Bitukang Manok property previously sold by the estate to petitioner Rosalia M. del Carmen, who is entitled to the enjoyment of said property as the vendee thereof. The writ of preliminary injunction heretofore granted is hereby ordered liftedexcept as to the portion thereof enjoining private respondent from interfering in the cultivation and harvests or otherwise disturbing the possession of the Bitukang Manok property by petitioner Rosalia M. del Carmen which is hereby made permanent. Respondent lower court is ordered to implement the above directive of this Court to name a suitable person as regular administrator charged with the task of accomplishing and terminating the administration of the estate with the utmost reasonable dispatch and to submit a report of his action thereon to the Court within thirty (30) days from notice of entry of this judgment. Without pronouncement as to costs. SO ORDERED. Baluyut vs. CA Dalisay vs. Consolacion Petition for certiorari and prohibition impugning the order of respondent court of August 16,1976 removing petitioner as judicial administrator in Special Proceeding No. 1986, Court of First Instance of Davao Branch II, the Instestate Estate of Amado Dalisay y Bangoy, and the order denying reconsideration thereof. According to the allegation of the petition filed below, Amado Dalisay y Bangoy died on September 1, 1975 in Davao City; he was a bachelor without descendants or ascendants, whether legitimate or otherwise apparently, without any forced heir; he left personal and real properties worth about One Million (P1,000,000) Pesos; and he died intestate. The petition prayed for the issuance of letters of administration to the Clerk of Court Atty. Eriberto A. Unson. After due notice and hearing, respondent judge selected and appointed petitioner from among several nominees of the parties, as the judicial administrator of the estate. Aniceto S. Dalisay, herein private respondent, claiming to be the nearest of kin of the deceased, moved for reconsideration, but His Honor denied said motion holding inter alia that:t.hqw ... upon its finding that, of all the would be administrators herein recommended, Facundo Dalisay appears to be the most qualified and suitable in that he not only enjoyed the confidence of the decedent, but also because up to the death of the latter, he appeared to have been managing and overseeing the affairs of the estate and therefore is in a position to better handle the preservation of the entire estate for the estate. (Annex "B", Order, March 8, 1976)

Corresponding letters of administration were accordingly issued to petitioner on March 15, 1976. An attempt of private respondent to appeal from said appointment was later withdrawn. Because certain properties happened to be in the possession of herein private respondent, petitioner moved for delivery thereof to him but this motion was denied by the vacation judge then acting in place of herein respondent judge. Apparently, respondent Aniceto Dalisay must have submitted some kind of inventory at least of the properties in his possession, for on May 31, 1976, respondent judge issued the following order: t.hqw The inventory submitted by Aniceto Dalisay shows that a promissory note was executed by Facundo Dalisay on August 18, 1973 with the information that there is no record of payment. IN VIEW WHEREOF, Facundo Dalisay is hereby directed to appear before this Court on June 10, 1976 at 8:30 A.M. to explain and produce receipts of payment of said promissory note if there is any in his possession. SO ORDERED. (Annex "H", p. 36, Record). Then on June 14, 1976, H-is Honor issued another order, which is self- explanatory, thus: t.hqw This refers to the Order of the Court dated May 31, 1976, requiring Facundo Dalisay to appear, and explain or produce receipts of payment for the promissory note in the amount of P10,000.00 which he executed in favor of the late Amado Dalisay on August 18, 1973, which appeared in the reports submitted by Aniceto Dalisay per Order of this Court. In the hearing, Facundo Dalisay admitted that he signed the promissory note (Exhibit "C" Motion-Facundo Dalisay) after the execution of the Deed of Sale (Exhibit "A" Motion-Facundo Dalisay) of 2 motor vehicles in his favor. Facundo Dalisay further admitted that he was not able to pay the installments in the manner set forth in the promissory note but he was able to pay it all. When asked to produce any receipt of the payments he made, Facundo Dalisay claimed that he did not get any receipt, because he and the late Amado Dalisay are like brothers. If this is so, then why did the late Amado Dalisay require him to sign a promissory note? Again, if the claim of Facundo Dalisay is true since the Deed of Sale stated that the consideration was already paid, why did not the late Dalisay return the promissory note to him, gratis et amore, or after he (Facundo Dalisay), had fully paid the same,

In the face of the, record, the explanation of Facundo Dalisay does not merit any serious consideration. WHEREFORE, Facundo Dalisay is hereby directed to pay the intestate estate of Amado Dalisay the sum of Ten Thousand (P10,000.00) Pesos within a period of sixty (60) days from receipt of this order. SO ORDERED. (Annex "1", pp. 37-38, Record). Petitioner asked for reconsideration of the foregoing order, explaining that he had already paid the amount in question but since he "was precluded from testifying" thereon under the prohibition against testimony of survivors, he proposed that he be allowed to pay the same in monthly installments of P500.00. To this motion, respondent countered with a motion asking that petitioner "be removed or allowed to resign" because his failure to pay "may be considered as evidence of abuse of trust and confidence." (Annex K of petition). Petitioner filed a rejoinder, Annex L of the petition, contending that there was no legal ground for his removal. Resolving the incident, His Honor relieved petitioner as judicial administrator reasoning out thus: t.hqw The deceased Amado Dalisay as the preliminary record of the case will show, left a considerable estate, consisting principally of incomeproducing urban and agricultural lands, with some personal properties. In considering the appointment of a judicial administrator, this Court took into account that the said person must be a man of utmost integrity. Primarily cause of the full trust and confidence that the deceased had apparently shown on the face of the Special Power of Attorney dated August 15, 1963 to Facundo Dalisay and of the Affidavit dated June 2, 1974, he was appointed by this Court as judicial administrator. It is sad to state that administrator Facundo Dalisay did not measure up to the standard of integrity and character the Court required and expected of him. Due to the sizeable and valuable estate with considerable income, the judicial administrator must have a character to resist temptation for personal gain which is open to him in such a position. He must therefore be, "like Ceasar's Wife above suspicion." His explanation stated in the aforestated motion for reconsideration that he "never denied his obligation under the promissory note but claimed payment," is a posture, under the circumstances shown during the hearing, that does not speak well of the character expected of a judicial administrator. Thus, under the said circumstances as shown during the hearing, administrator Facundo Dalisay appears to be unsuitable for the

position as judicial administrator and his continuance in the position would work to the disadvantage of the said estate. Coupled with his account with the estate in the Amount of P10,000.00, his relief from the position is necessary. (Annex "N", pp. 47-48, Record). It is the position of petitioner that in so relieving him of his position as judicial administrator, respondent acted in grave abuse of discretion. He points out that it was actually he who revealed the existence of the promissory note and this allegation is not denied by respondents and that if his claim that he has already paid the amount in question has not convinced the court, it cannot be said that it is so entirely and totally incredible that it could be considered as justifying His Honor's conclusion that petitioner has not lived or measured up to the standard of integrity and character of a judicial administrator. On the other hand, respondent posits that petitioner, not being in any way related to the deceased, was appointed merely in the exercise of the court's discretion and cannot therefore claim any "proprietary and/or pecuniary right to insist in administering the properties now under custodia legis." In other words, the point raised is that respondent judge should also have wide discretion in removing him. Before passing on such conflicting claims of the parties, it may be mentioned here that in a motion dated May 10, 1979, private respondent prays that he "be allowed to file a motion with the probate court for removal of Facundo A. Dalisay as administrator on grounds different from the ground upon which he was relieved by the probate court." It is alleged in said motion that: t.hqw III Private respondent Aniceto S. Dalisay would like to file a motion with the Probate Court for removal of Facundo A. Dalisay as administrator for acts committed prior and subsequent to his relief as administrator by the Probate Court, grounds different from the ground upon which he was removed by the Probate Court, hoping that with two cases pending against him, the termination of one will bring about his early removal as Administrator. But because of the temporary restraining order issued by this Honorable Court enjoining the respondent Judge from further proceeding with Special Case No. 1986, leave of this Honorable Court is necessary. The following are some of the grounds upon which he will predicate the motion. IV Facundo A. Dalisay neglected to perform an order of the Court and duties expressly provided by the Rules of Court. These are grounds for removal of administrator pursuant to Section 2, Rule 82, Rules of Court. In the order of the Probate Court dated June 27, 1977, the last paragraph thereof states: t.hqw

"The judicial administrator is hereby warned that disbursement of any nature without prior approval of the Court shall be chargeable on his personal account." A xerox copy of the order of the Probate Court dated October 13, 1977, quoting the order dated June 27, 1977, is enclosed herewith. V From the above-quoted order, leave of court is necessary before Facundo A. Dalisay makes any disbursement, otherwise the same is chargeable to him. VI It appears from the account of administrator Facundo A. Dalisay from March 16, 197 7 to March 15, 1978, and March 16, 1978 to March 15, 1979, submitted to the Probate Court, that he gave cash advances to himself, his bookkeeper and Atty. Primo O. Orellan, his counsel. in the total amount of P22,064. 10 without authority from the Probate Court and although no fees have yet been allowed them by the said court. He gave himself a monthly allowance of P500.00 and Atty. Orellan P300.00. VII Under Section 1, Rule 85, Rules of Court, the administrator is accountable for the. income of the estate. Facundo A. Dalisay failed to collect P21,755.03 from five (5) tenants from Coronon, Sta. Cruz, Davao del Sur, representing the shares of the estate from copra; P8,917.11 from two (2) lessees from Panabo, Davao del Norte, and Barrio Lasang Licanan, Davao City, representing the share of the estate from ramie, and P33,600.00 from two (2) lessees at Binatan, Digos, Davao del Sur, and Sirawan, Sta. Cruz, Davao del Sur, representing unpaid rentals from 35-1/2 hectares of agricultural lands as shown in his annual accounts from March 16, 1977 to March 15, 1978, and March 16, 1978 to March 15, 1979 submitted to the Probate Court. VIII As also shown in the said annual accounts, Facundo A. Dalisay has not been collecting rentals from the residential and/or commercial lots situated at Claro M. Recto Street, Davao City, belonging to the estate, occupied by him, his counsel Atty. Primo O. Orellan, his brother and relatives-in-laws of the latter, and his sister. IX

Facundo A. Dalisay failed to protect the estate from spurious claims. In fact, he was biased in favor of, if not in connivance with, some claimants. X Facundo A. Dalisay padded his expenses for travel and inspection as shown in his annual accounts from March 15, 1977 to .March 16, 1979. XI Facundo A. Dalisay committed perjury when he testified in court on March 29, 1979, during the hearing of the claims of Desiderio Dalisay that he does not know Aniceto S. Dalisay. (Pp. 5154, Vol. II, Record), The Court is of the considered view that if the foregoing allegations are sufficiently substantiated, after appropriate proceedings, the removal of petitioner would be legally justified. Therefore, rather than insist on the ground relied upon by His Honor in his order under review, which to Us appears to be quite flimsy, considering that the mere fact that an administrator happens to owe money to the decedent is not in itself a ground for his removal, and in tills case the evidence does not seem indubitable that petitioner's claim of payment was made in bad faith or in an obvious attempt to defraud the estate, it would be fairer for all concerned for respondents to proceed against petitioner on the basis of the above-quoted charges against him. in this connection, it is to be noted that in the considerations of His Honor's order of June 14, 1976 herein above earlier quoted, it is not definite that petitioner's explanation was malicious and inherently unfounded. In any event, the petitioner has not refused to pay; he only asked for some liberality so he could pay in installments. Surely, such proposal could not have converted him into a debtor in bad faith. The point of integrity raised by respondent court appears a little harsh. Otherwise stated, We find the ground for which petitioner has been removed to be rather precipitate. From which, it results that the orders herein assailed constitute grave abuse of discretion and should be set aside. Accordingly, the petition is granted and the orders mentioned at the outset of this decision are hereby set aside, without prejudice to respondent court acting, as the facts and the law may warrant, on the new move of private respondent for the removal of petitioner. The restraining order heretofore issued is hereby lifted and respondent court is now free to act on all the incidents for which leave of this Court is being sought in various motions to that end. Costs against respondent. Uy vs. CA Petitioner assails the August 20, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 72678,1 affirming the January 22, 2002 Order of the Regional Trial Court, Branch 52 of Bacolod City in Special Proceedings No. 97-241, 2 as well as the April 29, 2005 Resolution denying the motion for reconsideration. 3

The facts of the case show that Jose K.C. Uy (Deceased) died intestate on August 20, 1996 and is survived by his spouse, Sy Iok Ing Uy, and his five children, namely, Lilian S. Uy, Lilly S. Uy, Livian S. Uy-Garcia , Lilen S. Uy and Wilson S. Uy (Petitioner). On February 18, 1997, Special Proceedings No. 97-241 was instituted and Lilia Hofilea was appointed as special administrator of the estate of the deceased. Petitioner moved to reconsider the order appointing Lilia Hofilea as special administrator with prayer that letters of administration be issued to him instead. 4 On June 9, 1998, Judge Ramon B. Posadas revoked Lilia Hofileas appointment as special administrator and denied her petition to be appointed as regular administrator. Meanwhile, letters of administration were granted to petitioner, who took his oath of office as administrator on June 23, 1998. On February 17, 1999, Johnny K. H. Uy (Private Respondent) filed a motion to intervene, praying that he be appointed as administrator of the estate in lieu of petitioner. He alleged that he is the brother and a creditor of the deceased, and has knowledge of the properties that should be included in the estate. The trial court initially denied private respondents motion to intervene, 5 but on March 16, 2000,6 it reconsidered its earlier order and appointed private respondent as co-administrator of the estate. Petitioners motion for reconsideration was denied. Petitioner then moved that private respondent bring into the estate properties belonging to the deceased, which motion was granted by the trial court. Not satisfied with the compliance of private respondent, petitioner reiterated his motion for removal of the former as co-administrator, but the same was denied. The trial court found that private respondent substantially complied with the order directing him to bring into the estate properties owned by or registered in the name of the deceased not subject of any adverse claim or controversy when he listed the alleged properties suspected to be concealed, embezzled or conveyed away by the persons named therein. Thus, it found no cogent reason to remove private respondent as co-administrator.7 Thereafter, petitioner appealed to the Court of Appeals by way of a petition for certiorari which however, dismissed the petition. The Court of Appeals held that the refusal of the trial court to remove private respondent as co-administrator of the estate is neither an error of jurisdiction nor a grave abuse of discretion; that the appointment of private respondent was justified; that the order of preference under Section 6 of Rule 78 of the Rules of Court does not rule out the appointment of co-administrators; that the institution of a case for annulment of title and reconveyance against respondent does not justify private respondents removal as co-administrator. Petitioners motion for reconsideration was denied, hence, this petition on the following grounds:

WHETHER OR NOT THE COURT OF APPEALS AND THE RESPONDENT REGIONAL TRIAL COURT HAVE ACTED WITHOUT JURISDICTION OR IN GRAVE ABUSE OF THEIR DISCRETION TANTAMOUNT TO LACK OF JURISDICTION (sic), IN VIOLATION [OF] THE ESTABLISHED AND ACCEPTED RULE OF LAW AND IN COMPLETE DISREGARD OF SUBSTANTIAL JUSTICE AND EQUITY IN APPOINTING A CO-ADMINISTRATOR OF AN ESTATE (IN THE PROCESS OF SETTLEMENT) WHERE THERE IS AN INCUMBENT ADMINISTRATOR WHOSE APPOINTMENT IS FIRM, FINAL, IMPLEMENTED AND INAPPEALABLE, AND WHICH (sic) APPOINTMENT HAS NOT BEEN CANCELLED, RECALLED, REVOKED OR RESCINDED BY APPOINTING, AT THAT, A PERSON (a) ALIEN TO THE ESTATE OF THE DECEASED, WITH VARIOUS SERIOUS INTERESTS (ACTUAL JUDICIAL CONTROVERSIES) IN CONFLICT WITH THOSE OF THE ESTATE, AND (B) WITH NO PROPER INTEREST IN THE ESTATE AND WHO IS PERSONALLY UNFIT, UNSUITABLE, UNWORTHY, UNDESERVING OF THE TRUST INHERENT IN THE POSITION OF CO-ADMINISTRATOR OF THE ESTATE, AND UNACCEPTABLE AND REPULSIVE TO THE FAMILY OF THE LEGAL HEIRS OF THE DECEASED; AND THEN REFUSING TO REMOVE HIM AS CO-ADMINISTRATOR AFTER IT WAS SHOWN THAT HIS REPRESENTATIONS ON WHICH HE WAS APPOINTED CO-ADMINISTRATOR WERE EMPTY AND FALSE; AND WHETHER OR NOT THE RESPONDENT COURT OF APPEALS DENIED PETITIONER HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND HIS RIGHT TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES BY NOT ADDRESSING AND RESOLVING THE ISSUES BROUGHT TO IT BY THE PETITIONER, MORE ESPECIFICALLY THE ISSUES OF (1) RES JUDICATA AND STABILITY OF THE JUDGMENT APPOINTING THE PETITIONER HEREIN AS JUDICIAL ADMINISTRATOR OF THE ESTATE IN QUESTION, AND (2) DECIDING THE ISSUES INVOLVED IN A MANNER CONTRARY TO THE RULES SET DOWN BY THE SUPREME COURT ON THE MATTER. 8 The main issues for resolution are: (1) whether the trial court acted with grave abuse of discretion in appointing private respondent as co-administrator to the estate of the deceased; and (2) whether the Court of Appeals deprived petitioner of his constitutional right to due process and his right to petition the government for redress of grievances by not addressing the issues raised before it. The petition is without merit.

Petitioner asserts that his appointment as a regular administrator is already final, unassailable or res judicata; that the inferior court has no authority to re-open the issue of the appointment of an administrator without removing the incumbent administrator; that private respondent is not only alien to the estate, but has a conflict of interest with it; that the trial courts appointment of private respondent as co-administrator constitutes grave abuse of discretion tantamount to lack of jurisdiction. There is no question that petitioner was appointed as regular administrator of the estate of the deceased Jose K. C. Uy on June 9, 1998. However, private respondent in his motion to intervene sought to be appointed as administrator as he is not only the brother of the decedent but also a creditor who knows the extent of the latters properties. Thus, the trial court, while retaining petitioner as administrator, appointed private respondent as co-administrator of the estate. The main function of a probate court is to settle and liquidate the estates of deceased persons either summarily or through the process of administration. 9 In the case at bar, the trial court granted letters of administration to petitioner and thereafter to private respondent as co-administrator. Under Section 6, Rule 78 of the Rules of Court, the preference to whom letters of administration may be granted are as follows: SEC. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. The order of preference in the appointment of an administrator depends on the attendant facts and circumstances. 10 In Sioca v. Garcia,11 this Court set aside the order of preference, to wit: It is well settled that a probate court cannot arbitrarily and without sufficient reason disregard the preferential rights of the surviving spouse to the administration of the estate of the deceased spouse. But, if the person enjoying such preferential rights is unsuitable, the court may appoint another person. The

determination of a persons suitability for the office of administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and such judgment will not be interfered with on appeal unless it appears affirmatively that the court below was in error. x x x Unsuitableness may consist in adverse interest of some kind or hostility to those immediately interested in the estate. x x x.12 (Emphasis supplied, citations omitted) In the instant case, the order of preference was not disregarded by the trial court. Instead of removing petitioner, it appointed private respondent, a creditor, as coadministrator since the estate was sizeable and petitioner was having a difficult time attending to it alone. In fact, petitioner did not submit any report regarding the estate under his administration. In its March 16, 2000 Order, 13 the trial court found thus: Going over all the arguments of the parties, after hearing has been set relative thereto, this Court has observed that indeed the judicial administrator had not submitted to the Court any report about the Estate under his administration except those involving the cases he filed and/or intervened in other branches. This may be due to his being inexperienced, but this fact will not be reason enough to remove him from the administration of the Estate as Judicial Administrator thereof. However, considering that the Intervenor is claiming to be the patriarch of the Uy family and who claims to have enormous knowledge of the businesses and properties of the decedent Jose K.C. Uy, it is the feeling of this Court that it will be very beneficial to the Estate if he be appointed co-administrator (without removing the already appointed Judicial Administrator) of the Estate of Jose K.C. Uy, if only to shed more light to the alleged enormous properties/businesses and to bring them all to the decedents Estate pending before this Court. 14 A co-administrator performs all the functions and duties and exercises all the powers of a regular administrator, only that he is not alone in the administration.15 The practice of appointing co-administrators in estate proceedings is not prohibited. In Gabriel v. Court of Appeals,16 this Court reaffirmed that jurisprudence allows the appointment of co-administrators under certain circumstances, to wit: Under both Philippine and American jurisprudence, the appointment of coadministrators has been upheld for various reasons, viz: (1) to have the benefit of their judgment and perhaps at all times to have different interests represented; (2) where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased; (3) where the estate is large or, from any cause, an intricate and perplexing one to settle; (4) to have all interested persons satisfied and the representatives to work in harmony for the best interests of the estate; and (5) when a person entitled to the administration of an estate desires to have another competent person associated with him in the office.17 (Emphasis supplied) Thus, petitioners argument that the trial court cannot re-open the issue of the appointment of an administrator without removing the incumbent administrator is

erroneous. In probate proceedings, considerable latitude is allowed a probate court in modifying or revoking its own orders as long as the proceedings are pending in the same court and timely applications or motions for such modifications or revocations are made by the interested parties. 18 In the instant case, the estate of the deceased has not yet been settled and the case is still within the jurisdiction of the court. The foregoing discussion renders moot the second issue raised by petitioner. We see no cogent reason to set aside the findings of the Court of Appeals, because its findings of fact is conclusive and binding on the parties and not subject to review by this Court, unless the case falls under any of the exceptions to the rule. 19 WHEREFORE, the petition is DENIED. The August 20, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 72678 affirming the January 22, 2002 Order of the Regional Trial Court in Special Proceedings No. 97-241, as well as the April 29, 2005 Resolution denying the motion for reconsideration are AFFIRMED. 1avvphil.net SO ORDERED.